K. Balakrishnan Nair, J.@mdashThe point that arises for consideration in this Appeal is whether a Government savant dismissed for a serious
misconduct is eligible for compassionate pension under Rule 5 of Part II of Kerala Service Rules. The relevant facts of the case are as follows:
2. The appellant who was a police constable was dismissed from service on 4.10.1970 for accepting an illegal gratification of Rs. 43/-. At the time
of dismissal, he had about eighteen years of service. The appellant submitted Ext. P1 representation dated 21.9.1999 praying that he may be
granted compassionate pension. The grounds, according to the appellant, justifying the grant of compassionate pension were stated in Ext. P1.
According to him, he is living in penury. He is having a family consisting of his wife and five children. His three sons are unemployed. His wife is
suffering from cancer and is undergoing treatment at Regional Cancer Centre. He has incurred a huge debt for her treatment. He is also not
keeping good health. On coming to know of the existence of the rule in the nature of Rule 5(a), he represented on 19.1.1998 praying for the grant
of compassionate allowance. It was followed by Ext. P1 representation dated 21.9.1999.
3. The claim of the appellant was rejected by the first respondent Government by a communication dated 1.12.1999. The ground for rejection was
that he was removed from service for the acceptance of illegal gratification. Therefore, his claim for compassionate pension is rejected.
4. The appellant challenged Ext. P2 by filing OP No. 31025/2000 which was dismissed in limine by the learned Single Judge by the judgment
under appeal, holding that there is no ground to interfere with the decision of the Government.
5. The rule which governs grant of compassionate allowance in Rule 5(a) which reads as follows:
5. Misconduct or inefficiency:-
(a) No pension may be granted to an employee dismissed or removed for misconduct, insolvency or inefficiency, but to employees so dismissed or
removed, compassionate allowances may be granted when they are deserving of special consideration, provided that the allowances granted to
any employee shall not exceed two-third of the pension which would have been admissible to him if he had retired on the date of dismissal or
removal"".
6. A reading of the rule will show that persons dismissed or removed from service on the ground of misconduct are also eligible for compassionate
allowance. Acceptance of illegal gratification is a misconduct and basing on the said misconduct, the appellant has been removed from service also.
It is evident from the rule that persons like the appellant t=who are removed from service for misconduct are also eligible to receive compassionate
allowance, provided other conditions are satisfied. The mere fact that he is removed from service for a misconduct will not result in his application
being rejected at the threshold. Rule 5(a) is not meant for virtuous persons, but on the contrary, it is meant to ameliorate the conditions of sinners
dismissed from service. The mere fact that his removal was due to a serious misconduct, appears to us not to conclude the issue. Many other
circumstances may be relevant in deciding the claim for compassionate allowance. If an employee has amassed wealth by receiving bribe, his claim
for compassionate allowance can be justifiably rejected on that ground alone. There may be cases where dismissal was for a solitary fall from
virtue. In our social conditions, a punishment to an employee is in fact a punishment for his wife and children also. The circumstances pleaded by
the appellant about health of his wife and the state of unemployment of his children may not be out of context in deciding the payment of
compassionate allowances. The financial position can be got verified through the revenue officials. He is one who has served the Government about
eighteen years. The Government while passing Ext. P2 order has not taken into account various relevant factors. The Government failed to bear in
mind that rule is also meant for the benefit of unworthy fellows who are dismissed from service for serious misconduct. But, even in their case,
there may be extenuating circumstances to pay compassionate allowance, albeit they are unfit to be retained in service. Going by ""Wednesbury
principle"", the omission to take into account relevant factors and taking into account irrelevant factors render a decision ultra vires. In the instant
case, for the failure to take into account various relevant factors, the impugned order is liable to be quashed.
7. The order was attempted to be supported on the ground of delay and also pointing out that this is a matter within the discretion of the
Government. Normally, delay is fatal to the grant of reliefs for the reason that the long delay might have created rights n favour of others and a
belated intervention may result in disturbing them. But that circumstance is not available here. In the case at hand, the Government stood to gain by
the belated application. The pension is payable from the date an employee is out of service, till his death. The appellant, it appears, has covered
substantial ground in his journey towards his end. His attempt is to get some solace during the remaining period of his weary journey. So, the delay
is not ground to reject it.
8. It is true that the grant of compassionate allowance is a matter within the discretion of the Government. But the said discretion has to be
exercised fairly taking into account relevant facts and omitting to take into account irrelevant facts. The decision should be according to rules of
reason and justice, and not according to the whims and fancies of the decision maker.
9. Apart from that, the power under Rule 5 is a power coupled with a duty to act when the circumstances warranting the exercise of that power
are shown to exist. Power is the capacity vested in an authority to affect the rights of other whereas the duty is an obligation to act in a particular
manner which creates a corresponding right in sombodyelse. The Supreme Court in its decision in Commissioner of Police, Bombay Vs.
Gordhandas Bhanji, has explained the concept of power coupled with a duty. The court was interpreting the rule:
The Commissioner shall have power in his absolute discretion at any time to cancel or suspend any licence granted under these rules.....
10. The contention that the said rule only confers a discretion which the Commissioner need not exercise was dealt with by the Supreme Court in
the following manner:
It was objected as to this that there is no specific law which compels him to exercise the discretion. Rule 250 merely vests a discretion in him but
does not require him to exercise it. That is easily met by the observations of Earl Cairns L.C. in the House of Lords in Julius v. Lord Bishop of
Oxford (1880) 5 AC 214, observations which have our full and respectful concurrence:
There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something to the
conditions under which it is to be done, something to the title of the person or persons for whose benefit the power is to be exercised, which may
couple the power with a duty, and make it the duty of the person to whom the power is reposed, to exercise that power when called upon to do
so.
The discretion vested in the Commissioner of Police under Rule 250 has been conferred upon him for public reasons involving the convenience,
safety, morality and welfare of the public at large. An enabling power of this kind conferred for public reasons and for the public benefit is, in our
opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded,
performance of it can be compelled u/s 45.
The said principle was reiterated by the Supreme Court in L. Hirday Narain Vs. Income Tax Officer, Bareilly, . The relevant portion of the
judgment is at paragraphs 12 and 13 which reads as follows:
If a status invests a Public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority
in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of
authority are shown to exist. Even if the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power
which is invested in aid of enforcement of a right - public or private - of a citizen"".
In the light of the above legal principle, the power conferred under Rule 5 is a power coupled with a duty to be exercised on an application made
by the appellant.
11. Apart from that, Ext. P2 has been issued without hearing the appellant. He has a right to have his application fairly considered by first
respondent. No decision can be fair, if the same is taken without hearing the affected person. Therefore, for this reason also, the impugned order is
bad.
12. So, we quash Ext. P2 and remit the matter for fresh consideration in accordance with law by the first respondent after hearing the appellant.
We do not express anything on the merits of the case. It is for the first respondent to decide, talking into account various relevant factors, whether
the appellant is eligible to receive compassionate allowance. We, also, add a word of caution that the power under Rule 5 has to be exercised
sparingly. Its indiscriminate use can cause great harm to public interest. It is not to be doled out to every dismissed employee. ''Compassion''
means pity or the suffering of others, making cone to want to help them. So the Government should decide whether the appellant really deserves
compassionate allowance. Such decision shall be taken by first respondent within four months from the date of receipt of a copy of this judgment.