Past misconduct does not bar compassionate allowance up to two-thirds pension; requires independent consideration of family hardship and service factors.

ORDER (ORAL)

In the instant OA, the applicant seeks the following reliefs :

A. Allow the O.A. and quash the impugned order dated 27.03.2020 issued by the Respondents to the extent of grant of compassionate allowance at the rate of one- fourth of Pension;

B. To direct Respondents to sanction compassionate allowance at the rate of two-third of the Pension and Gratuity which would payable to husband of the applicant and award consequential family pension as per Railway Services (Pension) Rules, 1993;

C. Award arrears and all consequential benefits;

D. Award costs of the proceedings; and E. Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem and proper in the interest of justice in favour of the applicant.

2. Learned counsel for the applicant states that this is the second round of litigation. In the first round of litigation, after dismissal of the OA, the applicant approached the Hon’ble High Court wherein a detailed order was passed in Writ Petition No. 2760/2019, paras 11, 12 and 13 whereof read as under :

11. We may also note that in the present case, the Tribunal has observed that even in the past the petitioner had been awarded penalties for various acts of mis-demeanor. The Tribunal having said so however, we find that this aspect has neither been elaborated nor discussed by the Tribunal; and cannot therefore be factored into the decision regarding grant of compassionate allowance.

12. In view of the above discussion, we are of the view that the aspects for denial of compassionate allowance to the petitioner, as set-out by the Supreme Court in the case of Maninder Dutt Sharma (supra) appear not to have been considered by the Tribunal nor by the respondents; and the respondents have not applied their mind as to whether the allegations made against the petitioner, who was proceeded ex-parte in the departmental inquiry proceedings, fall within the ambit of the grave and serious considerations illustrated by the Supreme Court in that case. Resultantly, we set-aside the order dated 15.11.2011 and allow the writ petition.

13. We direct the respondents to reconsider the claim of petitioner for grant of compassionate allowance based on the parameters laid-down in Mahinder Dutt Sharma (supra) within a period of eight weeks from the date of receipt of this order.

3. Pursuant to the said order passed by the Hon’ble High Court, the case of the applicant was re-examined and the applicant was granted one fourth of the compassionate allowance in terms of the impugned order herein.

4. Learned counsel for the applicant points out that the decision and the basis of the said reasoning assigned to grant only one fourth pension as compassionate allowance is questioned in the present matter. He further reiterates that once the harsh punishment of removal from service has wrongly been imposed based on the past conduct only, the reasoning assigned qua past conduct cannot of the deceased employee be looked into while adjudicating upon the claim of the applicant for compassionate allowance. He further reiterates that the decision so taken is also contrary to the judgment which is already highlighted above. He further prays that as per Rule 65 of the Railway Services (Pension) Rules, 1993, atleast two thirds of the pension and gratuity should be considered at the maximum level in terms of the said rule position.

5. Countering the arguments put forth by the learned counsel for the applicant, learned counsel for the respondents would rely upon the averments contained in the