Saturday, November 3, 2012

OA No.175 / 2010 on ??????????-2011



TODAY, THIS THE ......... DAY OF .................., 2011


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)

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)


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)


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