RAFIQ, J. - (1.) THIS writ petition is directed against the award dated 23rd November, 2001 passed by the Industrial Tribunal-cum-Labour Court (for short `labour court') whereby the learned labour Court while rejecting the reference held that non grant of compassionate allowance to the petitioner workman by respondent management was legal and justified and the petitioner was not entitled to any relief.
(2.) THE claim set up by the petitioner before the learned labour Court was that he was appointed with the Railways in Carriage Wagon Workshop, Jodhpur on 25th April, 1956 and was removed from their service on 27th February, 1971. At the time of removal he was serving with the respondents on the post of Skilled Fitter on monthly salary of Rs. 256/ -. THE petitioner submitted an application to the respondents on 9th October 1991 for compassionate allowance. When nothing was done, he approached to the Central Administrative Tribunal, Jodhpur (for short `cat'), which by its judgment dated 7th September, 1994 directed the respondents to decide the representation of the petitioner in the light of the judgment passed by Bangalore Bench of the Tribunal in V. Prakashan vs. D. R. M. Southern Railway, Hoogli & Ors. THE respondents thereafter by the order dated 13th May, 1995 rejected the representation of the petitioner. In these circumstances, he made an application to the appropriate Government which made a reference to the learned labour Court and thereafter the aforesaid award was passed. I have heard Mr. Narpat Singh, learned counsel for the petitioner and Mr. Salil Trivedi, learned counsel for the respondents and perused the record. Mr. Narpat Singh, learned counsel for the petitioner argued that the learned labour Court committed an error of law in taking into consideration the affidavit of sole witness of the Management Manvendra Singh who did not appear in the witness box for cross-examination. The averments of their reply could not be relied upon by the learned labour Court. It was argued that the learned Labour Court wrongly recorded a finding that the petitioner did not produce copies of the affidavits of Bhanwar Lal and Gopal Das whereas Form No. 3 under Rule 36 of Rajasthan Industrial Disputes Rules containing the list of documents clearly shows that both the affidavits were produced by the petitioner before the learned labour Court. Certified copy of the Form No. 3 has been obtained by the petitioner from the learned labour Court and produced before this Court. It has been argued that the learned labour Court did not correctly appreciate the provisions contained in Rule 309 and 310 of the Manual of Railway Pension Rules, 1950 which envisage for compassionate allowances to the removed or dismissed employees of the Railway and the learned labour Court wrongly rejected the claim of the petitioner. On the other hand, Mr. Salil Trivedi, learned counsel appearing for the respondents argued that the petitioner was dismissed form service by order dated 27th February, 1971 as he was found guilty of a charge involving moral turpitude. In fact when he was working as Skilled Fitter in respondent Workshop, Jodhpur, he was arrested by SSRPF on 20th May, 1968 for offence under Section 3 of the Railway Property 1968 for offence under Section 3 of the Railway Property (under Unlawful Possession) Act, 1966 and a criminal case was registered against him. Separately, departmental proceedings were also initiated against him pursuant to which he was dismissed from service. The charge levelled against him was that he was found in possession of Railway Property namely 8 copper rivet pieces 4" long, one half portion of 3" diameter of brass washer, one small bundle of scrap copper wires in pieces and two bent up brass screw 1/2" long weighing 390 gms. It has been argued that the petitioner is not entitled to compassionate allowances under the manual of Railway Pension Rules, 1950 and a sum of Rs. 575/- was sanctioned to the petitioner on compassionate ground by the competent authority which the petitioner did not accept. It is submitted that Railway Board issued a Circular dated 16th November, 1957 wherein it was provided that Pension Rules will be applicable to all the Railway Employee who entered in service on or after the date of issue of Railway Board's letter dated 16th April, 1957 and that all the non-pensionable railway servants who were in service on 1st April, 1957 or have joined the Railway service between that date and the date of issue of this order dated 16th November, 1957 had to opt for these benefits in preference to their existing retirement benefits. This Circular was later on amended by the Railway Board's Circular dated 9th May, 1958 in which it has been proved that every non-pensionable railway servant who was in service must exercise option for pension or P. F. and those who do not exercise such option by 30th June, 1958 shall be deemed to have opted for pension. In partial modification of this order, the President of India subsequently decided that only such of the railway servants who were governed by the pension system or whose option is incomplete in any way shall be deemed to have retained the existing retirement benefits under State Railway Provident Find Rules. The petitioner having not exercised the option specifically would be deemed to have opted in favour of the existing retiring benefits under SRPF Rules. When the petitioner did not come under the pension scheme, the Manual of Railway Pension Rules, 1950 would not apply to his case and there was thus no question of grant of compassionate allowances after dismissal of the petitioner from service according to para 309 and 310 of the Rules of 1950. Learned counsel for the respondents also argued that the petitioner was dismissed from service on 27th February, 1971 and he challenged the order of his dismissal before various courts and lost up to the Hon'ble Supreme Court. He submitted the application for compassionate allowance enormously delayed on 9th October, 1991 more than 20 years after the date of his dismissal. Such an application was even otherwise liable to be rejected on the ground of delay and latches. I have considered the arguments advanced by the learned counsel for the parties and perused the records.
(3.) IN the present case, even though the petitioner as per his own showing was dismissed from service on 27th February, 1971. He for the first time submitted an application to the respondents enormously delayed on 9th October, 1991 for grant of compassionate allowances. While on the one hand, the respondents asserted that the petitioner did not opt the pension scheme as per the requirement of Railway Board's circular referred to above, on the other hand, the petitioner submitted that he did submit such option and in support thereof he claim to have produced two affidavits of his fellow employees namely Bhanwar Lal and Gopal Das before the labour Court. The learned labour Court however has given finding that no such affidavits were produced before it nor those witnesses have been produced in evidence. It would thus be evident that the petitioner before the learned labour Court failed to prove any findings with regard to his option. The learned labour Court therefore rightly concluded that the petitioner was not a pension optee. IN the circumstance therefore when the petitioner did not opt for pension, the Rules of 1950 cannot be held applicable to his case. Even otherwise para 309 and 310 of the Rules of 1950 gives a discretion to the Railways to decide whether or not to grant compassionate allowances to railway servant who is removed/dismissed. Rule 309 clearly provides for giving such compassionate allowances to the railway servant who is removed/dismissed "when he is deserving a special consideration" such a compassionate allowances shall not exceed two third of the pensionary benefits which would have been admissible to him if he had retired on medical certificate. Rule 310 further provides that each case has to be considered on its merit and a conclusion has to be reached on the question whether there were "any such extenuating features in the case as would make the punishment imposed, though it may have been necessary in the interest of Government, unduly hard on the individual. " This very Rule further provides that "where it can be legitimately inferred that Railway servant's service has been dishonest there can seldom be any good case for award of compassionate grant and/or allowances. In the present case, even if the Rules of 1950 were to be held applicable to the case of the petitioner one wonders whether Railway would have still considered it appropriate to grant compassionate allowances to the petitioner, given the kind of charges on which he was dismissed from service. Moreover, when it is brought to the notice of the Court that petitioner in earlier round of litigation challenged the order of his dismissal and lost up to the Hon'ble Apex Court, there was no reason for him not to have prayed for this relief simultaneously in the self same litigation and now he would be estopped from claiming such relief being barred by principal of constructive res-judicata. He has also not been able to give any satisfactory explanation for unreasonable delay in making prayer to the Railway for the first time on 9th October, 1991 when already he was dismissed from service on 27th February, 1971. ;