ORDER
S.G. Deshmukh, Member (J)
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 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.
2. The applicant’s case is that he is a pensioner from Central Railway, Mumbai Division. He retired on superannuation on 31.7.2001. He was working as a Station Master at the time of retirement. He was required to control Operational system. It is contended that the commercial staff such as cashier, Booking clerk, etc. were working under direct Commercial Supervisory Staff. Commercial staff working is responsible for commercial work. The Pension of the applicant is being disbursed through Manager, Bank of Maharashtra, Dombivili. It is contended that applicant got the information vide letter dated 15.10.2004 from Bank Manager that there was a cut in his pension by orders from Railway Authorities.
The amount of Rs. 54,888 was to be recovered from his pension in monthly instalment of Rs. 1687. It is contended that the recovery ordered is arbitrary, violative of principles of natural justice and denial of opportunity. Applicant was not issued with memorandum of charges. He was not given opportunity to defend. It is contended that he is not responsible to commercial duty as commercial wing adequately supervises the staff working in the division. Applicant preferred a representation dated 16.11.2004 to the Divisional Railway Manager (Pension), Central Railway, Mumbai. He also made representation on 25.11.2004 thereafter on 22.12.2004, 20.1.2005 but there was no response. The applicant moved the ‘Pension Adalat’ by representation dated 25.4.2005. Representation was replied immediately vide letter dated 5.5.2005 and thus this OA.
3. The respondents appeared and resisted the claim by filing their counter affidavit. The respondents contended that the shortage of Rs. 1,63,324 was noticed in Railway Cash for which enquiry was set up and the enquiry officer held applicant with two others responsible and it was decided to recover the amount equally from all three. The action in this respect was taken by order dated 29.7.2003. The issue relates to shortage of cash on 15-16th January, 1996. It is contended that any loss caused to Railways is bound to be recovered and no disciplinary proceeding is required to be taken for recovery of actual loss as the recovery is not that of punishment. It is contended that no case whatsoever has been made out by the applicant in actual recovery of loss caused to him while he was working as Deputy Station Superintendent at Sion Railway Station and the OA deserves to be dismissed.
4. The applicant also filed the rejoinder.
5. Heard learned Counsel Mr. S.A. Deshpande for applicant and Mr. R.R. Shetty for respondents. The learned Counsel Mr. Deshpande submitted that recovery on the basis of fact finding enquiry without holding enquiry under Rule 9 under Railway Servants (Discipline & Appeal) Rules, 1968 is bad. Learned Counsel especially in that respect relied on Barindm Kumar Ghosh v. Union of India and Ors. (1991) 15 ATC 83. Learned Counsel submitted that the order for recovery can be made under Rule 9 of Railway Servants (Pension) Rules, 1993 only by the President of India. The order is neither passed by the President nor by his consent. Thus, the order passed by fact finding committee is illegal. The learned Counsel further submitted that Rule 6(iii) of Railway Servants (Discipline & Appeal) Rules, 1968 covers the recovery of pecuniary loss caused by employee as a minor penalty. The learned Counsel submitted that the action to effect recovery of the alleged loss can be taken only after following the procedure as laid down under Rule 11 for imposing a minor penalty. The learned Counsel submitted that the applicant was not issued any chargesheet. No enquiry has been conducted under Railway Servants (Discipline & Appeal) Rules. The applicant was not given an opportunity to defend his case. The learned Counsel relied on Inderjeet Ram v. Union of India and Ors. 1997(1) ATJ 283. The learned Counsel further submitted that recovery and adjustment of dues from pensionary benefits are to be assessed and adjusted within the period of three months from the date of retirement of the railway servant concerned as per Rule 15(i v)(b) of Railway Servants (Pension) Rules, 1993. Learned Counsel also submitted that the shortage in question is of 15th/16th January, 1996. The recovery order is dated 29.7.2003. The learned Counsel submitted that as per Rule 9(2)(b)(ii) of Railway Servants (Pension) Rules, 1993 no action can be taken in respect of any event which took place more than four years before such institution against retired Government servant and thus no action whatsoever can thus be taken under Rule 9 of Railway Servants (Pension) Rules, 1993. Learned Counsel relied on Bipul Ratan Mitra v. Union of India and Ors. 2005(3) SLJ 167. Learned Counsel Mr. Deshpande also submitted that Shri Mohan Singh and Shri D.P. Chaudhury had been issued a major penalty chargesheet. However, in DAR enquiry, they have been exonerated from the charges by the Disciplinary Authority. The learned Counsel submitted that the recovery of debit amount against them have been stayed. The learned Counsel in that respect brought on record a letter of SR.DOM.CSTM to SR.DPO.CSTM at page 65 of the paperbook.
6. On the other hand the learned Counsel Mr. Shetty submitted that in the enquiry it is found that three persons Shri Mohan Singh, Station Master, Shri S.R. Deshpande, Dy. Station Superintendent and Shri D.P. Chaudhury Dy. Station Superintendent were found responsible for shortage in Railway cash amounting to Rs. 1,63,324. In the enquiry, all three were held responsible and it was decided to recover the amount equally from all three station masters. The learned Counsel submitted that any loss caused to Railway is to be recovered and no disciplinary proceedings requires to be taken for recovery of actual loss as the recovery is not that of punishment. The learned Counsel stated that as per Railway Servant (Pension) Rules 1993, Government dues cannot be recovered from dearness relief of pension.
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.
8. Rule 6(iii) of Railway Servants (Discipline & Appeal) Rules, 1968 provides for recovery of loss caused by way of punishment. In the instant case, has sought to be made for loss holding the applicant responsible, such a recovery amounts to punishment within the meaning of Rule 6(iii) of Railway Servants (Discipline & Appeal) Rules and can be recovered only after a notice and holding an enquiry in accordance with the D & A Rules. If in the enquiry it is established that the applicant was responsible for the loss caused by his negligence, the recovery can be made. No such enquiry was held against the applicant.
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 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 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 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.