Point of Law: Dismissal from service – Compassionate allowances - While granting compassionate allowance authority has absolute discretion to decide as to time period from which allowance is to be paid and a government employee who suffered dismissal or removal from service and was granted compassionate allowance cannot claim that he is eligible to have same with effect from date of dismissal or removal as a matter of right

JUDGMENT :

K. BABU, J.

1. The judgment dated 14-02-2019 of the learned Single Judge of this Court, in W.P. (C) No. 3810/2018, is under challenge in this intra court appeal filed under Section 5 of the Kerala High Court Act.

2. The appellant is the writ petitioner. Respondents in this writ appeal are the respondents 1 to 4 in the writ petition.

3. Heard Sri. T.C. Govindaswamy, learned counsel appearing for the appellant and Smt. O.M. Shalina, learned Central Government Counsel appearing for the respondents.

4. The appellant entered into the service of CISF as a Cook on 06-01-1971. On 18-02-1986, while working as Constable, the appellant was dismissed from service as per Ext.P3 order. He challenged the order of the dismissal before this Court, in which the respondents were directed to consider his representation, which ended in rejection.

5. On 14-08-2014, the appellant submitted a representation before the Director of General, CISF (respondent No. 2) and requested sanctioning of compassionate allowance. The said representation was also rejected as per order dated 15-12-2014. The appellant, thereafter, filed W.P. (C) No. 7653/2015 before this Court, challenging the order rejecting his request for compassionate allowance. By judgment dated 28-06-2016 in W.P. (C) No. 7653/2015, this Court set aside the order of rejection passed by the official respondents and directed them to consider the representation submitted by the appellant in the light of the directions contained in the judgment of the Apex Court in Mahinder Dutta Sharma vs. Union of India, (2014) 11 SCC 654.

6. The competent authority, thereafter, passed Ext.P1 order by which, he was granted compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972 at the rate of Rs. 9,000/- per month with effect from 16-11-2016. The appellant challenges Ext.P1 order to the extent, it granted compassionate allowance only prospectively and contended that he should have been granted compassionate allowance with effect from the date of his dismissal from service.

7. The respondents resisted the claim of the appellant and contended that the power to grant compassionate allowance is discretionary, which the competent authority exercised taking into account the entire circumstances including the antecedents of the appellant. The appellant had been a habitual offender; he was awarded with one major and 7 minor penalties. Respondents further contended that, the appellant had overstayed from 18-12-1984 to 28-06-1985 and thereafter remained absent unauthorisedly for 192 days from 11-08-1985 to 18-02-1986, which is a serious misconduct, indiscipline and dereliction of duty. According to the respondents, Ext.P1 order was issued after evaluating all the circumstances and in tune with the judgment of the Apex Court in Mahinder Dutta Sharma's case (supra).

8. The learned Single Judge dismissed the writ petition challenging Ext.P1 order of the respondents, holding that the relevant Rule does not provide that compassionate allowance be given with effect from the date of his dismissal or from a particular date as it was entirely within the discretion of the competent authority sanctioning the allowance.

9. Sri. T.C. Govindaswamy, learned counsel for the appellant submitted that, in terms of Rule 83 of CCS (Pension) Rules, 1972, pension which includes compassionate allowance, becomes payable from the date on which a Government servant ceases to be borne on the establishment. According to the learned counsel, by virtue of the said Rule the appellant is entitled to be granted the benefit of compassionate allowance with effect from 18-02-1986, the date on which he was dismissed from service. The learned counsel for the appellant submitted that 'compassionate allowance' is to be treated as a class of pension having all attributes of pension. It is also submitted that compassionate allowance is a payment in lieu of pension. The learned counsel for the appellant also relied on Government decision Nos. G.I. F.D. Off