Central Administrative Tribunal - Patna
Lakhpati Devi vs Railway on 2 July, 2024
1 OA No. /050/00455/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00455 of 2020
Order reserved on:- 05.04.2024.
Pronounced on:- 02.07.2024
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
1. Smt. Lakhpati Devi Wife Of Late Rambabu Ray Rajesh Retired Station
Superintendent, East Central Railway, Dhamaraghat Under Samastipur
Division, Resident Of Village/Post- Jitwarpur Nizamat, Ps/District-
Samastipur-848134 (Bihar). .......... Applicant.
-Versus-
1. The Union Of India Through The General Manager, East Central Railway,
Hajipur, Ρ.Ο. Digghi Kalan P.S., Hajipur (Sadar), District Vaishali, Pin Code
844101 (Bihar).
2. The Senior Divisional Personnel Officer, East Central Railway, Samatipur,
Pin Code 848101 (Bihar)
3. The Senior Divisional Commercial Manager, East Central Railway,
Samastipur, Pin Code 848101 (Bihar)
........Respondents.
For Applicant:- Shri M.P. Dixit, Advocate.
For Respondents:- Shri T.N. Thakur, Learned Additional Standing Counsel.
ORDER
AS PER:- AJAY PRATAP SINGH, MEMBER[JUDICIAL]
1. By way of present OA applicant challenging order dated 30.11.2016 and 09.02.2018, whereby respondents have withheld pensionary benefit related to death-cum-retirement gratuity (in short DCRG) due to husband of applicant, without any opportunity of hearing.
MA NO. 209/20222. Applicant has filed application for condonation of delay that husband was superannuated from service on 30.11.2016 while serving as Station Superintendent, ECR, Dhamaraghat Railway Station under Samastipur Division and DCRG amount Rs. 11,08,090/- has been withheld as debit. Husband of applicant represented for release of DCRG and two member joint enquiry report submitted on 31.12.2017/01.01.2018 with conclusion, no any employee can be held responsible for railway losses due to public protest in lieu of train accident. On 19.08.2013, mob damaged railway properties and recommended for write off.
3. It is also the case of applicant that husband of the applicant was vigilant and had taken up case for release of DCRG amount but due to Covid-19 pandemic and sustained injury in eye was under treatment at Indra Gandhi Institute of Medical Sciences, Patna and lock-down caused delay in filing OA. Husband of applicant 2 OA No. /050/00455/2020 also filed OA No. 403/2020 on 13.10.2020 and expired on 15.10.2020. OA No. 403 of 2020 filed by husband of applicant was disposed of as abated with liberty to file fresh after death certificate is issued.
4. Shri M.P. Dixit, learned counsel appearing for applicant contended that applicant is widow of railway employee and amount of DCRG is pensionary benefits and principles underlying continuing wrongs and recurring/ successive wrongs has to be applied in service dispute in hand and delay if any deserves to be condoned.
5. Shri T.N. Thakur, Learned Additional CGSC for respondents submits that present OA is barred by limitation prescribed under Section 21 of Administrative Tribunals, Act 1985 and deserves to be dismissed.
6. Heard learned counsel appearing for the parties.
7. Husband of applicant superannuated on 30.11.2016. Respondent no. 2 issued order dated 29.11.2016 withholding DCRG amount of Rs. 11,08,090/- as debit. Employee in his life-time filed various representations and joint enquiry report dated 31.12.2017/ 01.01.2018 concluded held no employee responsible for railway losses and respondents initiated process of write off of railway losses but till date no decision on record taken to issue any order to release DCRG amount. Employee filed OA and on his death on 15.10.2020, same was disposed of with liberty to file fresh OA and now widow is before this Tribunal for release of pensionary benefits.
8. Hon'ble Supreme Court in case of S.R. Bhanrale Versus Union of India 1996 SCC (L& S) 1384. Their Lordships held that "amount fell due on date of retirement was wrongly withheld, improper on Union of India to plead bar of limitation against employee claim. So also in case of Union of India and others Versus Tarsem Singh, reported in (2008) 8 SCC 648 held that remedy sought by OA/ writ petition normally belated claim rejected on ground of delay and latches, one of exception to the said rule is cases relating to a continuing wrong, service related claim is based on continuing wrong relief can be granted, even if there is a long delay in seeking remedy on reference to date of continuing wrong, creating source of injury and relief may be granted in spite of delay as it does not affect the rights of third party." So also in case of M.R. Patil (Dead) through L.R., State of Goa, reported in 2022 Live Law (SC) 537. Their Lordships held that "pension is a continuous case of action-no justification in denying the arrears of pension on ground of delay".
9. This Tribunal has considered the matter, in view of hereinabove considering reasons for delay in application for condonation of delay on affidavit being 3 OA No. /050/00455/2020 rational and law laid down by Hon'ble Supreme Court in case of Union of India Vs. Tarsem Singh (supra) and M.R. Patil (Dead) through L.R. Vs. State of Goa, 2022 Live Law (SC) 537, delay in filing present OA is condoned.
10. In view of averments in MA No. 209 of 2020, application for condonation of delay and law laid down cited hereinabove delay in filing present OA is condoned.
11. MA accordingly stands disposed of.
OA No. 455/202012. Applicant has filed present OA under Section 19 of Administrative Tribunals, Act 1985 to set aside orders dated 30.11.2016 and 09.02.2018 so far relates to withholding service gratuity against commercial debit in view of joint enquiry report dated 01.01.2018 and release entire amount of DCRG Rs. 11,08,090/- (Eleven Lacs eight thousand and ninety only) with interest from date of retirement of husband of applicant till actual payment.
PRAYER
13. Applicant has sought main relief (s) (as extracted from OA) as under:-
"(1). That your Lordships may graciously be pleased to declare the impugned action of respondents while withholding entire amount of Rs.110890/- DCRG amounting till date as shown to in Annexure A/1 dated 29.11.2016 and A/4 dated 09.02.2018 against Commercial debits raised by Senior Traffic Inspector (Accounts) as null, void, ab initio wrong and the same may be quash and set aside in view of the joint enquiry report dated 01.01.2018 as contained in Annexure A/3. (2). That the Respondents be further be directed to release/pay the entire amount of DCRG amounting to Rs.110890/- as shown in Annexure A/1 dated 29.11.2016 along with compound interest thereupon from the date of retirement up to the date of its actual payment.
(3). That the Respondents be further be directed grant all consequential benefits in favour of the Applicant for which he is legally entitled too. (4). Any other relief or reliefs may deem fit and proper including the cost of the proceeding at the tune of Rs. two lacs may be allowed in favour of the Applicant."
FACTS IN BRIEF
14. Shorn of unnecessary details, briefly stated facts as adumbrated by the applicant that husband namely Shri Ram Babu Ray Rajesh was working as Station Superintendent, East Central Railway, Dhamaraghat, Railway Station and superannuated on 30.11.2016. Respondents paid all retiral benefits except DCRG amount Rs. 11,08,090/- withheld as evident from impugned order dated 29.11.2016, against commercial debit. On 19.08.2013, Raj Rani Express met an accident and in protest mob damaged railway station and railway tickets were burnt and FIR was lodged against mob. Husband of applicant was posted at 4 OA No. /050/00455/2020 Dhamaraghat Railway Station as Station Superintendent, Sr. Traffic Inspector (Accounts), Khagaria on inspection prepared a debit memo on 06.01.2016 and 04.09.2016 against missing tickets and husband of applicant being Station Superintendent, debit memos were handed over to him. On superannuation 30.11.2016 submitted representation to release DCRG amount. Joint Enquiry was made by team of two officials i.e. Sr. Traffic Inspector (Accounts), Saharsa and Divisional Commercial Inspector, Saharsa, related missing tickets raised by Sr. Traffic Inspector (Accounts) Khagaria.
15. It is also the case of applicant that joint enquiry report dated 31.12.2017/ 01.01.2018 (Annexure-A/3), submitted before respondent no. 3 to issue write off as loss to railway was on public protest in which no employee was held responsible for losses. Husband of applicant filed OA 403 of 2020 for release of DCRG but died on 15.10.2020 and said OA disposed of as abated and present OA has been filed, applicant is wife of deceased railway employee. DCRG amount has not been released by respondents, whereas neither any departmental enquiry nor any judicial proceedings were pending against deceased railway employee.
16. Per contra, respondents have contested claim of applicant by filing written statement that husband of applicant Ram Babu Rai Rajesh was posted as Station Superintendent, Dhamaraghat Station, one train Raj Rani Express met with an accident on 19.08.2013 in which some persons were run over. Due to public agitation, lot of railway property was damaged. Sr. Traffic Inspector of Accounts came for inspection and raised total Rs. 43,94,655 debit against Dhamaraghat station. Due to recklessness of husband of applicant railway administration could not prepare inventory before issuing tickets and hence DCRG has been withheld.
17. Respondents have also made averments that matter was referred to headquarter on 12.02.2019 for "right of process" and vetted by Divisional Account and after finalization of right off process and after fixing responsibility to all concerned, admissible amount may be released to deceased employee legal heir. Enquiry is under way and due to lapses on part of employee not maintaining stock register and inventory after train accident, delay is being caused. There is standing debit against the deceased employee as he opened the stocks of tickets to be sold in public and it has become difficult to know actual quantum of damaged tickets and ticket remained in stock. It was employee's duty to prepare the inventory and Sr. T.I. (Accounts) inspected and raised total debit Rs. 43,94,655/- against Dhamaraghat Station, Railway has right to recover deficit amount from DCRG under Rule 15 of Railway Service (Pension) Rules, 1993 (for brevity herein after 5 OA No. /050/00455/2020 referred as Rules, 1993) after finalization and fixing responsibility, if any amount shall be released.
18. Rejoinder has been filed by applicant specifically denying contentions of respondents made in written statement and had stated that husband of applicant superannuated on 30.11.2016 and expired on 15.10.2020 and due to train accident on 19.08.2013 mob attacked railway station and caused losses to railway property including railway tickets burnt and railway administration lodged FIR for no fault of employee, DCRG held for last seven years and contrary to procedure Rule 227, 228 and 229 of IRCM-I. For no fault of husband of applicant, deceased employee, without opportunity of hearing amount Rs. 11,08,090/- for DCRG retirement benefits withheld. Once employee retired and died now no recovery can be made and without any negligence on part of employee DCRG amount cannot be withheld.
SUBMISSIONS
19. Shri M.P. Dixit, learned counsel for applicant contended that -
(i). Raj Rani Express met an accident on 19.08.2013 and in protest mob has damaged railway station premises, burnt railway engines, coaches and looted government cash, coaches and looted government cash, railway tickets also found burnt due to fire. Husband of applicant at relevant time was posted as Station Superintendent, Dhamaraghat Rly. Station and Sr. Traffic Inspector (Accounts), Khagaria prepared debit memo 06.01.2016 and 04.09.2016 prepared missing/ burnt tickets, lost in public agitation. The memo dated 06.01.2016 and 04.09.2016 were handed over to husband of applicant being Station Superintendent and on superannuation for no fault of applicant amount Rs. 11,08,090/- for DCRG has been held up as commercial debit.
(ii). Sr. DCM, ECR, Samastipur constituted two member joint Enquiry Committee on debit memo dt. 06.01.2016 and 04.09.2016, related to missing tickets prepared by them Sr. Traffic Inspector (Accounts), Khagaria. The Joint Enquiry report dated 01.01.2018, Annexure-A/3, specifically held that in fact debit raised against missing tickets was due to public protest due to accident and debit shown against missing tickets can be "write off" as rail accident had happened caused damages by mob.
(iii). Impugned order dated 29.11.2016 (Annexure-A/1) and order dated 09.02.2018 (Annexure-A/4), withholding DCRG is contrary to joint enquiry report dated 31.12.2017/ 01.01.2018 and report specifically held accident was real incident and mob caused losses to railway properties and commercial debit related to missing tickets is also result of protest by mob 6 OA No. /050/00455/2020 and can be "write off'. No pecuniary loss attributed to husband of applicant, railway administration lodged FIR etc. and it was beyond control of any one.
(iv). Respondents have withheld DCRG amount without any show cause notice and recovery against commercial debit without any enquiry is non-est contrary to Rule 227, 228 and 229 of Indian Railway Commercial Manual-I (in short IRCM-1) and violative of Rule 11, 9 of Railway Servant Discipline & Appeal) Rules, 1968 (in short, Rules 1968) and it is case of not admitted commercial debit. Once there is commercial debit, not admitted due procedure of enquiry under Rules, 1968 is mandatory and impugned orders are bad in law and present OA deserves to be allowed.
20. Shri T.N. Thakur, Learned Additional CGSC argued that-
(i). Husband of applicant was posted as Station Superintendent/ Dhamaraghat Station one train Raj Rani Express met with an accident on 19.08.2013 and public damaged railway properties. Deceased employee on duty opened the stocks of tickets to be sold in public and did not prepare stock, inventory to know actual quantum of damaged tickets and tickets remained in stock. Total debit against Dhamaraghat Station Rs. 40,33,495 and responsibility of employee will be fixed and matter will be decided.
(ii). Matter referred to headquarter on 12.02.2019 for write off, vetted of Divisional Account and process of write off taking time as there is involvement of several offices and on finalization of write off process, amount, if any may be released to legal heirs of employee.
(iii). There is no recovery from DCRG rather inquiry/ write off process is pending and after fixing responsibility of employee, matter will be decided and if any amount admissible shall be paid to the applicant.
DISCUSSION
21. Heard. This Tribunal has bestowed anxious considerations on the rival contentions of learned counsel appearing for the parties and perused the record as well.
22. Admitted facts are that husband of applicant was Station Superintendent at Dhamaraghat Station under Samastipur Division and one train, Raj Rani Express met with an accident on 19.08.2013. The public agitation damaged railway properties and debit Rs. 43,94,655/- raised against Dhamaraghat Station. Husband of applicant superannuated on 30.11.2016 and two member joint enquiry committee report dated 31.12.2017/ 01.01.2018, held that debit of Rs. 43,94,655 is due to admitted fact train accident led to attack by mob caused loss to railway properties can be "written off" and reason for debit shown incidents followed by 7 OA No. /050/00455/2020 train accident on 19.08.2013. Respondents has held up Rs. 11,8,090/- as DCRG retirement benefits. There is no recovery from DCRG, rather inquiry, write off is pending.
THE ISSUE
23. From the above submissions of learned counsel for parties and material placed on record relevant rules. The short issue for consideration:-
"Whether withholding of death-cum-retirement gratuity amount Rs. 11,08,090/- is justified under Railway Service (Pension) Rules, 1993 or not?"
24. Before dealing with rival submissions advanced at the Bar. It is apposite to quote relevant portion of Rules 1993 and precedents to answer the issue of deprivation of amount of DCRG must be in accordance with law:-
RELEVANT RULE OF LAW (A) In exercise of the powers conferred by proviso to Article 309 of Constitution of India, his excellency President framed Railway Services (Pension) Rules 1993 and relevant for ready reference reads:-
i. "Rule 3. Definition in these rules provides:-
(14) "gratuity" includes-
(1) service gratuity payable under sub-rule (1) of rule 69; (2) retirement gratuity or death gratuity payable under sub-rule (1) of rule70 and (3) residuary gratuity payable under sub-rule (2) of rule 70; (19) "pension" includes gratuity except when the term pension is used in contra distinction to gratuity but does not include dearness relief.
ii. Rule 8,9,15, 70 (1) (a) (5), 71, 72, 73 and 74 provides as:-
8. Pension subject to future good conduct-
(1)(a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
(b) The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct.
Provided 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 thousand five hundred per mensem. (Authority: Railway Board's letter No. 2011/F (E) III/1(1)9dated 23.09.13) (2) Where a pensioner is convicted of a serious crime by a court of law, action under sub-rule (1) shall be taken in the light of the judgment of the court relating to such conviction.
(3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under the sub-rule (1) -
(a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit , within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the appointing authority, such representation as he may wish to make against the proposal; and
(b) stake into consideration the representation, if any, submitted by the pensioner under clause (a).
8 OA No. /050/00455/2020(4) Where the authority competent to pass an order under sub-rule (1) is the President, the Union Public Service Commission shall be consulted before the order is passed.
(5) An appeal against an order under sub-rule (1), passed by any authority other than the President shall, in consultation with the Union Public Service Commission, pass such orders on such appeal, as he deems fit.
15. Recovery and adjustment of Government or railway dues from pensionary benefits- (1) For the dues other than the dues pertaining to occupation of Government or Railway accommodation, the Head of Office shall take steps to assess the dues "one year" before the date on which a railway servant is due to retire on superannuation.
(1A) The assessment of Government or Railway dues in sub-rule (1) shall be completed by the Head of Office eight months prior to the date of retirement of the railway servant. (Authority: File No. 2015/F(E)III/1(1)/4 dt.17.06.16 .......RB NO.70 (2) The railway or Government dues as ascertained and assessed, which remain outstanding till the date of retirement or death of the railway servant, shall be adjusted against the amount of the retirement gratuity or death gratuity or terminal gratuity and recovery of the dues against the retiring railway servant shall be regulated in accordance with the provisions of sub-rule (4). (3) For the purposes of this rule, the expression "railway or Government dues"
includes-
(a) dues pertaining to railway or Government accommodation including arrears of license fee, as well as damages (for the occupation of the Railway or Government accommodation beyond the permissible period after the date of retirement of allottee),. if any; . (Authority: Railway Board letter No. F(E)III/2010/PNl/4 dated 28.03.12)
(b) dues other than those pertaining to railway or Government accommodation, namely balance of house-building or conveyance or any other advance, overpayment of pay and allowances, leave salary or other dues such as Post Office or Life Insurance premia, losses (including short collection in freight charges shortage in stores) caused to the Government or the railway as a result if negligence or fraud on the part of the railway servant while he was in service. (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 Government or the railway as a result of negligence or fraud on the part of the railway servant while he was in service;
(b) other Government dues such as over-payment on account of pay and allowances or other dues such as house rent, Post Office or Life Insurance Premia, or outstanding advance,
(c) non-Government dues.
(ii)Recovery of losses specified in sub-clause (a) of 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 Pension 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 member of his family in the case of a deceased railway servant.
(iii) Sanction to pensionary benefits shall not be delayed pending recovery of any outstanding Government dues. If at the time of sanction, any dues remain unassessed or unrealised the following courses should be adopted: -
(a) In respect of the dues as mentioned in sub-clause (a) of clause (i) of this sub-
rule. A suitable cash deposit may be taken from the railway servant or only such portion of the gratuity as may be considered sufficient, may be held over till the outstanding dues are assessed and adjusted.
9 OA No. /050/00455/2020(b) In respect if the dues as mentioned in sub-clause (b) of clause (i) of this sub- rule- (1) The retiring railway servant may be asked to furnish a surety of a suitable permanent railway servant. If the surety furnished by him is found acceptable, the payment of his pension or gratuity or his last claim for pay, etc. should not be with held and the surety shall sign a bond in Form 2. (2) If the retiring railway servant is unable or nor willing to furnish a surety, then action shall be taken as specified in sub-clause (a) of subclause (iii). (3) The authority-sanctioning pension in each case shall be competent to accept the surety bond in Form 2 on behalf of the President.
(c) In respect of the dues as mentioned in sub-clause (c) of clause (i) The Quasi- Government and non-Government dues, such as amounts payable by a railway servant to Consumer Cooperative Societies, Consumer Credit Societies or the dues payable to an autonomous organization by a railway servant while on deputation may be recovered from the retirement gratuity which has become payable to the retiring railway servant provided he gives his consent for doing so in writing to the administration.
(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 amount 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) The cash deposit to be taken or the amount of gratuity to be withheld should not exceed the estimated amount of the outstanding dues plus twenty-five per centum thereof.
(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.
(c) Steps should be taken to see that there is no loss to Government on account of negligence on the part of the officials concerned while intimating and processing of a demand. The officials concerned shall be liable to disciplinary action in not assessing the Government dues in time and the question whether the recovery of the irrecoverable amount shall be waived or the recovery made from the officials held responsible for not assessing the Government dues in time should be considered on merits.
(d) As soon as proceeding of the nature referred to in rule 8 are instituted, the authority which instituted the proceedings should without delay intimate the fact to the Account Officer.
70. Retirement gratuity or death gratuity - (1) (a) In the case of a railway servant, who has completed five years' qualifying service and has become eligible of service gratuity or pension under rule 69, shall, on his retirement, be granted retirement gratuity equal to one fourth of his emoluments for each completed six monthly period of qualifying service subject to a maximum of sixteen and one-half times the emoluments and there shall be no ceiling on reckonable emoluments for calculating the gratuity.
(b) If a railway servant dies while in service, the amount of death gratuity shall be paid to the family in the manner indicated in the Table below:
TABLE Length of qualifying service Rate of gratuity
(i) Less than one year 2 times of emoluments
(ii) one year or more but less than 5 years 6 times emoluments
(iii) 5 years or more but less than 20 12 times of emoluments years
(iv) 20 years or more Half of emoluments for every completed six monthly period of qualifying service subject to maximum of thirty-three times emoluments provided that the amount of death gratuity shall in no case, exceed one lakh rupees.10 OA No. /050/00455/2020
Provided that the amount of retirement gratuity or death gratuity payable under this rule shall in no case, exceed rupees ten lakh. (Authority: Railway Board's letter No. 2011/F (E) III/1(1)9dated 23.09.13) Provided further that the amount of retirement or death gratuity as finally calculated shall be rounded to the next higher rupees.
(2) If a railway servant, who has become eligible or a service gratuity or pension, dies within five years from the date of his retirement from service including compulsory retirement as penalty and the sums actually received by him at the time of his death on account of such gratuity or pension including ad-hoc increase, if any, together with the retirement gratuity admissible under sub-rule (1) and the commuted value of any portion of pension commuted by him are less than the amount equal to twelve times of his deficiency may be granted to his family in the manner indicated in sub-rule (1) of rule 71. (3) The emoluments for the purpose of gratuity admissible under this rule shall be reckoned in accordance with rule 49;
Provided that if the emoluments of a railway servant have been reduced during the last ten months of his service otherwise than as a penalty the average emoluments as referred to in the 50 shall be treated as emoluments. Provided further that the dearness allowance admissible on the date of retirement or death, as the case may be, shall also be treated as emoluments for the purpose of this rule. (Authority: Railway Board's letter No. 2011/F (E) III/1(1)9dated 23.09.13) (5) For the purpose of this rule, rules 71, 73, 74 "family", in relation to railway servant, means -
(i) Wife or wives including judicially separated wife or wives in the case of a male railway servant;
(ii) Husband including judicially separated husband in the case of a female railway servant;
(iii) Sons including step-sons and adopted sons;
(iv) Unmarried daughters including step-daughters and adopted daughters;
(v) Widowed daughters including step-daughters and adopted daughters;
(vi) Father including adoptive parents in the case of individuals whose personal law permits adoption;
(vii) mother
(viii) brother below the age of eighteen years including step brothers;
(ix) unmarried sisters and widowed sisters including step sisters;
(x) married daughters; and
(xi) children of pre-deceased son.
71. Persons to whom gratuity is payable -(1) (a) The gratuity payable under rule 70 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by making a nomination under rule 74;
(b) If there is no such nomination made does not subsist, the gratuity shall be paid in the manner indicated below: -
(i) If there are one or more surviving members of the family as in clauses (i), (ii),
(iii),(iv) and (v) of sub-rule (5) of rule 70, to all such members in equal shares;
(ii) If there are no such surviving members of the family as in subclause (i) above, but there are one or more members as in clauses (vi), (vii), (ix), (x) and (xi) of sub-rule (5) of rule 70 to all such members in equal shares. (2) If a railway servant dies after retirement without receving the gratuity admissible under sub-rule (1) of rule 70, the gratuity shall be disbursed to the family in the manner indicated in sub-rule (1).
(3) The right of a female member of the family, or that of a brother of a railway servant who dies while in service or after retirement, to receive the share of gratuity shall not be affected if the female member marries or re-marries or the brother attains the age of eighteen years, after the death of the railway servant and before receiving his or her share of gratuity.
(4) Where the gratuity is granted under rule 70 to a minor member of the family of the deceased railway servant, it shall be payable to the guardian on the behalf of the minor.
72. Debarring a person from receiving gratuity - (1) If a person, who in the event of death of a railway servant while in service is eligible to receive gratuity in terms of rule 71, is charged with the offence of murdering the railway servant 11 OA No. /050/00455/2020 or for abeting in the commission of such an offence, his claim to receive his share of gratuity shall remain suspended till the conclusion of the criminal proceedings instituted against him.
(2) If on the conclusion of the criminal proceedings referred to in sub-rule (1), the person concerned -
(a) is convicted for the murder or abetting in the murder of the railway servant, he shall be debarred from receiving his share of gratuity which shall be payable to other eligible members of the family, if any,
(b) if acquitted of the charge of murdering or abetting in the murder of the railway servant, his share of gratuity shall be payable to him. (3) The provisions of sub-rules (1) and (2) shall also apply to the undisbursed gratuity referred to in sub-rule (2) of rule 71.
73. Lapse of death-cum-retirement gratuity -Where a railway servant dies while in service; or after retirement without receiving the amount of gratuity and leaves behind no family, and -
(a) has made no nomination or
(b) the nomination made by him does not subsist the amount of death-cum retirement gratuity payable in respect of such railway servant under rule 70 shall lapse to the Government;
Provided that the amount of death gratuity or retirement gratuity shall be payable to the person in whose favour a succession certificate in respect of the gratuity has been granted by a Court of law.
74. Nomination - (1) A railway servant shall on his initial confirmation in a service or post, make a nomination in Form 4 conferring on one or more persons the right to receive the death-cum-retirement gratuity payable under rule 70. (Authority: File No. 2015/F(E)III/1(1)/4 dt.17.06.16 .......RB NO.70 Provided that if at the time of making the nomination -
(i) the railway servant has a family, the nomination shall not be in a favour of any person or persons other than the members of his family; or
(ii) the railway servant has no family, the nomination may be made in favour of a person or persons, or a body of individuals, whether incorporated or not. (2) If a railway servant nominates more than one person under sub-rule (1), he shall specify in the nomination the amount of share payable to each of the nominees in such manner as to cover the entire amount of gratuity. (3) A railway servant may provide in the nomination -
(i) that in respect of any specified nominee who pre-deceases the railway servant, or who dies after the death of the railway servant but before receiving the payment of gratuity, the right conferred on that nominee shall pass to such other person as may be specified in the nomination;
Provided that if at the time of making the nomination the railway servant has a family consisting of more than one member, the person so specified shall not be a person other than a member of his family;
Provided further that where a railway servant has only one member in his family, and a nomination has been made in his favour, it is open to the railway servant to nominate alternate nominee or nominees in favour of any person or a body of individuals, whether incorporated or not;
(ii) that the nomination shall become invalid in the event of the happening of the contingency provided therein.
(4) The nomination made by a railway servant who has no family at the time of making it, or the nomination made by a railway servant under the second proviso to clause (i) of sub-rule (3) where he has only one member of his family shall become invalid in the event of the railway servant subsequently acquiring a family, or an additional member in the family, as the case may be. (5) A railway servant may, at any time, cancel nomination by sending a notice in writing to the authority mentioned in sub-rule (7):
Provided that he shall, alongwith such notice and a fresh nomination made in accordance with its rule.
(6) Immediately on the death of a nominee in aspect of whom no special provision has been made the nomination under clause (i) of sub-rule (3) or on the occurrence of any event by reason of which the nomination becomes invalid in pursuance of clause (ii) of that sub-rule, the railway servant shall send to 12 OA No. /050/00455/2020 authority mentioned in sub-rule (7) a notice in writing canceling the nomination together with a fresh nomination made in accordance with this rule. (7) (a) Every nomination made, and every notice of cancellation given by a railway servant under these rules, shall be sent by the railway servant to his Accounts Officer in the case of a gazetted railway servant and to the Head of his office in the case of non-gazetted railway servant.
(b) Immediately on receipt of a nomination from non-gazetted railway servant, the Head of Office shall countersign it indicating the date of receipt and keeping with him or other responsible officer nominated by him for this purpose, and a clear note made in the service record or service book, as the case may be, of the railway servant as to what nomination and related notices have been received from him and where they have been lodged for safe custody and an acknowledgement to the railway servant concerned confirming that the nominations made by him and the related notices have been duly received and placed on record shall invariably be sent to every railway servant making or cancelling a nomination, by the Accounts Officer in the case of gazetted railway servants and by the Head of Office in the case of non-gazetted railway servants.
Note: - The power to countersign nominated form sent by non-gazetted railway servants may be delegated by the Head of Office to his subordinate gazetted officer.
(8) Every nomination made, and every notice of cancellation given by a railway servant shall, to the extent that it is valid, take effect from the date on which it is received by the authority mentioned in sub-rule (7): -
CASE-LAW (B) Hon'ble Supreme Court observations relevant for ready reference as:-
i. The Constitution Bench decision in case of D.S. Nakara and others Versus Union of India and others, reported in (1983) 1 SCC 305. Relevant paragraph 20 reads as:-
"The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh."
[Emphasis supplied] ii. D.V. Kapoor Versus Union of India and Ors., (1990) 4 SCC 314, Their Lordships observed as:-
"The employees right to pension is a statutory right. Therefore, deprivation of such right must be in accordance with law. The measure of deprivation must be correlative to or commensurate with the gravity of misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution of India. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. Therefore, the order to withhold the 13 OA No. /050/00455/2020 gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction. (Para 10) [Emphasis supplied]
25. Applying the aforesaid principles and Rules 1993 as evident from the case on hand that respondents averments in written statement that husband of applicant at relevant time on 19.08.2013 was posted as Station Superintendent, Dhamaraghat railway station and one train met with an accident on 19.08.2013 and ran over some persons, resultantly public agitation damaged railway properties. Sr. Traffic Inspector of Accounts came for inspection in ex-party inspection raised total Rs. 43,94,655/- debit against Dhamaraghat station. It is alleged that employee did not prepare inventory before issuing tickets for which his DCRG amount withheld and it is categorically stated in reply to para 4.13 of OA in para 21 of written statement, that there is no recovery from the DCRG, rather inquiry/ "write off" as pending and after taking decision the admissible amount will be paid to the applicant.
26. Record of case also shows that representation dated 17.11.2017 was submitted by deceased employee during his life time and to release withheld dues including DCRG and except DCRG all other settlement dues have been paid. On representation dated 17.11.2017 to release DCRG amount, Sr. D.C.M. constituted two member joint enquiry committee comprising of Sr. Traffic Inspector (Accounts), Saharsa and Divisional Commercial Inspector, Saharsa to conduct joint inquiry on debit memo concerning missing tickets raised by Sr. Inspector (Accounts), Khagaria on 06.01.2016 and 04.09.2016. The joint inquiry report dated 31.12.2017/ 01.01.2018 (Annexure-A/3) submitted before respondent no. 3/ Sr. DCM, with conclusion to issue "write off" as railway properties were damaged due to public agitation on 19.08.2013 and for which FIR was lodged and no any railway employee can be held responsible. The respondents have not denied as to facts related to enquiry report (Annexure-A/3), whereby joint enquiry report categorically held that no any employee was responsible as mob on 19.08.2013 attacked railway station and damaged the properties is the fact in case and FIR was also lodged.
27. Respondents in so many words have admitted the fact that matter related to release of DCRG due to deceased employee to be payable to applicant has been referred to Headquarter on 12.02.2019 for "write off" process. In para 5, 20 and 21 of written statement admitted the fact that after referring matter to Headquarter.
On 12.02.2019 for "write off", some queries were raised by Headquarter replied through noting file on 27.06.2019 and sent to Division on 04.07.2019 and case file 14 OA No. /050/00455/2020 again sent to Headquarter account on 09.03.2021 and due to involvement of several offices time is being taken to finalize "write off" process.
28. What comes out loud and clear from the stand of the respondents that based on join enquiry report dated 31.12.2017/ 01.01.2018 (Annexure-A/3) respondents processing case of release of DCRG to deceased employee by "write off" as there is joint enquiry report Annexure-A/3 not denied by respondents that no any employee was responsible for losses caused to railway. Respondents have not taken any steps to provide opportunity of hearing to employee since 2013 till he was alive and died on 15.10.2020 and for almost seven years in life time of deceased railway employee, respondents noted on file for write off, losses caused to railway property by mob on 19.08.2013 due to train accident but no decision taken and withheld DCRG amount without attributing fault on part of deceased employee.
29. Another aspect of the case, retirement gratuity or death gratuity payable under sub-rule (1) of Rule 70 and 74 to applicant. Admittedly, there is neither any disciplinary proceeding nor criminal case was pending at any point of time and there was no legal basis to withheld DCRG due, payable at time of superannuation on 30.11.2016 of husband of applicant. There was no impediment under Rule 8 or 9 of Rules 1993 to withheld DCRG dues to railway employee.
30. So far as contention of respondents that under Rule 15 of Rules, 1993 recovery can be made and adjusted from pensionary benefits in case employees found to be responsible for losses. Undisputedly, the losses to railway property occurred due to unfortunate train accident and during public agitation mob damaged railway properties, the fact finding joint enquiry report (Annexure-A/3) is on record not disputed by respondents and applicant has not been held responsible for any personal negligence or fraud, while he was in service. So also respondents not provided any opportunity to husband of applicant and now he has expired on 15.10.2020 and no amount quantified due to his personal negligence, so also no procedure for commercial debit, not admitted, followed, no any bi-party enquiry ever conducted.
31. Rule 15 of Rules, 1993, provides for recovery of railway dues from pensionary benefits, sub-rule (1) & (1A) of Rule 15 of Rules 1993 provides, assessment of dues be completed by Head of office eight months prior to date of retirement of railway servant. Sub-rule (2) of Rule 15 also mandate railway dues as ascertained and assessed, there is no material to show that before withholding DCRG amount Rs. 11,08,090/- no liability was fixed and husband of applicant retired in year 2016 and submitted representations and without fixation of such 15 OA No. /050/00455/2020 liability and expired on 15.10.2020. Now respondents cannot be allowed to take advantages of own delay and mistakes and amount of DCRG, statutory right and deprivation of fact of record is contrary to law, there is no negligence or illegalities or irregularities established on part of deceased employee. Deceased employee was neither charged with nor given opportunity that his gratuity will be withheld and no assessment of liability ever arrived so far employee concerned. Therefore, communications dated 30.11.2016 (Annexure-A/1) and 09.02.2018 (Annexure- A/4) so far relates to withholding DCRG Rs. 11,08,090/- are hereby set-aside and quashed, respondents are directed to release withheld amount.
CONCLUSION
32. In view of above facts, law and circumstances of this case, the issue is decided in favour of applicant. Impugned orders dated 30.11.2016 (Annexure- A/1) and dated 09.02.2018 (Annexure-A/4) withholding of DCRG Rs. 11,08,090/- (Rupee eleven lakh eight thousand ninety) is set-aside and quashed. Applicant is held entitled for the DCRG dues as per findings supra.
33. This Tribunal directs respondents to pay amount withheld pursuant to Annexure-A/1 and A/2 so far relates to DCRG within a period of three months from production/ receipt of copy of order passed today failing which interest @ 6 percent per annum shall be paid till actual final payment.
34. Accordingly, the Original application is allowed as indicated hereinabove but in the circumstances, parties are directed to bear their costs.
35. As a sequel thereof, pending Miscellaneous Application(s) , if any shall also stand disposed of.
(Ajay Pratap Singh) Judicial Member.
Central Administrative Tribunal, Patna Bench, Patna.
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