Union Of India &Ors vs Pundu Sadboo
2022 Latest Caselaw 33 Cal

06.01.2022
Court No.4
Item No.30
SB
                          WP.CT 88 of 2021

                     Union of India &Ors.
                              Vs
                         Pundu Sadboo

                    Mr. Sovan Mukherjee         .... For the petitioners

                    Mr. Ujjal Roy
                    Mr. Arpa Chakraborty             ... For the Respondent




                    The instant writ petition has been filed challenging the

             order and judgment of the Central Administrative Tribunal,

             Calcutta Bench passed on 11.08.2021 in O.A. 350/1452 of

             2018 directing the petitioner authority to release the withheld

             death-cum-retiral gratuity amount within four weeks from the

             date of receipt of copy of the order.

                    Shorn of unnecessary details the private respondent was

             working with the railways and was entrusted the onerous task of

             verifying the load and to avoid the overloading which has the

             impact on the loss to the railway exchequer. The authority

             subsequently issued a letter on 19.12.2014 to the officer for

             verification of the loading at the originating station and submit

             report in this regard. Subsequently, on 28.02.2015 the said

             officer intimated to the superior that there has been an

             overloading at the originating station and the railway exchequer

             is burdened with Rs.20,04,040/-, the break up and the details

             whereof was annexed to the said letter with nomenclature

             under charges statement duly signed by the said officer.
 Subsequently, the letter of demand was raised upon the

petitioner and ultimately the amount to the tune of Rs.11 lakhs

and above was deducted from the pensionary / retiral benefit of

the petitioner after his attainment of superannuation on

31.10.2016.

       The aforesaid action of the authority constrained the

private respondent to file a tribunal application challenging and /

or assailing the action of the authority in deducting the aforesaid

amount from the pensionary / retiral benefit and in course of

hearing it transpires that a comprehensive representation was

made by the private respondent to the competent authority

raising the question of such action which was kept in

suspended animation as no decision was taken thereof. The

tribunal directed the said authority to dispose of the said

representation after affording an opportunity of hearing to the

petitioner.    Ultimately decision was taken negativing the

contention of the petitioner that the authority can deduct such

amount from the pensionary / retiral benefits.

       The aforesaid decision is again challenged by the

petitioner by instituting a proceeding before the tribunal. By the

impugned order, the tribunal directed the release of such

amount within a period of four weeks which led the union of

India, the petitioner herein to file the instant writ petition.

       The facts which have been adumbrated herein are more

or less undisputed. The entire writ petition runs into several

pages banking upon the stand that the demand having raised

against the petitioner is in fact a departmental or disciplinary
 proceeding and, therefore, Rule 9 of the Railway Services

(Pension Rules) 1993 is applicable. Before embarking further

journey it would relevant to quote Rule 9 of the said Rules

which runs thus:-

"9.       Right of the President to withhold or withdraw pension.

      (1) The President reserves to himself the right of withholding
          or withdrawing a pension or gratuity, or both, either in full
          or in part, whether permanently or for a specified period,
          and of ordering recovery from a pension or gratuity of the
          whole or part of any pecuniary loss caused to the
          Railway, if, in any departmental or judicial proceedings,
          the pensioner is found guilty of grave misconduct or
          negligence during the period of his service, including
          service rendered upon re-employment after retirement;

           Provided that the Union Public Service Commission shall
           be consulted before any final orders are passed.
       Provided further that where a part of pension is withheld or
      withdrawn, the amount of such pension shall not be reduced
      below the amount of rupees three thousand five hundred per
      mensem. (Authority: Railway Board's letter No. 2011/F (E)
      III/1(1)9dated 23.09.13)
        (2) The departmental proceedings referred to in sub-rue (1)
      -

(a) if instituted while the railway servant was in service whether before his retirement or during his re-employment, shall after the final retirement of the railway servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they commenced in the same manner as if the railway servant had continued in service.

Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President;

(b) if not institute while the railway servant was in service, whether before his retirement or during his re-employment-

(i) shall not be instituted save with the sanction of the President;

(ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which and order in relation to the railway servant during his service.

(3) In the case of a railway servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in rule 10 shall be sanctioned.(Authority: Railway Board's letter No. F(E)III/99/PN 1/(Modification) dated 23.5.2000)

(4) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of a railway servant.

(5) For the purpose of this rule -

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the railway servant or pensioner, or if the railway servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognisance, is made; and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."

From the meaningful reading of the said provision, there

is no ambiguity in our mind that the said provisions get activated

only after the employee retires from service. The said rule

enjoins that the President can withhold or withdraw a pension or

the gratuity or both either in full or in part or for any specified

period, the whole or the part of the pecuniary loss caused to the

railways. There is no fetter on the part of the railway either to

withhold or recover any pecuniary loss caused from the

pension or the gratuity of the erring officer. However, what has

been overlooked by the authority is that the aforesaid situation may only arise if in any departmental or judicial proceeding the

pensioner is found guilty of grave misconduct or negligence

during the period of his service.

We invited the attention of the learned counsel appearing

on behalf of the petitioners whether any departmental

proceeding was initiated against the private respondent either

during his service or after his retirement. The stand which has

been projected before us that the letter dated 28.02.2015

constitutes the disciplinary proceedings because of the fact that

it contains the under charges statement meaning thereby the

charges which are required to be framed in the disciplinary

proceeding was communicated to the private respondent. The

attention was also drawn to Sub Rule 5 of Rule 9 to the effect

that the departmental proceeding shall be deemed to be

instituted on the date on which the under charges statement

was issued to the railway servant or was placed under

suspension. According to the learned advocate for the

petitioner the under charges statement accompanied with the

letter dated 28.02.2015 is, in fact, the initiation of the

departmental proceeding and therefore the contention of the

petitioner that no departmental proceeding was initiated is

unfounded, incorrect and not tenable in law.

We are afraid to accept such interpretation assigned to

the provisions contained in Rule 9 of the said Rules. Sub-Rule

5 indicates the commencement of the disciplinary proceeding

and the under charges statement which in normal parlance is

known as Article of charges to be the foundation stone of proceeding. Though we have not been taken to the single

Rules concerning the Disciplinary Proceeding but the manner in

which the disciplinary proceeding is contemplated does not

appear to us to be in consonance with the statutory provisions.

The under charges statement will clearly and explicitly indicate

the statement of definite / specific misconduct or negligence

and not what the authority found or perceived at the time of

inspection. No show-cause notice has been issued nor any

inquiry officer was appointed which are one of the ordinary

incident of the disciplinary proceeding. By no stretch of

imagination the letter dated 25.02.2015 or the annexure

appended relating to under charges statement can be

construed to be the starting point of initiation of the disciplinary

proceeding. The under charges statement can never be

construed as the demand having raised but must clearly,

explicitly and without any ambiguity indicate the alleged

misconduct or the negligence which augmented the loss

suffered by the railways. Such misconception in our opinion is

patent and the demand so raised cannot be construed as the

show-cause notice or the exercise in furtherance of the

disciplinary proceeding. The authority cannot do anything

unless conferred by the statutory Act or the rules. If there is any

specific provision contained therein and procedure to be

adopted, the same has to be strictly adhered to as any

departure thereof would entail the action of the authority liable

to be struck down in exercise of the judicial fiat. Till now the

disciplinary proceeding has not been initiated and by passing of time, the same cannot be initiated because of the embargo

created in Rule 9 of the said rules and, therefore, we do not find

any justification in the action of the railway authority in

deducting the amount from the retiral / pensionary benefits

admissible to the private respondent.

We thus, do not find any infirmity or any illegality in the

judgement and order of the tribunal.

The writ petition is thus dismissed.

There shall be no order as to costs.

Because of pendency of the instant writ petition, the time

indicated by the tribunal has lapsed. We, therefore, extend the

time to release the deducted amount by two months from date.

(Rabindranath Samanta, J.) (Harish Tandon, J.)