LATOOR CHAND Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition has been preferred by petitioner assailing the order dated 03.08.2010 by which application of petitioner for grant of compassionate allowance to him under Rule 172 of the Rajasthan Service Rules from the date of his removal from 11.03.1993 has been declined. Facts of the case are that petitioner was appointed as peon with respondents on 02.11.1974. Thereafter he worked on the post of Lower Division Clerk in the court of Munsiff and Judicial Magistrate, Bhawanimandi, District Jhalawar, from 28.09.1976. The Munsiff and Judicial Magistrate vide letter dated 13.04.1987 called for explanation from petitioner on the premise that he was looking after the work of criminal section when Shri Ram Gopal Gupta was on leave he received an envelope containing copy of dying declaration of one Kalu Singh and he gave receipt of the same but he misplaced the same. Petitioner submitted an explanation on 21.04.1987 stating that he handed over the complete papers to Shri Ram Gopal Gupta on his return from casual leave. His explanation was not accepted and he was served with charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, on 13.10.1987. On conclusion of disciplinary proceedings, petitioner was eventually awarded penalty of removal from service vide order dated 11.03.1993. Petitioner requested for grant of compassionate allowance to him under Rule 172 of the RSR read with Rule 43 of the Rajasthan Civil Services (Pension) Rules, 1996. His case was forwarded by the establishment on Rajasthan High Court to the Government through the Law Secretary. The Government vide letter dated 20.11.2005 conveyed to Registrar General of the Rajasthan High Court that the District & Sessions Judge himself was competent to pass appropriate order with regard to compassionate allowance under Rule 43 of the Rules of 1996. The Registrar General of the Rajasthan High Court accordingly wrote to the District & Sessions Judge, Jhalawar to do the needful, vide letter dated 20.02.1996, who by his order dated 20.04.2006 rejected the request of the petitioner. Aggrieved thereby, petitioner made a representation to the High Court and thereafter served upon them legal notice for demand of justice. When nothing was done by respondents, he approached this court by filing S.B. Civil Writ Petition No. 7562/2009, which came to be disposed of by order dated 18.05.2010 of a co-ordinate Bench of this court requiring the respondents to decide the representation of the petitioner. The respondent State Government rejected the representation of the petitioner vide order dated 18.06.2010. Aggrieved thereby, petitioner has approached this court by filing present writ petition.

(2.) Shri M.C. Taylor, learned counsel for petitioner, has argued that petitioner was removed from service on 11.03.1993, much prior to enforcement of the Rules of 1996. His case was covered by Rule 172 of the Rajasthan Service Rules and not by Rule 43 of the Rules of 1996. The State Government as also the District & Sessions Judge both without application of mind, wrongly denied him benefit of compassionate allowance. It is argued that the finance department is the final authority in such matters and despite the information by the finance department, the District & Sessions Judge was competent to grant compassionate allowance. He committed serious illegality in refusing to grant the same to petitioner. It was argued that under Rule 172 of the RSR, it is the Government which is competent and not the District & Sessions Judge. The finance department of the Government, vide communication dated 20.11.2005 has already opined in favour of grant of compassionate allowance and forwarded the matter to the District Judge to take a decision on his own level. There was no justification for the District & Sessions Judge to refuse to grant benefit of compassionate allowance to petitioner. Action of the respondents is arbitrary, unreasonable and capricious.

(3.) Shri M.C. Taylor, learned counsel for petitioner, referred to Division Bench judgment of this court in Mithlesh Sharan Sharma v. The State of Rajasthan and others, 2004 3 SLR 485 and argued that though first defence of the petitioner was that he had handed over complete documents to Shri Ram Gopal Gupta, the regular dealing clerk, who had returned from casual leave, but even otherwise the fact that original of the dying declaration was lost, had no adverse effect on the trial and ultimately second copy thereof was produced and relied on by the trial court and the trial court convicted the accused therein. The High Court even then acquitted the accused holding that evidence proved that deceased Kalu Singh was not in a fit state of mind and not able to make any kind of coherent or credible statement relating to the circumstances which resulted in death. The dying declaration itself was held to be unreliable and thus the accused was acquitted by the High Court. Learned counsel has submitted that Division Bench of this court in Mithlesh Sharan Sharma, supra, allowed the writ petition filed by employee, who was terminated from service on the charge of absence from duties and was not held entitled to any pension. Considering however that he served as Sepoy since 17.11.1949 till 17.04.1979 i.e. for as long as thirty years, compassionate allowance was ordered to be paid to him. Reliance is also placed on the judgment of the Bombay High Court in Anna Deoram Londhe v. State of Maharashtra, 1998 LabIC 2459