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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2111 OF 2009

Mahinder Dutt Sharma …. Appellant

versus

Union of India & others …. Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. By an office memorandum dated 26.10.1995,  departmental  action  

was  initiated  against  the  appellant  who  was  then  holding  the  post  of  

Constable.  He was then posted in the IInd Battalion, Delhi Armed Police,  

Delhi.  The aforesaid action was initiated against the appellant on account  

of his continuous absence from duty with effect from 18.1.1995.  He was  

served with absentee notice dated 25.5.1995 on 10.6.1995,  wherein he  

was required  to resume his  duty.   Failing which,  he was informed that  

departmental  action would be taken against  him.  The appellant neither  

resumed his duties,  nor responded to the above absentee notice dated  

25.5.1995.   He was thereupon,  issued a second absentee notice dated  

24.8.1995, which was served on him on 10.9.1995.  It is not a matter of  

dispute,  that after initiating the above departmental  proceedings against  

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the appellant, he resumed his duties on 5.12.1995.  It is therefore alleged,  

that his unauthorized and willful absence, extended to a period of 320 days  

18 hours and 30 minutes.

2. Inspector Hari Darshan was appointed as the enquiry officer.  After  

culmination of the departmental proceedings, the enquiry officer arrived at  

the  conclusion,  that  the  presenting  officer  had  been  successful  in  

substantiating  the  charges  leveled  against  the  appellant.   The  above  

enquiry report was furnished to the appellant on 22.3.1996.  Despite being  

required to respond to the same, the appellant did not file any reply.  In the  

absence of any written reply, the appellant was required to appear in the  

“orderly room” on three occasions, for affording him a personal hearing.  

He ignored all the above notices, by not reporting for personal hearing.

3. Finding his willful and unauthorized absence from duty intolerable,  

specially in a disciplined force, the punishing authority expressed the view,  

that  not  taking  stern  action  against  the  appellant,  would  create  a  bad  

impression, on the new entrants into police service.  Finding the behaviour  

of  the  appellant  incorrigible,  the  Deputy  Commissioner  of  Police,  IInd  

Battalion,  Delhi  Armed  Police,  Delhi  by  an  order  dated  17.5.1996,  

dismissed  the  appellant  from  service,  with  immediate  effect.   In  the  

punishment  order  dated  17.5.1996  the  disciplinary  authority  further  

directed,  that  the  period  of  the  appellant’s  absence  from 18.1.1995  to  

4.12.1995 (of 320 days, 18 hours and 30 minutes) would be treated as  

leave without pay.

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4. In the order of dismissal itself, the appellant was informed, that he  

could prefer an appeal  (against  the punishment order dated 17.5.1996),  

within 30 days, before the Senior Additional Commissioner of Police, Delhi.  

The  instant  information  was  furnished  to  the  appellant  in  terms  of  the  

procedure contemplated under the Delhi Police (Punishment and Appeal)  

Rules, 1980.  The pleadings before this Court reveal,  that the appellant  

received  the  punishment  order  dated  17.5.1996  on  24.5.1996.   It  is  

therefore  apparent,  that  he  could  legitimately  prefer  an  appeal  by  

23.6.1996.  The appellant factually preferred an appeal, more than five and  

half  years  after  passing  of  the  impugned  order,  on  21.2.2002.   The  

Additional Commissioner of Police, Delhi Armed Police, Delhi, dismissed  

the appeal preferred by the appellant vide an order dated 13.6.2002, on  

the ground that the same was badly time barred.

5. Dissatisfied with the order of punishment dated 17.5.1996, as also  

the appellate order dated 13.6.2002, the appellant approached the Central  

Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to  

as, the Tribunal),  by filing Original Application no. 3132 of 2002.  In the  

Original  Application  preferred  by  him,  the  appellant  narrated  various  

reasons  on  account  of  which  delay  in  filing  the  appeal  had  occurred  

(against  the  punishment  order  dated  17.5.1996)  ought  to  have  been  

condoned.  Firstly, it was submitted that his wife was suffering from cancer.  

Secondly, the appellant asserted that he was involved in a criminal case,  

and therefore, was wholeheartedly attending to the same.  Thirdly, it was  

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stated that his brother had died, and thereafter,  his father and brother’s  

wife had also passed away.  Lastly, it was submitted that he was suffering  

from hypertension, as also, diabetes, which added to the reasons already  

expressed hereinabove (for not being able to prefer the appeal within the  

period of limitation).

6. Since the events referred to by the appellant, as have been narrated  

in the foregoing paragraph, had taken place prior to the year 2000, the  

Tribunal found no justification in the explanation tendered by the appellant,  

for  condoning  delay  in  preferring  the  appeal  filed  against  the  order  of  

punishment  dated  17.5.1996,  on  21.2.2002.   Despite  the  above  

conclusion,  the  Tribunal  examined  the  veracity  of  the  impugned  order  

dated 17.5.1996, on the basis of the submissions advanced on behalf of  

the  appellant  and arrived  at  the  conclusion,  that  the same required  no  

interference.

7. Dissatisfied with the order passed by the Tribunal on 14.8.2003, the  

appellant preferred Writ Petition no. 10959 of 2004 before the High Court  

of Delhi at Delhi (hereinafter referred to as, the High Court).  The appellant,  

however, withdrew the aforesaid writ petition on 15.10.2004, with liberty to  

seek compassionate allowance.   The above order  dated 15.10.2004,  is  

being extracted hereunder:-

“Learned  counsel  for  the  petitioner,  on  instructions,  prays  for  withdrawal  of  this  petition because petitioner  wants  to take some  appropriate remedy for grant of compassionate allowance.

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Dismissed with liberty to petitioner to seek appropriate remedy for  grant of allowance.”

8. On 22.3.2005,  the  appellant  moved  a  representation  to  the  Joint  

Commissioner  of  Police,  Delhi  Armed  Police,  Delhi,  seeking  

compassionate  allowance  under  Rule  41  of  the  Central  Civil  Services  

(Pension)  Rules,  1972  (hereinafter  referred  to  as,  the  Pension  Rules,  

1972).   Rule  41  of  the  Rules  aforementioned,  is  being  extracted  

hereunder:-

“41. Compassionate allowance

(1) A  Government  servant  who  is  dismissed  or  removed  from service shall forfeit his pension and gratuity:

Provided that the authority competent to dismiss or  remove him from service may, if the case is deserving  of  special  consideration,  sanction  a  compassionate  allowance  not  exceeding  two-thirds  of  pension  or  gratuity or both which would have been admissible to  him if he had retired on compensation pension.

(2) A  compassionate  allowance  sanctioned  under  the  proviso to sub-rule (1) shall not be less than the amount  of  Rupees  three  hundred  and  seventy-five  per  mensem.”

In his above representation dated 22.3.2005 the appellant asserted, that  

he  had  about  24  years  of  unblemished  service  during  which  he  was  

granted  34  good  entries,  including  2  commendation  rolls  awarded  by  

Commissioner  of  Police,  4  commendation  certificates  awarded  by  the  

Additional Commissioner of Police and 28 commendation cards awarded  

by the Deputy Commissioner of Police.  He also placed reliance on his  

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discharge  certificate,  whereunder  the  character  of  the  appellant  was  

described as ‘very good’.

9. By an order dated 25.4.2005, the Deputy Commissioner of Police,  

IInd Battalion, Delhi Armed Police, Delhi, rejected the prayer made by the  

appellant for the grant of compassionate allowance.  The operative part of  

the  order  dated  25.4.2005,  rejecting  the  appellant’s  claim  for  

compassionate allowance is being extracted hereunder:-

“4. As regards your claim for compassionate allowance, you do  not have unblemished record because you have been found  absent on several occasions and your period was treated as  ‘Leave  Without  Pay’.   You  were  also  censured  during  the  tenure  of  your  service  and  certain  other  punishments  also  exist in your service record.  Hence due to indifferent service  record and the facts of the case no compassionate allowance  can be granted.”

10. Dissatisfied  with  the  order  dated  25.4.2005,  the  appellant  again  

approached the Tribunal by filing Original Application no. 1581 of 2005,  

seeking annulment of the order dated 25.4.2005, as also, the directions of  

the authorities, not to release compassionate allowance to the appellant.  

The appellant’s claim was, however, declined by the Tribunal vide an order  

dated 28.2.2006.   It  is necessary in the facts and circumstances of the  

case, as also, for an effective determination of the claim of the appellant  

under  Rule  41  of  the  Pension  Rules,  1972  to  extract  hereinbelow,  the  

manner  and  the  reasoning  which  had  weighed  with  the  Tribunal  for  

rejecting the claim of the appellant.  Accordingly, the operative part of the  

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relevant  consideration at  the hands of  the Tribunal  is being reproduced  

hereunder:-

“7. Reading of the above rules show that in normal circumstances  when a Government  servant  is  removed or  dismissed from  service,  he  forfeits  his  past  service,  including  pension  and  gratuity but it is only by way of an exception that a proviso is  added in Rule 41 which states, the competent authority may, if  the  case  is  deserving  of  special  consideration,  sanction  a  compassionate allowance.  From this, it would further emerge  that  compassionate  allowance  can  be  given  only  in  exceptional  circumstances  where  case  is  found  to  be  deserving of special consideration.  The person, who has to  decide, whether it is a deserving case or not, is the competent  authority.  Under the Government of India’s decisions, poverty  is  not  an  essential  condition  precedent  to  the  grant  of  a  compassionate  allowance,  but  special  regard  is  also  occasionally  paid to the fact  that the officer  has a wife and  children dependent upon him, though the factor by itself is not,  except  perhaps  in  the  most  exceptional  circumstances,  sufficient for the grant of a compassionate allowance.  In other  words, there has to be some mitigating factor which makes the  competent  authority  to  come  to  the  conclusion  that  even  though  the  person  has  to  be  dismissed  or  removed  from  service but looking at the special mitigating circumstances, the  person  may  be  given  compassionate  allowance.   It  goes  without saying when it is an exception, it cannot be given as  matter of course in every case where Government servant has  been dismissed or removed, otherwise it will defeat the main  rule itself which can never be the intention of the legislature.  Provisos are added to deal with a particular situation only to  avoid undue hardship  to a deserving case where mitigating  circumstances are existing.

8. With this background, if the facts of this case are examined,  as  stated by the  applicant  in  his  representation,  I  find  only  three grounds have been taken by the applicant namely, he  had put in 24 years of unblemished service, there were three  deaths  in  the  family  after  he  was  dismissed  and  he  has  become a diabetic patient and is in a pathetic condition.  His  ground for  condoning the delay  was not  considered by the  appellate authority in the right spirit.  Let me examine all these  three  points.   When applicant  had challenged his  dismissal  and appellate order before the Tribunal in OA 3132/2002, the  question of delay was specifically dealt with by the Tribunal in  Para 8 (Page 19 to 22).  It was specifically stated as undedr:-

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“On  this  count,  we  need  not  prove  further  in  detail.  Even if we accept the contention of the applicant to be  gospel  truth,  still  he  has to  explain  each day’s  delay  after the period of limitation expired.   As per his own  showing,  all  these  unfortunate  incidents  took  place  before the year 2000.   He was also acquitted by the  Court of competent jurisdiction in the same year.  Still  he did not deem it necessary to file an appeal within the  period of limitation from that date.”

His contention was thus rejected.

9. In view of above, the contention that there was a valid ground  for not filing the appeal within time cannot even be allowed to  be agitated again as the judgment of Tribunal has not been  upset  by  Hon’ble  High Court.   Similarly,  applicant  had also  challenged before Tribunal  the use of  word “incorrigible”  for  him by the authorities but even that contention was rejected by  the  Tribunal.   The  order  dated  14.8.2003  passed  by  the  Tribunal  in  O.A.  3132/2002  was  further  carried  by  the  applicant to Hon’ble High Court of Delhi by filing Writ Petition  no.  10959/2004  but  the  said  order  of  Tribunal  was  not  interfered with.  On the contrary, the order passed by Hon’ble  High Court reads as under:-

“Learned  counsel  for  the  petitioner,  on  instructions,  prays for withdrawal of this petition because petitioner  wants  to  take  some  appropriate  remedy  for  grant  of  compassionate allowance.

Dismissed with liberty to petitioner to seek appropriate  remedy for grant of this allowance.’”

which clearly shows that the judgment of Tribunal has attained  finality.   Counsel  for  the  applicant  submitted  that  the  writ  petition  was withdrawn on directions  from the Hon’ble  High  Court, but I cannot with this contention because words cannot  be added in the order passed by Hon’ble High Court.  Order  has  to  be  read,  as  it  is,  which  shows  that  applicant  had  withdrawn  the  case  because  he  wanted  to  take  some  appropriate remedy for grant of compassionate allowance.  In  other  words,  the  order  passed  by  the  Tribunal  was  not  interfered  with  and  was  upheld.   Therefore,  in  these  circumstances,  applicant  cannot  be  allowed  to  state  to  the  contrary, therefore, the contention that there was valid reason  for not filing the appeal in time or that he had unblemished  record is rejected.  Since the findings that he was found to be  incorrigible in this case when he was dismissed, whereas the  

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foremost  requirement  for  grant  of  compassionate  allowance  under  Rule  41  of  the  CCS  (Pension)  Rules  is  that  of  extenuating circumstances.

10. Apart from it, applicant remained unauthorizedly absent on six  occasions, as reflected in counter affidavit:

“1. 3 days leave without pay w.e.f. 30.9.79 to 2.10.79  vide O.B. no. 656/80.

2. 66  days  leave  without  pay  w.e.f.  15.10.79  to  19.12.79 vide O.B. no. 656/80.

3. 19 days leave without pay w.e.f. 6.2.81 to 24.2.81  vide  order  no.  15417-21/ASIP/North  dated  8.9.1981.

4. 20  days  leave  without  pay  w.e.f.  29.8.84  to  17.9.84 vide O.B. no. 682/85.

5. 83  days  leave  without  pay  w.e.f.  20.9.84  to  11.12.84 vide O.B. no. 682/85.

6. 110  days  leave  without  pay  w.e.f.  3.1.96  to  22.4.96  vide  order  no.  2934-37/ASIP-II,  DAP,  dated 22.5.96.”

Applicant has not even bothered to controvert it, which means  these averments stand admitted in law.  These facts clearly  show that applicant cannot be said to be having unblemished  record as stated by him, therefore, this contention also has to  be rejected.  Applicant was dismissed in 1996.  If after 9 years  applicant  states he is in a pathetic  condition,  he cannot  be  allowed to claim compassionate allowance in 2005 w.e.f. 1996  i.e. date of his dismissal, that too with interest.  This request is  definitely an after thought, nothing more need be said on this  point.   If  such  a  contention  is  allowed,  employees  will  not  bother  to  maintain  discipline  or  follow  rules  because  they  would  think  ultimately  even if  they  are  dismissed,  they can  always  claim  compassionate  allowance.   Compassionate  allowance cannot be sought as a matter of right unless there  are some exceptional circumstances.

11. According to me, no case has been made out by applicant for  grant of compassionate allowance.”

(emphasis is ours)

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11. Aggrieved  with  the  order  of  the  Tribunal  dated  28.2.2006,  the  

appellant filed Writ Petition no. 14924 of 2006 before the High Court.  The  

High  Court  examined  the  submissions  advanced  on  behalf  of  the  

appellant.   It  dismissed  the  claim  of  the  appellant  for  compassionate  

allowance, on the following consideration:-

“Considering the aforesaid plea, we had directed the petitioner to  file  an  additional  affidavit  to  give  particulars  and  details  of  the  reasons which constrained him to avail leave without pay and to set  out  other  special  circumstances  in  support  of  his  plea  for  compassionate  allowance.   The  additional  affidavit  was  not  filed  within two weeks as directed.  However, further time was granted by  us to the petitioner for filing the additional affidavit vide order dated  11.10.2006.  The additional affidavit that has been preferred by the  petitioner,  unfortunately,  apart  from mentioning in  para 6  that  the  petitioner’s  condition was pathetic  and his  wife has suffered from  cancer  and  that  he  was  apprehending  amputation  of  his  left  leg  below the knee, does not contain any averments with regard to the  various  bereavements  suffered  or  the  illness  of  his  wife  or  the  treatment  thereof  and the respective deaths which came into  the  way of the petitioner from taking legal remedies.  He has not brought  forward  any  extenuating  and  special  circumstances  which  had  continued since then which had prevented him from taking timely  remedies  or  would entitle  him to  compassionate  allowance.   The  medical  certificate  of  the  petitioner  no  doubt  shows  that  he  is  diabetic and under treatment, therefor.  However, it also shows that  the  petitioner  has  been  a  chronic  alcoholic  and  drug  addict.  Considering the aforesaid factors,  while one may sympathize with  the  petitioner’s  present  condition,  we  are  not  satisfied  that  the  petitioner  has  succeeded  in  making  out  a  case  for  grant  of  compassionate  allowance  and  the  discretion  exercised  by  the  authorities cannot be said to have been vitiated by any extraneous  or irrelevant factors.”

(emphasis is ours)

12. We are of the considered view, that the adjudication by the Courts  

below with reference to Rule 41 of  the Pension Rules,  1972,  is clearly  

misdirected.   The  Rule  itself  contemplates,  payment  of  compassionate  

allowance  to  an  employee  who  has  been  dismissed  or  removed  from  

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service.  Under the punishment rules, the above punishments are of the  

severest magnitude.  These punishments can be inflicted, only for an act of  

extreme  wrongdoing.   It  is  on  account  of  such  wrongdoing,  that  the  

employee concerned, has already been subjected to the severest form of  

punishment.  Sometimes even for being incorrigible.  Despite that, the rule  

contemplates sanction of a compassionate allowance of, upto two-thirds of  

the pension or gratuity (or  both),  which would have been drawn by the  

punished employee,  if  he  had retired  on  compassionate  pension.   The  

entire  consideration  upto  the  present  juncture,  by  the  Courts  below,  is  

directly  or  indirectly  aimed  at  determining,  whether  the  delinquency  

committed by the appellant, was sufficient and appropriate, for the infliction  

of the punishment of dismissal from service.  This determination is relevant  

for examining the veracity of the punishment order itself.  That, however, is  

not the scope of the exercise contemplated in the present consideration.  

Insofar  as  the  determination  of  the  admissibility  of  the  benefits  

contemplated under Rule 41 of the Pension Rules, 1972 is concerned, the  

same  has  to  be  by  accepting,  that  the  delinquency  committed  by  the  

punished  employee  was  of  a  magnitude  which  is  sufficient  for  the  

imposition  of  the  most  severe  punishments.   As  in  the  present  case,  

unauthorized and willful absence of the appellant for a period of 320 days,  

has resulted in the passing of the order of dismissal from service.  The  

punishment inflicted on the appellant, has been found to be legitimate and  

genuine, as also, commensurate to the delinquency of the appellant.  The  

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issue now is the evaluation of claim of the punished employee under Rule  

41 of the Pension Rules, 1972.

13. In our considered view, the determination of a claim based under  

Rule 41 of the Pension Rules, 1972, will  necessarily have to be sieved  

through an evaluation based on a series of distinct considerations, some of  

which are illustratively being expressed hereunder:-

(i) Was the act of the delinquent, which resulted in the infliction of the  

punishment  of  dismissal  or  removal  from  service,  an  act  of  moral  

turpitude?   An act  of  moral  turpitude,  is  an act  which has  an  inherent  

quality  of  baseness,  vileness  or  depravity  with  respect  to  a  concerned  

person’s duty towards another, or to the society in general.  In criminal law,  

the phrase is used generally to describe a conduct which is contrary to  

community  standards  of  justice,  honesty  and  good  morals.   Any  

debauched, degenerate or evil behaviour would fall in this classification.

(ii) Was the act of the delinquent, which resulted in the infliction of the  

punishment  of  dismissal  or  removal  from service,  an  act  of  dishonesty  

towards his employer?  Such an action of dishonesty would emerge from a  

behaviour  which  is  untrustworthy,  deceitful  and  insincere,  resulting  in  

prejudice  to  the  interest  of  the  employer.   This  could  emerge  from an  

unscrupulous,  untrustworthy  and  crooked  behaviour,  which  aims  at  

cheating the employer.  Such an act may or may not be aimed at personal  

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gains.  It may be aimed at benefiting a third party, to the prejudice of the  

employer.

(iii) Was the act of the delinquent, which resulted in the infliction of the  

punishment  of  dismissal  or  removal  from  service,  an  act  designed  for  

personal gains, from the employer?  This would involve acts of corruption,  

fraud or personal profiteering, through impermissible means by misusing  

the responsibility bestowed in an employee by an employer.  And would  

include, acts of double dealing or racketeering, or the like.  Such an act  

may or may not be aimed at causing loss to the employer.  The benefit of  

the delinquent, could be at the peril and prejudice of a third party.

(iv) Was the act of the delinquent, which resulted in the infliction of the  

punishment  of  dismissal  or  removal  from service,  aimed at  deliberately  

harming a third party interest?  Situations hereunder would emerge out of  

acts of disservice causing damage, loss, prejudice or even anguish to third  

parties,  on  account  of  misuse  of  the  employee’s  authority  to  control,  

regulate or administer activities of third parties.   Actions of  dealing with  

similar issues differently, or in an iniquitous manner, by adopting double  

standards or by foul play, would fall in this category.

(v) Was the act of the delinquent, which resulted in the infliction of the  

punishment of dismissal or removal from service, otherwise unacceptable,  

for the conferment of the benefits flowing out of Rule 41 of the Pension  

Rules, 1972?  Illustratively, any action which is considered as depraved,  

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perverted, wicked, treacherous or the like, as would disentitle an employee  

for such compassionate consideration.

14. While evaluating the claim of a dismissed (or removed from service)  

employee, for the grant of compassionate allowance, the rule postulates a  

window for hope, “…if the case is deserving of special consideration…”.  

Where  the  delinquency  leading  to  punishment,  falls  in  one  of  the  five  

classifications  delineated  in  the  foregoing  paragraph,  it  would  ordinarily  

disentitle  an  employee  from  such  compassionate  consideration.   An  

employee who falls in any of the above five categories, would therefore  

ordinarily  not be a deserving employee,  for the grant  of  compassionate  

allowance.  In a situation like this, the deserving special consideration, will  

have to be momentous.  It is not possible to effectively define the term  

“deserving special consideration” used in Rule 41 of the Pension Rules,  

1972.  We shall therefore not endeavour any attempt in the said direction.  

Circumstances  deserving  special  consideration,  would  ordinarily  be  

unlimited, keeping in mind unlimited variability of human environment.  But  

surely  where  the delinquency  leveled and proved against  the punished  

employee,  does  not  fall  in  the  realm  of  misdemeanour  illustratively  

categorized in the foregoing paragraph, it would be easier than otherwise,  

to extend such benefit  to the punished employee,  of  course,  subject  to  

availability of factors of compassionate consideration.   

15. We shall now venture to apply the aforesaid criterion, to the facts  

and circumstances of the case in hand, and decipher therefrom, whether  

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the appellant before this Court ought to have been granted compassionate  

allowance under Rule 41 of the Pension Rules, 1972.  The appellant was  

punished by an order dated 17.5.1996 with dismissal from service.  The  

accusations levelled against the appellant were limited to his unauthorized  

and willful absence from service from 18.1.1995 to 4.12.1995 (i.e., for a  

period  of  320  days,  18  hours  and  30  minutes).   The  above  order  of  

punishment also notices, that not taking stern action against the appellant,  

would create a bad impression, on the new entrants in the police service.  

The punishing authority while making a choice of the punishment imposed  

on  the  appellant,  also  recorded,  that  the  appellant’s  behaviour  was  

incorrigible.   Thus  viewed,  there  can  be  no  doubt,  that  the  order  of  

dismissal from service imposed on the appellant was fully justified.  For  

determining the question of  compassionate allowance,  so as to bring it  

within the realm of the parameters laid down in Rule 41 of the Pension  

Rules,  1972,  it  is  first  necessary  to  evaluate,  whether  the  wrongdoing  

alleged against the appellant, was of a nature expressed in paragraph 13  

of the instant judgment.  Having given our thoughtful consideration on the  

above aspect of the matter, we do not find the delinquency for which the  

appellant was punished, as being one which can be described as an act of  

moral turpitude, nor can it be concluded that the allegations made against  

the appellant constituted acts of dishonesty towards his employer.   The  

appellant’s  behaviour,  was not  one which can be expressed as an  act  

designed for illegitimate personal gains, from his employer.  The appellant,  

cannot also be stated to have indulged in an activity to harm a third party  

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interest, based on the authority vested in him, nor was the behaviour of the  

appellant depraved, perverted, wicked or treacherous.  Accordingly, even  

though  the  delinquency  alleged  and  proved  against  the  appellant  was  

sufficient for imposition of punishment of dismissal from service, it does not  

fall in any of the classifications/categories depicted in paragraph 13 of the  

instant  judgment.   Therefore,  the  availability  of  compassionate  

consideration,  even  of  a  lesser  degree  should  ordinarily  satisfy  the  

competent authority, about the appellant’s deservedness for an affirmative  

consideration.

16. We shall  only endeavour to delineate a few of the considerations  

which ought to have been considered, in the present case for determining  

whether  or  not,  the  appellant  was entitled  to  compassionate  allowance  

under Rule 41 of the Pension Rules, 1972.  In this behalf it may be noticed,  

that  the appellant  had rendered about  24 years  of  service,  prior  to his  

dismissal  from service,  vide  order  dated  17.5.1996.   During  the  above  

tenure, he was granted 34 good entries, including 2 commendation rolls  

awarded by Commissioner of Police, 4 commendation certificates awarded  

by  the  Additional  Commissioner  of  Police  and 28  commendation  cards  

awarded by the Deputy Commissioner of Police.  Even though the charge  

proved  against  the  appellant  pertains  to  his  unauthorized  and  willful  

absence from service,  there is nothing on the record to reveal,  that his  

absence from service was aimed at  seeking better  pastures elsewhere.  

No such inference is even otherwise possible, keeping in view the length of  

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service rendered by the appellant.  There is no denial, that the appellant  

was involved, during the period under consideration, in a criminal case,  

from which he was subsequently acquitted.  One of his brothers died, and  

thereafter, his father and brother’s wife also passed away.  His own wife  

was suffering from cancer.  All these tribulations led to his own ill-health,  

decipherable from the fact  that he was suffering from hypertension and  

diabetes.  It is these considerations, which ought to have been evaluated  

by the competent authority, to determine whether the claim of the appellant  

deserved  special  consideration,  as  would  entitle  him  to  compassionate  

allowance under Rule 41 of the Pension Rules, 1972.

17. None  of  the  authorities  on  the  administrative  side,  not  even  the  

Tribunal or the High Court, applied the above parameters to determine the  

claim of the appellant for compassionate allowance.  We are of the view,  

that the consideration of the appellant’s claim, was clearly misdirected.  All  

the authorities merely examined the legitimacy of the order of dismissal.  

And also, whether the delay by the appellant, in filing the appeal against  

the punishment order dated 17.5.1996, was legitimate.  The basis, as well  

as, the manner of consideration, for a claim for compassionate allowance,  

has nothing to do with the above aspects.  Accordingly, while accepting the  

instant  appeal,  we set aside the order  dated 25.4.2005 (passed by the  

Deputy Commissioner of Police, IInd Battalion, Delhi Armed Police, Delhi),  

rejecting  the  prayer  made  by  the  appellant  for  grant  of  compassionate  

allowance.  The order passed by the Tribunal dated 28.2.2006, and the  

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order passed by the High Court dated 13.11.2006, are also accordingly  

hereby set aside.  Having held as above, we direct the competent authority  

to reconsider the claim of the appellant,  for the grant of compassionate  

allowance  under  Rule  41  of  the  Pension  Rules,  1972,  based  on  the  

parameters laid down hereinabove.

18. Allowed in the aforesaid terms.

…..…………………………….J.  (Jagdish Singh Khehar)

…..…………………………….J. (M.Y. Eqbal)

New Delhi; April 11, 2014.

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