- (1.) Heard Sri Chandra Shekhar Sinha, Advocate, for petitioner. None appeared on behalf of applicant-respondent though the case has been called in revised. Hence we proceed to the hear and decide this case finally after hearing learned counsel for petitioner.
(2.) Recovery was sought to be made from applicant-respondent, Nityanand Ghosh, on account of occupation of official accommodation beyond permissible period and the said recovery, therefore was towards penal rent of the said accommodation. The alleged recoverable outstanding amount was deducted from death-cum-retirement gratuity. It was challenged by applicant-respondent before Tribunal. Tribunal allowed Original Application by means of order dated 03.10.2008 holding that aforesaid deduction was not permissible from death-cum-retirement gratuity and, therefore, petitioner must refund the entire amount along with interest.
(3.) Learned counsel for petitioner relied on Rule 15 of Railway Services (Pension) Rules, 1993 (hereinafter referred to as "Rules, 1993"), which reads as under: "15. Recovery and adjustment of Government or Railway dues from pensionary benefits- (1) It shall be the duty of the Head of Office to ascertain and assess Government or railway dues payable by a railway servant due for retirement. (2) The Railway or Government dues as ascertained and assessed, which remains outstanding till the date of retirement or death of the railway servant, shall 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). (3) For the purposes of this rule, the expression "Railway or Government dues" includes- (a) dues pertaining to railway or Government accommodation including arrears of license fee, (b) dues other than those pertaining to railway or Government accommodation, namely balance of house-building or conveyance or any other advance, overpayment of pay and allowances, leave salary or other dues such as Post Office or Life Insurance premia, losses (including short collection in freight charges shortage in stores) caused to the Government or the Railway as a result if negligence or fraud on the part of the railway servant while he was in service. (4) (i) A claim against the railway servant may be on account of all or any of the following: - (a) losses (including short collection in freight charges, shortage in stores) caused to the Government or the Railway as a result of negligence or fraud on the part of the railway servant while he was in service; (b) other Government dues such as overpayment on account of pay and allowances or other dues such as house rent, Post Office or Life Insurance Premia, or outstanding advance, (c) non-Government dues. (ii) Recovery of losses specified in sub-clause (a) of clause (i) of this sub-rule shall be made subject to the conditions laid down in rule 8 being satisfied from recurring pensions and also commuted value thereof, which are governed by the Pension Act, 1871 (23 of 1871). A recovery on account of item (a) of sub-para (i) which cannot be made in terms of rule 8, and any recovery on account of sub-clauses items (b) and (c) of clause (i) that cannot be made from these even with the consent of the railway servant, the same shall be recovered from retirement, death, terminal or service gratuity which are not subject to the Pensions Act, 1871 (23 of 1871). It is permissible to make recovery of Government dues from the retirement, death, terminal or service gratuity even without obtaining his consent, or without obtaining the consent of the member of his family in the case of a deceased railway servant. (iii) Sanction to pensionary benefits shall not be delayed pending recovery of any outstanding Government dues. If at the time of sanction, any dues remain unassessed or unrealised the following courses should be adopted: (a) In respect of the dues as mentioned in sub-clause (a) of clause (i) of this sub-rule a suitable cash deposit may be taken from the railway servant or only such portion of the gratuity as may be considered sufficient, may be held over till the outstanding dues are assessed and adjusted. (b) In respect of the dues as mentioned in sub-clause (b) of clause (i) of this sub-rule- (1) The retiring railway servant may be asked to furnish a surety of a suitable permanent railway servant. If the surety furnished by him is found acceptable, the payment of his pension or gratuity or his last claim for pay, etc. should not be withheld and the surety shall sign a bond in Form 2. (2) If the retiring railway servant is unable or not willing to furnish a surety, then action shall be taken as specified in sub-clause (a) of sub-clause (iii). (3) The authority-sanctioning pension in each case shall be competent to accept the surety bond in Form 2 on behalf of the President. (c) In respect of the dues as mentioned in sub-clause (c) of clause (i) the quasi-Government and non-Government dues, such as amounts payable by a railway servant to Consumer Co-operative Societies, Consumer Credit Societies or the dues payable to an autonomous organisation by a railway servant while on deputation may be recovered from the retirement gratuity which has become payable to the retiring railway servant provided he gives his consent for doing so in writing to the administration. (iv) In all cases referred to in sub-clauses (a) and (b) of clause (i) of this sub-rule, the amounts which the retiring railway servants are required to deposit or those which are withheld from the gratuity payable to them shall not be disproportionately large and that such amounts are not withheld or the sureties furnished are not bound over for unduly long periods. To achieve this the following principles should be observed by all the concerned authorities:- (a) The cash deposit to be taken or the amount of gratuity to be withheld should not exceed the estimated amount of the outstanding dues plus twenty-five per cent thereof. (b) Dues mentioned in clause (i) of this sub-rule should be assessed and adjusted within a period of three months from the date of retirement of the railway servant concerned. (c) Steps should be taken to see that there is no loss to Government on account of negligence on the part of the officials concerned while intimating and processing of a demand. The officials concerned shall be liable to disciplinary action in not assessing the Government dues in time and the question whether the recovery of the irrecoverable amount shall be waived or the recovery made from the officials held responsible for not assessing the Government dues in time should be considered on merits. (d) As soon as proceeding of the nature referred to in Rule 8 are instituted, the authority which instituted the proceedings should without delay intimate the fact to the Account Officer.";