IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER 2019 PRESENT THE HON'BLE MR. JUSTICE S N SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P.NO. 15847/2019(S-CAT) BETWEEN:
1. THE UNION OF INDIA REPRESENTED BY ITS GENERAL MANAGER, SOUTH WESTERN RAILWAY, HUBLI – 560020 DHARWAD DISTRICT KARNATAKA 2. THE SENIOR DIVISIONAL PERSONNEL OFFICER, PERSONNEL BRANCH, SOUTH WESTERN RAILWAY, DIVISIONAL OFFICE, MYSURU – 570011 KARNATAKA …PETITIONERS (BY SRI.ABHINAY.Y.T, ADVOCATE) AND:
SHRI. SHARFUDDIN KHAN GHORI, AGED ABOUT 67 YEARS, RESIDING AT DOOR NO.4824/3, 2ND CROSS, PENSION BLOCK, RAJENDRANAGAR, MYSURU - 570007 …RESPONDENT (BY SRI.VENKATESH KUMAR.B.S, ADVOCATE FOR CAVEATOR/RESPONDENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 8.1.2019 PASSED IN OA NO.880 OF 2017 BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU VIDE ANNX-C AND CONSEQUENTIALLY DISMISS THE APPLICATION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:
ORDER The present writ petition is directed against the order dated 8.1.2019 passed in Original Application No.170/00880/2017 by the Central Administrative Tribunal, Bengaluru Bench (for short “Tribunal”) wherein the application filed by the respondent/applicant came to be allowed.
2. The case of the applicant is that he joined the services of Railways on 23.1.1974. While he was working as an Office Superintendent, he was investigated by the Railway Protection Force for theft of Railway property. Accordingly, the petitioners herein initiated disciplinary proceedings by issuing charge memorandum dated 19.7.2010. The said charge dated 19.7.2010 was later cancelled and the second petitioner issued a fresh charge memorandum dated 25.11.2011 proposing to hold enquiry against the respondent- applicant under Rule 9 of Railway Servants(Discipline and Appeal) Rules,1968.The respondent-applicant being aggrieved by the fresh charge memorandum dated 25.11.2011 which was issued after his retirement questioned the same before the Tribunal by filing an original application in O.A.No.1412/2014.The Tribunal after examining the material on record allowed the said original application by order dated 11.1.2016 and set aside the fresh charge memo dated 25.11.2011 reserving liberty to the respondents to issue fresh charge memo after obtaining sanction of the President of India as per the provisions of the Rules.The said order was questioned by petitioners before this Court in W.P.No.37239/2015 and this Court having taken note of the fact that the respondent-applicant retired from service on 31.7.2010 recorded a finding that fresh charge memo dated 25.11.2011 cannot be assumed as a modified charge memo or a supplementary charge memo since the earlier charge memo dated 19.7.2010 which was issued to the respondent-applicant while in service was duly cancelled. In this back ground, this Court was of the view that the fresh charge memo dated 25.11.2011 was issued after retirement of the respondent-applicant without seeking permission from the President of India and as such the same is not maintainable. Accordingly, the writ came to be dismissed vide order dated 2.12.2016.
3. On perusal of records, it appears that the respondent-applicant after dismissal of the writ petition in W.P.37239/2016 submitted a representation on 5.7.2017 requesting the second petitioner herein to release the regular pension, commutation of pension and other benefits. Since there was total inaction on the part of the petitioners herein the respondent – applicant was constrained to file an original application seeking following prayers:
“8. Relief sought:
In view of the facts mentioned in para 6 above the applicant prays for the following relief(s):-
(a) Call for records of the case from the respondents and on perusal (b) Issue a writ of mandamus directing the respondents to forthwith release the retiral benefits whatever is due more specifically DCRG, regular pension and commuted value of pension to the applicant without any further loss of time;
(c) As the retiral benefits have been withheld without any reason this Hon’ble Tribunal be pleased to order payment interest at 12% per annum from the date of retirement of the applicant till the aforesaid amounts are paid;
(d) Grant such other relief/s as this Hon’ble Tribunal deems fit including an order as to cause of this application in the interest of justice and equity.
4. The petitioners contested the proceedings by filing reply statement. The Tribunal having examined the material on record allowed the original application by order dated 8.1.2019. It is relevant to state that the contention of the petitioners before the Tribunal based on the charge memo dated 25.11.2011 was rightly negatived since it was already decided by this Court in W.P.No.37239/2016. The learned counsel appearing for the petitioners before the Tribunal took a contention that respondent-applicant is already charge sheeted and proceedings are pending in C.C.No.1343/2011. The Tribunal while dealing with the said contention has held that if the criminal case is pending, it can be due to the fault of the respondent-applicant or the respondents as there are numerous witnesses and it is for the petitioners to diligently prosecute the proceedings since they are all railway employees. And hence, there are no material to indicate that it is the respondent-applicant who is adopting the delaying tactics. At this juncture, the counsel appearing for respondent-applicant vehemently argued that the matter is being dragged on for more than eight years and is unable to receive the DCRG benefits. The Tribunal having examined the rival contentions directed the present petitioners to retain Rs.One lakh and to release the remaining benefit to the respondent-applicant on he furnishing bank guarantee. The Tribunal also observed that the respondent- applicant would continue get the provisional pension and not the full pension and it is only after the completion of the criminal trial that the petitioners may take further action in the matter. Further, the Tribunal has directed that whole process shall be completed within the next one month.
5. Heard the counsel appearing for the petitioners and respondent.
6. The contention of the petitioners that in view of Rule 10 of Railways Service (Pension) Rules and pendency of CC.No.1343 of 2011 on the file of the Judicial Magistrate I class, Puttur, the respondent- applicant is not entitled for the relief sought is not sustainable. The Tribunal having examined the material on record and having taken note of the length of proceedings pending against the respondent- applicant has rightly come to the conclusion that the respondent is entitled to DCRG benefits and while doing so, the Tribunal has rightly ordered to retain Rs.1 lakh due to respondent-applicant and to release the rest of the amount by securing bank guarantee for the said amount. In this back ground, the grounds raised in the petition that on account of the pendency of the proceedings, the benefits due to the respondent- applicant cannot be settled is devoid of merits and it is clearly trying to re-litigate the same cause of action which was put to rest by this Court in W.P. 37239/2016 wherein this Court has held that the additional/fresh charge memo dated 25.11.2011 which was admittedly issued after the respondent- applicant retired is not maintainable unless permission is obtained by the Hon’ble President of India. We find no infirmities or illegality in the order passed by the Tribunal. In that view of the matter, the order dated 8.1.2019 passed by the Tribunal in O.A.No.170/00880/2017 does not warrant interference by this Court and the grounds urged by the petitioners in the writ petition are devoid of merits.
Accordingly, the writ petition is dismissed. No order as to costs.
Sd/- JUDGE Sd/- JUDGE *alb/-