(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This petition under Articles 14 and 16 of the Constitution of India has been filed by the petitioner/original applicant challenging the impugned order dated 29.8.2006 passed by the Central Administrative Tribunal in Original Application No. 325/2004.
2. The petitioner has retired as CPWI, Mehsana w.e.f.
31.8.2002. As per the instructions of the Railway Board the stock verification was required to be done before six months of retirement of an employee. In the case of the petitioner, the stock verification was not done in time and he had to work upto 10.9.2002 i.e. 10 days more after his superannuation. The stock verification was properly done and the petitioner had handed over the charge to one Mr U.K. Gupta. When the petitioner asked for the payment of retirement dues, he was told that there was a shortage of tools worth Rs. 2125/- and hence he had paid up the amount of Rs.2125/-. Thereafter he had made several representations but since the gratuity was withheld by the respondents, he had moved Original Application No.494/2004 which came to be disposed of by the Central Administrative Tribunal (for short, “the Tribunal”) vide order dated 6.11.2003 with a direction to the respondents to consider and decide the representation of the petitioner. The respondents have not decided his representation and hence he filed contempt petition. The respondents thereafter passed orders saying that there was recovery of Rs.11,82,940/- pending against the applicant. According to the petitioner, nothing remains due from him and as such gratuity could not have been withheld by the respondents. The respondents in their written reply to the Original Application contended that the gratuity could not be released in view of non-production of the 'no due certificate' which was required to clear the outstanding due amount before retirement and the applicant has failed to do so. As per the respondents, an amount of Rs. 11,85, 064/- was recoverable from the petitioner towards heavy P.Way T & P for ballast and other consumable items and the petitioner had deposited only Rs.2,125/-. Therefore, the respondents have withheld the gratuity as per rules. The Tribunal by order dated 28.9.2005 directed DEN (N) ADI to conduct inquiry into the shortage of stock. Accordingly inquiry was conducted but the petitioner remained not present and not cooperated in the inquiry. The Inquiry Officer conducted the inquiry ex-parte and came to the conclusion that there is an outstanding amount of Rs.11,82,940/- to be recovered from the petitioner. The Tribunal, after considering Rule 15 of the Railway Servants (Pension Rules) 1993 and the independent inquiry report, rejected the Original Application. The petitioner has challenged this order in this petition.
3. Learned counsel for the petitioner has submitted that the order passed by the Tribunal is absolutely bad and illegal and is not sustainable in the eyes of law. He submitted that the petitioner was not given an opportunity of personal hearing by the Inquiry Officer and passed order ex-parte. He submitted that though the Tribunal directed to hear the petitioner after taking into consideration the representation of the petitioner, in absence of the petitioner the inquiry was conducted which is not as per the direction of the Tribunal. He submitted that though the Inquiry Officer was informed on the non-availability of the petitioner, the inquiry is conducted and report is submitted against the petitioner. He submitted that after the retirement, the petitioner was called for ten days and after due inquiry and verification, the respondents have come to the conclusion that the petitioner is liable to pay Rs. 2,125/- which has been paid. It is stated by him that unverified MTO cannot be said to be irregularity in any way but it is just a formality between two departments and the petitioner has transferred the Ballast in question to the concerned department. Learned counsel has argued that Rule 15 of 1993 Rules is crystal clear that it is the duty of the Head Office to ascertain and assess Government or Railway dues payable by Railway Servants due for retirement. Here the respondents have failed to ascertain the Government dues payable by the petitioner who was due for retirement on 31.8.2002. Therefore, Rule 15 is not applicable in the present case and the Tribunal has erred in holding that there is violation of Rule 15. Learned counsel finally submitted that the impugned order dated 29.8.2006 passed by the Central Administrative Tribunal be quashed and set aside and a direction may be given to the respondents to pay the gratuity to him with 18% interest.
4. On the other hand, learned counsel for the respondent No.2 submitted that in spite of notices the petitioner deliberately not attended the inquiry proceedings and his son orally informed that the petitioner was out of country and never informed about the place he had gone and the expected date of arrival of the petitioner. It is submitted that the petitioner was represented by an Advocate hence the order was not an ex-parte order. He submitted that in view of the direction of the Tribunal to conclude the inquiry proceedings within two months, the Inquiry Officer had to conduct the inquiry and submit report. According to the respondent, the petitioner is liable to reimburse for five counts which are reproduced as under:
It is submitted by the learned counsel that by depositing Rs. 2,125/- by the petitioner, he has admitted his guilt and it is clear that an amount of Rs. 11,82,940/- is to be recovered from the petitioner. He further submitted that the Tribunal was justified in passing the impugned order. Drawing our attention to the observations made by the Tribunal, learned counsel for the respondent No.2 has submitted that the Tribunal observed in clear terms that there is an outstanding amount of Rs. 11,82,940/- against the petitioner and the petitioner cannot claim any direction to release the gratuity amount due to him. He therefore, submitted that this Court may not interfere with the order passed by the Tribunal and the petition may be dismissed.
5. We have heard the learned counsel for both the parties and considered the rival contentions. The findings of the Tribunal in paragraph No.6 of the order dated 29.8.2006 passed in O.A. No. 325/2004 are reproduced hereunder:
“6. Now Rule 15 of the Railway Servants (Pension Rules) 1993 inter alia lays down that the Railway or Government dues as ascertained and assessed which remain outstanding till the date of retirement or death of a 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. The Railway or Government dues include the short collection in freight charges shortage in stores. Hence, the applicant cannot claim that the gratuity payable to him is wrongly or on unjustifiable reasons withheld by the respondents. In view of the provisions of Rule 15 of the Railway Servants Pension Rules, 1993 the Railway Administration is entitled to adjust the gratuity amount against the outstanding dues of the Railway. Since the independent inquiry has also revealed that there is an outstanding of Rs. 11,82,940 against the applicant, the applicant cannot claim by way of right a direction against the respondents for the release of the gratuity amount. It therefore, cannot be said that the amount of gratuity is wrongly or arbitrarily withheld by the respondents. No direction for the release of the same therefore, can be given. We therefore, find that the OA is devoid of merit and deserves to be rejected...”
6. Much has been submitted by the learned counsel for the petitioner that ex-parte inquiry had been conducted and reasonable opportunity of hearing had not been given to the petitioner. We are not agreeable to the same. It is not under dispute that the petitioner had settled down in USA. At the relevant time also son of the petitioner has not apprised the Inquiry Officer as to the date on which the petitioner is likely to come back. Thus, in our view the petitioner is wrongly finding fault with the entire enquiry proceedings. In our considered opinion, the Tribunal has rightly decided that the amount of gratuity is not wrongly or arbitrarily withheld by the respondents. We find ourselves in agreement with the above findings of the Tribunal and we do not find any merit in the present petition and hence it is required to be dismissed.
7. In the result, this petition is dismissed. Rule is discharged. The impugned order dated 29.8.2006 passed by the Central Administrative Tribunal in Original Application No. 325/2004 is confirmed.
[V.M. SAHAI, J.] [G. B. SHAH, J.] msp