MAHINDER DUTT SHARMAversusU.0.1. & ORS.

                        [2014] 5 S.C.R. 95


                  MAHINDER DUTT SHARMA                                 A
                                 v.
                          U.0.1. & ORS.
                (Civil Appeal No. 2111 of 2009)

                         APRIL 11, 2014
                                                                       B
    [JAGDISH SINGH KHEHAR AND M.Y. EQBAL, JJ.]

      Central Civil Services (Pension) rules, 1972:

      r.41 - Compassionate allowance, grant of - Determining           c
 factors - Discussed.

        r.41 - Compassionate allowance - Dismissal from service
  due to unauthorized and wilful absence from service for a
  period of 320 days - Claim for compassionate allowance after
  5-112 years - Held: If infliction of punishment of dismissal is      D
  on account of an act of moral turpitude or dishonesty or an
  act designed for personal gains from the employer or an act
  harming a third party interest, it would ordinarily disentitle the
  employee from compassionate allowance - In the instant
  case,,. the delinquency proved against the appellant did not         E
  fall in any of the above categories - Moreover, appellant had
  rendered about 24 years of service, prior to his dismissal and
  was granted 34 good entries - Although the charge proved
· against the appellant pertained to his unauthorized and wilful
  absence from service, there was nothing to show that his             F
  absence from service was aimed at seeking better job
  opportunity elsewhere'_ No such inference was even otherwise
  possible, in view of length of service rendered by him -
  Further, during period under consideration , his brother died,
  and thereafter, his father and brother's wife also passed away       G
  - His own wife suffered from cancer - All these tribulations Jed
  to his own ill-health - Also, appellant was involved in a criminal
  case, from which he was subsequently acquitted - These
  considerations ought to have been evaluated by the
                                 95                                    H
    96       SUPREME COURT REPORTS              [2014] 5 S.C.R.

A competent authority, to determine whether the claf;n made ul
    Rule 41 deserved special consideration - All the authorities
    merely examined the legitimacy of the order of dismissal and
    of delay in filing the appeal against the punishment order -
     The manner of consideration for claim for compassionate
s   allowance, had nothing to do with these aspects - Accordingly,
    competent authority is directed to reconsider the claim of the
    appellant, for the grant of compassionate allowance - Service
    law .. Compassionate allowance.

         Service law: Act of moral turpitude - Meaning of.
c
         Departmental action was taken against the appellant
    on account of his continuous absence from duty. The
    appellant did not resume duty and his unauthorized and
    willful absence extended to a period of 320 days. The
D   enquiry officer found the charges substantiated against
    the appellant. The appellant was given an opportunity of
    personal hearing but he did not avail. The punishing
    authority dismissed the appellant from service and the
    period of absence was treated as leave without pay. The
E   appellant filed appeal after five and half years which was
    dismissed as time barred. The Tribunal" sustained the
    dismissal order. The appellant filed a writ petition but
    subsequently withdrew with liberty to seek
    compassionate allowance. The appellant moved a
F   representation to the Joint Commissioner of Police
    seeking compassionate allowance under Rule 41 of the
    Central Civil Services (Pension) Rules, 1972. In his·
    representation dated 22.3.2005 the ·appellant asserted,
    that he had about 24 years of unblemished service
G   during which he was granted 34 good entries, including
    2 commendation rolls, 4 commendation certificates and
    28 commendation cards. His prayer was, however,
    rejected. He unsuccessfully challenged the same before
    the Tribunal and the High Court. The instant appeal was
    filed challenging the order of the High Court.
H
    MAHINDER DUTT SHARMA v. U.0.1. & ORS.             97

    Allowing the appeal, the Court                         A

     HELD: 1. The adjudication by the Courts below with
reference to Rule 41 of the Pension Rules, 1972, was
misdirected. Rule itself contemplated _payment of
compassionate allowance to an employee who has been 8
dismissed or removed from service. Under the
punishment rules, these punishments are of the severest
magnitude. These punishments can be inflicted, only for
an act of extreme wrongdoing. It is on account of such
wrongdoing, that the employee concerned, has already C
been subjected to the severest form of punishment.
Sometimes even for being incorrigible. Despite that, the
rule contemplated sanction of a compassionate
allowance of, upto two-thirds of the pension or gratuity
(or both), which would have been drawn by the punished
employee, if he had retired on compassionate pension. D
The entire consideration by the courts below, is directly
or indirectly aimed at determining, whether the
delinquency committed by the appellant, was sufficient
and appropriate, for the infliction of the punishment of
c!ismissal from service. This determination is relevant for E
examining the veracity of the punishment order itself.
That, however, is not the scope of the exercise
contemplated in the present consideration. Insofar as the
determination of the admissibility of the benefits
contemplated under Rufe 41 of the Pension Rules, 1972 F
was concerned, the same has to be by accepting, that the
delinquency committed by the punished employee was
of a magnitude which was sufficient for the imposition of
the most severe punishments. As in the instant case,
unauthorized and willful absence of the appellant for a G
period of 320 days resulted. in the passing of the order
of dismissal from service. The punishment inflicted on
the appellant, was found to"-be legitimate and genuine, as
also, commensurate to the delinquency of the appellant.
[Para 12] [112-E-H; 113-A-D]                                H
    98      SUPREME COURT REPORTS              [2014] 5 S.C.R.


A        2. The determination of a claim based under Rule 41
    of the Pension Rules, 1972, will necessarily have to be
    sieved through an evaluation based on a series of
    distinct considerations:

        (i) Was the act of the delinquent, which resulted in the
8
  infliction of the punishment of dismissal or removal from
  service, an act of moral turpitude? An act of moral
  turpitude, is an act which has an inherent quality of
  baseness, vileness or depravity with respect to a
  concerned person's duty towards another, or to the
C society in general. In criminal law, the phrase is used
  generally to describe. a conduct which is contrary to
  community standards of justice, honesty and good
  morals. Any debauched, degenerate or evil behaviour
  would fall in this classification. (ii) Was the act of the
D delinquent, which resulted in the infliction of the
  punishment of dismissal or removal from service, an act
  of dishonesty towards his employer? Such an action of
  dishonesty would emerge from a behaviour which is
  untrustworthy, deceitful and insincere, resulting in
E prejudice to the interest of the em_ployer. This could
  emerge from an unscrupulous, untrustworthy and
  crooked behaviour, which aims at cheating the employer.
  Such an act may or may not be aimed at personal gains.
  It may be aimed at benefiting a third party, to the
F prejudice of the employer. (iii) Was the act of the
  delinquent, which resulted in the infliction of the
  punishment ol dismissal or removal from service, an act
  designed for personal gains, from the employer? This
  would involve acts of corruption, fraud or personal
G profiteering, through impermissible means by misusing
  the responsibility bestowed in an employee by an
  employer. And would include, acts of double dealing or
  racketeering, or the like. Such an act may or may not be
  aimed at causing loss to the employer. The benefit of the
H delinquent, could be at the peril and prejudice of a third
       MAHINDER DUTT SHARMA v. U.0.1. & ORS.                99


   party. (iv) Was the act of the delinquent, which resulted      A
   in the infliction of the punishment of dismissal or removal
   from service, aimed at deliberately harming a third party
   interest? Situations hereunder would emerge out of acts
   of disservice causing damage, loss, prejudice or even
   anguish to third parties, on account of misuse of the          B
   employee's authority to control, regulate or administer
   activities of third parties. Actions of dealing with similar
   issues differently., or in an iniquitous manner, by adopting
   double standards or by foul play, would fall in this
   category. (v) Was the act of the delinquent, which resulted    c
-- in the infliction of the punishment of dismissal or removal
   from service, otherwise unacceptable, for the conferment
   of the benefits flowing out of Rule 41 of the Pension
   Rules, 1972? Illustratively, any action which is considered
   as depraved, perverted, wicked, treacherous or the like,
                                                                  0
   as would disentitle an employee for such compassionate
   consideration. [Para 13] [113-E-H; 114-A-H]

      3. While evaluating the claim of a dismissed (or
 removed from service) employee, for the grant of
 compassionate allowance, the rule postulates a window            E
 for hope, " ... if the case is deserving of special
 consideration ... ". Where the delinquency leading to
 punishment, falls in one of the five classifications
 delineated in the foregoing paragraph, it would ordinarily
 disentitle an employee from such compassionate                   F
 consideration. An employee who falls in any of the above
 five categories, would therefore ordinarily not be a
 deserving employee, for the grant of compassionate
 allowance. In a situation like this, the deserving special
 consideration, will have to be momentous. It is not              G
 possible to effectively define the term "deserving special
 consideration" used in Rule 41 of the Pension Rules,
 1972. Circumstances deserving special consideration,
 would ordinarily be unlimited, keeping in mind unlimited
 variability of human environment. But surely where the           H
    100     SUPREME COURT REPORTS               [2014] 5 S.C.R.


A delinquency leveled and proved against the punished
  employee, does not fall in the realm of misdemeanour
  illustratively categorized in the foregoing paragraph, it
  would be easier than otherwise, to extend such benefit
  to the punished employee, of course, subject to
s availability of factors of compassionate consideration.
  [Para 14] [115-A-E]

         4. The appellant was punished by an order dated
    17 .5.1996 with dismissal from service. The accusations
    levelled against the appellant were limited to his
C   unauthorized and willful absence from service from
    18.1.1995 to 4.12.1995 (i.e., for a period of 320 days, 18
    hours and 30 minutes). The above order of punishment
    also noticed that not taking stern action against the
    appellant, would create a bad impression, on the new
D   entrants in the police service. The punishing authority
    while making a choice of the punishment imposed on the
    appellant, also recorded, that the appellant's behaviour
    was incorrigible. Thus viewed, there can be no doubt, that
    the order of dismissal from service imposed on the
E   appellant was fully justified. For cfetermining the question
    of compassionate allowance, so as to bring it within the
    realm of the parameters laid down in Rule 41 of the
    Pension Rules, 1972, it is first necessary to evaluate,
    whether the wrongdoing alleged against the appellant,
F   was of a nature of moral turpitude, dishonesty, act
    designed for personal gains or act aimed at deliberately
    harming third party interest. The delinquency for which
    the appellant was punished cannot be described as an
    act of moral turpitude, nor can it be concluded that the
G   allegations made against the appellant constituted acts
    of dishonesty towards his employer. The appellant's
    behaviour, was not one which can be expressed as an
    act designed for illegitimate personal gains, from his
    employer. The appellant, cannot also be stated to have
H   indulged in an activity to harm a third party interest, based
     MAHINDER DUTT SHARMA v. U.0.1. & ORS.              101


on the authority vested in him, nor was the behaviour of A
the appellant depraved, perverted, wicked or treacherous.
Accordingly, even though the delinquency alleged and
proved against the appellant was sufficient for imposition
of punishment of dismissal from service, it does not fall
in any of the above categories. Therefore, the availability B
of compassionate consideration, even of a lesser degree
should ordinarily satisfy the competent authority, about
the appellant's deserv.edness for an affirmative
consideration. [Para 15] [115-F-H; 116-A-F]

      5. The appellant had rendered about 24 years of
                                                               c
service, .prior to his dismissal from service. During. the
above tenure, he was granted 34 good entries, including
2 commendation rolls awarded by Commissioner of
Police, 4 commendation certificates awarded by the
Additional Commissioner of Police and 28 commendation          D
cards awarded by the Deputy Commissioner of Police.
Even though the charge proved against the appellant
pertained to his unauthorized and willful absence from
service, there was nothing 'on the record to reveal, that
his absence from service was aimed at seeking be.tter          E
pastures elsewhere. No such inference is even otherwise
possible, keeping _in view the length of service rendered
by the appellant. There is no denial, that the appellant
was involved, during the period under consideration, in
a criminal case, from which he was subsequently                F
acquitted. One of his brothers died, and thereafter, his
father and brother's wife also 'passed away. His own wife
was suffering from cancer. All these tribulations led to his
own ill-health, decipherable from the fact that he was
suffering from hypertension and diabetes. It is these          G
considerations, which ought to have been evaluated by
the competent authority, to determine whether the claim
of the appellant deserved special consideration, as would
entitle him to compassionate allowance under Rule 41 of
the Pension Rules, 1972. [Para 16] [116-H; 117-A-E]            H
    102       SUPREME COURT REPORTS              [2014] 5 S.C.R.


A      6. None of the authorities on the administrative side,
  not even the Tribunal or the High Court, applied the above
  parameters to determine the claim of the appellant for
  compassionate allowance. The consideration of the
  appellant's claim was clearly misdirected. All the
B authorities merely examined the legitimacy of the order
  of dismissal. And also, whether the delay by the appell:tnt,
  in filing the appeal against the punishment order dated
  17 .5.1996, was legitimate. The basis, as well as, the
  manner of consideration, for a claim for compassionate
c allowance, has nothing to do with the above aspects.
  Accordingly, while accepting the instant appeal, the order
  passed by the Deputy Commissioner of Police rejecting
  the prayer made by the appellant for grant of
  compassionate allowance is set aside. The order passed
D by the Tribunal and the order passed by the High Court
  are also accordingly hereby set aside. Having held as
  above, the competent authority is directed to reconsider
  the claim of the appellant, for the grant of compassionate
  allowance under Rule 41 of the Pension Rules, 1972,
  based on the parameters laid down. [Para 17] [117-E-H;
E 118-A-B]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2111 of 2009.

F       From the Judgment and Order dated 13.11.2006 of the
    High Court of Delhi at New Delhi in Writ Petition (Civil) No.
    14924 of 2006.

          Ravi Kumar Tomar for the Appellant.

G         Arijit Prasad, D.S. Mahra for the Respondents.

          The Judgment of the Court was delivered by

          JAGDISH SINGH KHEHAR, J. 1. By an office
    memorandum dated 26.10.1995, departmental action ·was
H   initiated against the appellant who was then holding the post
     MAHINDER DUTT SHARMA v. U.0.1. & ORS.                    103
          [JAGDISH SINGH KHEHAR, J.]
of Constable. He was then posted in the llnd Battalion, Delhi        A
Armed Police, Delhi. The aforesaid action was initiated against
the appellant on account of his continuous absence from duty
with effect from 18.1.1995. He was served with absentee notice
dated 25.5.1995 on 10.6.1995, wherein he was required to
resume his duty. Failing which, he was informed that                 B
departmental action would be taken against him. The appellant
neither resumed his duties, nor responded to the above
absentee notice dated 25.5.1995. He was thereupon, issued
a second absentee notice dated 24.8.1995, which was served
on him on 10.9.1995. It is not a matter of dispute, that after       c
initiating the above departmental proceedings against the
appellant, he resumed his duties on 5.12.1995. It is therefore
alleged, that his unauthorized and willful absence, extended to
a period of 320 days 18 hours and 30 minutes,

     2. Inspector Hari. Darshan was appointed as the enquiry · D
officer. After culmination of the departmental proceedings, t.he
enquiry officer arrived at the conclusion, that the presenting
officer had been successful in substantiating the charges
leveled against the appellant. The above enquiry report was
furnished to the appellant on 22:3.1996. Despite being required E
to respond ·to the same, the appellant did not file any. reply. In
the absence of any written reply, the appellant was required to
appear in the "orderly"room" on three occasions, for affording
him a personal hearing. He ignored all the above notices, by
not reporting for personal hearing.                                F

     3. Finding his willful and unauthorized absence from duty
intolerable, specially in a disciplined force, the punishing
authority expressed the view, that not taking stern action against
the appellant, would create a bad impression, on the new
entrants into police service. Finding the behaviour of the           G
appellant incorrigible, the Deputy Commissioner of Police, llnd
Battalion, Delht Armed Police, Delhi by an order dated
17 .5.1996 dismissed the appellant from service, with
immediate effect. In the punishment order dated 17.5 . 1996 the
disciplinary authority further directed, that the period of the      H
   104       SUPREME COURT REPORTS                [2014] 5 S.C.R.


A appellant's absence from 18.1.1995 to 4.12.1995 (of 320 days,
  18 hours and 30 minutes) would be treated as leave without
  pay.

       4. In the order of dismissal itself, the appellant was
  informed, that he could prefer an appeal (against the
8
  punishment order dated 17.5.1996), within 30 days, before the
  Senior Additional Commissioner of Police, Delhi. The instant
  information was furnished to the appellant in terms of the
  procedure contemplated under the Delhi Police (Punishment
  and Appeal) Rules, 1980. The pleadings before this Court
C reveal, that the appellant received the punishment order dated
  17 .5.1996 on 24.5.1996. It is therefore apparent, that he could
  legitimately prefer an appeal by 23.6.1996. The appellant
  factually preferred an appeal, more than five and half years after
  passing of the impugned order, on 21.2.2002. The Additional
D Commissioner of Police, Delhi Armed Police, Delhi, dismissed
  the appeal preferred by the appellant vide an order dated
  13.6.2002, on the ground that the same was badly time barred.

       5. Dissatisfied with the order of punishment dated
E 17.5.1996, as also the appellate order dated 13.6.2002, the
  appellant approached the Central Administrative Tribunal,
  Principal Bench, New Delhi (hereinafter referred to as, the
  Tribunal), by filing Original Application no. 3132 of 2002. In the
  Original Application preferred by him, the appellant narrated
F various reasons on account of which delay in filing the appeal
  had occurred (against the punishment order dated 17.5.1996)
  ought to have been condoned. Firstly, it was submitted that his
  wife was suffering from cancer. Secondly, the appellant asserted
  that he was involved in a criminal case, and therefore, was
G wholeheartedly attending to the same. Thirdly, it was stated that
  his brother had died, and thereafter, his father and brother's
  wife had also passed away. Lastly, it was submitted that he was
  suffering from hypertension, as also, diabetes, which added to
  the reasons already expressed hereinabove (for not being able
  to prefer the appeal within the period of limitation).
H
     MAHIN DER DUTT SHARMA v. U.0.1. & ORS.                  105
           [JAGDISH SINGH KHEHAR, J.]
     6. Since the events referred to by the appellant, as have      A
been narrated in the foregoing paragraph, had taken place prior
to the year 2000, the Tribunal found no justification in the
explanation tendered by the appellant, for condoning delay in
preferring the appeal filed against the order of punishment
dated 17.5.1996, on 21.2.2002. Despite the above conclusion,        B
the Tribunal examined the veracity of the impugned order dated
17.5.1996, on the basis of the submissions advanced on behalf
of the appellant and arrived at the conclusion, that the same
required no interference.

     7. Dissatisfied with the order passed by the Tribunal on
                                                                    c
14.8.2003, the appellant preferred Writ Petition no. 10959 of
2004 before the High Court of Delhi at Delhi (hereinafter
referred to as, the High C,ourt). The appellant, however,
withdrew the aforesaid writ petition on 15.10.2004, with liberty
to seek compassionate allowance. The above order dated              D
15.10.2004, is being extracted hereunder:-
     " Learned counsel for the petitioner, on instructions, prays
     for withdrawal of this petition because petitioner wants to
     take some appropriate remedy for grant of compassionate        E
     aflowance.

     Dismissed with liberty to petitioner to seek appropriate
     remedy for grant of allowance."

    8. On 22.3.2005, the appellant moved a representation to        F
the Joint Commissioner of Police, Delhi Armed Police, Delhi,
seeking compassionate allowance under Rule 41 of the Central
Civil Services (Pension) Rules, 1972 (hereinafter referred to as,
the Pension Rules, 1972). Rule 41 of the Rules aforementioned,
is being extracted hereunder:-                                      G
      "41. Compassionate allowance
      (1)   A Government servant who is dismissed or
            removed from service shall forfeit his pension and
            gratuity:                                               H
    106          SUPREME COURT REPORTS             [2014] 5 S.C.R.


A                 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 which would have
B                 been admissible to him if he had retired on
                  compensation pension.

           (2)    A compassionate allowance sanctioned under the
                  proviso to sub-rule (1) shall not be less than the
                  amount of Rupees three hundred and seventy-five
c                 per mensem."

  In his above representation dated 22.3.2005 the appellant
  asserted, that he had about 24 years of unblemished service
  during which he was granted 34 good entries, including 2
D commendation rolls awarded by Commissioner of Police, 4
  commendation certificates awarded by the Additional
  Commissioner of Police and 28 commendation cards awarded
  by the Deputy Commissioner of Police. He also placed reliance
  on his discharge certificate, whereunder the character of the
E appellant was described as 'very good'.

         9. By an order dated 25.4.2005, the Deputy Commissioner
    of Police, llnd Battalion, Delhi Armed Police, Delhi, rejected the
    prayer made by the appellant for the grant of compassionate
    allowance. The operative part of the order dated 25.4.2005,
F   rejecting the appellant's claim for compassionate allowance is
    being extracted hereunder:-

          "4. As regards your claim for compassionate allowance,
          you do not have unblemished record because you have
G         been found absent on several occasions and your period
          was treated as 'Leave Without Pay'. You were also
          censured during the tenure of your service and certain
          other punishments also exist in your service record. Hence
          due to indifferent service record and the facts of the case
H         no compassionate allowance can be granted."
     MAHINDER DUTT SHARMA v. U.0.1. & ORS.                     107
          [JAGDISH SINGH KHEHAR, J.]
     10. Dissatisfied with the order dated 25.4.2005, the             A
appellant again approached the Tribunal by filing Original
Application no. 1581 of 2005, seeking annulment of the order
dated 25.4.2005, as also, the directions of the authorities, not
to release compassionate allowance to the appellant. The
appellant's claim was, however, declined by the Tribunal vide         8
an order dated 28.2.2006. It is necessary in the facts and
circumstances of the case, as also, for an effective
determination of the claim of the appellant under Rule 41 of the
Pension Rules, 1972 to extract hereinbelow, the manner and
the reasoning which had weighed with the Tribunal for rejecting       C
the claim of the appellant. Accordingly, the operative part of the
relevant consideration at the hands of the Tribunal is being
reproduced hereunder:-

      "7.   Reading of the above rules show that in normal
            circumstances when a Government servant is                D
            removed or dismissed from service, he forfeits his
            past service, including pension and gratuity but it
            is only by way of an exception that a proviso is
            added in Rule 41 which states, the competent
            authority may, if the case is deserving of special        E
            consideration, sanction a· compassionate
            allowance. From this, it would further emerge that
            compassionate allowance can be given only in
            exceptional circumstances where case is found to
            be deserving of special consideration. The person,        F
            who has to decide, whether it is a deserving case
            or nol, is the competent authority. Under the
            Government of India's decisions, poverty is not an
            essential condition precedent to the grant of a
            compassionate allowance, but special regard is            G
            also occasionally paid to the fact that the officer has
            a wife and children dependent upon him, though the
            factor by itself is not, except perhaps in the most
            exceptional circumstances, sufficient for the grant
            of a compassionate allowance. In other words,
                                                                      H
    108        SUPREME COURT REPORTS               [2014] 5 S.C.R.


A               there has to be some mitigating factor which makes
                the competent authority to come to the conclusion
                that even though the person has to be dismissed
                or removed from service but looking at the special
                mitigating circumstances, the person may be given
B               compassionate allowance. It goes without saying
                when it is an exception. it cannot be given as matter
                of course in every case where Government servant
                has been dismissed or removed. otherwise it will
                defeat the main rule itself which can never be the
                intention of the legislature. Provisos are added to
c               deal with a particular situation only to avoid undue
                hardship to a deserving case where mitigating
                circumstances are existing.

          8.    With this background, if the facts of this case are
D               examined, as stated by the applicant in his
                representation, I find only three grounds have been
                taken by the applicant namely, he had put in 24
                years of unblemished service, there were three
                deaths in the family after he was dismissed and he
E               has become a diabetic patient and is in a pathetic
                condition. His ground for condoning the delay was
                not considered by the appellate authority in the right
                spirit. Let me examine all these three points. When
                applicant had challenged his dismissal and
F               appellate order before the Tribunal in OA 3132/
                2002, the question of delay was specifically dealt
                with by the Tribunal in Para 8 (Page 19 to 22). It
                was specifically stated as undedr:-
                "On this count, we need not prove further in d_etail.
G               Even if we accept the contention of the applicant
                to be· gospel truth, still he has to explain each day's
                delay after the period of limitation expired. As per
                his own showing, all these unfortunate incidents took
                place before the year 2000. He was also acquitted
H
 MAHINDER DUTT SHARMA v. U.0.1. & ORS.                    109
      [JAGDISH SINGH KHEHAR, J.]
       by the Court of competent jurisdiction in the same        A
       year. Still he did not deem it necessary to file an
       appeal within the period of limitation from that date."
       His contention was thus rejected.

 9.    In view of above, the contention that there was a 8
       valid ground for not filing the appeal within time
       cannot even be allowed to be agitated again as the
       judgment of Tribunal has not been upset by Hon'ble
       High Court. Similarly, applicant had also challenged
       before Tribunal the use of word "incorrigible" for him C
       by the authorities but even that contention was
       rejected by the Tribunal. The order dated 14.8.2003
       passed by the Tribunal in O.A. 3132/2002 was
       further carried by the applicant to Hon'ble High
       Court of Delhi by filing Writ Petition no. 10959/2004
       but the said order of Tribunal was not interfered with. D
       On the contrary, the order passed by Hon'ble High
       Court reads as under:-

             "Learned counsel for the petitioner, on
             instructions, prays for withdrawal of this          E
             petition because petitioner wants to take
             some appropriate remedy for grant of
             compassionate allowance.

             Dismissed with liberty to petitioner to seek
                                                                 F
             appropriate remedy for grant of this
             allowance."'

which clearly shows that the judgment of Tribunal has
attained finality. Counsel for the applicant submitted that
the writ petition was withdrawn on directions from the           G
Hon'ble High Court, but I cannot with this contention
because words cannot be added in the order passed by
Hon'ble High Court. Order has to be read, as it is, which
shows that applicant had withdrawn the case because he
wanted to take some appropriate remedy for grant of              H
    110          SUPREME COURT REPORTS              [2014] 5 S.C.R.


A         compassionate allowance. In other words, the order
          passed by the Tribunal was not interfered with and was
          upheld. Therefore. in these circumstances, applicant
          cannot be allowed to state to the contrarv. therefore. the
          contention that there was valid reason for not filing the
8         appeal in time or that he had unblemished record is
          rejected. Since the findings that he was found to be
          incorrigible in this case when he was dismissed. whereas
          the foremost requirement for grant of compassionate
          allowance under Rule 41 of the CCS (Pension) Rules is
c         that of extenuating circumstances.

           10. Apart from it, applicant remained unauthorizedly
                absent on six occasions, as reflected in counter
                affidavit:

D          "1.    3 days leave without pay w.e.f. 30.9. 79 to 2.10. 79
                  vide 0.8. no. 656/80.

           2.     66 days leave without pay w.e.f. 15.10.79 to
                  19.12.79 vide 0.8. no. 656/80.
E          3.     19 days leave without pay w.e.f. 6.2.81 to 24.2.81
                  vide order no. 15417-21/ASIP/North dated
                  8.9.1981.

           4.     20 days leave without pay w.e.f. 29.8.84 to 17.9.84
F                 vide O.B. no. 682/85.

            5.     83 days leave without pay w.e.f. 20.9.84 to
                   11.12.84 vide O.B. no. 682/85.

            6.     11 Odays leave without pay w.e.f. 3.1.96 to 22.4.96
G                  vide order no. 2934-37/ASIP-ll, OAP, dated
                   22.5.96."

          Applicant has not even bothered to controvert it, which
          means these averments stand admitted in law. These facts
H         clearly show that applicant' cannot be said to be having
     MAHINDER DUTT SHARMA v. U.0.1. & ORS.                    111
          [JAGDISH SINGH KHEHAR, J.]

    unblemished record as stated by him, therefore, this A
    contention also has to be rejected. Applicant was
    dismissed in 1996. If after 9 years applicant states he is
    in a pathetic condition, he cannot be allowed to claim
    compassionate allowance in 2005 w.e.f. 1996 i.e. date of
    his dismissal, that too with interest. This request is definitely B
    an after thought, nothing more need be said on this point.
    If such a contention is allowed, employees will not bother
    to maintain discipline or follow rules because they would
    think ultimately even if they are dismissed, they can always
    claim compassionate allowance. Compassionate                     c
    allowance cannot be sought as a matter of right unless
    there are some exceptional circumstances.

      11.   According to me. no case has been made out by
            applicant for grant of compassionate allowance."
                                                                     D
                                              (emphasis is ours)

     11. Aggrieved with the order of the Tribunal dated
28.2.2006, the appellant filed Writ Petition no. 14924 of 2006
before the High Court. The High Court examined the                   E
submissions advanced on behalf of the appellant. It dismissed
the claim of the appellant for compassionate allowance, on the
following consideration:-

    "Considering the aforesaid plea. we had directed the
    petitioner to file an additional affidavit to give particulars F
    and details of the reasons which constrained him to avail
    leave without pay and to set out other special
    circumstances in support of his plea for compassionate
    allowance. The additional affidavit was not filed within two
    weeks as directed. However. further time was granted by G
    us to the petitioner for filing the additional affidavit vide
    order dated 11.10.2006. The additional affidavit that has
    been preferred by the petitioner, unfortunately, apart from
    mentioning in para 6 that the petitioner's condition was
    pathetic and his wife has suffered from cancer and that he H
    112       SUPREME COURT REPORTS                [2014] 5 S.C.R.


A         was apprehending amputation of his left leg below the
          knee. does not contain any averments with regard to the
          various bereavements suffered or the illness of his wife or
          the treatment thereof and the respective deaths which
          came into the way of the petitioner from taking legal
8         remedies. He has not brought forward any extenuating and
          special circumstances which had continued since then
          which had prevented him from taking timely remedies or
          would entitle him to compassionate allowance. The
          medical certificate of the petitioner no doubt shows that
c         he is diabetic and under treatment, therefor. However, it
          also shows that the petitioner has been a chronic alcoholic
          and drug addict. Considering the aforesaid factors, while
          one may sympathize with the petitioner's present condition,
          we are not satisfied that the petitioner has succeeded in
          making out a case for grant of compassionate allowance
D
          and the discretion exercised by the authorities cannot be
          said to have been vitiated by any extraneous or irrelevant
          factors."

                                                 (emphasis is ours)
E
         12. We are of the conside'red view, that the adjudication
    by the Courts below with reference to Rule 41 of the Pension
    Rules, 1972, is clearly misdirected. The Rule itself
    contemplates, payment of compassionate allowance to an
F   employee who has been dismissed or removed from seNice.
    Under the punishment rules, the above punishments are of the
    severest magnitude. These punishments can be inflicted, only
    for an act of extreme wrongdoing. It is on account of such
    wrongdoing, that the employee concerned, has already been
G   subjected to the severest form of punishment. Sometimes even
    for being incorrigible. Despite that, the rule contemplates
    sanction of a compassionate allowance of, upto two-thirds of
    the pension or gratuity (or both), which would have been drawn
    by the punished employee, if he had retired on compassionate
    pension. The entire consideration upto the present juncture, by
H
     MAHINDER DUTT SHARMA v. U.0.1. & ORS.                  113
          [JAGDISH SINGH KHEHAR, J.]
 the Courts below, is directly or indirectly aimed at determining, A
 whether the delinquency committed by the appellant, was
 sufficient and appropriate, for the infliction of the punishment
 of dismissal from service. This determination is relevant for
 examining the veracity of the punishment order itself. That,
 however, is not the scope of the exercise contemplated in the B
 present consideration. Insofar as the determination of the
 admissibility of the benefits contemplated under Rule 41 of the
.Pension Rules, 1972 is concerned, the same has to be by
 accepting, that the delinquency committed by the punished
 employee was of a magnitude which is sufficient for the           c
 imposition of the most severe punishments. As in the present
 case, unauthorized and willful absence of the appellant for a
 period of 320 days, has resulted in the passing of the order of
 dismissal from service. The punishment inflicted on the
 appellant, has been found to be legitimate and genuine, as also,
                                                                   0
 commensurate to the delinquency of the appellant. The issue
 now is the evaluation of claim of the punished employee under
 Rule 41 of the Pension Rules, 1972. ·

      13. In our considered view, the determination of a claim
based under Rule 41 of the Pension Rules, 1972, will               E
necessarily have to be sieved through an evaluation based on
a series of distinct considerations, some of which are
illustratively being expressed hereunder:-

       (i) Was the act of the delinquent, which resulted in the F
infliction of the punishment of dismissal or removal froin service,
an'act of moral turpitude? An act of moral turpitude, is an act
which has an inherent. quality of baseness, vileness or depravity
with respect to a. concerned person's duty towards another, or
to the society in general. In criminal law, the phrase is used G
generally to describe a conduct which is contrary to community
standards of justice, honesty and good morals. Any debauched,
degenerate or evil behaviour would fall in this classification.

       (ii) Was the act of the delinquent, which resulted in the        '•,.


infliction of the punishment of dismissal or removal from ser'Vice, H
    114       SUPREME COURT REPORTS                [2014) 5 S.C.R.


A an act of dishonesty towards his employer? Such an action of
  dishonesty would emerge from a behaviour which is
  untrustworthy, deceitful and insincere, resulting in prejudice to
  the interest of the employer. This could emerge from an
  unscrupulous, untrustworthy and crooked behaviour, which aims
B at cheating the employer. Such an act may or may not be aimed
  at personal gains. It may be aimed at benefiting a third party,
  to the prejudice of the employer.

         (iii) Was the act of the delinquent, which resulted in the
  infliction of the punishment of dismissal or removal from service,
C an act designed for personal gains, from the employer? This
  would involve acts of corruption, fraud or personal profiteering,
  through impermissible means by misusing the responsibility
  bestowed in an employee by an employer. And would include,
  acts of double dealing or racketeering, or the like. Such an act
D may or may not be aimed at causing loss to the employer. The
  benefit of the delinquent, could be at the peril and prejudice of
  a third party.

           (iv) Was the act of the delinquent, which resulted in the
E   infliction of the punishment of dismissal or removal from service,
    aimed at deliberately harming a third party interest? Situations
    hereunder would emerge out of acts of disservice causing
    damage, loss, prejudice or even anguish to third parties, on
    account of misuse of the employee's authority to control,
F   regulate or administer activities of third parties. Actions of
    dealing with similar issues differently, or in an iniquitous
    manner, by adopting double standards or by foul play, would
    fall in this category.

         (v) Was the act of the delinquent, which resulted in the
G infliction of the punishment of dismissal or removal from service,
  otherwise unacceptable, for the conferment of the benefits
  flowing out of Rule 41 of the Pension Rules, 1972? Illustratively,
  any action which is considered as depraved, perverted, wicked,
  treacherous or the like, as would disentitle an employee for such
H compassionate consideration.
   , MAHINDER DUTT SHARMA v. U.0.1. & ORS.                     115
          [JAGDISH SINGH KHEHAR, J.]
     14. While evaluating the claim of a dismissed (or removed        A
from service) employee, for the grant of compassionate
 allowance, the rule postulates a window for hope, "... if the case
is deserving of special consideration ... ". Where the
delinquency leading to punishment, falls in one of the five
classifications delineated in the foregoing paragraph, it would       B
ordinarily disentitle an employee from such compassionate
consideration. An employee who falls in any of the above five
categories, would therefore ordinarily not be a deserving
employee, for the grant of compassionate allowance. In a
situation like this, the deserving special consideration, will have   c
to be momentous. It is not possible to effectively define the term
"deserving special consideration" used in Rule 41 of the
Pension Rules, 1972. We shall therefore not endeavour any
attempt in the said direction. Circumstances deserving special
consideration, would ordinarily be unlimited, keeping in mind
                                                                      0
unlimited variability_ of human environment. But surely where the
delinquency leveled and proved against the punished
employee, does not fall in the realm of misdemeanour
illustratively categorized in the foregoing paragraph, it would be
easier than otherwise, to extend such benefit to the punished
employee, oJ course, ,subject to availability of factors of           ~
compassionate consideration.

     15. We shall now venture to apply the aforesaid criterion,
to the facts and circumstances of the case in hand, and
decipher therefrom, whether the appellant before this Court           F
ought to have been granted compassionate allowance under
Rule 41 of the Pension Rules, 1972'. The appellant was
punished by an order dated 17.5.1996 with dismissal from
service. The accusations levelled against the appellant were
limited to his unauthorized and willful absence from service          G
from 18.1.1995 to 4.12.1995 (i.e., for a period of 320 days, 18
hours and 30 minutes). The above order of punishment also
notices, that not taking stern action against the appellant, would
create a bad impression, on the new entrants in the police
service. The punishing authority while making a choice of the         H
    116     SUPREME COURT REPORTS                [2014] 5 S.C.R.

A punishment imposed on the appellant, also recorded, that the
  appellant's behaviour was incorrigible. Thus viewed, there can
  be no doubt, that the order of dismissal from service imposed
  on the appellant was fully justified. For determining the question
  of compassionate allowance, so as to bring it within the realm
8 of the parameters laid down in Rule 41 of the Pension Rules,
  1972, it is first necessary to evaluate, whether the wrongdoing
  alleged against the appellant, was of a nature expressed in
  paragraph 13 of the instant judgment. Having given our
  thoughtful consideration on the above aspect of the matter, we
c do not find the delinquency for which the appellant was
  punished, as being one which can be described as an act of
  moral turpitude, nor can it be concluded that the allegations
  made against the appellant constituted acts of dishonesty
  towards his employer. The appellant's behaviour, was not one
  which can be expressed as an act designed for illegitimate
0
  personal gains, from his employer. The appellant, cannot also
  be stated to have indulged in an activity to harm a third party
  interest, based on the authority vested in him, nor was the
  behaviour of the appellant depraved, perverted, wicked or
  treacherous. Accordingly, even though the delinquency alleged
E and proved against the appellant was sufficient for imposition
  of punishment of dismissal from service, it does not fall in any
  of the classifications/categories depicted in paragraph 13 of
  the instant judgment. Therefore, the availability of
   compassionate consideration, even of a lesser degree should
F ordinarily satisfy the competent authority, about the appellant's
   deservedness for an affirmative consideration.

        16. We shall only endeavour to delineate a few of the
  considerations which ought to have been considered, in the
G present case for determining whether or not, the appellant was
  entitled to compassionate allowance under Rule 41 of the
  Pension Rules, 1972. In this behalf it may be noticed, that the
  appellant had rendered about 24 years of service, prior to his
  dismissal from service, vide order dated 17.5.1996. During the
H above tenure, he was granted 34 good entries, including 2
     MAHINDER DUTT SHARMA v. U.0.1. & ORS.                   117
          [JAGDISH SINGH KHEHAR, J.]
 commendation rolls awarded by Commissioner of Police, 4 A
 commendation certificates awarded by the Additional
 Commisi;ipner of Police and 28 commendation cards awarded
 by the Deputy Commissioner of Police. Even though the charge
 proved against the appellant pertains to his unauthorized and
 willful absence from service, there is nothing on the record to B
 reveal, that his absence from service was aimed at seeking
 better pastures elsewhere. No such inference is even otherwise
 possible, keeping in view the length of service rendered by the
 appellant. There is no denial, that the appellant was involved,
during the period under consideration, in a criminal case, from c
which he was subsequently acquitted. One of his brothers died,
 and thereafter, his father and brother's wife also passed away.
 His own wife was suffering from cancer. All these tribulations
 led to his own ill-health, decipherable froin the fact that he was
suffering from hypertension and diabetes. It is these D
considerations, which ought to have been evaluated by the
competent authority, to determine whether the claim of the
appellant deserved special consideration, as would entitle him
to compassionate allowance under Rule 41 of the Pension
Rules, 1972.
                                                                    E
       17. None of the authorities on the administrative side, not
even the Tribunal or the High Court, applied the above
parameters to determine the claim of the appellant for
compassionate allowance. We are of the view, that the
consideration of the appellant's claim, was clearly misdirected. F
All the authorities merely examined the legitimacy of the order
of dismissal. And also, whether the delay by the appellant, in
filing the appeal against the punishment order dated 17.5.1996,
was legitimate. The basis, as well as, the manner of
consideration, for a claim for compassionate allowance, has G
nothing to do with the above aspects. Accordingly, while
accepting the instant appeal, we set aside the order dated
25.4.2005 (passed by the Deputy Commissioner of Police, !Ind
Battalion, Delhi Armed Police, Delhi), rejecting the prayer made
by the appellant for grant of compass.ionate allowance. The H
   118        SUPREME COURT REPORTS              [2014] 5 S.C.R.


A order passed by the Tribunal dated 28.2.2006, and the order
  passed by the High Court dated 13.11.2006, are also
  accordingly hereby set aside. Having held as above, we direct
  the competent authority to reconsider the claim of the appellant,
  for the grant of compassionate allowance under Rule 41 of the
B Pension Rules, 1972, based on the parameters laid down
  hereinabove.

         18. Allowed in the aforesaid terms.

   Devika Gujral                                     Appeal allowed.