The discretionary power vested with the authorities under Rule 41 of CCS (Pension) Rules allows for the denial of compassionate allowance when serious charges are proved against the delinquent employee, and the court does not interfere with the proper exercise of discretionary powers by the competent authorities.

P.K. Misra, J.

1. Heard Mr.G.Justin, learned counsel appearing for the petitioner and Mr.A.Kalaiselvan, learned counsel appearing for respondents 1 to 3.

2. The petitioner was employed as Machinist under the 3rd respondent. While he was working as Machinist HS II, a charge memo was served on him on 310. 1989 on the allegation that he was found with some materials belonging to the department hidden under his clothes. There was a departmental proceeding and on the basis of the findings, the petitioner was dismissed from service, by an order dated 14.07.1990. Even though such order was challenged before the Central Administrative Tribunal by filing O.A.No.897 of 1993, by an order dated 25.04.1994, such order was confirmed and the order of dismissal therefore became final. Subsequently, the petitioner filed an application on 24.04.2000 purporting to invoke Rule 41 of C.C.S(Pension) Rules for grant of compassionate allowance not exceeding 2/3rd of the pension or gratuity. Since such representation remained in cold storage, the petitioner filed O.A.No.560 of 2006 for a direction to consider his representation and the Tribunal directed the authorities to consider the representation of the petitioner for the grant of compassionate allowance. Thereafter, by an order dated 27.03.2007, the appropriate authorities considered the matter and communicated the decision to the effect that it was not possible to extend the benefit of compassionate allowance under Rule 41 of CCS (Pension) Rules. Such order of the departmental authorities was challenged by the petitioner by filing O.A.No.482 of 2007. The Tribunal, after referring to the facts and circumstances of the case and taking note of the contention of the petitioner and that of the Department, held that there was no scope to grant compassionate allowance, by invoking Rule 41 of CCS (Pension) Rules. The observation of the Tribunal reads as follows:

"It is a discretionary power vested with the competent authority to grant compassionate allowance in case of deserving employee who has been dismissed or removed from service. Since the applicant has committed a serious offence of theft of Govt. property, he does not deserve to be granted with compassionate allowance. The claim of the applicant has been rightly rejected by the respondents".

Such order is being challenged in the present writ petition.

3. Learned counsel for the petitioner submitted with much passion and may be with less conviction that the original allegation against the petitioner to the effect that he had carried about 29 kgs.of materials tied around his body and hidden beneath the dress appears to be very improbable and it is a case, where the petitioner had become the victim of the circumstances. The learned counsel for the petitioner, therefore, submitted that the matter requires to be reconsidered by the departmental authorities.

4. The question as to whether it was possible for a person to carry so much of materials hidden beneath the dress, is not a matter which can be gone into in a collateral proceeding. The fact remains that on the basis of the departmental enquiry, apparently relying upon the statement made by the petitioner himself, he was found guilty of having attempted to commit theft of materials and that he was caught red handed. Such matter was challenged before the Tribunal by filing original application which was subsequently dismissed. We do not think, it would be possible to go behind such conclusion in any subsequent collateral proceedings including a proceedings under Rule 41 of CCC (Pension) Rules.

5. The aforesaid Rule reads as follows:

"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 wh