Central Administrative Tribunal - Ernakulam
Santhakumari M C vs The General Manager Southern Railway ... on 27 March, 2019
.1.
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00396/2018
Wednesday, this the 27th day of March 2019
Hon'ble Mr.E.K.Bharat Bhushan, Administrative Member
Santhakumari.M.C., aged 61 years
W/o.Ramakrishnan A (late)
(Ex-Loco Pilot (Mail)/Southern Railway/Erode/
Palakkad Division), Residing at : Adayalapara House
Parali, Palakkad - 678 612 ..... Applicant
(By Advocate Mr.T.C.G Swamy)
Versus
1. Union of India, represented by
the General Manager
Southern Railway
Head Quarters Office
Park Town P.O, Chennai - 600 003
2. The Divisional Railway Manager
Southern Railway, Palakkad Division
Palakkad - 678 002
3. The Senior Divisional Personnel Officer
Southern Railway, Palakkad Division
Palakkad - 678 002
4. The Senior Divisional Finance Manager
Southern Railway, Palakkad Division
Palakkad - 678 002 ..... Respondents
(By Advocate - Mr.Thomas Mathew Nellimoottil)
This Original Application having been heard on 22.3.2019, the
Tribunal on 27.3.2019 delivered the following:
.2.
ORDER
Per: Mr.E.K.Bharat Bhushan, Administrative Member Original Application No.180/00396/2018 is filed by Mrs.Santhakumari.M.C, widow of the late Shri.A.Ramakrishnan who while working as Loco Pilot (Mail) at Erode Junction of the then Palakkad Division of Southern Railway, had passed away on 2.9.2002 due to heart attack. At the time of demise, the late Shri.Ramakrishnan.A had a service of more than 35 years and hence in terms of Rule 70 of Railway Services (Pension) Rules, 1993, the applicant as the widow and the nominee, was entitled to receive the maximum of 33 times emoluments as death gratuity, subject to a maximum of Rs.3,50,000/- as per RBE No.142/97 dated 5.11.1997. The applicant is aggrieved that the entire death gratuity and leave encashment was withheld by the respondents on the ground of an undetermined amount of damage rent said to have been due from the late Shri.Ramakrishnan.A. The reliefs sought in the Original Application are as follows:
" (a) Declare that the action on the part of the respondents in withholding the entire death gratuity payable to the applicant consequent upon the demise of the applicant's husband while in service on 2.9.2002 and also in withholding of the entire leave encashment is arbitrary, discriminatory, ultra vires the statutory rules and hence, unconstitutional;
(b) Direct the respondents to release the entire death gratuity and also leave encashment payable to the applicant consequent upon the demise of the applicant's late husband on 2.9.2002, with interest calculated and in the manner provided for in Rule 87 of the Railway Services (Pension) Rules, 1993;
.3.
(c) Award costs of and incidental thereto;
(d) Pass such other orders or directions as deemed
just and fit by this Tribunal. "
2. The late Shri.A.Ramakrishnan, being a running staff, had been allotted Railway Quarters No.250/ED (Type IV). From the records now available with the applicant, it is seen that there had been a surprise check in the said quarters and officials from the Vigilance Organisation who conducted the check had come to the presumption that the applicant's husband had sub-let the quarters. The late Shri.A.Ramakrishnan was issued with a minor penalty charge memo dated 16.4.1997 alleging that sub-letting of the quarters is established as per a CVO letter dated 21.2.1997. The late Shri.A.Ramakrishnan had submitted his reply which was however, rejected and a penalty of withholding of annual increments for a period of six months was imposed (Annexure A4).
3. The applicant submitted that there has been no further communication from the respondents and there was no direction to vacate the quarters as well. In the meanwhile, applicant's husband Shri.A Ramakrishnan received yet another communication dated 19.11.2001, a copy of which is available at Annexure A-5. Therein it was alleged that he had sub-let the outhouse of the Railway Quarters to an outsider w.e.f 18.7.2001 to 15.11.2001 and he is liable to pay an amount of Rs.15,893/- towards damage rent. Applicant's late husband objected to the same through a representation dated 27.12.2001 (Annexure A-6). However, the representation was rejected by a letter issued from the office of the third respondent (Annexure A-7).
.4.
4. While the matter was pending, the third respondent issued a show- cause notice on 6.8.2002 which was served upon the applicant's husband on 29.8.2002 (Annexure A-8). It was cited therein that:
"Now, on a reference from the Vigilance Organisation it has come to light that during the Vigilance check conducted by CVI/MAS on 9.1.1997 it was deducted that some of the drivers were occupying the Qrs.No.250/H/ED which was allotted to you. The Vigilance Branch vide their letter No.VO/PC/M/PGT/20/99 dated 21.2.1997 has advised DRM/PGT to recover the damage rate of rent from 26.2.1996 to the date of vacation or date of eviction whichever is earlier, along with other actions like imposition of minor penalty etc. On verification of the records in P.Branch it is found that this reference was not received in P.Branch and hence even though Sr.DME/PGT being the disciplinary authority has taken DAR action, as directed by the Vigilance Branch, no recovery was made from your salary towards damage rate of rent.
As the omissions has since been found it has been decided by the competent authority to recover the damage rate of rent from your salary from 26.2.1996 to 17.7.2001 (date of commencement of the damage rate of rent as per 2nd inspection report). The damage rate of rent as calculated comes to Rs.3,33,343/-. "
After arriving at the figure of the alleged dues on damage rent, it was further found stated:
"The above amount is proposed to be recovered from your salary. If you have anything to represent you may do so within two weeks."
5. On getting this notice, the applicant's husband was so shocked that he suffered a heart-attack on 2.9.2002 and died immediately. The applicant is in no position to state whether any reply had been given by the applicant's late husband, but this seems unlikely as he died on the third day of receiving the notice. The death of Sri.A.Ramakrishnan left his family in great distress.
.5.
The entire benefit paid to the widow was only 50,000/- and death gratuity and leave encashment were withheld for which no reasons were stated. The applicant came to know that this had been done due to the dues on damage rent and steps have been takien with the approval of the Divisional Railway Manager to get waiver from General Manager, Southern Railway. The applicant submitted representations dated 11.4.2003 and 28.5.2003 praying for waiver of the damage rent allegedly due from her late husband. The applicant also submitted a detailed representation, a copy of which is at Annexure A-9. However, there was no response to the same. Finally, she came to know as per information provided under RTI Act at Annexure A-12 that a sum of Rs.3,50,000/- had been recovered towards the damage rent on charges of sub-letting the Railway quarters. It is submitted that there is no provision in the statute to take away gratuity, except Rules 8 & 9 of the Pension Rules, 1993 and thus the action on the part of the respondents to withhold the entire death gratuity as also the leave encashment without assigning any reason and without passing any orders thereon is arbitrary and illegal.
6. A reply statement has been filed on behalf of the respondents wherein the facts of the case have been admitted. To the representations filed by the applicant, a reply had been furnished, a copy of which is available at Annexure R-2. She was informed that the relaxation for retention of quarters would be available only in the case of extreme hardship on medical grounds and as this is a case which pertains to sub-letting of quarters, she was accordingly informed that her request for waiving of damage rent cannot be .6.
considered. She waited for a further period of 13 years before approaching this Tribunal seeking release of DCRG. This delay would lead to the O.A being dismissed as she had chosen to sleep over her rights for an inordinately long time. Clearly, this is a belated challenge and it is hit by limitation, the respondents aver.
7. In so far as the merits of the case are concerned, the applicant's late husband had been found misusing the quarters allotted to him by sub-letting the same. This is a clear violation of Rule 15 A of the Railway Services (Conduct) Rules, 1966. Also the steps taken for recovery of penal/damage rent in the case of sub-letting of quarters without permission are mandated under Para 1711 of IREM. The Rule position is clearly given in Annexures R-3, R-4 and R-5. He had been found guilty of sub-letting of quarters on two occasions and it was in these circumstances that damage rent was sought to be collected for the period from 26.2.1996 to 17.7.2001. In the first instance, he had been inflicted with a minor penalty as per Annexure A-
4. But he chose not to vacate the quarters even though he was asked to do so. The second inspection of the same quarters in 2001 also revealed further sub-letting. It was seen that the employee had continued with his misconduct unabatedly even though he was imposed with a penalty.
8. Thus the damage rate of rent for the period from 26.2.1996 to 17.7.2001was calculated as 3,33,343/- and a show-cause notice dated 6.8.2002 was issued. The employee is seen to have expired on 2.9.2002. On her husband's death all eligible benefits were granted to the applicant as .7.
below:
"Group Insurance Scheme (GIS) - Rs.46,700/-
PF - Rs. 3,299/-
Composite Transfer Grant - Rs. 7,330/-
Enhanced Family Pension - Rs.5,681 w.e.f 4.9.2002 to 3.9.2009
Ordinary Family Pension - Rs.3,409 w.e.f 4.9.2009"
9. As could be seen, much of the damage rate of rent resulted from the applicant not vacating the quarters and as informed to the applicant relaxation for retention of quarters could only be applied in cases of extreme hardships of medical grounds. This being a case of sub-letting of quarters, her request for waiver of damage rate of rent had to be rejected. It is pertinent to note that the younger daughter of the late employee had been given appointment on compassionate grounds as Electrical Khalasi.
10. Heard Mr.T.C.G Swamy, learned counsel for the applicant and learned Standing Counsel for the Railways on behalf of the respondents. Perused the records.
11. The respondents pointed out in the written statement that the Original Application is hit by limitation as the applicant did not act for more than 10 years after being informed of the position. This Tribunal does not agree with this as cause of action in this case is continuous.
12. The late husband of the applicant had been indicted for two acts of misconduct. Firstly, in 1997, he is seen to have sub-let his quarters and he .8.
was punished by award of a minor penalty. Four years later, it was found that outsiders were staying in the out-house of his allotted quarters. The respondents took a serious view of this and issued him a show-cause demanding a damage rate of rent of Rs.3,33,343/-. Three days after receipt of the show-cause notice, employee died of a heart-attack allegedly caused by the shock arising out of the respondents' action. Once the applicant's husband died, the respondents decided to recover the damage rate of rent from the DCRG eligible to the widow and retained the entire portion of the amount eligible to the applicant.
13. There can be no two opinions about the harshness exhibited by the respondents in this case. The punishment meted out to the applicant's husband and consequently the applicant is out of all proportion with the misconduct alleged. As we can see the first action of sub-letting had been dealt with by the respondents through award of a minor penalty i.e, stoppage of one increment. After having suffered the same, the employee is stated to have continued with his misconduct and on the second occasion the respondents were proposing to impose a larger sum of money of Rs.3,33,343/- as damage rent. This had been done on the basis that the applicant had not vacated the premises. The applicant submits that her husband had not been directed to vacate the quarters. We are inclined to believe the contention of the applicant in this regard as nowhere in the documents furnished, a direction to vacate the quarters is seen issued by the respondents. In so far as the second charge, whereby a large sum of money was to be charged as damage rate of rent is concerned, clearly the applicant .9.
due to his death three days after receipt of a show-cause notice, was in no position to defend himself . This did not stop the respondents from going ahead with the imposition of the sizeable amount of penalty which they proceeded to recover from the DCRG due to the widow of the deceased employee.
14. The respondents cite the support of various provisions relating to misconduct of this kind while imposing punishments. However, a set of circumstances as available in this case are unusual and ought to have been taken into account. The fact that the deceased employee's daughter has been granted a compassionate ground appointment is not an excuse when this Tribunal analyses the harshness with which the respondents dealt with the case. Firstly, there has been no direction to the applicant's husband to vacate the quarters. He had suffered the punishment imposed at the first instance and on the second occasion when it was found that his out-house attached to his quarters was inhibited by outsiders, a large sum of money was demanded as damage rent. When the notice was served, the employee, because death intervened, could not repy to the show-cause. Taking this to mean that the employee had no valid reason to be advanced from his side, the authorities went ahead with appropriating the entire DCRG due to the widow as penalty.
15. Another example of the treatment meted out to the applicant, who is the widow of a late employee who had spent several decades in the service of the respondent organisation, is a reply furnished to the applicant, a copy .10.
of which is provided at Annexure R-2, to her representation dated 28.5.2003. Concerned officer under the respondent organisation replies as below:
" Your request for release of withheld D.C.R.G. amount duly waiving the damage rate of rent imposed for subletting of Quarters by your deceased husband late A.Ramakrishnan, Mail Driver, Erode (expired on 02.09.2002) has been examined in detail.
In terms of Railway Board's letter No.E(G) 99 QR 1- 16 dated 16.3.2004, the relaxation for retention of Quarters would cover only in the case of extreme hardship on medical grounds and as this is a case pertains to subletting of Quarters.
Your request for waival of damage rate of rent cannot be considered. "
16. This Tribunal deprecates the extent to which the respondents have gone to penalise the family of a deceased employee. This Tribunal see the steps taken by the respondents in cancelling out the terminal benefits due to the applicant's family as entirely unacceptable. Under the circumstances, this Tribunal has no hesitation in allowing the Original Application. The entire amount due to the applicant as death-cum-retirement dues is to be granted and disbursed to the applicant with interest in the manner provided for in Rule 87 of the Railway Services (Pension) Rules, 1993, within two months of receipt of a copy of this order. No costs.
(E.K BHARAT BHUSHAN) ADMINISTRATIVE MEMBER sv .11.
List of Annexures Annexure A1 - A true copy of representation dated 31.1.1997 addressed to the third respondent Annexure A2 - A true copy of Charge Memo No.J/M P 555/J/M 1127/ED dated 16.4.1997, issued by the Senior Divisional Mechanical Engineer, Southern Railway, Palakkad - And typed copy (A2/2) Annexure A3 - A true copy of reply dated 8.5.1997, submitted by late Ramakrishnan Annexure A4 - True copy of penalty advice No.: J/M P 555/J/M 1127/ED dated 11.7.1997, issued by the Senior Divisional Mechanical Engineer, Southern Railway, Palakkad, and Typed copy of Annexure A4 Annexure A5 - True copy of communication bearing No.J/P483/V/M dated 19.11.2001, issued from the office of the third respondent Annexure A6 - True copy of communication dated 27.12.2001 - a true copy of the said reply as available with the applicant Annexure A6(a) - True typed copy of A6 Annexure A7 - A true copy of letter issued from the office of the third respondent, bearing No:J/P 483/Mechl/Bills dated 4/16-04-2002 Annexure A8 - A true copy of show cause notice bearing No.J/P 483/V/M/Bills dated 6.8.2002, issued from the office of the third respondent Annexure A9 - A true copy of detailed representation dated 8.10.2017 addressed to the General Manager/Southern Railway Headquarters Annexure A10 - A true copy of letter dated 10.11.2017 addressed to rd the 3 respondent and the Public Information Officer Annexure A11 - A true copy of communication bearing No.J/P.PG/RTI/2017-18/215 dated 21.11.2017 Annexure A12 - A true copy of letter bearing No.J/P.PG/RTI/2017- 18/265 dated 30.1.2018/02.02.2018 issued from the office of the 3 rd respondent along with a office note and typed copy of 2 nd and 3rd pages of Ann.A12 Annexure R1 - True copy of the representation dated 28.5.2003 Annexure R2 - True copy of the reply dated 15.10.2004 to the .12.
representation dated 28.5.2003 Annexure R3 - True copy of the Railway Board order dated 1.4.1989 Annexure R4 - True copy of the Railway Board order dated 31.5.1991 Annexure R5 - True copy of the Railway Board Order dated 30.12.1997 Annexure R6 - True copy of the RBE No.196/1989, dated 7.8.1989 Annexure R7 - True copy of the relevant portion of the Schedule of Powers ....