Central Administrative Tribunal - Kolkata
Saila Nath Choudhury vs S E Railway on 16 February, 2018
(1) OA 189 of2013
CENTRAL ADMINISTRATIVE TRIBUNAL
LIBRARY CALCUTTA BENCH,KO L K A T A
O.A.NO.: 189 OF 2013
Reserved on - 30.01.2018
Date of Order- 16,
CORAM
HON'BLE MRS. BIDISHA BANERJEE, MEMBER (JUDL.)
HON'BLE MRS. JAVA DAS GUPTA, MEMBER (ADMN.)
Saila Nath Choudhary, S/a Late Guru Prasad Choudhary aged about
56 years, working as Sr. SE (P.Way In-charge MTI Engg.Control) under
Divisional Railway aManager, S.E.Railway, CKP now residing at
Chakradharpur C/a Swapan Sutradhar, Ward No.13, Bengalitola near
Rinku Kalimandir, Singhbhum (East), Jharkhand-833 102.
Applicant.
... ......
By Advocate:- Mr. C.Sinha
Vs.
1, Union of India through the General Manager, S.E.Railway,
Garden Reach, Calcutta-43.
Divisional Railway Manager, S.E.Railway, Chakradharpur 833
102.
Sr. Divi. Engineer (West), S.E.Railway, Chakradharpur - 833
102.
Sr. DPO (Engg.Bill), S.E.Railway, Chakradharpur-833 102.
.........Respondents.
By Advocate :- Mr. B.L.Gangopadhyay.
ORDER
Per Bidisha Banerjee, Member [JudI.1 :- In this OA the applicant, now a retired employee,.hallengei the letters dated 19.10.2012 & 18.12.2012 issued by the Sr. DEN (West)/CKP and Sr. DPO/CKP respectively, whereby and whereunder, he was intimated about the shortage of stores reflected in the stock sheets and in connection thereto a decision of the Sr. DEN (West)/CKP about recovery of an UN [2] . 04 189 of 2013 amount of Rs.30,34,855/- towards stores debit from his salary at the '7 rate of Rs.19,000/- per month w.e.f. November, 2012. The letter dated 18.12.2012 is the consequential letter of the Sr. DPO advising. such recovery from the salary of the applicant.
2. The grounds for challenge are as under:-
(I) Such alleged amount could not be recovered straightway from substantive pay of employee and, therefore, such recovery is illegal, unlawful, irregular and arbitrary.
Recovery from substantive pay had to be preceded by issuance of a charge-sheet, holding of an inquiry and putting the applicant to notice thereof.
No rule permits issuance of suo-motu order directing recovery from substantive pay.
Recovery from salary of a permanent employee is a substantive punishment which requires holding of an inquiry in terms of Railway Servants (Discipline & Appeal) Rules, 1968.
3. In support thereof, the, learned counsel for the applicant, during the course of hearing, would cite the decisions rendered in the following:-
(I) OA No. 178 of 2005 rendered on 16.11.2007.
(ii) OA No. 118 of 2010, along with OA 822. of 2007 and other OAs, order dated 27.03.2012.
/5 6 /7 [3] OA 189 of 2013 /
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OA No. 426 of 2011 on 18.06.2012 by this Bench. OA 434 of 2011 rendered on 18.02.2013 affirmed by the Hon'ble High Court of Calcutta in WPCT No. 120 of 2015.
Citing the decisions supra, learned counsel for the applicant would vociferously object to such recovery and pray for release of the amount already recovered.
4. Per contra, learned counsel for the respondents would cite the order in OA 288 of 1995, of Jaipur Bench justifying recovery. The reply filed by the respondents disclosed the following:-
The applicant while holding the position of SSE (P.Way) and, therefore, while an lncharge of the Unit, was accountable for the loss of the materials which he had taken charge from his predecessor having never reported any shortage or loss of materials before his Transfer to BNDN-1 Unit, Such shortage was discovered upon an inventory of materials and preparation of stock sheets. The applicant was asked. to explain against the shortage and excess. When he was asked to supply the copy of the stock sheets, upon repeated requested the applicant replied that the deficiency might be due to mistake in maintaining the records. He was allowed verification of records but he never submitted his reply to the show cause issued on 15.022011. On 02.04.2012 he was asked to furnish reply failing which recovery assessed at Rs.14,71,892/- would be made. Again, for the period the applica'nt served at BNDN-1 from 2009-2012 stock sheets demonstrated shortage/excess which when FA F
-I OA 189 of 2013 [41 p directed to be explained, could not be satisfactorily explained by the applicant and, therefore, the accounts department advised recovery of cost of materials amounting to Rs.15,62,963/ for which the show cause was issued to the applicant prior to recovery.
The learned counsel for the respondents would submit that the debit being an admitted debit, meaning thereby, that the. shortage being recorded in presence of the applicant, the provisions of Commercial Manual were rightly invoked to order such recovery.
Learned counsels were heard and materials on record were perused.
On 26.03.2013 the recovery was stayed. The respondents did neither take any steps to get the interim stay nor recorded their vacated by preferring any Misc. Application, • objection in regard to continuance of the stay.
Coming to the decIsions cited by the applicant, it could be noticed that in OA 118 of 2010 this Tribunal while deliberating on various provisions in regard to recovery, invoking the provisions of Commercial Manual as well as delving in depth into the various decisions of the Hon'ble Apex Court and the High Courts and implications thereof,held as under:-
"15; The applicants of OA 822/07 and OA 118/2010 are serving Railway employees. Having regard to the principles enunciated in para 13 above no recovery can be effected unless a departmental proceedings have been initiated against them." 9
y I [5] OAl89of 2013 In the case of retired employees, heard analogously with OA 118 of 2010, the Bench directed the respondents to release the gratuity along with interest where gratuity was withheld upon imposition of penalty of recovery.
In OA 426 of 2011 this Tribunal had held that in absence of a charge-sheet it is not permissible as per Railway Rules to hold the retiral dues of the applicant and expressed concern as their advice to the Railways to set up an appropriate machinery in respect of shortage of materials was not complied with. The said order was affirmed by the Hon'ble High Court in WPCT No. 352 of 2012.
OA No. 178 of 2005 relates, to recovery from DCRG which was held irnpermissible. It was affirmed by the Hon'ble High Court.
On the contrary, it could be noted that in OA No. 288 of 1995 in a stray case Jaipur Bench of the Tribunal has held that recovery of loss can be ordered even without going through the disciplinary proceeding. The respondents have failed to bring on record any decision from any higher forum affirming the same.
8. We are, therefore, confronted with contradictory decisions of the Tribunal on the issue whether recovery could be made from the salary. of an employee without going through the disciplinary proceeding. Since opinions have been expressed by co- ordinate Benches of the same strength and affirmed by the Hon'ble High Court, which would bind us, we are not in a position to discard [61 OA 189of 2013 the view opined by the said co-ordinate Bench in preference to Jaipur Bench decision referred supra.
Accordingly, we direct the respondents to refund the recovered amount within three months with liberty to act in accordance with law.
10. The OA, thus, sta rids disposed of. No costs.
'A
(Jaya Das dupta) (Bidisha BInerjee)
Member (Admnj Member (JudI.)
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