Central Administrative Tribunal - Allahabad
Kali Pad Das vs General Manager N C Rly on 17 November, 2017
(Reserved on 03.11.17)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH
ALLAHABAD
ALLAHABAD this the 17th day of November, 2017.
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A).
Original Application Number. 330/0846/2013
Kali Pad Das, Son of R.N. Das, Resident of House No. 239 W Ganga
Vihar Colony Transport Nagar, Allahabad.
...............Applicant.
VE R S U S
1. Union of India through G.M. North Central Railway, Baroda
House, New Delhi.
2. General Manager, North Central Railway, Allahabad.
3. C.P.O./N.C.R. Allahabad.
4. D.R.M./N.C.R. Allahabad.
5. Sr. D.P.O. /N.C.R. Allahabad.
6. Dy. CEE/C/N.C.R. Allahabad.
7. Chief Welfare Inspector, G.M. Office, Allahabad.
8. The Director, Department of Pension and Pensioner's
Welfare, New Delhi.
9. Sr, DAO/N.C.R. Allahabad.
.................Respondents
Advocate for the applicant : Smt Saraswati Rai
Advocate for the Respondents: Shri Bashisth Tiwari
ORDER
The OA has been filed with prayer for the following reliefs:- 2 O.A No. 846/2013
a). to issue the order for correction the provisionsal pension, pay orders Ref. No. D/ALD PFN/0960 3113/ dated 11/12/2000 by removing the errors in the revised Rate of monthly pension. The figure 5332-PM should be removed, this is wrong figure. The 5438 PM is correct figure.
b). to issue order for fresh version of PPO so that the applicant can claim, differences of payments. The error is due to the fact that the implementation of IV Pay Commission award was not given from 01/01/1986. It was given from the date of increment of 01/07/1986.
c). to issue direction or order to the opposite parties to pay the compound interest as 12% an arrear bill up to 31.01.2014 on D.C.R.G. and encashment of 300 days, and other pensionary dues.
d). to issue order for
(a) Transfer packing allowance.
(b) Travelling allowance.
(c) Cost and compensation for 26 sets
complementary passes.
(d) Payment of monthly salary. Subsistence allowance only was paid from 14.08.1995 to 31.11.1995.
(e) Allow the application with cost.
e). to issue in the nature of Mandamus directing the opposite parties to pay the retiral benefits/dues to the applicant with 20% interest.
f). Order dated 01.10.2015 passed by DRDO NCR Allahabad and order Dated 11.04.2016 passed by Assistant Manager Finance NCR be quashed as 3 O.A No. 846/2013 Annexure No. (13 A) and (13 B) to the compilation No. 11.
2. The facts of this OA, in brief, are that the applicant was appointed in Indian Railways on 07.07.1959. On 14.08.1995 he was called by RPF since store room was open. When he reached the office the RPF took over the key of the store. RPF then lodged a complaint against the applicant, arrested him on 14.08.1995 under Section 3 RPF Act and sent to Naini jail. Subsequently, he was granted bail by the District and Sessions Judge, Allahabad. The respondents suspended the applicant vide order dated 14.08.1995 which was revoked vide order dated 02.11.1995 (Annexure No.1 to the O.A). The applicant retired on 31.01.1996 from the post of Chief Traction Foreman (Constructing) Northern Railway, Allahabad. He made an application before authority, for retiral benefits on 24.01.1996 (Annexure No. 2 of the O.A). It is stated that Store checking was done in absence of the applicant and no record was given to the him, hence the applicant had moved an application dated 02.01.1996 (Annexure No. 3 to the O.A) for documents just before retirement. Having received no response the applicant moved an application before the Magistrate, who ordered to provide the necessary documents to the applicant, but the respondents did not supply the requisite documents. 4 O.A No. 846/2013
3. It is further stated that matter for non-payment of Retiral benefits have been pending for last sixteen years before the General Manager of Northern Railway/North Central Railway who is the appointing authority of the applicant. It is contended that the AEE/C/N.C.R. Allahabad who is not a competent authority according to the applicant, imposed the penalty of recovery through office order dated 29.01.1996 (Annexure A-5 to the O.A.) to withhold the payment of leave encashment. The AEE/C/NR/Allahabad again through office letter No.2643-dated 01.03.96 (Annexure No.7 of the O.A) increased the figure of loss in store to Rupees 5,50,150/-.
4. The applicant made an appeal through application on 24.08.2000 (Annexure No. 8 of the O.A) to D.R.M./NR/Allahabad requesting for release of pending dues / retiral dues. But this representation was rejected.
5. It was stated that the applicant was relieved from the charge of office, store and all materials on 13.08.1995 evening by ASI/RPF/SFG Sri Kunj Bihari Shukla, therefore, he is not responsible in any way about the shortage or excess of store materials. It is also stated that the stock verification was not witnessed by any Gazetted Officer of the department in absence of the applicant which is in violation to the rule. Sri M.K. Mukherjee 5 O.A No. 846/2013 CEFO/C/SFG is very much junior to the applicant therefore, he cannot be deputed to check the store of the applicant in association of RPF staff. Only a Gazetted Officer could have properly verified the store. It is further contended that the applicant while in jail, the ground balance, stock checking and accounts, stock verification were carried out by the office and store under the CTFC/C/Subedarganj. The complete charge of the office and stores were taken over by K.B. Shukla ASI/RPF/SFG on 13.08.1995 before the applicant was sent to jail on 14.08.1995. Aggrieved by the inaction of the respondents, the applicant has filed the instant original application on the ground that no recovery dues can be made from DCRG and pensionery benefits.
6. Respondents have filed counter reply stating therein that the applicant was retired on 31.01.1996. A case under Section 3 or R.P.U.P. Act was registered against him as Case Crime No. 33 of 1995 at R.P.F. Post, Allahabad and he was sent to jail. He was released on bail on 24.08.1995 by the Court of Sessions Judge, Allahabad. The case was tried by Additional Chief Judicial Magistrate (Rlw), Allahabad as Criminal Case No. 278 of 1996 and the case was decided vide judgment and order dated 30.03.2015 in favour of the applicant by giving him the benefit of doubt. It is further stated that, according to Rule-9 (1) of Railway Servants (Pension) Rules, 1993, DCRG can be withheld during pendency of 6 O.A No. 846/2013 criminal proceedings or departmental proceedings against an employee. Since criminal case was pending against the applicant under R.P.U.P. Act for theft of railway property, as such, applicant was not entitled for DCRG during the pendency of criminal case. There was also recovery of unauthorized occupation of railway quarter against the applicant and due to this reason also, his DCRG was withheld. It is further stated that when applicant retired from service he did not vacate the railway quarter allotted to him , therefore, his passes were withheld in view of provisions contained in Railway Board's letter dated 24.04.1082. So far as grant of complimentary passes is concerned, the Railway Board has issued a letter dated 03.11.1999 (Annexure No. CR-1 of Counter Reply) in which it has been provided that one set of post- retirement complimentary pass should be disallowed for every month of unauthorised retention of railway quarter by a retired railway employee. Since applicant had not vacated railway quarter at the time of retirement which was duly allotted to him, as such, according to Railway Board letter dated 24.04.1982 (Annexure No. CR-2 of Counter Reply) along with railway Board letter dated 03.11.1999, complimentary passes were disallowed on the ground of non-vacation of railway accommodation. The railway quarter was under unauthorised occupation of the applicant from 01.10.1996 to 03.08.2000 i.e. for 46 months. Therefore, as per rules, 7 O.A No. 846/2013 applicant is not entitled for passes unless 46 passes were debited from the account of passes to which the applicant is entitled.
7. It is further stated that, according to the provisions contained in the Rule-15 and 16 of Railway Servants Pension Rules, recovery can be made on account of losses caused due to shortage in stores or due to non-vacation of railway quarter in accordance with rules (Annexure No. - CR 3 to the counter reply).
8. It is also stated by the respondents that the Railway Board had also issued a letter dated 15.01.1990 (Annexure No. CR-5 of the Counter Reply) and in this letter in Para-14, four month time has been permitted for retention of railway accommodation on payment of normal rent. But the applicant retired on 31.01.1996 and he did not vacate the railway quarter till 03.08.2000 for which release of his DCRG was withheld.
9. The respondents have further stated that at the time of retirement applicant was paid Rs. 16592/- on account of P.F. on 03.02.1996 by C.O.7 No. 1167 and G.I.S. Rs. 6650/- was paid on 30.01.1996. The applicant was permitted to retain quarter upto 30.09.1996. Thereafter he was treated as unauthorised occupation from 01.10.1996 to 03.08.2000 for which damage rent at prevalent rate was applied. Further , in pursuance of order dated 03.09.2015 8 O.A No. 846/2013 passed by this Hon'ble Tribunal, the respondents have settled the matter about payment of dues and outstanding dues against the applicant vide letter dated 01.10.2015 (Annexure No CR-7 of the Counter Reply ), in which Rs. 186028/- as gratuity Rs. 90200/- as leave encashment, Rs. 216103/- as commutation and Rs. 11694/- as difference of salary during suspension period is liable to be paid to applicant and Rs. 8017/- as electricity bill, Rs. 334227/- as penal rent, Rs. 551122/- as store recovery are outstanding dues against the applicant. As such, total amount of Rs. 504095/- is liable to be paid by the department, while total amount of Rs. 893366/- is outstanding dues against the applicant, hence Rs. 389271/- is the amount which is liable to be recovered from the applicant. The suspension period from 14.08.1995 to 02.11.1995 has been treated as duty by competent authority.
10. Heard learned counsels for both the parties who reiterated the stand taken in the pleadings. It was stated that written submissions were filed by the counsels earlier. Learned counsel for the applicant submitted a copy of the order of Hon'ble High Court of Allahabad in the case of Ram Murti Pandey Vs. State of U.P. & others - 2007 Law Suit (All) 790. It is submitted that the dues claimed by the respondents in letter dated 01.10.2015 cannot be recovered from the applicant without prior sanction of the President. The order of recovery has been issued arbitrarily 9 O.A No. 846/2013 without conducting any departmental proceedings against the applicant. It was also submitted that full DCRG amount cannot be withheld.
11. Learned counsel for respondents in his written submissions stated that the applicant was store in charge and there was shortage of amount Rs. 551122/- after due verification and this amount is recoverable from the applicant. Learned counsel cited the case of State of west Bengal and others Vs. Pronab Chakraborty - 2015 (2) All India Service Law Journal, page 13 where it is observed that if employees have committed misconduct resulting in loss to Government, the same can be recovered from the concerned employee. Another case Rajinder Kaur versus Union of India and others in O.A No. 320/2007 decided by this Tribunal has also been cited to support the contention that recovery can be done from DCRG without conducting regular inquiry and conducting disciplinary proceedings. Learned counsel has defended withholding of retiral dues due to pending criminal case and recovery on account of shortage of store.
12. I have considered the submissions and perused the materials on record. The applicant is a railway servant who has retired from railway service since 31.01.1996. But his retiral dues have been 10 O.A No. 846/2013 withheld by the respondents on the ground of overstay of the railway quarter till 2006, shortage in the store and pending criminal case. The contention of the applicant that he was called by RPF on 14.08.1995 to come to the store and when he reached there, he was arrested immediately and sent to jail has not been contradicted. Applicant was immediately placed under suspension on 14.08.1995, which was revoked on 02.11.1995 and the applicant retired on 31.01.1996. The applicant's request for documents vide his letter dated 02.01.1996 (Annexure A-3 to the O.A) and 05.01.1996 (Annexure A-4 to the O.A) addressed to respondent no. 6 contained his main submissions as below: -
(i). Checking of store was conducted in his absence and the applicant was not provided with a copy of the ground balance checking note.
(ii). Documents like ledger, related documents, ground balance checking, note prepared jointly by RPF alongwith others and giving handing over taking over notes prepared by the applicant and his successor to whom he handed over the charge of the store may be supplied to him.
The applicant's grievance is that no document as requested above has been supplied to him by the respondents. The respondents have stated that the records requested by the applicant were not available, hence these could not be supplied (para 34 of the CA). 11 O.A No. 846/2013 This was important since an amount of Rs. 5,51,112/- was to be recovered as shortage of store from the applicant's retiral dues. It is clear that the materials or documents based on which the shortage of store amounting to Rs. 5,51,112/- was decided to be recovered from the retiral dues of the applicant were not supplied to the applicant, as a result of which, the applicant could not place his submissions / defence before the respondents, as a result of which there is violation of principles of natural justice by the respondents in unilaterally deciding the amount to be recovered from the applicant. .
13. Learned counsel for the respondents has cited following cases to support recovery of dues :-
i). State of West Bengal and others Vs. Pronab Chakraborty - 2015 (2) All India Service Law Journal, page 13. (Annexure CR-9 to the Counter Reply)
ii). Order dated 17.11.2016 pased by C.A.T., Allahabad Bench in O.A No. 320/2007 -Rajinder Kaur versus Union of India. (Annexure CR-10 to the Counter Reply)
iii). Order dated 12.10.2015 passed by C.A.T., Allahabad Bench in O.A No. 34/2012 - Ram Nawal Vs. U.O.I & Ors.
(Annexure SCR-4 to the Suppl. Counter Reply) 12 O.A No. 846/2013
iv). Maharashtra Public Service Commission Vs. Dr. Bhanumati Purushottam Rathod - 1997(5)SCC 128 (Annexure SCR-1 to the Suppl. Counter Reply)
14. In the case of State of West Bengal Vs. Pronab Chakraborty (Supra), it was held by the Hon'ble Apex Court that Government can continue and if such misconduct or negligence entails pecuniary loss to Government then the loss can be recovered from concerned employee. Hence, as per this judgment, loss to Government that is ascertained after disciplinary proceedings can be recovered from employee. In this case, the loss is being recovered from the applicant has not been established after a departmental inquiry after giving the applicant the opportunity of being heard. Respondents have determined the loss on account of store behind the back of the applicant. In O.A No. 320/2007, the recovery that was ordered was not disputed by the concerned railway servant as mentioned in para 16 of the order, hence the case is distinguishable on facts. In O.A No. 34/2012, this Tribunal did not interfere with the order of deduction on penal rent / damage. It is noted that in this case, the penal rent was not recovered from the retiral dues. .
15. Applicant's counsel has cited the case of Ram Murti Pandey (Supra), in which Hon'ble High Court of Allahabad has observed : - 13 O.A No. 846/2013
"5. Learned counsel for the petitioner contends that the impugned order on the basis of which his pension has been withheld, is not only arbitrary being based on some reports obtained ex parte behind his back and without notice or opportunity to rebut the same and to defend himself and is thus also violative of principles of natural justice. It is also submitted that the petitioner has been held guilty without holding any disciplinary proceedings of any kind and thus the order is void and illegal and his pension has wrongly been withheld on the basis of the said report.
6. A counter affidavit has been filed on behalf of the State of U.P stating therein that the petitioner at the time of joining the department on 27.01.1966 produced a certificate showing his date of birth as 09.07.1942. Accordingly, he retired from service on attaining the age of superannuation on 31.07.2000. It is further stated that after due inquiry in the matter, the aforesaid certificate was found to be forged.
Same facts have again been mentioned in paragraph 19 of the counter affidavit.
7. A perusal of the counter affidavit goes to show that there is no denial of the specific averments made in the writ petition that alleged inquiry, on the basis of which the authority came to the conclusion that petitioner had obtained appointment on the basis of a forged certificate, was conducted behind his back and he was never given any opportunity to rebut the alleged inquiry report nor any disciplinary proceedings at any point of time was drawn against 14 O.A No. 846/2013 the petitioner. Thus, the specific allegations made in the writ petition are un-rebutted.
8. In the backdrop of above facts, the issue for adjudication is whether the respondents are justified in withholding the pension of the petitioner.
9. It is settled legal proposition that pension is not a bounty. An employee earns the benefit of pension by dint of his long continuous faithful and unblemished service.
...........................
26. The aforesaid view has been followed and reiterated in the case of O.P. Gupta Vs. Union of India and others, 1987 4 SCC 328, S.R. Bhanrate Vs. Union of India and others, 1997 AIR(SC) 27, Dr. Uma Agrawal Vs. State of U.P and another , 1993 3 SCC 438 and S.K. Dua Vs. State of Haryana and others, 2008 3 SCC 44. In a recent decision of the case of Rajeshwar Swarup Gupta Vs. State of U.P and others 2011 2 ADJ 608, a Division Bench of this Court while considering the question of award of interest on delayed payment of retiral benefits , relying on the Apex Court judgment in the case of P. Padmnanaban Nair awarded 12% interest.
27. In the facts and circumstances of the case, we are also of the considered opinion that petitioner is entitled not only for the arrear of pension but also simple interest on the delayed payment which we quantify as 12% per annum.
28. The writ petition is accordingly allowed. A writ of mandamus is issued commanding respondents to sanction and disburse all retiral dues to the petitioners alongwith simple interest @ 12% per 15 O.A No. 846/2013 annum with effect from the date of retirement till the date of actual payment within a period of four months from the date of production of certified copy of this order." .
16. In another case involving a retired railway servant where the authorities had deducted the penal rent for occupation of quarter from the retiral dues, in the case of N.C. Sharma Vs. Union of India (Uoi) and ors. reported in 2004 (3) Bom CR 24, Hon'ble Mumbai High Court observed as under:
"21. There is another angle from which this controversy can be appreciated. Assuming that Rule 15 of the 1993 Rules would apply, even then, a bare perusal of the Rule indicates that the railway or Government dues should be (a) ascertained and assessed and (b) they should remain outstanding till the date of retirement or death of railway servant. Only then, it is permissible to adjust the same against the amount of retirement gratuity or terminal gratuity and
(c) recovery of all dues against railway servant shall be regulated in accordance with the provisions of Sub-
rule (4) of Rule 15. Now, it is well settled that whenever the Legislature uses the words 'ascertained and assessed' pertaining to the dues, they necessarily pre- suppose crystallisation of the dues after adjudication. That such an adjudication only will result in ascertainment and assessment of the dues is apparent. Further, that such an adjudication should be prior goes without saying. We are supported in these conclusions by the law laid down in two Supreme Court decisions reported in : [1998]2SCR1158 and : [1999]2SCR496 .
22. Therefore, it is obvious that principles of natural justice have to be adhered to and an opportunity will have to be given to the concerned employee before recoveries or adjustments are effected by the Railway or Government. In the instant case, in our view, merely addressing the letters as noted above, would not by 16 O.A No. 846/2013 any stretch of imagination mean compliance with the principles of natural justice. There is nothing in the order dated 31st October 1996 which would indicate that prior opportunity was given to the petitioner before adjustments were made from the terminal dues/benefits admissible to him. In this view of the matter, the conclusion of the Tribunal that opportunity was given or that there was no dispute about the dues is contrary to the material placed on record and wholly erroneous. It is difficult to agree with the conclusion of Tribunal on this aspect.
23. For the reasons aforesaid, in our view, the impugned order cannot be sustained. Consequently, the Rule is made absolute in terms of prayer Clause (a). In view of the decision of the Supreme Court in the case of R. Kapoor v. Director of Inspection (Printing and Publication), reported in 1995 SCC 13 Rule is also made absolute in terms of prayer Clause (b). Respondents to make the payment as directed in prayer Clause (b) with interest at 9% p.a. within a period of twelve weeks from today. All concerned to act on an authenticated copy of this order."
17. It is also noted that in a similar case of Sudhakar Raghunath Deshpande vs Union Of India And Ors. decided by Mumbai Bench of this Tribunal reported in 2006(3) SLJ 384 CAT, it was observed that the recovery order from the dues of the retired railway servant based on an inquiry conducted behind the back of the railway servant can not be sustained. The Tribunal in this has observed the following:
"1. The OA is filed for quashing and setting aside the order dated 5.5.2005 regarding the recovery of Debit amount of Rs. 54,888 from settlement dues of applicant by deducting the same from dearness relief 17 O.A No. 846/2013 on pension, the order dated 20.9.2004 addressed to Bank of Maharashtra to recover the-amount from dearness relief on pension and remit the same to Chief Cashier, Central Railway, Mumbai CST and order dated 15.10.2004 and also directing the respondents to respondents to restore the full pension as per original PPO with direction to bank authority to restore the pension as if recovery is not ordered and refund the amount already recovered.
.....................................
7. There is no dispute that the applicant who was working as a Dy. Superintendent retired on superannuation on 31.7.2001. The shortage in cash is of 15th- 16th January, 1996. The incident had taken place when the applicant was in service. It is also not disputed that no disciplinary enquiry was conducted against the present applicant. It is the contention of the respondents that shortage of Rs. 1,63,234 was noticed in Railway Cash for which the enquiry was set up and the enquiry officer held the applicant alongwith two others responsible for the same. There is no dispute that the applicant was not given notice to defend the enquiry in question. The alleged fact finding enquiry was conducted behind the back of applicant. Only because the applicant was Dy. Station Superintendent, he alongwith two others was held responsible for the loss in question.
. .............................
9. Rule 15 of Railway Servants (Pension) Rules, 1993 stipulates recovery and adjustment of Government of Railway dues from pensionary benefits.
15.(1) It shall be the duty of the Head of Office to ascertain and assess Government or railway dues payable by a railway servant due for retirement.
15.(2)...
15.(3) ...
15. (4) (i) A claim against the Railway servant may be on account of all or any of the following:
(a) losses (including short collection in freight charges, shortage in stores) caused to the 18 O.A No. 846/2013 Government or the Railway as a result of negligence or fraud on the part of the Railway servant while he was in service.
(b)...
(c)...
(ii) Recovery of losses specified in Sub-clause (i) of this sub-rule shall be made subject to the conditions laid down in Rule 8 being satisfied from recurring pensions and also commuted value thereof, which are governed by the Pensions Act, 1871 (23 of 1871). A recovery on account of item (a) of sub para (i) which cannot be made in terms of Rule 8, and any recovery on account of sub-clauses items (b) and (c) of Clause
(i) that cannot be made from these even with the consent of the Railway servant, the same shall be recovered from retirement, death, terminal or service gratuity which are not subject to the Pensions Act, 1871 (23 of 1871). It is permissible to make recovery of Government dues from the retirement, death, terminal or service gratuity even without obtaining his consent, or without obtaining the consent of the members of his family in the case of a deceased Railway servant.
(iii) ...
(iv) In all cases referred to in sub-clauses (a) and (b) of Clause (i) of this sub-rule, the amounts which the retiring Railway servants are required to deposit or those which are with held from the gratuity payable to them shall not be disproportionately large and that such amounts are not with held or the sureties furnished are not bound over for unduly long periods.
To achieve this the following principles should be observed by all the concerned authorities:
(a) ....
(b) Dues mentioned in Clause (i) of this sub-rule should be assessed and adjusted within a period of three months from the date of retirement of the Railway servant concerned.
10. On perusal of the provisions of Rule 15, it is clear that departmental authorities must finalise any loss which should be assessed and adjusted within a 19 O.A No. 846/2013 period of three months of retirement of Railway servant. In the present case, the loss in question if of 1996, the applicant has retired on 31.7.2001 and this recovery order was first issued in 2003. Thus, it has not been done within the specified time. On this account alone the OA deserves to be allowed.
11. It is also apparent that the recovery order is made on the basis of fact finding enquiry which was done behind the back of applicant. Admittedly, the applicant was not given an opportunity to defend his case. He was not given show cause notice while imposing the penalty of recovery of amount. As per ratio in Barindra Kumar Ghosh's case, the recovery on the basis of the fact finding enquiry cannot be made. There ought to have been a departmental enquiry for, imposing the penalty in question. It also be mentioned that the recovery under Rule 9 of Railway Services (Pension) Rules, 1993, can only be made by the President of India from the pensioner. The order is neither passed by the President nor with his consent.
12. I have mentioned that recovery of the pecuniary loss alleged to be caused by the employee is a minor penalty under Rule 6(iii) of Railway Servants (Discipline & Appeal) Rules, 1968. The action to recover the alleged loss caused due to negligence of the employee could be taken only after following the procedure as laid down under Rule 11 of Railway Servants (Discipline & Appeal) Rules, 1968 for imposing a minor penalty. Rule 11 of Railway Servants (Discipline & Appeal) Rules lays down informing the Railway Servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him reasonable opportunity of making such representation as he may wish to make against the proposal. Holding of oral enquiry under Rule 11(1) (b) is optional i.e. it is entirely according to the discretion of the Disciplinary Authority. If the Disciplinary Authority decided to hold enquiry then it is held in the manner as laid down in Sub-rules (6) to (25) of Rule 9. No such procedure has been followed for the recovery ordered against the applicant.
13. In view of the above discussion, the recovery order passed by respondents cannot be sustained. Orders dated 5.5.2005,20.9.2004 and 15.10.2004 are hereby 20 O.A No. 846/2013 quashed and set aside. The respondents are directed to restore the full pension as per original PPO and to refund the amount which has been recovered from the dearness relief of the applicant within three months from the date of receipt of copy of this order. Accordingly OA is allowed. No order as to costs."
18. From above discussions, it is clear that in this case the loss of Rs. 551122/- shown by respondents to be the loss on account of shortage of the store which was under the charge of the applicant before he was involved in a criminal case and sent to jail, has been assessed behind the back of the applicant, who was not even supplied the necessary documents in spite of representations made by him. Hence, as per the cases discussed in paragraphs 15, 16, 17 of this order, the recovery of Rs. 5,51,122/- assessed unilaterally behind back of the applicant is not sustainable under law. In the criminal case, the applicant has been acquitted by the court on 30.03.2015 as stated by the respondents in their counter affidavit. Although provisional pension has been sanctioned by the respondents in favour of the applicant , but deduction is being done from pension against shortage / recovery, which is not permissible. As per rules, there was no justification to withhold the gratuity and other dues payable after adjustment of quarter rent dues after acquittal of the applicant from criminal charges on 30.03.2015 as stated in the counter affidavit filed by the respondents.
21O.A No. 846/2013
19. Regarding recovery of penal rent and damage rent on account of unauthorized occupation of railway quarter by the applicant, it is noted that in the case of Union Of India Thru The Gen Mgr. N.C.R. & Ors. vs. Central Administrative Tribunal & Anr. In WRIT - A No. - 20681 of 2009 (indiankanoon.org/doc182086105, Hon'ble Allahabad High Court has observed the following:-
"............................We fully agree with the view of Bombay High Court. Rule 15 (1) says it shall be the duty of the Head Office to ascertain and assess Government or Railway dues payable by a railway servant due for retirement. The words 'due for retirement', according to us mean the dues upto the date of retirement. Rule 15 (2) of the Rules, 1993 provides for the recovery of Railway or Government dues as ascertained and assessed, which remain outstanding till the date of retirement or death of the railway servant, means the dues as ascertained and assessed on the date of retirement or death of the railway servant. It does not contemplate dues accruing after the date of retirement. Thus, the penal interest which accrued after the retirement is not covered under Rule 15 (2)..................... ........................................
The Division Bench of this Court in the case of Smt. Marjaddi Vs. Central Administrative Tribunal, Allahabad Bench, Allahabad and others (supra) has also held that the recovery of damages for retention of official quarter against the gratuity is illegal.22 O.A No. 846/2013
In the case of Gorakhpur University vs. Dr. Shitla Prasad Nagendra and others, reported in 2001 92) SCSLJ 247, the post retiral dues of the Professor of the University had been withheld on the ground that the Professor has retained the University's accommodation after his retirement. The Apex Court has held that pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest......................................
..............................................
In the case State of Kerala Vs. M. Padmanabhan Nair and Som Prakash, reported in (1985) 1 SCC 429, the Apex Court has held as follows:
"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 rate till actual payment."
The Division Bench of the Bombay High Court in the case of V.U. Warrier Vs. Secretary, Oil and Natural Gas Commission, Dehradun and another, 23 O.A No. 846/2013 reported in 2003 (3) Mh. L.J. 168 has held as follows:
"Legal position is no more res integra that pension and gratuity becomes valuable rights and property in the hands of employees on their retirement and payment of pension and gratuity cannot be withheld even if the employee has remained in unauthorized occupation of employer's accommodation and become liable to pay damages under the allotment Rules for overstay. To recover damages from such retired employees for unauthorized occupation, the employer has to pursue appropriate remedy in law but the said amounts cannot be set off against pension and gratuity amount payable to retired employee."
In view of the aforesaid discussions, we are of the view that the amount of post retiral dues, including gratuity could not be retained for the recovery of penal rent and could not be adjusted with the penal rent. The order of the Tribunal to this extent is liable to be sustained."
20. In the case of the G.M.,East Central Railway vs. The Central Administrative Tribunal (indiankanoon.0rg/doc/287311) on a similar issue, Hon'ble Patna High Court has observed the following:-
"8. ............................ The Railway authorities have filed this writ petition aggrieved by the order dated 12th August, 2005 passed by the Central Administrative Tribunal, Patna Bench, Patna to the extent it declared that order of recovery of 24 O.A No. 846/2013 Rs.29613/- towards penal rent from retiral benefits was bad in law.
9. That after his superannuation, the respondent no.2 remained in unauthorised occupation of railway quarter at Muzaffarpur also does not appear to be in dispute.
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13. The observations made by the Supreme Court that not taking any action according to law to determine the so-called penal rent after giving prior show cause notice or any opportunity before even proceeding to recover the same renders the claim for penal rent not only seriously disputed or contested claim, but the University cannot be allowed to recover summarily the alleged dues according to its whims equally applies to the fact- situation of the present case.
14. Moreover, we are informed by the counsel for the respondent no.2 that subsequent to the decision given by the Tribunal, an amount of Rs. 21,938/- has already been paid out of Rs.29613/- which was deducted as penal rent from the retiral benefits.
15. In this view of the matter, even otherwise the order passed by the Tribunal does not call for any interference. Writ petition is, accordingly, dismissed with no order as to cost."25 O.A No. 846/2013
21. In the case of Union of India and ors. Vs. Sh. Rajinder Singh (legalcrystal.com/1162123), Hon'ble Delhi High Court has held as under:-
"10. Thus, it is clear that for unauthorized occupation of the railway quarter beyond superannuation, the full gratuity may be withheld, in the form of cash in the hands of the railway administration. However, if the quarter is occupied even beyond the permissible period of retention, Rule 16(8)(c) states that dues may be adjusted against gratuity, and only the balance, if any, must be returned to the employee. However, it must be noted that these dues must be assessed and ascertained dues. This is clear from the requirement in Rule 15(4)(iii), which mandates a procedure to be followed, if dues remain unassessed or unascertained at the time of sanction of pension; this involves furnishing a surety, or requiring that an amount of gratuity "as may be considered sufficient", be withheld, till dues are assessed and adjusted. The purport of these provisions is clear: the sanction of pensionary benefits cannot be denied or delayed arbitrarily, pending assessment of dues owed to the railway administration.
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14. However, the Northern Railways appears to have completely substituted the proceedings under the Public Premises Act, 1971, by their own calculations of damages and rent allegedly owed to 26 O.A No. 846/2013 the railway administration, as evident from the letter of 25.5.2009. This requirement could not have wantonly be done away with, on a whim, by the administration, as it is mandated specifically under Rule 16(8)(e) and merited generally, under the scheme of the Pension Rules. This Court notes that there is ample authority for the proposition that pensionary benefits cannot be arbitrarily withheld, as these are „not a bounty, payable on the sweet will and pleasure of the government‟. Ref. Subrata Sen v. Union of India, AIR2001SC3634 D S Nakara v. Union of India, (1983) 1 SCC305 Deokinandan Prasad v. State of Bihar, (1971) 2 SCC330 It is a right of government employees, and compliance with the procedure is mandatory, if pension is sought to be withheld by the government, to whatever extent permitted by the Rules.
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17. This Court is thus compelled to observe that the rent arrears and damages ought to have been assessed and ascertained in proceedings under the Public Premises Act, 1971, and claimed, within three years from when they became due. Even assuming, in favour of the Northern Railways that their case was that arrears and damages were owed (and thus due) on a continuing basis, a claim can only be made for arrears due over the last three years of unauthorised occupation; W.P.(C) 4918/2014 Page 17 the remaining arrears are all barred by time under the Limitation Act, in blocks 27 O.A No. 846/2013 of three years from when they continually became due. This Court, however, also underlines that this is not their case in either their pleadings or on the record before the CAT and this Court. Therefore, there is no permissible way for the Northern Railways to claim arrears owed from 1.10.1981 till the date of superannuation of the respondent, as it has attempted to do by its letter of 25.5.2009"
22. In the case of Smt. Angoori Devi vs Union Of India in the Principal Bench of this Tribunal in OA No. 13/2012, following observations have been made on the issue of recovery of penal/damage rent for the railway quarter:-
"14. It is also noticed that if there is any dispute regarding recovery of damages or rent from the ex- railway employee, under Rule 16 of the Railway Service (Pension) Rules, 1993, shall be subject to adjudication by the concerned Estate Officer appointed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (40 of 1971). The same Rule reads as under:-
16. Adjustment and recovery of dues pertaining to Government or railway accommodation (1) The Directorate of Estates on receipt of intimation from the Head of Office under sub-rule (1) or rule 98 regarding the issue of No Demand Certificate shall scrutinize its records and inform the Head of Office eight months before the date of retirement of the allottee, if any 28 O.A No. 846/2013 licence fee was recoverable from him in respect of the period prior to eight months of his retirement. If no intimation in regard to recovery of outstanding licence fee is received by the Head of Office by the stipulated date, it shall be presumed that no licence fee was recoverable from the allottee in respect of the preceding eight months of his retirement.
(2) The Head of Office shall ensure that licence fee for the next eight months, this is up to the date of retirement of the allottee is recovered every month from the pay and allowances of the allottee. (3) Where the Directorate of Estates intimates the amount of licence fee recoverable in respect of the period mentioned in sub-rule (1), the Head of Office shall ensure that outstanding licence fee is recovered in installments from the current pay and allowances, the balance shall be recovered out of the gratuity before its payment is authorized.
(4) The Directorate of Estate shall also inform the Head of Office the amount of licence fee for the retention of Government accommodation for the permissible period of four months beyond the date of retirement of the allottee. The Head of Office shall adjust the amount of that licence fee from the amount of the gratuity together with the un-recovered licence fee, if any, mentioned in sub-rule (3).
(5) If on any particular case, it is not possible for the Directorate of Estates to determine the outstanding licence fee, that Directorate shall inform the Head of Office that ten per cent of the gratuity or one thousand 29 O.A No. 846/2013 rupees, whichever is less, may be withheld pending receipt of further information.
(6) The recovery of licence fee for the occupation of the Government accommodation beyond the permissible period of four months from the date of retirement if allottee shall be the responsibility of the Directorate of Estates. Any amount becoming due on account of licence fee for retention of Government accommodation beyond four months after retirement and remaining unpaid licence fee may be recovered by the Directorate of Estates through the concerned Accounts Officer from the dearness relief without the consent of the pensioner. In such cases no dearness relief should be disbursed until full recovery of such dues have been made.
NOTE : For the purpose of this rule, the licence fee shall also include any other charges payable by the allottee for any damage or loss caused by him to the accommodation or its fittings.
(7) A railway servant shall vacate the railway accommodation immediately after his/her retirement. (8) (a) In case where a railway accommodation is not vacated after superannuation of the Railway servant or after cessation of his services such as on voluntary retirement, compulsory retirement, medical invalidation or death, then, the full amount of retirement gratuity, death gratuity or special contribution to provident fund, as the case may be, shall be withheld.
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b) The amount withheld under clause(a) shall remain with the railway administration in the form of cash.
c) In case the railway accommodation is not vacated even after the permissible period of retention after the superannuation, retirement cessation of service or death ,as the case may be, the railway administration shall have the right to withhold, recover, or adjust from the Death -cum-retirement Gratuity, the normal rent, special licence fee or damage rent, as may be due from the ex-railway employee and return only the balance, if any, on vacation of the Railway accommodation.
d) Any amount remaining unpaid after the adjustment made under clause (C) , may also be recovered without the consent of the pensioner by the concerned Accounts Officers from the dearness relief of the pensioner until full recovery of such dues has been made.
e) Dispute, if any, regarding recovery of damages or rent from the ex-railway employee shall be subject to adjudication by the concerned Estate Officer appointed under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971).
Railway Board s Decision : While the retirement/death gratuity or special contribution to P.F., as the case may be, should be withheld in full for non-vacation of Railway quarters, not only after superannuation but in all cases of cessation of service, namely, voluntary retirement, death etc. Further the amount withheld should remain with the Administration only in the form of cash without conversion into any type of security lest the very 31 O.A No. 846/2013 purpose of withholding full D.C.R.G. should get defeated. It may also please be kept in view that the gratuity should be released as soon as the quarter is vacated so that there is neither any hardship to the retired employee or its family nor there is any claim for payment of interest on withheld gratuity for reasons of any administrative lapse.
15. In this regard, it is also relevant to consider Section 7 of the P.P. Act and it reads as under:-
7.Power to require payment of rent or damages in respect of public premises.-(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, passess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
(3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may 32 O.A No. 846/2013 produce in support of the same, have been considered by the estate officer .
16. In the above facts and circumstances of the case, we allow this OA and quash and set aside the decision of the Respondents conveyed vide their letters dated 12.08.2009 and 12.08.2011 to recover the amount of Rs.2,22,927/- towards penal/damage rent in respect of Railway Quarter No.T-71, Railway Colony, Rohtak for a period from 01.04.1990 to 01.07.1998 from the DCRG and/or from any of the terminal benefits payable to the Applicant. We also direct the Respondents to release the withheld and/or any other terminal benefits like DCRG to the Applicant forthwith but in the facts and circumstances of the case, we do find it proper to direct the Respondents to pay any interest on the withheld DCRG amount to the Applicant. However, the Respondents have the liberty to initiate proceedings against the Applicant and all other concerned under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and to recover the penal/damage rent as per due process of law."
23. In view of the decisions in the cases referred above and the provisions of the Rule 15 and 16 of Railway Services (Pension) Rules 1993, it is clear that the penal rent or damage in respect of unauthorized occupation of the quarter by a railway servant after retirement has to be assessed and ascertained in proceedings under the Public Premises Act, 1971 as per provisions of law and thereafter, it can be recovered from the retirement dues. There is 33 O.A No. 846/2013 no material available on record in this case, that the respondents have assessed and determined the amount recoverable from the applicant towards penal rent and damage for unauthorized occupation of the railway quarter as per the provisions of the Public Premises Act, 1971. Apparently, no action was taken against the applicant to evict him from the quarter much earlier to his date of his vacation on 03.08.2000, or to recover the rent dues from him as per law even after the applicant vacated the quarter after more than four and half year from his date of retirement. Hence, it was incorrect on the part of the respondents to have withheld the gratuity and other retirement dues, even after acquittal of the applicant from the criminal case in 2015.
24. As discussed above, it was wrong on the part of the respondents to have allowed the applicant to overstay for more than four years after the permissible period for occupation of the railway quarter after his retirement. Moreover, as per the decision of Hon'ble Delhi High Court as discussed in paragraph 21 of this order, there is a limitation of three years to recover the outstanding rental dues for the quarter, which can not be recovered from the retirement dues.
25. In the circumstances, it is held that the amount towards shortage of store which was assessed behind the back of the applicant and the penal rent/damage rent on account of the 34 O.A No. 846/2013 applicant's unauthorized occupation of railway quarter from 1.10.1996 to 03.08.2000 can not be recovered from applicant's retirement dues payable to him as per law. Hence, the impugned orders dated 01.10.2015 (Annexure 13A to the OA) and 11.04.2016 (Annexure 13B to the OA), ordering recovery of the dues from retirement dues of the applicant are liable to be set aside and quashed and hence, these two orders are set aside and quashed. The respondents are directed to release the applicant's withheld retirement dues payable to the applicant as per rules alongwith a simple interest at the rate of 9% per annum from the date of his retirement to the date of actual payment to the applicant. Respondents are directed to comply this order within three months from the date of receipt of a certified copy of this order. However, the respondents have liberty to initiate proceedings as per provisions of law to recover the penal / damage rent from the applicant.
26. Accordingly, the OA is allowed with above directions. No costs.
(GOKUL CHANDRA PATI) MEMBER- A. Anand...