IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. SURENDRA MOHAN, J.

W.P. (C) No. 27841 of 2011

Dated this the 31^st day of January, 2012

Head Note:-

Kerala Service Rules, 1959 - Part 3, Rule 5 - Compassionate allowance - Disciplinary proceedings were initiated against Assistant Engineer in the KSEB on the ground of corruption – Criminal appeal is still pending - order removing from service was issued after 8 years of his retirement – Held that the authority to determine whether a particular employee is entitled to be paid compassionate allowance or not is entirely within the discretion of the Government. The said discretion would have to be exercised taking into account all the relevant facts and circumstances of each case in a fair and reasonable manner. It shall not be a decision taken merely on the whims and fancies of the decision making authority. Since Rule 5 confers a power that is coupled with a duty, it has been held that it is incumbent on the authority to act in the particular manner that is stipulated by the Rule. There has been no proper consideration of the petitioner’s request for the grant of compassionate allowance. The Order is bad for non - consideration of relevant materials as well as for consideration of irrelevant materials. Respondent shall consider the request of the petitioner afresh and shall pass appropriate orders thereon in accordance with the principles.

For Petitioner:-

• CHINCY GOPAKUMAR
  

For Respondents:-

• P.M. SANEER
• K.S. ANIL

J U D G M E N T

1. The petitioner is an Assistant Engineer, who has retired from the Electrical Section, Wandoor, on attaining superannuation. Shortly before his retirement, disciplinary proceedings were initiated against the petitioner on allegations of corruption and he was alleged to have accepted bribe. According to the petitioner, he was trapped in a false corruption case by some of his opponents. The Vigilance and Anti Corruption Bureau, Malappuram had registered a case V.C. No. 1/2000 against the petitioner alleging that he had accepted illegal gratification of an amount of Rs.500/- from the son of an applicant who sought a fresh electric connection. In the criminal case, the petitioner was found guilty and was convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/- each. The petitioner has filed Crl. Appeal No. 812/2007 before this Court challenging the conviction and sentence against him. The Criminal Appeal is still pending.

2. While so, after 8 years of his retirement, the third respondent issued an order dated 07-03-2008 purporting to remove the petitioner from service with effect from 14-02-2000, the date on which he was arrested by the Vigilance. The petitioner challenged the said order before this Court by filing W.P. (C) No. 13810/2008. The said writ petition was allowed by this Court as per Ext. P1 judgment and the order dismissing the petitioner was quashed. However, in Ext. P1 this Court has observed that the entitlement of the petitioner to claim pensionery benefits as per the Rules will depend on the outcome of Crl. Appeal No. 812/2007 filed by him. In view of the above observation, the pensionery benefits due to the petitioner are not paid. Though the petitioner had sought a review of Ext. P1 judgment by filing R.P. No. 663/2010, the review petition was dismissed as per Ext. P2.

3. In the above circumstances, the petitioner submitted Ext. P3 requesting that he may be granted compassionate allowance under Rule 5, Part III of Kerala Service Rules (‘KSR’ for short). By Ext. P4, the 3rd respondent directed the petitioner to produce two additional documents for the purpose of considering his request. Accordingly, the petitioner submitted all the necessary documents. However, by Ext. P5, the request of the petitioner for compassionate allowance has been rejected for the reason that this Court has observed in Ext. P1 Judgment that the petitioner’s entitlement for pensionery benefits would depend on the outcome of the Criminal Appeal filed by him. The petitioner filed this writ petition challenging Ext. P5.

4. A counter affidavit has been filed on behalf of the 3rd respondent. It is the case of the third respondent that the petitioner had been charge - sheeted in a case involving acceptance of bribe. The Vigilance Court has found the petitioner guilty and has convicted and sentenced him. The petitioner has challenged the conviction and sentence against him before this Court in Criminal Appeal No. 812/2007, which is still pending. Consequent to his conviction, the petitioner’s monthly pension was stopped. Therefore, it is contended that the petitioner is also not eligible for compassionate allowance, since he does not deserve any special consideration as provided by Rule 5, Part III KSR.

5. According to Smt. Chincy Gopakumar, learned counsel who appears for the petitioner, Rule 5 Part III KSR applies to a situation where a person has been dismissed or removed from service for misconduct, insolvency or inefficiency. From among the persons who have been so dismissed, only persons who deserve special consideration, are paid compassionate allowance. Therefore, it is pointed out that conviction in the criminal case does not disentitle the petitioner from claiming compassionate allowance which is a benefit that is granted to persons who are actually found guilty of misconduct. For the above reason, it is contended that the petitioner is entitled to the grant of compassionate allowance even if the Criminal Appeal filed by the petitioner is ultimately dismissed. It is, therefore, contended that the rejection of the petitioner’s request is without any justification and that Ext. P5 is liable to be set aside as unsustainable.

6. Advocate K.S. Anil, who appears for the 3rd respondent, tries to meet the above contentions by pointing out that in view of the observation of this Court in Ext. P1 that entitlement of the petitioner to pensionery benefits would have to abide by the outcome of Criminal Appeal No. 812/2007, the petitioner is not entitled to claim even compassionate allowance.

7. I have heard the counsel for the contesting parties. I have also considered the rival contentions anxiously. Rule 5 of Part III of KSR reads as follows:

“5. Misconduct or inefficiency.— a) No pension may be granted to an employee dismissed or removed for misconduct, insolvency or inefficiency, but to employees so dismissed or removed, compassionate allowances may be granted when they are deserving of special consideration; provided that the allowances granted to any employee shall not exceed two - thirds of the pension which would have been admissible to him if he had retired on the date of dismissal or removal.”

8. It is clear from a reading of the above Rule that the same is meant to apply to a situation where an employee has been denied his pensionery benefits consequent to a dismissal or removal from service on the ground of misconduct, insolvency or inefficiency. In such circumstances wherever found deserving of special consideration, the Government has the authority to grant compassionate allowance which shall not exceed two - thirds of pension that would have been admissible to the said employee if he had retired on the date of dismissal or removal. Therefore, it is clear that the above Rule is applicable to the petitioner irrespective of the question whether the petitioner is held guilty of the misconduct that is alleged against him or not. In other words, the above Rule entitles the petitioner to claim compassionate allowance even in a situation where he is found guilty of the offence alleged and the conviction and sentence against him are confirmed in appeal.

9. The counsel for the petitioner has placed reliance on the decision in Thankappan Nair v. State of Kerala, 2001 (3) KLT 855 . where a Division Bench of this Court has considered the scope of the above Rule in similar circumstances. In the said case, a police constable was dismissed from service for accepting illegal gratification. At the time of his dismissal, he had put in 18 years of service. The question arose whether he was entitled to claim compassionate allowance. Considering the scope of R.5 Part III of KSR, K. Balakrishnan Nair (J) has made the following observations:

“A reading of the Rule will show that persons dismissed or removed from service on the ground of misconduct are also eligible for compassionate allowance. Acceptance of illegal gratification is a misconduct and basing on the said misconduct, the appellant has been removed from service also. It is evident from the rule that persons like the appellant who are removed from service for misconduct are also eligible to receive compassionate allowance, provided other conditions are satisfied.”

10. In the above cited decision, the Court has further held that the authority to determine whether a particular employee is entitled to be paid compassionate allowance or not is entirely within the discretion of the Government. The said discretion would have to be exercised taking into account all the relevant facts and circumstances of each case in a fair and reasonable manner. It shall not be a decision taken merely on the whims and fancies of the decision making authority. Since Rule 5 confers a power that is coupled with a duty, it has been held that it is incumbent on the authority to act in the particular manner that is stipulated by the Rule. In the light of the above understanding of Rule 5, as laid down by this Court, it has to be held that there has been no proper consideration of the petitioner’s request for the grant of compassionate allowance in Ext. P5. Consequently, Ext. P5 is bad for non - consideration of relevant materials as well as for consideration of irrelevant materials. For the above reasons, Ext. P5 is quashed. The third respondent shall consider the request of the petitioner, evidenced herein by Ext. P3, afresh and shall pass appropriate orders thereon in accordance with the principles noticed hereinabove.

11. For the reasons stated above, it is ordered as follows:

i) This writ petition is allowed. Ext. P5 proceedings issued by the 3rd respondent is quashed. 

ii) The third respondent is directed to consider the representation submitted by the petitioner, evidenced herein by Ext. P3, in accordance with law and in the light of the principles laid down by this Court and to pass appropriate orders thereon as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment.