Partly allowed

Union of India v. J.Sebastian

Kerala HC7 Jun 2019OP (CAT)/115/2019

Case brief

AI extract

What is this about?

The High Court of Kerala, examining an appeal against a CAT order granting compassionate allowance to a dismissed railway employee, modified the relief. The court held the respondent eligible but reduced the allowance from half to 40% of the pension due to lack of proof of incomeless wandering period.

What did the court decide?

Compassionate allowance of 40% of the pension (instead of 50%) granted with effect from 05.07.2016, including interest.

Union of India Vs J.Sebastian — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941

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OP (CAT).No. 115 of 2019

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AGAINST THE ORDER IN OA 180/0048/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 15-11-2018

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PETITIONERS/RESPONDENTS:

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1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600003.

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2 THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD-678 002.

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3 THE SENIOR DIVISIONAL MECHANICAL ENGINEER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD-678 002. BY ADV. SRI.JAMES KURIAN

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RESPONDENT/APPLICANT:

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J.SEBASTIAN AGED 76 YEARS, S/O. JOSEPHL, (FITTER KHALASI), RESIDING AT C/O. A.RAJKUMAR, NO.EWS-1265, MUTHAMPALAYM, HOUSING UNIT, PHASE I,OPPOSITE WATER FILTER TANK, ERODE, TAMIL NADU-638 009.

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BY ADVS. SRI.T.C.GOVINDASWAMY SMT.KALA T.GOPI

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 03.06.2019, THE COURT ON 07.06.2019 PASSED THE FOLLOWING:

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O.P.(CAT) No.115/2019

JUDGMENT

Ashok Menon, J.

Aggrieved by the order of the Central

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Administrative Tribunal, Ernakulam Bench ('Tribunal' for short), in O.A.No.180/0048/2017 dated 15.11.2018, the petitioners are before us, questioning the propriety of the impugned order granting relief to the respondent herein in the form of compassionate allowance equivalent to half the pension which would have been admissible to him had he retired on the date of dismissal from service.

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The respondent is a 74 year old man, who served the Railways for 16 years between 1968 to 1984 as

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Fitter Khalasi. He along with two others, namely, P.K.Narayanan Nair and I.Solomon, were dismissed from service for having been found near the LSK Siding by

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the side of Time office, Carriage Repair Shop, Erode on 12.12.1982, with intention to commit theft of brass materials from the wagon loaded and stabled near LSK Sliding, while they were on off-duty, and thereby

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O.P.(CAT) No.115/2019

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failed to maintain absolute integrity and behaved quite unbecoming of a Railway servant, violating Rule 3(I)(i) and (iii) of the Railway Services (Conduct) Rules, 1966. In the case of two other co-accused referred to above, the penalty of Narayanan Nair was reduced to one of compulsory retirement and that of Solomon was modified to one of compulsory retirement with reduction of pensionary benefits to one-third of what he would

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have got had he retired from service on 17.11.1984. Solomon challenged the aforesaid decision before the

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CAT, Madras, and on direction of the Tribunal to

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reconsider the matter and it was decided to treat the period from 17.11.1984 to 31.12.1985 as if he would have been in service and retired on 31.12.1985 on superannuation and he was found entitled for the pay and allowances for the period from 17.11.1984 to

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31.12.1985 and pensionary benefits with effect form 01.01.1986 without any further proceedings.

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The respondent, after his dismissal on

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17.11.1984 was wandering, and his whereabouts were not known to anyone. After returning home in 2005, he made

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O.P.(CAT) No.115/2019

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a representation requesting for compassionate

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allowance. But the same was never taken up for consideration for more than a decade. He approached the Tribunal at Ernakulam by filing O.A.No.638/2016 and

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the Tribunal directed the petitioners herein to consider his application for compassionate allowance. Vide Annexure A5 dated 24.11.2016, his representation

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was dismissed.

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Aggrieved by the dismissal of his

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representation the respondent approached the Tribunal once again and the Tribunal vide the impugned order

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observed that a septuagenarian with no source of income, in his sunset years, deserves sanction of compassionate allowance under Rule 65 of the Railway Services (Pension) Rules, 1993. Annexure A5 order was

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set aside and he was directed to be paid compassionate allowance as mentioned earlier.

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The main reason for discarding the request made

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by the respondent herein was that records were not available, being a case of more than 30 years old, and also for the reason that compassionate allowance should

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O.P.(CAT) No.115/2019

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not be considered in case of a dishonest employee, who

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was removed from service for attempted theft.

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We heard the learned CGC appearing for the petitioners and Smt.Kala T.Gopi appearing for the

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respondent.

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It is true that the disciplinary action against

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the respondent finding him guilty cannot, at this

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length of time, be undone. But the fact remains that

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the two others, who were co-accused in the same act, were more or less exonerated. The respondent who was

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similarly placed, was not given the benefit of the mitigating circumstances, because he was wandering till 2005. Even the representation made by him in 2005 was

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never considered for about more than a decade until he approached the Tribunal and obtained a direction to the authorities to dispose of his application within a period of two months. Nothing has been stated in

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Annexure A5 regarding the extenuating circumstances for

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the benevolence shown by the departmental authorities

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against the similarly placed co-accused, which on the face of it smacks of discrimination.

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O.P.(CAT) No.115/2019

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However, the argument of the learned Counsel

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appearing for the petitioners that there is no scintilla of material to substantiate the fact that the respondent was without any source of income or earning during the prolonged period of his wandering. There is no machinery for the petitioners to verify the

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whereabouts of the respondent. This argument seems convincing to us, and has to be accepted to some

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extent.

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While upholding the impugned finding of the Tribunal regarding the entitlement of the respondent to claim compassionate allowance, we intent to modify the

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order to the extent that instead of one-half of the pensionary benefits granted to the respondent by the Tribunal, he shall be granted compassionate allowance only to the extent of 40% of the pension, which would have been admissible to him had he retired on the date of dismissal, with effect from 05.07.2016 together with interest as directed by the Tribunal, within a period of three months from the date of receipt of this judgment.

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O.P.(CAT) No.115/2019

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The Original Petition is disposed of. No order as

to costs.

Sd/-

V.CHITAMBARESH

JUDGE

Sd/-

ASHOK MENON

dkr

JUDGE

O.P.(CAT) No.115/2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT-P1 COPY OF THE O.A.NO.180/0048/2017 WITH ANNEXURES FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT-P1 (A1) COPY OF THE ORDER BEARING NO.J/P OA NO.638/2016 DATED 24.11.2016. EXHIBIT-P1 (A2) COPY OF THE PENALTY ADVICE BEARING NO.J/M 315/11/82 DATED NIL ISSUED BY THE 3RD RESPONDENT EXHIBIT-P1 (A3) COPY OF THE REPRESENTATION DATED 05.07.2016 SUBMITTED BY THE APPLICANT ADDRESSED TO THE 1ST RESPONDENT, GENERAL MANAGER WITH A COPY TO THE 2ND RESPONDENT EXHIBIT-P1 (A4) COPY OF TRUE EXTRACT OF 309 AND 310 OF THE MANUAL OF RAILWAY PENSION RULES 1950 EXHIBIT-P1 (A5) COPY OF THE ORDER IN O.A.NO.638/2016 DATED 25.8.2016,RENDERED BY THE CAT, ERNAKULAM EXHIBIT-P2 COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS EXHIBIT-P2 (A1) COPY OF RAILWAY BOARD ORDER NO.164 OF 2008 DATED 4.11.2008 EXHIBIT-P3 COPY OF THE ORDER IN O.A.NO.180/0048/2017 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 15.11.2018

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R1(a) COPY OF THE COMMUNICATION UNDER LETTER BEARING NO. J/M 315/11/ED DATED 12.08.1983 ISSUED BY THE ENQUIRY OFFICER PRODUCED AS ANNEXURE A6 IN THE OA. EXHIBIT R1(b) TYPED LEGIBLE COPY OF EXHIBIT R1(a) PRODUCED AS ANNEXURE 6(a) IN THE OA

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O.P.(CAT) No.115/2019

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EXHIBIT R1 (c) COPY OF OFFICE ORDER BEARING NO. J/MM/23/93 DATED 06.08.1993 ISSUED BY THE DIVISIONAL PERSONNEL OFFICER, PALAKKAD PRODUCED AS ANNEXURE A7 IN THE OA EXHIBIT R1(d) COPY OF THE ORDER IN OA 74/90 DATED 05.09.1991 RENDERED BY THE CAT MADRAS BENCH.

Union of India v. J.Sebastian

Case brief

What is this about?

What did the court decide?

Union of India v. J.Sebastian

Case brief

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