27. WP.CT 143 of 2023 Judgment.odt ORDER SHEET WBCHCA0343032023 PG/KS Sl. No.27 (Ct. No.1) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WP.CT. 143 of 2023 SHUKLA SARKAR, WIFE OF LATE BISWANATH SARKAR, RESIDING AT VILLAGE -GARMIRJAPUR, POST OFFICE-MASHILA DISTRICT- HOWRAH PIN-711302 ….Petitioner Versus 1. THE UNION OF INDIA THROUGH THE GENERAL MANAGER, SOUTH EAST CENTRAL RAILWAY, BILASPUR, POST OFFICE-BILASPUR PIN CODE-495004 STATE-CHHATTISGARH. 2. SR. DPO, SOUTH EAST CENTRAL RAILWAY, RAIPUR DRM OFFICE, NEAR WALTAIP GATE, RVH COLONY, BILASPUR ROAD, RAIPUR-492008, STATE-CHHATTISGARH. 3. CHIEF PERSONNEL OFFICER, SOUTH EAST CENTRAL RAILWAY, BILASPUR, POST OFFICE-BILASPUR, PIN CODE-495004, CHHATTISGARH ….Respondents ---- Mr. Sunny Nandi, Mr. Dipranjan Mukhopadhyay, Ms. Oindreli Ghosal, Ms. Yamini Tiwari, Advocates for the Petitioner Mr. Sanajit Kr. Ghosh, Advocate for the Union of India 1 of 19 27. WP.CT 143 of 2023 Judgment.odt ---- CORAM: RAVINDRA V. GHUGE, CJ & ARIJIT BANERJEE, J. DATE: SEPTEMBER 16, 2026 ORAL JUDGEMENT (PER RAVINDRA V. GHUGE, CJ) 1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties. 2. The Petitioner is a widow of an employee, namely Biswanath Sarkar, who was removed from service on account of continued absence from duties for 392 days. The widow is assailing the judgment of the Central Administrative Tribunal, Kolkata Bench dated 17.01.2023, delivered in O.A. No.350/00462/2016, by which, compassionate allowance by way of pension was not granted by the Tribunal. 3. We have heard the submissions of the Learned Counsel for the respective sides and have gone through the Petition Paper Book with their assistance. The Petitioner has relied upon the judgment delivered by the Bombay High Court in the matter of Mohammad Shafique Rafiq Ahmed Shaikh Vs. Chairman, Mumbai Port Trust & Ors., 2025 SCC Online Bombay 2005. 2 of 19 27. WP.CT 143 of 2023 Judgment.odt 4. The learned Counsel for the Employer/Railways has vehemently opposed the Petition and relies upon a judgment delivered by the Nagpur Bench of the Bombay High Court, dated 23.03.2023 in Writ Petition No.3468 of 2022 (Nalini W/o Natthuji Shende Vs. State of Maharashtra & Ors.). 5. This Petition falls within a narrow compass while considering whether the Petitioner/Widow is entitled for Compassionate Allowance (differently named as Compassionate Pension under the Maharashtra Rules). 6. The dates and sequence of events are as under: (a) The Husband of the Petitioner, who was undisputedly an employee of the Respondents, went missing in June, 1994. He is said to be a mentally challenged patient. (b) Thereafter, she started searching for him, but in vain. (c) The Respondent/Employer issued a charge-sheet dated 18.12.1996 to the said Employee, who had disappeared. (d) The Respondent attempted to serve the charge-sheet on the residence of the employee/Biswanath Sarkar, who had already went missing and the charge-sheet is said to have been returned to the 3 of 19 27. WP.CT 143 of 2023 Judgment.odt Employer, without service. (e) An Enquiry Officer was appointed, who conducted a Departmental Enquiry in the absence of Biswanath Sarkar and submitted an enquiry report on 07.04.1997. (f) By way of disciplinary action, Biswanath Sarkar was removed from service on 21.10.1997. (g) The Widow came to know about the order of removal. (h) In 1999, the husband of the widow is said to have been traced out. (i) On 07.04.1999, the Father-in-Law of the Petitioner i.e. the biological father of Biswanath Sarkar, made a representation to the Railways to reconsider the case of his son for the purpose of resumption of duty or to pay the service dues. (j) Biswanath Sarkar died on 6th August, 2009. (k) There has been correspondence for a few years, between the Railway Board and the Widow, who sought compassionate pension. (l) Finally, the Widow filed Original Application No.983 of 2015 on 27.07.2015 before the Learned Central Administrative Tribunal, Kolkata Bench. (m) The Learned Tribunal passed an order on 27.07.2015 and disposed of the O.A. by directing the Railways to take steps to consider the grievances of the Widow. 4 of 19 27. WP.CT 143 of 2023 Judgment.odt (n) On 08.02.2016, the Senior Divisional Personnel Officer, Raipur passed an order, which was addressed to the Petitioner/Widow stating that all her grievances are disposed off. (o) The Petitioner, therefore, preferred O.A. No.462 of 2016 before the Learned Tribunal praying for compassionate allowance as per the Rules. (p) By a judgment dated 17.01.2023, the learned Tribunal concluded that there was no merit in the grievance of the Petitioner/Widow and the O.A. was dismissed. (q) The Petitioner preferred a Review Application No.04.of 2023, which was also dismissed by the order dated 21st April, 2023. Hence, this Petition. 7. The Learned Counsel for the Railways has strenuously opposed this petition by contending that the Employee neither challenged his removal from service on account of his unauthorized absence, nor did he come forward seeking reconsideration and reinstatement in service. He did not make any attempt to convince the Employer that he should be granted reinstatement in service or his case be reconsidered. 8. The Learned advocate for the Petitioner/Widow submits 5 of 19 27. WP.CT 143 of 2023 Judgment.odt that when her husband was mentally challenged, when he had disappeared in 1994, when he was not aware about his own existence and the existence of his family and after he was traced out in 1999 in a state of mental imbalance, how could he have approached the Employer for seeking reinstatement in service. He had been ill for a long time and because of his illness, he finally passed away in 2009. Since, the Widow is living in penury and has no source of income for survival, she has been litigating against the Railways for seeking compassionate allowance. 9. The Petitioner has relied upon Rule 65 of the Railway Services (Pension) Rules, 1993, which reads as under:- 1. “A railway 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 which would have 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 three hundred seventy five rupees per mensem.“ 10. He relies upon Mohammad Shafique (supra), wherein the Bombay High Court has referred to the Pension Rules and has concluded that a claim for compassionate allowance can be rejected if the employee is said to have committed an act amounting to moral 6 of 19 27. WP.CT 143 of 2023 Judgment.odt turpitude or an act of dishonesty towards his Employer. 11. We deem it appropriate to reproduce Paragraph Nos.14 to 26 of Mohammad Shafique (supra), hereunder:- 14. The principle that emerges from the decision of the Hon'ble Supreme Court in Mahinder Dutt Sharma (supra) is that if the misconduct committed by the employee which resulted in dismissal or removal of service is an act of moral turpitude; or act of dishonesty towards his employer; or an act designed by personal gains from the employer or an act that deliberately harming a third party interest or an action which is considered as depraved, perverted, wicked, treacherous or the like, then in such eventuality, the employee would ordinarily be disentitled to compassionate allowances and in such a situation, the deserving special consideration would have to be momentous. However, where the delinquency leveled and proved against the punished employee does not fall in the realm of misdemeanor within one of the five classifications referred to by the Hon'ble Supreme Court, it would be easier than otherwise to extend such benefit to the punished employee subject to availability of factors of compassionate consideration. 15. In the instant case, Regulation No. 10(a) of the MBPT Pension Regulation, 1965 relied upon by the Respondents is similar to Regulation 41 of the Central Civil Services Pension Rules, 1972. Regulation 10(a) of the MBPT Pension Regulation, 1965 provides for consideration of compassionate allowance in the eventuality of a punished employee deserving of special consideration. 16. Respondents, in paragraph No. 10 (VII) of the affidavit-in- reply dated 21.04.2025, have referred to the reasons for rejecting Petitioner's request for Compassionate allowance. Para 10 (VII) is extracted herein below: "VII. That as per Regulation of 10 (a) of Mumbai Port Trust 7 of 19 27. WP.CT 143 of 2023 Judgment.odt Pension Regulation, 1965, Board of Mumbai Port Authority may grant compassionate allowance to the employees dismissed/removed for misconduct when they are deserving of special consideration. In the Board meeting held on 20.09.2024, it was observed that there has been no exemplary contribution or any such act on the part of Petitioner which can be treated as deserving for considering the case. Therefore, the Board decided to not to consider the request of Petitioner for payment of compassionate pension. Decision of the Board to not to consider the petitioner for compassionate pension has been communicated vide Order No. OBL/LA/ESTT/524/2024 dated 15.10.2024." 17. Said reason sought to be put forth by the Respondents to deny the claim of the Petitioner for compassionate allowance is liable to be rejected, on the face of the observation made by this Court in its order dated 29.08.2023. This Court after having expressed a view that indulgence was due to the Petitioner for grant of compassionate allowance, called upon the Respondents to consider the case of the Petitioner sympathetically. Respondents have unfortunately not adverted to the law on subject as enunciated by the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra). In the facts of the present case, the Respondents have adopted a flippant approach while dealing with the case of the Petitioner. 18. Petitioner was removed from service on the ground of unauthorized absenteeism. Indisputably, the Petitioner was neither charged nor held guilty of any of the delinquency, as categorized by the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra). Thus, the disentitling factors for grant of compassionate allowances would not apply to the case of the Petitioner. 19. Having held the disentitling factors as categorized by the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra) not applicable to the case of the Petitioner, the next issue would be whether any special consideration exist in favour of the Petitioner. 20. Petitioner in his application dated 27.09.2023 has made 8 of 19 27. WP.CT 143 of 2023 Judgment.odt reference to all his tribulations, which resulted in the absenteeism, which was held as unauthorized absenteeism for the removal of the Petitioner from service. Petitioner has made reference to the hardship caused to him. Paragraph Nos. 3, 4 and 10 of the application dated 27.09.2023 are extracted herein: "3. After the said accident, the Applicant went in trauma and had psychological problems. He was pretending that due to some invisible person, Application was influenced by the malignant spirits. Being coming from an illiterate family, Applicant parents took him to holy places for spiritual treatment feeling that the spiritual babas and Oculist (Tantrik) will drive away the evil spirit who had influenced and possession over the Applicant. Under this traumatic conditions the petitioner was not able to understand day to day affairs of life. 4. Under these circumstances, Applicant was issued a notice by the Honorable Deputy Dock Manager on 6.02.2003 calling to join services in three days. Since, the Applicant was not in a proper mental state or condition, he did not even know or understood the receipt of such Notice or even whether such notice was received or delivered be that as it maybe. After recovering from the psychological illness, Applicant on 18.02.2005, requested the authority to consider his case sympathetically and withdraw the proposed action. 10. Applicant states that, after losing the job, Applicant is working as labourer and assisting the masoner in small house repairing works for his survival. As Applicant is not educated and hails from a poor family, needs the grant of compassionate pension and retirement benefits for the survival of his family. Recently, Applicant has suffered heart attack and had to go take treatment at Sion Hospital, Mumbai. Since then, there are major restriction on Applicant's working capacity. On the top of it, Applicant requires money for his regular medication. Annexed herewith and marked as Annexure '3' collectively are the copies of medical papers in respect of the heart treatment of Applicant." 21. Compassionate allowance centers on the concept of providing support and relief to individuals facing hardships. "Compassionate" would mean showing compassion. Petitioner 9 of 19 27. WP.CT 143 of 2023 Judgment.odt in paragraph No. 10 has made reference to financial and other hardships faced by the Petitioner. Respondents have not disputed the financial and other hardships claimed by the Petitioner. Petitioner is working as a labourer and assisting masoner, Petitioner having suffered a heart attack and he requiring regular medication are facts which are not disputed by the Respondents. 22. We are of the considered opinion that the circumstances in which the Petitioner is placed, clearly makes out a case for special consideration for grant of compassionate allowance. Petitioner's case falls within the parameters of "deserving of special consideration" in terms of Regulation No. 10(a) of the MBPT Pension Regulation, 1965. Consequently, Petitioner would be entitled to grant of compassionate allowance in terms of the Regulation of the MBPT Pension Regulation, 1965, as applicable. 23. Respondents, in their reply have concentrated essentially on the charge of unauthorized absenteeism, consequential removal of the Petitioner from service and the proceedings filed by the Petitioner against the order of removal being negated by the authorities as well as this Court. Petitioner having already suffered an order of removal from service on account of unauthorized absenteeism, the said issue was no longer relevant for consideration while assessing Petitioner's case for grant of compassionate allowance. 24. In the case of Saroj Magan Damare (supra), Saroj was seeking compassionate pension being the widow of Magan Damare, who was dismissed from service from Aurangabad Irrigation Board on account of unauthorized absentee. This Court by placing reliance on the decision of Mahinder Datta Sharma (supra), allowed the petition by directing the Respondent to grant compassionate pension to the Petitioner. 25. In the case of Anna Deoram Londhe (supra), the Respondents had denied compassionate pension to the Petitioner therein on the ground of Anna being removed from service for misconduct. This Court taking note of the removal of Anna was on the ground of conviction under the Penal Code, 1860, which conduct of the Petitioner was not connected with the discharge of his duties found the case of the Petitioner to be 10 of 19 27. WP.CT 143 of 2023 Judgment.odt deserving of special consideration, consequently, granted compassionate pension. 26. For the reasons recorded herein above, the Petition is allowed in the following terms:- a) Decision of the Board of the Respondents dated 20.09.2024 and the communication bearing reference No. OBL/LA/ESTT/524/2024 dated 15.10.2024 are quashed and set aside. b) Petitioner shall be entitled for compassionate pension and retirement benefits/compassionate allowance. Respondents are directed to grant compassionate pension and other allowances in terms of MBPT Pension Regulation, 1965 or any other provisions. applicable to the case of the employees of the Respondents. c) Petitioner shall be entitled to pension with effect from three years prior to the date of filing of Writ Petition No. 4268 of 2018 in this Court. Respondents are directed to formalize the pension proposal of the Petitioner and ensure that his pension payment commences within a period of 90 days from today. Arrears of pension amount along with statutory interest shall be payable to him within a period of 90 days. d) There shall be no orders as to cost.” 12. The Learned Counsel for the Railways has relied upon Nalini (supra), to contend that the Nagpur Bench of the Bombay High Court had declined to grant compassionate pension/allowance under the Rules applicable. 13. We find from Nalini (supra) that Rule 101 of the Maharashtra Civil Services (Pension) Rules, 1982 permits grant of 11 of 19 27. WP.CT 143 of 2023 Judgment.odt compassionate pension in deserving cases. The said Rule is quite similar to Rule 65 of the Railways Pension Rules. The Nagpur Bench referred to Rules 26 and 27 of the Pension Rules, which permit payment of pension subject to certain conditions. 14. The Nagpur Bench referred to Kulkarni Shashikant Bhavani Vs. Bombay Physical Culture Association & Ors., 2019 (5) Maharashtra Law Journal 198, wherein it was concluded that Compassionate Pension would not be available and an employee would not be entitled, if removal from service is for a serious misconduct involving element of moral turpitude. 15. In Nalini (supra), the challenge to the removal from service was rejected by the School Tribunal exercising powers under the Maharashtra Employees of Private Schools Act, 1977. The said verdict was sustained by the High Court of Bombay. While concluding in Nalini (supra), the Nagpur Bench observed that it is only in cases deserving special consideration that an enabling power to grant compassionate pension can be exercised. When an employee is dismissed for moral turpitude and when the order of dismissal is sustained by the School Tribunal as well as by the High 12 of 19 27. WP.CT 143 of 2023 Judgment.odt Court, sympathy cannot be shown towards such an employee. As such, the facts in Nalini (supra) are clearly distinguishable from the facts before us. 16. In view of the above fact situation and the crystalized position of law, we have considered the observations of the Tribunal in the impugned order refusing to grant compassionate allowance to the Petitioner/Widow. We find that though the facts of the case have been narrated at length in the impugned order, from internal page no.2 to 6, there has been a lack of proper appreciation. 17. The scanned copy of the communication to the Widow is reproduced on internal page nos.6 and 7, which reads as under: No:-E/PB/R/SET/2015/04 Date: 08.02.2016 To Smt. Shukla Sarkar, W/o Biswanth, Ex Fitter in C/W, aged about 50 yrs, residing at Village, Garmirjapur, P.O- Mashila, Dist, Howrah, Pin 711302 13 of 19 27. WP.CT 143 of 2023 Judgment.odt Sub:- Speaking order in compliance to the direction passed by the Hon'ble Tribunal vide its Order dated 16.10.2015 passed in OA bearing no.350/00983/2015. 1. The Hon'ble Central Administrative Tribunal Calcutta disposed the above OA vide its order Dated 27.07.2015 by passing verbatim orders in para 2 and 3 as follows" "It is an admitted fact that the husband of the applicant was removed from service for his unauthorized absence and even though the applicant is not entitled to family pension, she is entitled to compassionate allowance as per Railway Rules. It is also a fact that she is entitled to get the G.P.F accumulation and also the dues under the Group Insurance Scheme but nothing was paid to her till date even though her husband was removed from service in the year 1997 and died In 2009. Perused the records Annexure A-9 and A-10 cumulatively would show that there are certain difficulties faced by the employer Railways on account of the missing of the service records of the Ex employee, but on ground the applicant cannot be made to wait ad infinitum. There should be some steps taken by the Railway authorities for reconstituting the records with the help of the available particulars and expedite the process of scrutiny and redressal. As such we direct the Railway Authorities to take strenuous steps to see that the applicant's grievance is redressed within a period of two months from the date of receipt of a copy of this order. A detailed reply is also expected to be given by the Railway authorities to the applicant within that period. " 02. In compliance to the direction of Hon'ble Central Administrative Tribunal Calcutta, I, Senior Divisional Personnel Officer S.E.C. Rallway Raipur being impleaded as respondent No.2 in the instant OA have gone through the relevant records and the grievances which was raised by you in your case. According to my view the following issues are to be addressed while passing speaking order. 14 of 19 27. WP.CT 143 of 2023 Judgment.odt 2.1. Deciding the case of the applicant for grant of compassionate allowance on removal case of Late Biswanath Sarkar. 2.2. Payment of GPF, GGIES, Leave Encashment. 02. As you are well aware about the rules position (Estt Rule.11/2009) which is annexed as A/7 of OA wherein vide its para 3 it is clearly said that only those past cases can be reviewed where records pertaining to D&A proceedings and Service records are available. On removal cases for deciding the length of service and ascertaining the qualifying service, record 'must be available’. Similarly for ascertaining the gravity of the misconduct committed by the employee the DAR case file is also required by Disciplinary Authority while deciding the case for Grant of Compassionate Allowance of the removed employee. 03. Here in your case service records and particulars of the service rendered by the Late Biswanth is not available either at the then Bilaspur Division or after bifurcation at this Raipur Division. For tracing out service records of Late Biswanath Sorkar all effort were made but remained futile. In this connection this office has also consulted you to provide any document which may help the administration to reconstruct the service record in correct and proper manner but you have also declined of having any records and documents in regard to the service particular of the Late Biswanath Sarkar. However in accordance with the direction of the Hon'ble Tribunal the Respondent Authority reconstructed the service record of Late Biswanath Sarkar and made qualifying service 22 years and 2days on assumption basis without any support of documentary proof. 04. Subsequently the DAR case files and the reconstructed service records were sent to the Disciplinary Authority for considering and deciding your grievance for grant of compassionate allowance case as per the extant rules. After considering the available records and DAR case file vide order no.M/D&A/SS/SSE/C&W/BIA4829 dated 03/04/2016 the Disciplinary Authority has not acceded and rejected to grant the Compassionate Allowance on the removal case of Late 15 of 19 27. WP.CT 143 of 2023 Judgment.odt Biswanath Sarkar by passing reasoned order. The above order is attached for your information please. 05. So far your claim of the GPF, Leave Encashment and CGEGIS is concerned here it is to inform you that as per available balance in PF account of Late Biswanath Sarkar amount of Rupees 4037/- has already been paid to your through Cheque No.716229 Dated 12.06.2015. Further the Payment of CGIGES which is an employee's own deposit money like PF has been assessed as per reconstructed service records and an amount of Rs.3660/- will be paid shortly, in your SB account no.10968057861 SBI Mashila W.B. In regard to the payment of Leave Encashment as per the statutory provision laid down in para, 542 of Chapter 5 of Indian Railway Establishment Code Volume-II it is forfeited. 06. Taking overall view of the case I come to the conclusion that at present none of your grievance is pending with administration as sought redressal by you by filing the instant OA. This disposes of all your grievances raised in the OA. (M.B. Singh) Sr. Divisional Personnel Officer S.E.C. Railway - Raipur 18. In one short paragraph, the learned Tribunal has concluded that a speaking order dated 08.02.2016 was passed by the Employer. There is no mandate to pay compassionate allowance even in cases of removal. The order of the Employer indicates that the disciplinary authority considered the material before it and was not inclined to grant compassionate allowance. With this one short paragraph, and without any analysis of the various factors involved, the O.A. has been dismissed. 16 of 19 27. WP.CT 143 of 2023 Judgment.odt 19. Having considered the impugned order of the Tribunal and the impugned review order, which does not shed much light on the relevant aspects which required proper attention of the Tribunal, we find that the Tribunal has failed to apply its mind to the facts of the case in the right perspective. 20. The husband of the Petitioner, as noted above, was a person, who had lost his mental balance. One could only imagine the condition and the plight of the family members, which include even an aged father of the employee. On the one hand, due to the mental illness, the deceased employee could not even take care of his family. He lost his employment because he went missing. He eventually was found in a condition, which does not require any further elaboration. Eventually, he died leaving the Widow and the family in penury. His conduct did not amount to moral turpitude and no loss has been caused to the Indian Railways. 21. Therefore, we are of the view that this was a fit case wherein the Indian Railways should have shown sensitivity and compassion towards such an employee. Instead, they have opposed the Widow at every stage in litigation, as well as in the Departmental appeal. We find that this was an appropriate case where the request 17 of 19 27. WP.CT 143 of 2023 Judgment.odt for compassionate allowance could have been entertained. Since, the Department and the Tribunal have failed to do so, we find that the impugned orders of the Tribunal are rendered perverse and unsustainable. The enabling Rules have not been applied in a manner so as to render justice to the widow and her family. 22. As such, this Petition is allowed. The impugned order dated 17.01.2023 and the review order dated 21.04.2023, are quashed and set aside. O.A. No.462 of 2016 stands allowed. 23. We order the Respondents to pay compassionate allowance to the Widow @ 2/3rd of the pension, from the date of filing of the first O.A. which is 14.08.2015. Let this amount be calculated by the Respondents/Employer within a period of 30 days to be paid to the Widow/Petitioner within a period of 30 days thereafter. 24. Insofar as grant of gratuity along with compassionate allowance, it is well-settled that gratuity is not a bounty. It is an amount earned by an Employee under the provisions of the Payment of Gratuity Act, 1972. Accumulated gratuity has to be paid to the Employee and it is only when an Employee is dismissed from 18 of 19 27. WP.CT 143 of 2023 Judgment.odt service for a serious misconduct amounting to moral turpitude, that an order of forfeiture of gratuity has to be passed. In the instant case, neither the deceased employee has committed any such misconduct, which can be termed as being grave and serious against the administration, nor has he committed a misconduct, which can be branded as being an act of moral turpitude. Hence, we order payment of the entire gratuity, with 10% statutory interest from 14.08.2015, to be paid to the widow, within 60 days from today. 25. Rule is made absolute in the above terms. 26. Parties are at liberty to act upon this Judgment uploaded on the official website of the Calcutta High Court, or on the certified copy thereof. (ARIJIT BANERJEE, J.) (RAVINDRA V. GHUGE) CHIEF JUSTICE 19 of 19