CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH : BANGALORE
ORIGINAL
APPLICATION No.175/2010
TODAY,
THIS THE ......... DAY OF .................., 2011
HON'BLE
SMT. LEENA MEHENDALE ... MEMBER (A)
HON'BLE
SHRI V. AJAY KUMAR ... MEMBER (J)
Z. Chandrashekar Rao,
S/o Shri Z. Mark Sheshagadu,
aged about 62 years,
retired as Head clerk,
R/at No.16, Chetna Colony,
Phase-II, Gadag Road, Hubli. ... Applicant
(By
Advocate Shri Izzhar Ahmed)
Vs.
1. The Union of India,
The
General Manager,
South
Western Railway,
Kesavapura, Hubli.
2. The Deputy Chief Engineer,
South
Western Railway,
Kesavapura, Hubli.
3. The Chief Personnel Officer,
South
Western Railway,
Kesavapura, Hubli. ... Respondents
(By
Advocate Shri J. Bhaskar Reddy, Counsel for Railways)
O R D E R
Hon'ble Smt. Leena Mehendale, Member (A) :
This OA filed on 30.3.2010 under
Section 19 of the Administrative Tribunals Act, 1985, seeks the following
reliefs:
i)
to declare that recovery initiated by the
respondents from the pay of the applicant August 2006 to April, 208 as illegal
without rule;
(ii)
direct the respondents to pay the recovered amount
of Rs.1,05,000/- with 18% interest fromt he month of August, 2006 to till the
date of payment; and
iii)
grant relief or reliefs as deemed fit and proper,
with costs, in the interest of justice and equity.
2.
The applicant who started his career as a Gangman
under the South Western Railways on 19.9.1991 was promoted on regular basis as
Store-chaser and then as Head clerk on adhoc basis. He retired on 31.5.2008 when he drew his
ad-hoc salary in the scale of Rs.5000-8000/-.
Prior to retirement, there was a departmental enquiry initiated against
him for which a major charge memo under Rule 9 of the Railway Servants
(Discipline and Appeal) Rules, 1968, was issued on 28.09.2006 vide
Annexure-A/3, for the reason of material shortage that arose out of his failure
to maintain correct custody and accounts for the stores resulting in loss to
the Railways in P-Way material. The 2nd
charge was that he had failed to ensure proper stacking of the P-Way materials
which resulted in additional expenditure to the Railways at the time of inspection and also delay in
disposal of the materials. The details of the charges quoted are as below:
"During the vigilance check
conducted in the unit of DSK/ C/UBL on 13-3-2003 it was detected that P.Way
materials pertaining to LWR-AVA section were lying scattered over entire length
of 26 km. The Joint Proceedings Dt
04/05.06.03, 19.06.03, 27.06.03, 06.08.03, 07.08.03, 08.08.03 and 12.08.03 also
state that the GC materials were scattered, dumped and buried condition at
various locations in the unit of GC/UBL and they require to be trucked,
segregated and stacked for proper verification.
Also released P.Way materials of GC works available at UBL work shops
and station yards were found buried and scattered as stated in the Joint
Proceedings Dt.06.08.2003, 07.08.03, 08.08.03 and 12.08.03. The Stock Verification team consisting of Sri
M.K. Shiraliker, Sr. ISA/UBL and Sri O. Dastagiri, DSK/C/UBL, Sri Z.
Chandrashekar, DSK/C/UBL, assisted by Sri A.C. Rajender, then VI/SC,
Dy.CE/C/UBL had arranged BT stock vide D.O. Lt. No.H/UBL-LD/B.T. Dt. 17.07.03
for clearing the materials between LWR-AWA section."
The charge
memo then proceeds to give a long list of instances to show how there was a
complaint of mis-management in the proper stacking and stock verification. The memo further states that:-
"Due to the improper stacking
of materials, Railways had to incur additional expenditure during the Stock
Verification, in the form of arranging for trucking and BT and extra labour
from other units, for trucking and stacking of materials, for which Z.
Chandrashekar, DSK/C/UBL, is responsible.
The improper stacking of the above materials also obviously delayed the
disposal of released P.Way materials, for which Sri Z. Chandrashekar,
DSK/C/UBL, is responsible."
The charge memo mentions that these short-comings were detected during
a vigilance check conducted on 13.3.2008.
3.
In view of the material shortage as well as
additional expenditure that the Railways were required to incur for the purpose
of proper stacking, etc., as detailed in the charge memo, the Railways started
recovery of Rs.5,000/- p.m. from his salary w.e.f. August, 2006 and recovered
Rs.1,05,000/- upto 30.4.2008, that is, till one month prior to his date of
retirement. The applicant has not
challenged this recovery at any time by approaching the Tribunal during the
period of nearly 2 years of actual recovery.
Only now, he has come before the Tribunal in 2010 claiming the entire
recovered amount with interest at the rate of 18%.
4.
His only ground is that, no notice was given to
him at the time of making recovery, no opportunity was given to submit his
explanation, nor any minor penalty order was issued for the purpose of making
this recovery.
5. The Railways, who are
the respondents have challenged this OA first on the ground of delay and also
on the ground that he has not approached the Tribunal against the recovery when
it was actually being made. On the
contrary, he has allowed the Railways to recover the amount of Rs.1,05,000/-
without any objection. Thus, there was a
tacit agreement for the action of the Railways and he is now estopped from
challenging the recovery.
6.
More importantly, the Railways have clarified that
the said recovery was made because the applicant was responsible for shortage
of store material, and additional expenditure. They make it further clear that
even when a departmental enquiry is pending against the applicant, the Railways
are always entitled to safeguard their interest and to minimise the loss
incurred to the Railways and this has nothing to do with the finalisation of
the enquiry. The Railways have observed
the Rule that the monthly recovery to be made from the salary should not be
more than 50% of the gross salary. In
the instant case, the basic salary of the applicant was Rs.6800/- and his gross
salary was Rs.12,908/- and therefore, the Railways are within their right to
recover at the rate of Rs.5,000/- p.m.
7.
We have heard both the counsels and perused all
the records. We agree with the
Respondents. It is a wellm settled administrative practice that when huge loss
is suffered by the Government (here Railways) on account of the negligence of
the employee, the Government is entitled to first of all, make good the loss by
recovering from the person who is in-charge of the job where loss has occurred. This is independent of any departmental
enquiry, major or minor, which is conducted for the purpose of establishing
whether the employee has been guilty of misconduct, negligence and thus failed
in showing full devotion to duty, thus, unbecoming of an employee. When the losses are apparent from the report
of the vigilance inspection, the first job of the Railways will be to recover
the loss to the best extent possible, which they have done in the instant
case. Such a recovery does not fall in
category of any penalty, but is equal to getting back that which was rightful
property of Railways. It is true, that
they have not issued any notice to the applicant before starting recovery which
is not required by law. Also, by
allowing the recovery every month for about 21 months, the applicant has only
shown that he agreed that he was responsible for the loss to Railways and the
Railways were entitled to hold him as responsible for losses due to negligence
and were also entitled to make good the loss even if partial.
8.
We therefore, dismiss the OA as having no merits.
(V. AJAY KUMAR)
(LEENA MEHENDALE)
MEMBER (J)
MEMBER (A)
psp.
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