Hon'ble Vedpal,J.
Heard Shri Arvind Kumar, learned counsel appearing for the petitioner-Union of India for the General Manager, North Eastern Railway, Gorakhpur and other petitioners.
The petitioners are aggrieved by the judgment dated 21st August, 2009 passed by the Central Administrative Tribunal in O.A. No.426 of 2006, Rama Kant Vs. Union of India allowing the claim petition and directing the respondents to release the withheld amount of gratuity with interest and to pay the recovered amount of gratuity of Rs.1,26,613/- to the applicant with interest at the rate of 9% from the date of his retirement till the date of payment as per the Rules. The review petition filed by the petitioner was rejected on 08.10.2009.
The Tribunal has found that the respondent serving as Superintendent Grade-1 in the year 1986 retired from service on 31.7.2002 from Goods Shed, Gonda. On 1st August, 2002 the applicant was paid entire pensionary benefit but the aforesaid sum was temporarily withheld from the gratuity amount due to him. The railway relied upon Railway Service (Pension) Rules, 1993, which permits the Railway Administration to recover railway dues from the gratuity. The Tribunal found that the amount can be recovered under the Rules but after following the procedures, which conforms the principle of natural justice. The department can make an enquiry, pass an order fixing responsibility of the employee after giving him show cause notice. If the employee is directly or indirectly admitted the liability, the amount can still be recovered without his consent.
Learned counsel for the petitioner relies upon Rule 15 (2) and 4
(ii) in submitting that it is permissible to make recovery of Government dues from the retirement, death, terminate or service gratuity even without obtaining his consent. He has also relied upon Secretary, ONGC Ltd. & Anr. Vs. V.U. Warrier, (2005) 5 SCC 245 in submitting that the dues payable to the government servant of gratuity can be subjected to recovery on the admitted liability even without the consent of the employee.
Rule 15 authorises the petitioner to recover the amount from the gratuity even without consent but that by itself would not mean that the dues, which have not been ascertained or assessed can also be recovered from the gratuity. Sub-rule (2) of Rule 15 provides that railway or government dues as ascertained and assessed, which remain outstanding till the date of retirement or death of the railway servant can 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 rules do not dispense with the requirement of principle of natural justice.
The gratuity is paid on satisfactory completion of service. The railways can recover an outstanding amount but that it should be ascertained and assessed. The word 'assessment' requires a notice and hearing to the person concerned, and an order giving reasons before the amount may be recovered. In the present case there is no material to show that a show cause notice was given to the respondent. He had taken specific plea in the claim petition that no show cause notice was given to him before recovering the amount arbitrarily and illegally from his gratuity.
We do not find that the Tribunal has committed any error of law to interfere in the matter.
The writ petition is dismissed.
Order Date :- 11.1.2010 SP/