(BOMBAY BENCH, MUMBAI, CAMP: NAGPUR)
Chameli Majumdar, Member (J).
1. The applicant is the ex-railway employee, who has filed this O.A. for the following relief:
"That the Honourabel Tribunal be pleased to pass an order to the respondents to release the Compassionate Allowances along with permissible allowances from date of removal (30.06.1995) of the applicant from service in the light of Railway Board's order No.F(E)III/2003/PN1/5 dated 04.11.2008 (Annexure A-1). Any other relief which the Honourable CAT deems fit to pass in form of pecuniary benefit."
2. The facts of the case, as made out by the applicant in the present O.A. are as follows:
The applicant was working in the erstwhile South East Railway and now South East Central Railway. While working as Diesel Assistant (now Assistant Loco Pilot) he was charge sheeted for remaining unauthorizedly absent from duty. A disciplinary proceeding was initiated against him. He was removed from service w.e.f. 30.06.1995. The punishment order dated 28.06.1995 said that the order of removal will be effective from the date the same is served on the applicant.
3. In this O.A., the applicant has challenged order dated 19.05.2010 issued by the Appellate Authority whereby his application for grant of compassionate allowance was rejected. The Railway Board circulated a letter no. F(E)III/2003/PN1/5 dated 04.11.2008, which is annexure A-1 to this O.A. for grant of compassionate allowance to those railway employees who were dismissed or removed by way of disciplinary proceedings.
4. I have heard Shri C. L. Deharia, Learned Counsel for the applicant and Shri R. G. Agarwal, learned counsel for the respondents. The pleadings along with the documents have also been perused.
5. In the Railway Board's letter dated 04.11.2008, in para 2, it is held that para 1 of Board's letter of even number dated 9.5.2005 stipulates that past cases, where the competent authority in exercise of its discretionary powers has not sanctioned compassionate allowance at the time of passing orders of removal/dismissal or immediately thereafter, cannot be reopened for review on the basis of representations received from the removed/dismissed employees and members of their family at a later date. In para 3 of the said letter dated 04.11.2008 it is mentioned that in partial modification of Board's letter dated 09.05.2005, it has also been decided by the Board that out of the past cases in which the disciplinary authority has not passed any specific orders for or against grant of compassionate allowance, if any case appears to be deserving for consideration being given, may be reviewed by the disciplinary authority concerned on receipt of representations of dismissed/removed employees or the family member of the deceased employees keeping in view certain conditions. Those conditions are, in short, that only those past cases are to be reviewed where records pertaining to D and A proceedings and service records are available on the ground that the D.A. proceedings are essential to take a fair decision duly considering the gravity of the offence and other aspects involved therein and to confirm that the question of sanction or otherwise of compassionate allowance was not considered by the competent authority at any stage. Service records would be required to determine the net qualifying service for working out the quantum of compassionate allowance. Sub-para 2 says that each case has to be considered on its own merit and conclusion reach on the question where there were any extenuating factors associated with the case, which would show that the punishment of dismissal/removal was unduly hard on the individual. Third is the kind of service rendered by the railway servant. Fourth is that the award of compassionate allowance should not be considered if the railway servant had been dishonest, which was a ground for his removal/dismissal. In sub-para 5 it is mentioned that poverty is not an essential condition. Due consideration can be made of the individual's spouse and children dependent upon him.
6. This Railway Board letter came into existence from 04.11.2008. The applicant first made his application on 06.04.2009 giving details of the family and the financial condition. The second of such application is dated 10.06.2009. The applicant has annexed a letter dated 19.05.2010, which is written in Hindi. The said letter is addressed to the applicant issued by the Appellate Authority. In the said letter, the Appellate Authority has informed the applicant that the applicant was removed from service, therefore, according to rules; the applicant would not be entitled to pension. He would only be entitled to Provident Fund. For that the applicant was asked to comply with the formalities and submit the required documents.
7. From the applications, as mentioned herein before, the applicant has prayed for only release of compassionate allowance. The applicant's contention is that all the parameters for grant of such compassionate allowance applies in his case, therefore, the applicant cannot be denied the compassionate allowance. From the prayer in this O.A. also it appears that the applicant only requested for release of compassionate allowance and not pension. On this ground only the letter dated 19.05.2010, whereby the respondents mentioned that the applicant would not be entitled to any pension since he was removed from service, cannot be sustained.
8. The respondents have argued that grant of compassionate allowance is a discretionary power of the disciplinary authority. The applicant was removed from railway service w.e.f. 30.06.1995. After 17 years the question of preservation of the records does not arise. As such, the service records and the D and A files were not available in the office for reviewing the case. The O.A. does not have any merit for consideration and, therefore, liable to be dismissed.
9. The only ground which is taken by the respondents in the reply as well as at the time of argument is that the case being 17 years old, case records are not available. Therefore, the applicant's case cannot be considered on that count only under the Railway Board letter dated 04.11.2008.
10. The applicant annexed the final punishment order dated 22.06.1995 which clearly mentions that the applicant was removed from service after holding a disciplinary enquiry on the charge of unauthorized absence. Therefore, it is evident that the applicant was not removed from service on the charge of dishonesty. The respondents themselves, by issuing letter dated 04.11.2008, have conferred a right on the dismissed/removed railway employee for fresh consideration and/or review of the past cases for the purpose of grant of compassionate allowance.
11. In my considered view, since there is no cutoff date mentioned in the said letter dated 04.11.2008, it is not open to the authorities to shut out the claim of a removed and/or dismissed employee on the ground that disciplinary and appeal proceeding records were not available inasmuch as the order of removal is very much on record, which clearly says that the applicant was removed not for the charge of dishonesty but for unauthorized absence.
12. Under such circumstances, this O.A. is allowed with a direction to the respondents to review the case of the applicant on the basis of available records in terms of Railway Board's letter dated 04.11.2008 and pass a reasoned and speaking order within a period of 12 weeks from the date of receipt of a copy of this order. No order as to costs.