(Order of the Court was made by V.PARTHIBAN, J.) This Writ Petition has been filed against the order passed by the learned Central Administrative Tribunal (in short, 'the Tribunal'), Madras in O.A.No.1408 of 2013, dismissing the original application filed by the petitioner herein.
2. The writ petitioner herein, has approached the learned Tribunal, seeking the following relief:
"To call for the proceeding of the respondent in No.5009/736/ESC dated 23.8.2013, quash the same and consequently direct the respondent to disburse the withheld amount of Rs.2,21,020 from the leave encashment amount due to the applicant."
3. The petitioner is an employee of the Military Engineering Service. After serving for several years, he retired from service on attaining the age of superannuation on 31.07.2012. On his retirement, he was accorded pension, DCRG, Commuted Value of pension, etc. However, a sum of Rs.2,21,020/- towards leave encashment was withheld by the Department for the reason that the loan availed by him from MES Employees Thrift Society, remains unsettled. According to the petitioner, in 2003-04, he took a loan of Rs.1,30,000/- from the Society and he had been paying the instalments regularly, but unfortunately, the Society had not maintained any proper accounts in respect of repayments made by the petitioner. According to him, regular monthly instalements were recovered and such repayments were made till the date of his retirement. In any case, the petitioner is willing to make a reasonable due towards loan amount, if proper statement of account be furnished to him. In any event, the petitioner contended before the Tribunal that non-settlement of personal loan taken from the Society, cannot be a ground for withholding the amount payable towards Leave encashment, and dues if any could be recovered only towards Government dues. The petitioner contended that as per relevant provision of CCS (Pension) Rules, 1972, apart from what is due and payable to the Government, no outstanding amount could be withheld or recovered.
4. Per contra, resisting the claim of the petitioner, it was contended on behalf of the respondents that since the petitioner did not settle the loan amount in question before his retirement despite several letters, the amount was withheld since the Department stood as a guarantor for entire repayment of loan amount.
5. Upon consideration of rival contentions, the learned Tribunal accepted the contention of the respondents/department and dismissed the Original Application.
6. The Tribunal, while concluding against the petitioner, has found that there was no evidence to show that the petitioner had made any attempt to furnish any details about the amounts which had been paid by him to the society towards loan amount. The Tribunal also found that Leave encashment payment was not a pensionary benefit under Rule 68(5)(2)(f) and the amount said to be withheld, is not a pensionary benefit and hence, there was no bar in withholding the same. As against the order of the Tribunal, the present Writ Petition has been filed.
7. Shri V.Vijay Shankar, learned counsel appearing for the petitioner contended that the Tribunal has misdirected itself while concluding against the petitioner as no retirement benefits could be withheld towards any dues payable to private society. While during the course of arguments, the learned counsel appearing for the petitioner has filed statements showing that a total amount of Rs.1,63,080/- has been settled so far as against the loan amount of Rs.1,37,600/-. He also submitted that in case any amount remains to be paid, the same will be paid by the petitioner provided a valid statement of account is furnished to him after adjusting the amounts already paid so far by him.
8. Learned counsel appearing for the respondents has reiterated his submissions put forth before the learned Tribunal.
9. We gave our anxious consideration to the rival contentions and we are of the view that for the dues which were payable towards loan amount taken from the Society, cannot be the reason for withholding the Leave encashment amount payable to the petitioner, as the Government employer cannot act at the instance of the private society as a recovery agent. In any event, it appears from the statements that the payments have already been made over and above the loan amount, by the petitioner and in any case, any amount remains to be paid by way of any interest etc., the same can be recovered by the Society by resorting to other legal remedies available to the society. The Government employer cannot take upon itself the responsibility of ensuring private dues to be settled to the society by withholding the Leave encashment amount payable to the petitioner.
10. It appears that the learned counsel also cited a decision of the Hon'ble Supreme Court before the Tribunal reported in "AIR 2013 SC 3383 (State of Jharkhand and others versus Jitendra Kumar Srivastava and another). However, the Tribunal thought fit not to apply the decision on the facts of the present case without discussing the same in little more detail.
11. In the light of the above narrated, we are of the considered opinion that the learned Tribunal fell in error and dismissed the Original Application without due appreciation and examination of the claim of the petitioner with reference to the Rule position and the circumstances of the case. In such view of the matter, we are left with no option except to set aside the order passed by the learned Tribunal in O.A.No.1408 of 2013 dated 10.2.2015.
Accordingly, the order dated 10.2.2015 passed by the learned Tribunal in O.A.No.1408 of 2013 is set aside and the second respondent is directed to release the Leave encashment dues to the petitioner to the petitioner forthwith, not later than four weeks from the date of receipt of a copy of this order.
In the result, the Writ Petition is allowed. No costs.