Near Gajanan Maharaj Mandir, Aurangabaddistrict Aurangabad3.The Executive Engineer,Nandur Madhmeshwar Canal Division, Vaijapur v. Union of India; 2014 (11) SCC 684 & Ors.

ra23.25-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADREVIEW APPLICATION NO. 23 OF 2025INWRIT PETITION NO. 5750 OF 20211.The Superintending Engineer, Aurangabad Irrigation Board, Aurangabad, district Aurangabad2.The Sub Divisional Officer, Minor Irrigation Sub Division No.2,CADA Office, Near Gajanan Maharaj Mandir, Aurangabaddistrict Aurangabad3.The Executive Engineer, Nandur Madhmeshwar Canal Division, Vaijapur, ...Applicants Tq. Vaijapur, district Aurangabad (Ori. Respondents) Versus 1.Sau. Saroj wd/o Magan DamareAge 46 years, Occ. HouseholdR/o. House No. 4-14-56,Adjacent to Cupboard Factory, Kaisar Colony, Nizamuddin, Darga Road, Jinsi, AurangabadDistrict Aurangabad.2.Sekhar Magan DamareAge 21 years, Occ. Labourer,...Respondents R/o. As above (Ori. Petitioners) …..Mr. A.S. Shinde, A.G.P. for the applicantsMr. G.D. Jain, advocate for the respondents ….. ra23.25-2- CORAM:S. G. MEHARE AND SANJAY A. DESHMUKH, JJ.DATE OF RESERVING THEORDER: 14.02.2025DATE OF PRONOUNCING ORDER: 19.03.2025O R D E R (PER SANJAY A. DESHMUKH, J.):- 1.Heard finally with the consent of the learned counsel. 2. This application is filed for a review of the judgment dated10.02.2023, passed by this Court, in a writ petition No.5750 of 2021.The said writ petition was filed by the wife and son of the employeelate Magan Damare, for compassionate pension, who was serving asa watchman with the applicants herein. His services were terminatedand he was dismissed on account of absenteeism after conductingdepartmental enquiry. 3.The husband of respondent No.1 and father of respondentNo.2 was serving with the applicants from 20.11.1981. He servedthere for 22 years. On account of continuous absenteeism, adepartmental enquiry was conducted against him. He was dismissedfrom service. He did not challenge the dismissal order passed by theapplicants. He died on 5.4.2012. The respondent Nos.1 and 2 filedapplications/representations dated 21.11.2012 and 28.01.2014 forgranting compassionate pension. The said applications were rejected ra23.25-3- by the applicants. The said orders were challenged before theMaharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad, vide Original Application No. 936 of 2019. The said application waswithdrawn on 26.02.2020. Thereafter, writ petition No.5750 of 2021was filed by the respondents. It was allowed, by setting aside anorder dated 21.11.2012, passed on the representation of respondentNo.1.4.Learned A.G.P. for the applicants submitted that theimpugned judgment delivered by this court is contrary to theprovisions of law. He pointed out the judgment of Hon’ble SupremeCourt in the case of Mahinder Dutt Sharma vs. Union of India andothers; 2014 (11) SCC 684, wherein it was held that the petitionerstherein were entitled for compensatory pension in view of Delhi Police(Punishment and Appeal) Rules, 1980 and Central Civil Services(Pension) Rules, 1972 (hereinafter for the sake of brevity referred toas “the Rules of 1972”). He further submitted that Central Legislationis not applicable to the case of the respondents. Therefore, the saidcase law is also not applicable to the facts of the claim ofrespondents which was relied upon by this Court while deciding saidwrit petition. He also submitted that this court erred in relying uponthe said judgment. He submitted that Rule 41 of the Rules of 1972,which provides for compassionate allowance, is altogether different ra23.25-4- from Rule 101 of the Maharashtra Civil Service (Pension) Rules 1982(hereinafter for the sake of brevity referred to as “the Rules of 1982”).He submitted that these two rules are different. The word ‘dismissal’or ‘dismissed’ is not used in Sub-Rule (1) of Rule 101 of the Rules of1982, however, in Sub Rule (3) of Rule 101, it is specifically statedthat dismissed Government servant is not eligible for compassionatepension. So far as Rule 41 of the Rules of 1972 is concerned, thedismissed servant is entitled for compassionate allowance, whichwas not legally and properly considered by this court. This courterred in relying upon the judgment of the Hon’ble Supreme Court inthe case of Mahinder Dutt Sharma (supra) which is not applicableto the case of the respondents. Rule 41 of the Rules of 1972 iserroneously applied to the case of the respondents. He submittedthat the said error committed by this court is an error of law andtherefore, review application be allowed. He prayed to allow thereview application and dismiss the writ petition. 5.Learned advocate for the respondents submitted that byapplying the correct provisions of law, the claim of the respondents isrightly considered and allowed by this court. The husband ofrespondent No.1 had completed 22 years of service with theapplicants. His punishment of dismissal is disproportionate, harshand against the principles of natural justice. Learned advocate for the ra23.25-5- respondents placed reliance on the judgment of this court dated24.02.2018 delivered in writ petition No. 145 of 2013, ShakuntalaYuvraj Patil vs. The State of Maharashtra and others, in which it isheld that the compassionate pension can be granted even though theemployee is dismissed from service as the punishment of dismissal isharsh. He submitted that the review application deserves to berejected, as there is no patent illegality. 6.Whether there is any scope for interference in theimpugned judgment by exercising the powers of review under Section114 r.w. Order XLVII of the Code of Civil Procedure, 1908 (for shortC.P.C.), is the question before this Court. 7.We have perused the grounds raised in this application andthe impugned judgment. 8.As far as ambit and scope of review is concerned, it wouldbe relevant to refer to the judgment of the Hon’ble Supreme Court inthe case of Sanjay Kumar Agarwal and others vs. State TaxOfficer (1) and others, MANU/SC/1198/2023. Para 16 of the saidjudgment reads as under:-“16. The gist of the afore-stated decisions is that:(1) A judgment is open to review inter alia if there is amistake or an error apparent on the face of the record. ra23.25-6- (ii) A judgment pronounced by the Court is final, anddeparture from that principle is justified only whencircumstances of a substantial and compelling charactermake it necessary to do so.(iii) An error which is not self-evident and has to bedetected by a process of reasoning, can hardly be said tobe an error apparent on the face of record justifying thecourt to exercise its power of review.(iv) In exercise of the jurisdiction Under Order 47 Rule 1Code of Civil Procedure, it is not permissible for anerroneous decision to be "reheard and corrected."(v) A Review Petition has a limited purpose and cannot beallowed to be "an appeal in disguise."(vi) Under the guise of review, the Petitioner cannot bepermitted to reagitate and reargue the questions whichhave already been addressed and decided.(vii) An error on the face of record must be such an errorwhich, mere looking at the record should strike and itshould not require any long-drawn process of reasoning onthe points where there may conceivably be two opinions.(viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannotbe regarded as a ground for review.”9.The Hon’ble Supreme Court in the case of DelhiAdministration vs. Gurdip Singh, reported in, (2000) 7 SCC 296,held that greater care, seriousness and restraint is needed while ra23.25-7- deciding the review application. The word restraint is emphasized. Itis based on an equitable principle, which is borrowed from the courtof equity. The condition precedent is thus, there must be a patentillegality to rectify the mistake as held by the Supreme Court in thecase of Board of Control for Cricket, India vs Netaji Cricket Club; AIR 2005 SC 592. 10.Rule 41 of the Rules of 1972 and Rule 101 of the Rules of1982 are mostly similar i.e. pari materia. This court had not appliedthe Rule 41 of the Rules of 1972 meant for Central Governmentemployees but the authority of Mahinder Dutt Sharma (supra)under that Rules is relied upon as per the principle of pari materia asheld in the following authorities:- (I)The Hon’ble Supreme Court in the case of State of Assamand others Vs. Deva Prasad Barua and others, MANU/SC/0098/1968, in para 6, observed as under:-“6. …….. It has been urged that the words “at anytime” should be given a limited meaning and should beconfined to the year of assessment, namely, that the returnshould be made at any time within the year of assessmentand not later in which case sub-section (3) would not applyand the provision of section 30 would be at once attracted. This contention has only to be stated to be rejected. In thefirst place, if sub-section (3) has to be read in the mannersuggested, it would become ambiguous and almost ra23.25-8- unintelligible. Secondly, according to the ordinary canonsof interpretation, the words employed must be given theirproper and plain meaning. Moreover, section 19 is in parimateria with section 22 of the Income-tax Act and the lawwhich has been laid down by this court, while interpretingthe provisions of that section, must govern the constructionof provisions of section 19 as well. The High Court, ingiving the reasons on which the petitions were allowed, was not alive to all these matters and the view taken by itis clearly unsustainable.”(II)The Orissa High Court in the case of Niranjan Panigrahivs. Pratap Naik; MANU/OR/0088/1980, in para 8, observed asunder:- “8. ………...Where there are different statutes in pari materia, thoughmade at different times, or even expired and not referringto each other, they shall be taken and construed together, as one system and as explanatory to each other. Dealing with a similar situation Oraise on Statute Law (6thEdition, page 103) observes:The effect of this is in one sense to supply the equity of thestatute; but in truth no more is done than to construe thestatute according to its plain language, though the effect ofthe construction is incidentally and equitably to deny tolocal authorities an overriding privilege, such as wouldexempt them from all forms of injunction.I will refer to another passage, in this connection, fromBindra's Interpretation of Statutes, 5th Edition, page 292which runs as follows: ra23.25-9- Statutes which relate to the same subject, the sameperson or things, or the same class of persons or thingsare deemed to constitute one system of law; they areconsidered as one statute, subsequent laws are regardedas supplementary or complementary to the earlierenactments. When enacting a new law the Legislature ispresumed to have had in contemplation the existingstatutes on the same subject, and to have framed itsenactment with reference thereto. This is the real basis forthe rule in pari materia. Dwarris observe's:It is to be inferred, that a code of statutes relating to onesubject was governed by one spirit and policy and, intended to be consistent and harmonious in its severalparts and provisions. It is therefore an established rule oflaw, that all Acts in pari materia are to be taken together asif they were one law; and they are directed to be comparedin the construction of statutes, because they areconsidered as framed upon one system, and having oneobject in view.”11.As held in above case laws, it is well settled that reviewapplication has limited scope and cannot be decided like appeal. It isalso well settled that the judgment and order once pronounced, isfinal and cannot be altered or changed unless there is a glaringomission, patent illegality or grave error to exercise the power ofreview.12.It would be relevant to consider the following authorities ra23.25-10- in which issue of compassionate pension was considered by relyingupon the judgment of the Supreme Court delivered in Mahinder DuttSharma (supra):-(I)The Delhi High Court in the case of Government of N.C.T.of Delhi and others vs. Late Shri Ashok Kumar Singh, in W.P.(C)4835/2017 @ CM APPL.20858 of 2027 decided on 12.10.2022, inpara 26 has observed as under:- “26.….. Though, we are in agreement with theconclusion that the Compassionate Allowance is akin topension that a Government Employee may be entitled to, but, we are of the view that unlike pension, receipt ofwhich is a matter of right, Compassionate Allowance is nota right and it is at the discretion of the Competent Authorityaccordingly the discretion as to the date from which it maybe granted, would necessarily vest with the CompetentAuthority granting the same, on a case to case basis. However, it is further clarified that such discretion wouldobviously be open to judicial review.” (II)The Rajasthan High Court in the case of Om Prakash vs. Union of India and others, MANU/RH/1855/2022, in para 8,observed as under:-“8.Indisputably, the petitioner was not removedfrom service on account of any act of moral turpitude ordishonesty towards his employer. The absence was alsonot on account of any personal gain or to intentionally ra23.25-11- cause harm to any third person.”13.In the above judgments the High Courts have relied uponthe judgment of the Hon'ble Supreme Court in the case of MahinderDutt Sharma (supra), though it is about Central Pension Rules. Granting compassionate allowance/pension is at the discretion of theauthority concerned as per Rule 41 of the Rules of 1972 and Rule101 of the Rules of 1982. In the case of Government of N.C.T. ofDelhi and others vs. Late Shri Ashok Kumar Singh (supra), it isheld that the authority has to exercise the discretion. For that, theauthority concerned has to consider for what kind of misconduct theemployee/government servant has been dismissed from service andwas there a moral turpitude to deny such compassionate pension. The husband of respondent No.1 was terminated for absenteeism. There was no moral turpitude to terminate him. The punishment ofhis termination is harsh in nature and against the principles of naturaljustice. The authority has to exercise the discretion on the basis ofnature of misconduct of the Government servant and notmechanically. It was not properly exercised by these applicantswhich was vested with them as per proviso to Sub-Rule (1) of Rule101 of the Rules of 1982. The discretion is implicit which can beinferred by applying logic. The logic has important role in theinterpretation of the Statues and Rules. The abstract law requires aid ra23.25-12- of logic to interpret the Statute and Rules. In that sense, logic is apart and parcel of law which plays important role in deciding thecases rationally. The authority i.e. the applicants have not givenproper and acceptable reasons for it. The proper reasons are soul ofevery decision either of the authority or of the Court. This court by theimpugned judgment granted compassionate pension to therespondents as the authority failed to exercise the administrativediscretion properly and observed that granting compassionatepension is necessary as it is a special case, as the husband ofrespondent No.1 was not held liable for moral turpitude. 14.No doubt Sub-Rule (3) of Rule 101 of the Rules of 1982provides that a dismissed Government servant is not eligible forcompassionate pension, but merely because the appeal is notpreferred by the husband of respondent No.1 against the decision ofdismissal, the respondents cannot be deprived from the right to getthe compassionate pension. It is because it is a social legislation andcannot be construed strictly. Sub-Rule (3) will not prevail over SubRule (1) of the Rules of 1982. The proviso to Sub Rule (1) providesdiscretion not expressly but impliedly. It has to be inferred byapplying logic as the word may is used in proviso. While deciding thewrit petition, the said aspect was considered and discussed by thisCourt in para 11 of the impugned judgment. The discretionary relief, ra23.25-13- as per proviso of Rule 101 of the Rules of 1982, is granted by thisCourt as the authority failed to assign the reasons as to why it did notexercise discretion in favour of the respondents, as there was nomoral turpitude on the part of husband of respondent No.1. 15.The granting of compassionate allowance/pension is adiscretionary relief and therefore, exercising the discretion cannotcome within the purview of review as per section 114 and OrderXLVII of the C.P.C. The exercise of discretion by this Court iscertainly not a patent illegality to interfere in it. Therefore, thejudgment in the case of Mahinder Dutt Sharma (supra) relied uponby learned A.G.P. for the applicants is not helpful to the applicants.On the contrary, it is helpful to the respondents on the principle ofpari materia as discussed and held above. Therefore, the ratio ofthe said judgment is applicable to the case of the respondents eventhough it is a Central Statute. It is not that both the Rules of Stateand Central Governments are contrary to each other. On thecontrary, those are mostly similar as far as compassionate allowance/pension rights are concerned, as held in the case of State of Assamand others (cited supra) and Niranjan Panigrahi (cited supra).The Rule 41 of the Rules of 1972 is not applied by this Court to thesaid case. On the contrary, Rule 101 of the Rules of 1982 wasconsidered and invoked. We found no patent illegality or glaring ra23.25-14- mistake in the impugned judgment. There is no scope forinterference in the impugned judgment under Section 114 r.w. OrderXLVII of the C.P.C. There is no substance in the grounds ofobjections raised in this review application. Hence, we are notinclined to allow this review application. The review application isdevoid of merits and it deserves to be rejected. Hence, the followingorder:- O R D E R I)The application is rejected.II)No costs. (SANJAY A. DESHMUKH, J.) (S. G. MEHARE, J.)rlj/