JUDGMENT
L.R.K. Prasad, Member (A)
1. Following reliefs have been sought through this O. A:-
(a) To direct the respondents to release in favour of the applicant DCRG amount, leave encashment, transfer grant, packing and other allowances, as per admissible rules. (b) To direct the respondents to pay 18% interest per annum on withhold amount as referred to in Annexure-A/1(a) with effect from 31.10.1996. (c) Cost of litigation. 2. I have heard the learned Counsel for the parties and perused the materials on record.
3. The applicant joined the Railway Service with effect from 12.6.1959. He retired from Railway Service as Station Superintendent, Dholi Railway Station of North Eastern Railway, with effect from 31.10.1996. It is stated by the applicant that at the time of retirement, he was getting monthly salary of Rs. 2675 (Annexure-A/1), At Dholi Station, the applicant had been allotted a Railway Quarter No. T/9. The applicant has stated that he vacated the said quarter on 29.10.1996 (Annexure-A/2). He made an application for release of DCRG, leave encashment, transfer allowance, etc., vide his petition, as at Annexure-A/ 4, addressed to DRM, N.E. Railway, Sonepur. He has stated that inspite of the fact that no disciplinary/criminal proceeding is pending against him, his pensionary benefits, such as, DCRG, leave encashment, transfer grant, packing allowance, etc., have been withheld without any valid reasons by the respondents. He has, however, been paid commuted value of sold part of pension, GPF and Group Insurance, He has challenged the document of the respondents, as at Annexure-A/1 (a), which shows that some dues of the applicants have been held up due to non-vacation of quarter. However, it is not clear from the said document as to who has issued the same or when it was issued.
4. This application has been opposed by the respondents on the grounds as stated therein in the written statement. It is stated that the applicant had received tickets from Press Superintendent, Gorakhpur, vide Indent No. 12 dated 1.2.1992 on 30.7.1992 without any remark of shortage. However, later on, he alleged that 1500 MST tickets of Muzaffarpur was found short in the bundle on 5.9.1992. The value of 1500 MST tickets of Muzaffarpur is Rs. 1,20,000/- which was, accordingly, a debit, raised against the applicant as he was responsible for the loss of tickets in question which led to pecuniary loss to the Government. An inquiry was conducted in the matter by the Divisional Commercial Inspector (Outstanding), Sonepur. He submitted his report on 23.8.1996 which is at Annexure R-2. It was detected in due course that besides the debit of Rs, 1,20,000/- some other coaching debits/ commercial debits, as indicated below, were required to be raised against the applicant:-
Total Amount
(i)
Loss of four tickets bearing Nos. 01949 to 01952 of LJN II/M/
Ex. @ Rs. 111/-
Rs.
464.00
(ii)
Loss of three tickets of Howrah II/M/Exp. (FTO) bearing Nos.
00247 to 00249 @ Rs. 287-
Rs.
114.00
(iii)
Loss of one ticket of Chitranjan II M/Exp. @ Rs. 76/-
Rs.
76.00
(iv)
Loss of five genera] second class Ticket of Kurhani @ Rs. 91-
Rs.
45.00
(v)
Loss of 5 tickets II/M/Exp, for Serampur bearing No. 12992 to
12996 @ Rs. 109/-
Rs.
545.00
(vi)
Short Remittance in FRPT No. 032916 dtd. 7.8.96
Rs.
4.00
(vii)
Short Remittance in EFT No. 457582 dtd. 30.9.96
Rs.
3.00
(viii)
Demurrage charge for delayed unloading of stone chips Rake from
Tinpahar Railway Station not collected by applicant being incharge of Dholi
Station.
Rs.
10,089,99
<ix)
Under charge of R.R. No. 293947 dtd. 7.8.92 not realised by the
applicant.
Rs.
93.00
(x)
Wharfage charge
Rs.
12,796.00
Â
Rs.
24,229.00
5. In view of the above position, it was decided to withhold DCRG and leave encashment of the applicant for adjustment against the debit raised in the name of the applicant. According to the respondents, as per the instructions of Railway Board (Annexures R and R-1), such debit can be recovered from the DCRG, leave encashment and pension relief of the applicant as they are Government dues against the applicant.
6. While highlighting the points already raised in the main O.A., it is pointed out by the applicant that the facts reported in written statement have nothing to do with the case. The DCRG and other dues of the applicant have been withheld due to non-vacation of Railway quarter in terms of document as at Annexure A/1(a), and not on any other ground. Even if there was shortage of ticket which occurred in 1992, the applicant was never kept informed about it. As the matter relates to 1992, no action can be taken against the applicant in such manner after four years from the date of incident. Regarding shortage of tickets, it is pointed out that the same was brought to the notice of concerned authority by the applicant. The same was also mentioned in the remark column of Press Supply Voucher and a telegram to all concerned was sent on 5.9.1992. As such, the debit of Rs. 1,20,000/- cannot be raised against the applicant. In support of his claim, the applicant has submitted certain documents which are at Annexures-A, B, C, and D of the rejoinder. While referring to para 7 of the W.S., the applicant has stated that he had no knowledge regarding any such inquiry. A copy of the said inquiry was never served on him. Regarding warfage charge of Rs. 12,296/- (item (ix) in para 8 of W.S.) it is stated that the respondents have already recovered the said amount from the monthly salary of the applicant prior to his retirement after service of minor penalty charge-sheet. In this regard, my attention has been drawn to a letter dated 12.7.1992 (Annexure E of the rejoinder).
7. I have considered the entire matter in the light of submissions made by the learned Counsel for the parties and materials on record. In nutshell, the instant O.A. has been filed for issuance of directions upon the respondents to release his pensionary benefits, such as, DCRG amount, leave encashment, transfer grant, etc., as per admissible rules along with 18% interest. The applicant has stated that some of his pensionary benefits like DCRG have been withheld after his retirement. He has further stated that two days before his retirement as Station Superintendent, Dholi Station, he had vacated the quarter which is supported by document at Annexure-A/2. He has, therefore, pointed out that as he has already vacated the quarter, his pensionary benefits cannot be withheld as per the document which is at Annexure-A/1 (a). On the other hand, the respondents have submitted that certain pensionary benefits of the applicant were withheld due to certain debits raised against the applicant as mentioned at para 8 of the W.S., according to which a debit of Rs. 1,20,000/- was raised against the applicant for missing tickets and Rs. 24,229/- for various other coaching/ commercial debits as shown therein. The W.S. does not indicate that they were withheld due to non-vacation of quarter. The document which has been submitted by the applicant, as at Annexure-A/1 (a), neither bears the signature of any officer nor it gives any date. From the submission of the respondents, it becomes clear that certain pensionary benefits of the applicant were withheld not on account of non-vacation of official quarter after retirement but the same was done due to certain debits raised against the applicant, as mentioned at para 8 of the W.S. The document at Annexure-A/2 shows that the applicant had vacated the Railway quarter on 29.10.1996 at Dholi Railway Station, two days before his retirement.
8. The basic question for consideration is whether withholding of such pensionary benefits of the applicant, as referred to above, is permissible under prescribed rules/ instructions of the Railway Department. It is the claim of the applicant that in view of grounds mentioned by him, withholding of such pensionary benefits of the applicant is not permissible under law. On the other hand, the respondents have clearly stated that withholding of such pensionary benefits of the applicant is permissible under law specially with reference to the documents which are at Annexures R and R-1. The debits raised against the applicant on account of missing tickets as well as commercial/coaching debits can be adjusted against the pensionary benefits of the applicant, including DCRG. It is the submission of the respondents that an inquiry was made regarding missing tickets by deputing Divisional Commercial Inspector (Outstanding), Sonepur, During the course of inquiry, the applicant was given due opportunity to present his case. The inquiry report dated 23.8.1996 is at Annexure R-2. The said inquiry was completed before retirement of the applicant. The Inquiry Officer has held that the applicant has not followed the Rule 227 of the Indian Railway Commercial Manual Part I, It is stated that the applicant had received the tickets on 30.7.1992, while he sent a statement on 5.9.1992 regarding missing tickets. The document, which is shown at Annexure-A of the rejoinder filed by the applicant, has been challenged by the respondents through their supplementary W.S. According to the respondents, the said Annexure-A is doubtful. No such original document is available in the Department’s record. Such receiving of printed materials are sent to the Printing Press which in the present case is Gorakhpur. Even the applicant has failed to submit the original document with regard to Annexure-A of the rejoinder.
9. So far as withholding of any pensionary benefits are concerned, the learned Counsel for the applicant has relied on the following judgments/orders:-
(i) Laxmi Narayan Chaudhary v. Union of India and Ors., 2000 BCCL Part V (CAT) 85. (ii) B.S. Sarin v. Union of India and Ors., 1997(35) ATC 254 (A). (iii) Ram Gopal v. Union of India and Ors., 1998 Swami News CAT (95). (iv) Upendra Prasad v. Union of India and Ors., OA 294/98 CAT, (Patna Bench). (v) M.S. Gill v. Chief Election Commissioner, AIR 1978 SC 851.
10. Two issues require to be determined. One is relating to raising of debits against missing tickets and other with regard to raising of coaching/commercial debits and withholding of certain pensionary benefits in order to adjust the loss suffered by the Government on account of aforesaid issued. Before we further proceed in the mater, it would be appropriate to refer to the provisions contained in Rules 227 and 229 of the Indian Railway Commercial Manual Volume I. The provisions contained therein deal with receipt and examination of passenger card tickets and money value and also the deficiency or loss of tickets. Clause (b) of Rule 227 and the whole of Rule 229 are very much relevant and useful to determine the issue relating to missing tickets. Therefore, it would be useful to reproduce the relevant provisions:-
“227(b) : When any tickets are missing, their commencing and closing numbers, including their total number must be recorded on both copies of the supply advice and also immediately reported by wire to the supplying officer, Station Master of the destination mentioned in the tickets, the Traffic Accounts Office and the Divisional Commercial Superintendent followed by a registered letter. On receipt of this wire, the Divisional office should arrange for notifying the loss through railway gazette warning the staff to guard against the fraudulent use of missing tickets. The destination Stations Master should be on the look out for the tickets in his daily collections and to procure the address of any person who may be found in possession of one or more tickets. Such persons should be questioned and asked to state how they came in possession of the tickets.”
“229. Deficiency or loss of a ticket: If subsequent to the acknowledgement of the correct receipt of the supply of tickets, any deficiency or loss of tickets in noticed, the Station Master should take action according to the instructions contained in para 227 (b). An enquiry will be made to determine the cause of loss and in case it is established that the ticket in question was actually sold and the money lost to the railway the amount of loss will be recovered from the railway servant held responsible, in addition to any other disciplinary action as may be considered necessary according to the merits of each case. If, however, the result of the enquiry shows that the ticket was not actually sold and the value thereof was not actually lost, such disciplinary action as may be considered necessary according to the merits of each case will be taken against the staff responsible.
On receipt of intimation regarding loss of tickets, the Traffic Accounts Office will raise debit for the value of such tickets. The debit will, however, be withdrawn if the enquiries made by the Traffic (Commercial) Department reveal that the tickets in question were actually not sold.”
11. Even a plain reading of the above provisions, makes it clear that inquiry will be made to determine the cause of loss and in case it is established that tickets in question were actually sold and the money lost to the Railways, the amount of loss will be recovered from the railway servant held responsible in addition to any disciplinary action, as may be considered necessary, according to merits of each case. In the instant case, regarding loss of tickets in question, an inquiry was conducted by the Divisional Commercial Inspector (Outstanding), Sonepur, who after checks,, submitted a report, which is at Annexure-R/2. It is not clear from the report whether necessary inquiry was done in routine manner or in terms of Rule 229 of Indian Railway Commercial Manual Volume I. While the aforesaid inquiry report (Annexure R-2) speaks of loss of tickets in question and held the applicant responsible for the same, the said report does not indicate anywhere whether those tickets were actually sold or not and whether there was any financial loss to Government as a result of such tickets being utilised for destination for which they were meant. Rule 229 of Indian Railway Commercial Manual Volume I makes it very clear that in case it is established through inquiry that the tickets in question were actually sold and the money lost to the Railways, the amount of loss will be recovered from the railway servant held responsible. In the instant case, however, we do not find any such finding that the tickets in question were actually converted into value tickets and that any of such missing tickets had either been sold to any passenger for value resulting into loss of revenue to the Railways. This aspect of the matter is very relevant in the context of Rule 229 referred to above. It is, thus, clear that in order to raise debit or to recover money from the applicant, the Railway Administration was required to follow the Rule 229 of Indian Railway Commercial Manual Volume I. There is no finding to the effect that the lost tickets were used, which resulted into actual loss of revenue to the Railways. As such, question of raising debits against the applicant on account of missing tickets to the value of Rs. 1,20,000/- does not arise, hence, any adjustment on this account is impermissible. At best, the Government can realise the cost of paper and printing of the tickets and not the value of the tickets which have not been sold. This issue relating to raising of debit against the applicant on account of missing tickets is, accordingly, determined. It is, therefore, directed that if any sum of amount has already been recovered from the applicant in this regard, the same should be refunded to him expeditiously. So far as this aspect is concerned, the instant case is substantially similar to the case of the applicant in O.A. 114/94 in which orders of this Tribunal were passed on 16.3.2000 [reported in 2000 BCCL Part V (CAT) 85].
12. The applicant has alleged that some of his retiral benefits, such as, DCRG, leave encashment, transfer grant, etc., have been withheld. So far as DCRG is concerned, it may be stated that according to Rule 3 (19) of Railway Services (Pension) Rules, 1993, pension includes gratuity except when the term “Pension” is used in contra distinction to gratuity but does not include dearness relief. According to various judicial pronouncements, pension and gratuity are not bounties but they are properties of the retired Government servant, who has qualified for the same on the basis of length of his service. Therefore, reduction in pension or withholding of DCRG with a view to adjust Government dues can be done only after following due process of law and the decisions in this regard are required to be taken by the competent authority, who has been so designated/authorised through various rules. In the instant case, I get an impression that DCRG of the applicant has been withheld against some outstanding dues of the Railways raised against the applicant without following due process of law. No disciplinary/criminal proceeding is pending against the applicant. In that view of the matter, the respondents are not entitled to withhold DCRG amount of the applicant without following the due process of law. In the aforesaid circumstances, it would be in the interest of justice that DCRG amount of the applicant is refunded to him expeditiously, preferably within a period of three months from the date of receipt of a copy of this order. Respondents are directed to act accordingly.
13. While it is the responsibility of the respondents to ensure that Government outstanding dues are recovered from the concerned Government employee, but the same has to be done in accordance with prescribed rules and well settled principle relating to adjustment and recovery. There is a distinct difference between DCRG and other pensionary dues like salary, leave encashment, transfer grant, dearness relief on pension, etc. I have not come across any provisions to indicate that no recovery can be made from salary, leave encashment, dearness relief on pension, transfer grant, etc., for adjusting Government dues, meaning thereby that such recovery/adjustment can be done from aforesaid items in order to realise Government dues. The respondents have stated that coaching/commercial debits to the tune of Rs. 24,229/- have been raised against the applicant. The same can be realised from these items if not already recovered. After necessary adjustment, the respondents are directed to release the balance outstanding retiral dues of the applicant within a period of three months from the date of receipt of a copy of this order along with admissible interest.
14. In view of the above facts and circumstances of the case, this O.A. is allowed in part in terms of the directions/observations made by me hereinabove. No order as to the costs.