Central Administrative Tribunal - Allahabad
Ram Naresh vs Union Of India on 30 May, 2023
O.A. No.820/2011
(Reserved on 26.5.2023)
Central Administrative Tribunal, Allahabad Bench,
Allahabad
Original Application No. 820/2011
This the 30th day of May, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Ram Naresh aged about 65 years s/o late Ram Gulam,
retired Senior Clerk Under Sr. Section Engineer (P.Way)
N. Railway, Varanasi r/o village - Biyasara, P.O.
Pachwania, District- Chandauli (U.P.).
.......Applicant
By Advocate - Sri Shiv Kumar for Sri Sudama Ram
VERSUS
1. Union of India through General Manager,
Northern Railway, Baroda House, New Delhi.
2. General Manager, Northern Railway, Baroda
House, New Delhi.
3. Divisional Railway Manager, Northern Railway,
Hazratganj, Lucknow.
4. Shri Radhey Mohan, Senior Divisional Engineer-
III, Northern Railway, DRM's Office, Lucknow.
5. Shri U.S. Pandey, ex Sr. Section Engineer
(P.Way), N. Railway, Varanasi through Sr. DPO/
Northern Railway, Lucknow.
6. Sr. Section Engineer/ S.E. (P.Way), Northern
Railway, Varanasi.
7. Assistant Divisional Engineer/ADEN, Northern
Railway, Varanasi.
8. SDGM (Vigilance), Northern Railway, Baroda
House, New Delhi.
.
Respondents
By Advocate - Ms. Rachna Dubey
ORDER
Hon'ble Mr. Justice Om Prakash-VII, Member (J) The present O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
Page 1 of 9 O.A. No.820/2011i) The Hon'ble Tribunal may further be pleased to issue a writ of certiorari by quashing the impugned action of withholding of DCRG on the false plea "no dues clearance" as communicated vide letters by Sr. DPO/ N. Railway, Varanasi dated 17.3.2008, Sr. DEN ©, N. Railway Lucknow's letter No. 48/WA/RTI/241/BSB/2008 dated 17.4.2008 and DEN (1)/ NR/ Lucknow letter dated 1.8.2008 and last communicated to the applicant vide letter dated 3.3.2011 and direct the respondents to release the withheld DCRG to the applicant in full.
ii) The Hon'ble Tribunal may further be pleased to issue direction to pay interest @ 12% on withheld amount of DCRG w.e.f. 1.8.2006.
iii) Any other writ or order or direction which the Hon'ble Tribunal deems fit and proper in the circumstances of the case may also kindly be issued in the interest of justice.
iv) Cost of the application may also be awarded.
2. The facts in brief are that applicant was working as Senior Clerk under Senior Section Engineer (P.Way), Northern Railway, Varanasi and retired on 31.7.2006.On retirement, applicant was paid all the other retiral dues except DCRG and also granted pension vide pension Payment Order No. 0106070471. On enquiry, it was stated that it has been withheld on account of non-receipt of "No dues certificate" against him by Sri U.S. Pandey, the then SSE (P.Way)/Northern Railway, Varanasi to DRM (Settlement), N.R., Varanasi.
3. Learned counsel for the respondents filed counter reply. It is stated that on retirement of Sri Hira Singh, applicant has taken the charge of Store on 1.10.1999 and worked as Senior Clerk (Store). Several times, department has advised the applicant to complete the stock verification of the store. He was also provided one Prem Bahadur Yadav for assistance. Retirement of the Page 2 of 9 O.A. No.820/2011 applicant was due in the month of July 2006 but applicant has not completed the work of stock verification of store. Applicant has gone on sick leave w.e.f. 11.7.2006 along with key of the store. Neither charge has been handed over nor stock verification was done. Applicant retired from service w.e.f. 31.7.2006. Several letters were sent to the applicant but applicant has not turn up for giving the charge of store and its verification even after his retirement on 31.7.2006. Then on 15.7.2006, in presence of Sri Anup Sinha, Sub Inspector, RPF and Sri Chhabile Lal, Senior Clerk, Smt. Vijay Laxmi, Senior Clerk, store was sealed under three signature and same was also intimated to the Assistant Divisional Engineer, N.R., Varanasi vide letter dated 19.10.2006. It is further stated that it is the responsibility of the applicant to give charge of the store to the competent officer after due verification before his retirement but he failed to do so, as such action has been taken against the applicant.
4. Heard learned counsel for the parties.
5. The submission of the learned counsel for the applicant is that withholding of the DCRG of the applicant is wholly illegal because the same has been withheld without approval of the President of India. DCRG cannot be adjusted against unascertained and indefinite govt. dues under Rule of the Railway Services (Pension) Rules, 1993. No disciplinary or any criminal proceeding is pending against the applicant. It is further submitted that there is no store items in personal custody/possession of the applicant after his retirement. No verification of Stores of P.Way was got done by the Stock verifier periodically by the Incharge of Store due to some ulterior motive. Shortage of store should be communicated to the applicant before his retirement. The store is lying under the custody of Senior Section Engineer (P.Way) N. Railway, Varanasi. It is further argued that gratuity is no Page 3 of 9 O.A. No.820/2011 longer bounty but is a matter of right of the employee. Since there is no legal provision empowering the authorities to forfeit the gratuity payable to an employee, the whole action of the respondents withholding the gratuity is bad in law. Applicant lastly submitted representation on 25.4.2011 but no action has been taken. Respondents vide letter dated 23.5.2011 asked the consent of the applicant to investigate into the complaint for withholding of DCRG on false plea of 'No dues clearance". Result of investigation is awaited. Learned counsel for the applicant has relied on the following case laws:-
i) R. Kapur Vs. Director of Inspection (Painting and Publication) Income Tax and another (1994) 6 Supreme Court Cases 589
ii) Union of India and others Vs. Madan Mohan Prasad (Civil Appeal No. 4832-4833 of 1999) decided on 28.2.2002 by Hon'ble Apex Court.
iii) Gella Ram Vaswani Vs. Municipal Corporation of Delhi (Writ Petition ( C ) Nos. 1139 of 2003 and 5808 of 2002 decided on 20.9.2004 by Hon'ble Delhi High Court.
6. Learned counsel for the respondents argued that on repeated letters, applicant has failed to complete stock verification. Before retirement, he has not handed over the charge of the store. Being custodian of the store and in spite of repeated request, applicant has intentionally not given the charge nor helped in the verification of the store materials. It is further submitted that after transfer of the then SSE/P.Way/ Special/ VNS (U..S.Pandey), the charge of store was given to Sri N.K. Srivastava and at the same time , the material was found short. List was prepared which was amounting to Rs. 13,94010.00. Sri U..S. Pandey has repeatedly send various letters to the applicant and higher officers for verification and charge of the store but applicant has avoided the same. It is further Page 4 of 9 O.A. No.820/2011 submitted that applicant has never tried to get the no dues certificate which was necessary for his terminal dues.
7. I have considered the rival submissions of the learned counsel for the parties and have gone through the entire record.
8. Before proceeding to the facts of the case, I would like to discuss the case laws.
9. In the case of R. Kapur Vs. Director of Inspection (Painting and Publication) Income Tax (supra), Hon'ble Apex Court has observed as under:-
"10. This Court in M. Padmanabhan Nair's case (supra) has held as under: 'Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rats till actual payment."
11. The Tribunal having comes to the conclusion that D.C.R.G. cannot be withheld merely because the claim for damages for unauthorised occupation is pending, should in our considered opinion have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The D.C.R.G. due to the appellant will carry interest at the rate of 18% per annum from 1.6.1986 till the date of payment. Of course this shall he without prejudice to the right of the respondent to recover damages under Fundamental Rule 48A. Thus, the civil appeal is allowed. However, there shall be no order as to costs."
10. In the case of Union of India and others Vs. Madan Mohan Prasad, Hon'ble Apex Court has observed as under:-
2. The learned counsel for the appellants relied upon the decisions of this Court in Union of Page 5 of 9 O.A. No.820/2011 India v. Sisir Kumar Deb [1991 (1) SCC L & S 781], Director of Technical Education v. K. Sita Devi [1991 Supp (2) 386] and Wazir Chand v.
Union of India & Ors. (JT 2000 (Suppl.1) SC 515]. In none of these decisions, the actual import or the effect to the relevant rules regarding payment of DCRG had been considered. In that view of the matter, these decisions cannot be of much help to the appellants. The relevant rule applicable so far as the respondent is concerned is rule 323 which is available in the manual of Railway Pension Rules, 1950. It is made clear therein that claim against the railway servant may be on account of three circumstances;
"(a) losses (including short collection in freight charges shortage in stores) caused to the government as a result of negligence of fraud on the part of the railway servant while he was in service;
(b) other government dues such as overpayment on account of pay and allowances, or admitted and obvious dues such as house rent, post office, life insurance premia, outstanding advance etc;
(C) non-government dues."
11. In the case of Gella Ram Vaswani Vs. Municipal Corporation of Delhi, Hon'ble Delhi High Court has held as under:-
9. It is pertinent that Municipal Corporation of Delhi itself taking note of decision of Supreme Court in R. Kapur's case (Supra) issued a circular on 20.1.1995. Paras 2 and 3 of the said circular are significant:-
"2. On a review of the matter, in deference to judgment of the Hon'ble Supreme Court dated 29th September,1994 in Civil Appeal No.6342/1994, wherein it was, inter alia, held that right of DCRG is not dependent upon the retiree vacating the official accommodation, it is hereby directed that in future DCRG of a retired/ deceased employee shall not be withheld due to non-receipt of 'No Demand Certificate' from the Lands and Estate Department. Of course, this shall be without prejudice to the right of the MCD to recover damages under FR-48-A as also Page 6 of 9 O.A. No.820/2011 eviction action under the Public Premises (Eviction of Unauthorised Occupants) Act,1971 as upheld by the Apex Court in the judgment as aforesaid."
12. In the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another 2013(3) UPLBEC 2369, Hon'ble Apex Court has held as under:-
"13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-- Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.
Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property".
14. Article 300 A of the Constitution of India reads as under:
"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.Page 7 of 9 O.A. No.820/2011
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold -even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.
16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each."
13. Rule 9 of Railway Services (Pension) Rules, 1993 provides as under:-
"9. Right of the President to withhold or withdraw pension.
(1) The President reserves to himself the right of withholding or withdrawing a pension or gratuity, or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Railway, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement;
Provided that the Union Public Service Commission shall be consulted before any final orders are passed.
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three hundred seventy five per mensem.
14. In the instant case, gratuity of the applicant was withheld only on the ground of non-production of no dues certificate. Rule 9 of Railway Servants (Pension) Rules, Page 8 of 9 O.A. No.820/2011 1993 clearly speaks that without approval of the Hon'ble President of India and with consultation of the UPSC, gratuity of any employee cannot be withheld. No enquiry was conducted against the applicant. Opportunity was not provided to the applicant to defend his case. In the counter, respondents have stated that after transfer of the then SSE/P.Way/ Special/ VNS (U..S.Pandey), the charge of store was given to Sri N.K. Srivastava and at the same time , the material was found short. List was prepared which was amounting to Rs. 13,94010. In the case of Gella Ram Vaswani (supra), Hon'ble Delhi High Court has clearly observed that "in future DCRG of a retired /deceased employee shall not be withheld due to non-receipt of "No Demand Certificate" from the Lands and Estate Department. Since the department has withheld the gratuity of the applicant without following due procedure, the court is of the view that O.A. deserves to be allowed.
15. Accordingly, O.A. is allowed. Respondents are directed to release the withheld DCRG of the applicant with 6% simple interest. This exercise shall be completed within a period of 3 months from the date of receipt of certified copy of this order. However, respondents are at liberty to take action against the applicant in accordance with rules after providing proper opportunity to the applicant with the approval of Hon'ble President and in consultation with the UPSC.
16. As a sequel, Misc. Applications pending if any, in this case, shall also stands disposed off.
17. There shall be no order as to costs.
(Justice Om Prakash -VII) Member (J) HLS/-
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