1. Heard Mr. Ankit Singh, holding brief of Mr. R.B.S. Rathore, learned Counsel for the petitioner and Mr. Prashant Jaiswal, learned Additional Chief Standing Counsel.
2. The petitioner has approached this Court under Article 226 of the Constitution of India, challenging the order dated 13.5.2010 passed by the Executive Engineer, Tube Well Division, Irrigation Department, Ambedkarnagar (opposite party No.3), whereby the claim of the petitioner for payment of compassionate allowance, pension and gratuity in pursuance to the provisions of Regulation 353 of Civil Service Regulations has been rejected. Further the petitioner is seeking directions against the opposite parties to extend the benefits as provided under Regulation 353 of the Civil Services Regulations to him and also release/pay compassionate allowance/pension, GPF, Group Insurance, Gratuity etcetra to him along with interest @18% per annum on account of delayed payment.
3. Petitioner was appointed as Tubwell Operator on 1.12.1954 and in due course of his employment, he was promoted to the post of Section Mistry in the year 1974. According to the petitioner, while working as Section Mistry, his services were terminated on the ground of unauthorized absence vide order dated 28.9.1982. Thereafter, the petitioner had moved a representation on 12.10.1982 followed by a reminder dated 5.12.1983, praying therein for payment of his services dues including General Provident Fund, Gratuity, Group Insurance etc.
4. In the meantime, against the termination order dated 28.9.1982, the petitioner had approached the State Public Services Tribunal by filing a Claim Petition, which was dismissed vide order dated 14.5.1993. Feeling aggrieved, the petitioner had approached this Court by filing a writ petition No. 5148 (SS) of 1994, which was also dismissed on 21.10.1994. Thereafter, when the petitioner was not paid General Provident Fund, Gratuity and Group Insurance etc., he approached this Court again by filing writ petition No. 737 of 2001 (S/S) : Uma Prasad Pandey Versus State of U.P. and others. During the pendency of writ petition No. 737 of 2001 (SS), the petitioner's claim for compassionate pension was rejected vide order dated 27.12.2001, which has also been challenged in the aforesaid writ petition by amending the writ petition, on the ground that his claim has been rejected after taking into consideration the provisions of Regulation 418 (a) of the Civil Services Regulations, though his case is covered under Regulation 353 of the Civil Services Regulations.
5. Appreciating the submissions of the learned Counsel for the petitioner, this Court, vide judgment and order dated 16.2.2010, while allowing the writ petition No. 737 of 2001 (SS), quashed the order dated 27.12.2001, directed the opposite parties to consider the case of the petitioner under Regulation 353 of the Civil Services Regulations within a maximum period of three months from the date of presentation of a certified copy of the order.
6. In pursuance of the order dated 16.2.2010, the Executive Engineer, Ambedkar Nagar, has considered the claim of the petitioner dated 18.3.2010 with regards to payment of compassionate allowance and other post-retiral dues and rejected the same, vide order dated 13.5.2010, which is impugned in the present writ petition.
7. Submission of the learned Counsel for the petitioner is that while passing the order dated 16.2.2010, this Court specifically directed the opposite parties to consider the petitioner's claim under Regulation 353 of the Civil Services Regulations but taking shelter of Regulation 418 (a) of the Civil Services Regulations, the claim of the petitioner has erroneously been rejected by the opposite parties. He further submitted that while rejecting the petitioner's claim, no reasons have been recorded as to why the petitioner is not being extended the benefit of Regulation 353 of the Civil Services Regulation.
8. Further submission of the learned Counsel for the petitioner is that Regulation 353 of the Civil Services Regulation is beneficial to the petitioner and the Executive Engineer (opposite party No.3) has given absolutely no reason as to why the petitioner is not covered under the aforesaid Regulation. Since there are no charge of bungling or financial irregularities or loss to the State Government, so there was no occasion for withholding the compassionate allowance of post termination dues to the petitioner under Regulation 353 of the Civil Services Regulation.
9. Counsel for the petitioner has next submitted that the gratuity is earned under the Payment of Gratuity Act in lieu of the services rendered by a person in the concerned department in view of the length of service, whereas General Provident Fund is earned on account of deduction of the amount from the salary of the concerned employee and it is a personal property of the petitioner. The General Group Insurance is also available to the petitioner as there is no forfeiture of pension.
10. To strengthen his submissions, learned Counsel for the petitioner has placed reliance upon the judgment of this Court in Mahinder Dutt Sharma Vs. Union of India and others : (2014) 11 SCC 684, Amod Prasad Rai Vs. State of U.P. and another : 2009 (27) LCD 708 and Jaswant Singh Gill Vs. Bharat Coking Coal Ltd. and others : (2007) 1 SCC 663.
11. Learned Standing Counsel has submitted that as far as compassionate allowance is concerned, the same can be considered in special circumstances looking into the exemplary services of an employee but in the present case, the petitioner was habitual in absenting himself from duty and because of his absence, the functioning of the department was hampered/deteriorated. Therefore, his case for compassionate allowance cannot be considered as a special circumstance.
12. Learned Standing Counsel, on the point of gratuity, submitted that Hon'ble Apex Court in Y.P. Sarabhai Vs. Union Bank of India and another : (2006) 5 SCC 377 has held that a person, who is dismissed from service is entitled to get only provident fund and not the gratuity. Therefore, the claim of the petitioner with respect to grant of gratuity is not sustainable. The writ petition being devoid of merits is liable to be dismissed.
13. I have examined the rival submissions of the learned Counsel for the parties and gone through the records.
14. Petitioner after being terminated from the service assailed the termination order dated 28.9.1982 before the State Public Services Tribunal, which was dismissed vide order dated 14.5.1993. Against the judgment and order dated 14.5.1993, the petitioner had approached this Court by filing writ petition No. 5148 (SS) of 1994, which too was dismissed vide order dated 21.10.1994. The petitioner, thereafter, has not taken any step challenging the order dated 21.10.1994 before the appellate forums, rather chosen to approach this Court by filing writ petition No. 737 of 2001 (SS), claiming therein to release the amount of General Provident Fund, Gratuity, Group Insurance etc along with 18% interest on the amount claimed by the petitioner. During pendency of writ petition No. 737 of 2001 (SS), the claim of the petitioner with respect to compassionate allowance was rejected vide order dated 27.12.2001. Consequently, the order dated 27.12.2001 was challenged by the petitioner by amending writ petition No. 737 of 2001 (SS). This Court, vide order dated 16.2.2010, on appreciating the submissions of the learned Counsel for the petitioner that petitioner's claim for compassionate allowance/pension has been rejected after taking into consideration the provisions of Regulation 418 (a) of the Civil Services Regulations, whereas his case is covered under Regulation 353 of of the Civil Services Regulations, allowed the writ petition and while quashing the order dated 27.12.2001, directed the opposite parties to consider the case of the petitioner under Regulation 353 of the Civil Services Regulations within a maximum period of three months from the date of presentation of a certified copy of the order.
15. In pursuance of the order dated 16.2.2010, the Executive Engineer, Tubewell Division, Irrigation Department, Ambedkar Nagar rejected the claim of the petitioner for compassionate allowance vide order dated 13.5.2010, which is challenged in the present writ petition.
16. In order to appreciate the rival submissions of the learned Counsel for the parties, it would be apt to reproduce Regulation 353 of the Civil Services Regulations, which is as under :
"353. No pension may be granted to an officer dismissed or removed for misconduct, insolvency or Inefficiency; but to the officer so dismissed or removed compassionate allowance may be granted when he is deserving of special consideration; provided that the allowance granted to any officer shall not exceed two third of the pension which would have been admissible to him if he had retired on invalid pension".
17. Regulation 353 of Civil Services Regulations provides that no pension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency but to the officer so dismissed or removed, compassionate allowances may be granted when he is deserving of special consideration provided that the allowances granted to any officer shall not exceed two third of the pension, which would have been admissible to him if he had retired on invalid pension.
18. In Mahinder Dutt Sharma (supra), the Apex Court examined the issue of compassionate allowance and observed that the determination of a claim for such allowance will necessarily have to be sieved through an evaluation based on a series of distinct considerations some of which are illustratively given by the Apex Court, which reads as under :
"14.1 (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.
14.2 (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 gains. It may be aimed at benefiting a third party, to the prejudice of the employer.
14.3 (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.
14.4 (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.
14.5 (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, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration.
19. The Apex Court, on the basis of aforesaid illustrations, observed that 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.
It is further observed that 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.
20. The Apex Court in the aforesaid case found that the appellant had rendered 24 years of service prior to his dismissal from service vide order dated 17.5.1996 and during the above tenure, he was granted 34 good entries, including 2 commendation rolls awarded by the Commissioner of Police, 4 commendation certificates awarded by the Additional Commissioner of Police and 28 Commendation cards awarded by the Deputy Commissioner of Police. In these backgrounds, the Apex Court has observed that no such inference is even otherwise possible, keeping in view the length of service rendered by the appellant and further there is no denial that the appellant was involved, during the period under consideration, in a criminal case, from which he was subsequently acquitted but the fact was that one of his brother died and thereafter his father and brother's wife also passed away and 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.
21. In the present case, there is no averment with respect to commendable services of the petitioner rather in the impugned order, it has been mentioned that on account of the unauthorized absence way back in the year 1979, the petitioner was placed under suspension and after issuance of a charge-sheet and calling his explanation, by means of order dated 23.5.1981, while reinstating him in services, one increment permanently was stopped. The petitioner, thereafter, instead of improving himself once again unauthorizedly absent and this time, after following due process, the services of the petitioner was terminated vide order dated 29.8.1982.
22. Being aggrieved by the order of termination dated 29.8.1982, the petitioner has approached the State Public Services Tribunal, which was dismissed vide order dated 14.5.1993. This order dated 14.5.1993 was challenged by the petitioner before this Court by filing writ petition No. 5148 of 1994 (SS), which too was dismissed vide order dated 21.10.1994. Subsequently, the petitioner moved representations, claiming pension and other service dues but as no heed was paid, petitioner had approached this Court by filing writ petition No. 737 of 2001 (S/S), seeking compassionate allowance, GPF, Gratuity, Group Insurance etc.
23. During the pendency of the aforesaid writ petition, while examining his claim, vide order dated 27.12.2001, the petitioner was informed that as per the provisions of Regulation 418 (a) of the Civil Services Regulations, benefit of past service has been forfeitured. therefore, he is not entitled for pension. As far as petitioner's GPF is concerned, steps have been taken for payment of GPF amount. The said order dated 27.12.2001 was challenged by the petitioner by amending writ petition No. 737 of 2001 (S/S). This Court, vide order dated 16.2.2010, on appreciating the submissions of the learned Counsel for the petitioner that petitioner's claim for compassionate allowance/pension has been rejected after taking into consideration the provisions of Regulation 418 (a) of the Civil Services Regulations, whereas his case is covered under Regulation 353 of of the Civil Services Regulations, allowed the writ petition and while quashing the order dated 27.12.2001, directed the opposite parties to consider the case of the petitioner under Regulation 353 of the Civil Services Regulations within a maximum period of three months from the date of presentation of a certified copy of the order.
24. In pursuance of the judgment and order dated 16.2.2010, the Executive Engineer examined the claim of the petitioner and rejected the same vide impugned order dated 13.5.2010 on the ground that the petitioner was habitual in absenting himself from duty; the higher authority warned the petitioner; and his conduct was against the Government Conduct Rules, therefore, his case does not warrant to be considered as special consideration for grant of compassionate allowance.
25. While passing the impugned order, the authorities have also taken into consideration the punishment order passed earlier vide order dated 23.5.1981, whereby his one increment was withheld permanently on account of similar act of unauthorized absence.
26. On due consideration, this Court find that the claim of the petitioner for compassionate allowance has rightly been rejected by the opposite parties.
27. Now, coming to the question of payment of gratuity, as per para 3 (b) of the impugned order, it may be mentioned that the issue of gratuity was examined by the Accountant General, State of U.P., Allahabad and the same was rejected vide order dated 27.12.2001 after taking into consideration Regulation 418 of the Civil Services Regulations.
28. The provision for Payment of Gratuity is enshrined under Section 4 of the Payment of Gratuity Act, 1972. Section 4 (1) says that Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years-(a) on his superannuation; (b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; wherein sub Clause (6) spells out the conditions under which gratuity of an employee can be stopped or withheld. Section 4(6) of Payment of Gratuity Act 1972 is quoted below:-
"(6) Notwithstanding anything contained in sub-section (1),-
(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee may be wholly or partially forfeited.
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."
29. While examining the extract of the aforesaid section, it contemplates the following conditions on which Gratuity can be withheld (a) if the order of termination is based upon any act, willful omission or negligence causing any damage or loss to the property belonging to the employer; (b) if the services of an employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part; (c) if the employee is found guilty of moral turpitude provided that said offence has been committed during tenure of his service career. These are the only conditions which empowers the respondents to withhold the Gratuity of the petitioner.
30. Section 14 of the Act provides that the provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. The overriding effect of any law and amount of gratuity is protected by statutory provisions. Therefore, such amount cannot be denied by the employer to the employee or employer has no power to withhold or forfeit the said amount unless the provisions of Section 4(6) of Payment of Gratuity Act is satisfied.
31. In the present case the petitioner was habitual in absconding himself from service, therefore, his services were terminated. On perusal of the order dated 27.12.2001 contained in Annexure No.4 to the writ petition, it reveals that the only issue was examined by the office of Accountant General, State of U.P., Allahabad with respect to pensionary benefit and on taking into consideration the provisions of Regulation 418 of the Civil Services Regulations, his claim was rejected. There is no whisper with respect of consideration of the gratuity of the petitioner. Further the order dated 27.12.2001 has been quashed by this Court vide order dated 16.2.2010 passed in writ petition No. 737 of 2001 (SS), therefore, it was not open for the concerned authorities to say that issue has been examined and rejected vide order dated 27.12.2001 as the said order was found nonest and is not in existence.
32. Hon'ble Apex Court in Balbir Kaur and Another v. Steel Authority of India Ltd. and Another [(2000) 6 SCC 493], has opined "...As regards the provisions of the Payment of Gratuity Act, 1972 (as amended from time to time) it is no longer in the realm of charity but a statutory right provided in favour of the employee..."
33. Perusal of the Act shows that it is a neat scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. As noticed hereinbefore, sub-section (6) of Section 4 of the Act contains a non-obstante clause vis-a-vis sub-section (1) thereof. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must, therefore, be scrupulously observed. Clause (a) of Sub-section (6) of Section 4 of the Act speaks of termination of service of an employee for any act, willful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. Conditions laid down therein are also not satisfied.
34. In the present matter, it is admitted case that there is no criminal case pending against the petitioner. The services of the petitioner was terminated only on account of unauthorized absence and not on account of any damage caused by the petitioner, therefore, the payment towards the retiral dues can not be forfeited.
35. In Y.P. Sarabhai (supra), which has been relied upon by the learned Standing Counsel, it has been held that person dismissed from service is entitled to get only the provident fund but not gratuity. On due consideration, this Court find that in Y.P. Sarabhai (Supra), the provisions of Payment of Gratuity Act, 1972 has not been examined. Therefore, Y.P. Sarabhai (supra) is not applicable in the facts and circumstances of the case.
36. For the reasons aforesaid, this Court find that the petitioner is entitled for payment of gratuity as there is no order on record by which the claim of the petitioner for payment of gratuity has been rejected.
37. Accordingly, the impugned order dated 13.5.2010 rejecting the claim of the petitioner for compassionate allowance is confirmed. However, the impugned order so far as it relates to rejection of payment of gratuity to the petitioner, is hereby quashed. A writ of Mandamus is issued directing the competent authority to examine the claim of the petitioner for payment of gratuity and pay the same, if there is no legal impediment, expeditiously, say, within a maximum period of three months from the date of receipt of a certified copy of this order. The order with regard to payment of gratuity shall also be communicated to the petitioner within the aforesaid period.
38. The writ petition stands disposed of finally.
Order Date : 3.5.2016 Ajit/-