- (1.) Heard the writ petitioner in person.
(2.) Assailing the order dated 17th July, 2008 passed in O.A. No. 861 of 2007 by the Central Administrative Tribunal, Calcutta Bench, this writ application has been filed. The impugned order reads such: "1. The applicant who is a retired Judicial Member of the Railways Claims Tribunal, Kolkata has filed this application praying for the following relief: (a) A direction may be given to the respondents 3, 4 to refund and pay to the applicant the amount of the pension of his past service which have been deducted from his monthly salaries paid in the RCT, Kolkata, as his appointment in the RCT, was not re-employment but was fresh appointment under Rule 5(1) of the RCT, (salaries and allowances and other conditions of service of Chairman, Vice- Chairman and Members) Rules 1989 for which he was entitled to receive pension of his past service under Rule 5(2) of the said Rules and his case was not covered by the proviso to Rule 3 of the same Rules which as per Rules of interruption has to be carved out from the main provision of that Rule and is distinct from the provisions of Rule 5(1) & (2). (b) A direction may be given to the respondents 3, 4 and 5 to compensate the applicant for not providing him the service of personal/bungalow peon for the period of his in the RCT, Kolkata from the establishment of the respondent No. 3 at the rate of the monthly salaries of such peon. (c) A direction may be given to the respondents No. 3 & 4 to pay the leave encashment amounting to Rs. 64,888/ (Rupees Sixty Four Thousand Eight Hundred Eighty Eight) only in terms of Rule 6(3) & (4) of the said Rules and as per letter No. RCT/Kol/Pen/ leave salary/76 dated 29.7.05 without any deduction. (d) A direction may be given to the respondent No. 3 & 4 to disburse the RCT's pension to this applicant in terms of Rule-8 of the said Rules and as per letter No. RCT/Kol/Pen/LS/76 dated 6.12.05 of the office of the respondent No. 3. The pension became due from the date of retirement of the applicant from the post of Judicial Member of the RCT, Kolkata and so a direction may be given to those respondent for payment of the monthly pension with interest @ 12% p.a. (e) An order may be passed declaring that Section 10(C) of the RCT Act is void ab-initio and ultra vires Article 13(2) of the Constitution and consequentially this applicant is deemed to be eligible for any further employment under the Govt, or local or other authorities. 2. The grounds on which the relief have been claimed are summed up para-wise as follows: (a) Relief No. 1: The applicant says that the salary of the applicant as Member (Judicial) in Railway Claims Tribunal is reduced by the amount of pension which the applicant was granted in parent department when he took voluntary retirement. The applicant has refuted the contention made by the respondent that Rule 3 of the gazette notification dated 19.9.89 whereby Rules of Railway Claims Tribunal Act were framed, would be applicable in his case. The applicant on the other hand says that he is covered by Rule 5(2) of the Railway Claims Tribunal Rules and is not covered by the proviso of Rule 3 of the said Rules as claimed by the respondent. The applicant says that the provisions of Rule 5(2) are distinct from the proviso to Rule 3 and deal with different categories of appointees. According to the applicant the proviso to Rule 3 is not an integral part of the 'main part' of the Rule and the proviso is applicable to persons including the retired Judge of the High Court who are appointed after retirement on superannuation in their past service. The proviso is not applicable to persons who had to seek retirement from their service before their appointment in the Claims Tribunal as per Rule 5(1). Therefore, according to the applicant, his appointment and salaries etc. are governed by Rule 5(1) & 5(2) and Rule 3 including the proviso is not applicable in his case. Moreover, the applicant contends, proviso to a Rule is not an integral part of the Rule and therefore under no stretch of imagination the applicant will come under the purview of proviso to Rule 3. It is pertinent here to extract Rule 3 including the proviso and Rule 5(1) & 5(2): Rule 3: Provided that in the case of appointment as Chairman, Vice-Chairman or Member of a person who has retired as a Judge of High Court, or who has retired from service under the Central Government or a State Government and who is in receipt of, or has received or has become entitled to receive any retirement benefits byway of pension, gratuity, employers' contribution to a Contributory Provident Fund or other forms of retirement benefits, the pay shall be reduced by the gross amount of pension or pensionary equivalent of employer's contribution to the Contributory Provident Fund or any other form of retirement benefits, if any, drawn or to be drawn by him. Rule 5: (1) The Chairman, a Vice-Chairman or Member who, on the date of his appointment to the Tribunal, was in the service under the Central Government or a State Government shall seek retirement from such service before his appointment to the Tribunal and in the case of a sitting Judge of a High Court who is appointed as Chairman., his service in the Tribunal shall be treated as actual service within the meaning of Sub-clause (b) of paragraph 11 of Part D of the Second Schedule to the Constitution of India. (2) Subject to the provisions of Rule 3, the Chairman, a Vice-Chairman or member shall be entitled to receive pension and gratuity in accordance with the retirement rules applicable to him prior to such retirement. (a) Provided that he shall not be allowed to carry forward his earned leave but shall be entitled to receive cash equivalent to leave salary, if any due, in accordance with the rules applicable to him prior to his retirement. (b) Relief No. 2: The applicant says that the respondent have not disputed that he was entitled to one personal peon as per the conditions of service. He remained in service as Member for over 2 (two) years. For more than a year the respondent slept over the matter and thereafter they decided as per rule no Bungalow Peon/Personal Peon is given to persons having less than 12 months of service in terms of the copy of the CPOE. Rly's letter No. E/891/4/CLN/Policy/99 dated 5.12.04. The applicant says that the respondent messed up the matter and then put up an excuse for not giving him the service of a personal peon. Therefore the fault is entirely that of the respondent and the applicant is entitled to get compensation as prayed for by him in the O.A. (c) Relief No. 3: The applicant says that the respondent have not disputed that Rs. 64,888/- was due to the applicant for leave encashment. The respondent have stated in their reply that memorandum was issued for releasing Rs. 44,888/- deducting Rs. 20,000/- towards excess use of mobile phone and office hired vehicle as per audit observation. However, the amount was not released. The respondent have also not made it clear whether it was due to excess use of mobile phone or of office hired vehicle in a subsequent order it was stated that Rs. 20,000/- was proposed to be deducted from leave encashment due to excess use of office hired vehicle. The applicant says that he was not informed of any proposal to deduct any amount from his dues for excess use of mobile phone and office hired vehicle. The respondent decided to deduct this amount from these dues on alleged excess use of mobile phone and office hired vehicle although of details of particulars have been brought to his notice. The respondent further clarified in their reply that the amount of Rs. 44.888/- also could not be released because in the meanwhile an over payment of Rs. 72135/- was found to have been drawn by the applicant towards Dearness pay merged with pay after its merger with pay and also excess payment of Dearness Pension in the previous service. The applicant has stated very categorically that any payment made on account of previous service of the applicant cannot be a matter of concern to the respondent. The benefit of merger of 50% of Dearness Allowance with basic pay was allowed to the applicant in the Railway Board's circular dated 6.8.04. The applicant has stated that the respondent have not referred to any rule whereby such payment can be treated as excess payment. The respondent have not been able to give, any satisfactory explanation that they have the right to recover the excess payment by the State. (d) Relief No. 4: Regarding delay in finalisation of his pension the respondent says that he is entitled to get pension in terms of Rule 8,of Railway Claims Tribunal Rules. The pension became due from the date of retirement of the applicant from the post of Judicial Member and therefore he prays for a direction to the respondent for payment of the monthly pension with interest. The applicant says that no reasonable and acceptable explanation has been offered by the respondent for holding up the matter. (e) Relief No. 5: The applicant says that Section 10(c) of the Railway Claims Tribunal Act is an inconsistent provision in the Act. It is severable from other provisions of the Act and therefore there is no question of taking the benefit of such an inconsistent provision of the Act. This should be declared void under Article 13(2) of the Constitution. 3. With reference to the above grounds and reasons given by the applicant, we proceeded to see what were the answers provided by the respondent. Regarding Relief No. 1 the contention of the respondent is that the service of the Members of the Railway Claims Tribunal is to be governed by the relevant provisions of Railway Claims Tribunal Rules. It is not that provisions of Rule 3 are meant for retired High Court Judges only, as stated by the applicant and that the applicant's service is governed by Rule 5(1) & (2). The respondent have also rebutted the points made by the applicant that proviso to a Rule is not an integral part of the Rule. On the contrary, the respondent stated that the proviso to a part of the Rule as it clarifies the manner in which the Rule will be applicable in certain given conditions. Therefore in such conditions the main Rule cannot be applied in isolation without the application of the proviso. The contention of the respondent is that Rule 3 including its proviso is applicable in the case of the Member. There was no question of not deducting the pension, drawn from the previous employer, from the salary of the applicant from the Railway Claims Tribunal. 4. Regarding Relief No. 2 the only explanation which the respondent have provided is that the respondent made a good number of correspondence with the appropriate authority regarding the claim for a personal peon by the Member of the Claims Tribunal. When the matter was about to be decided the remaining service of the applicant was less than 12 months and as per the relevant CPO's circular of the Railway Board personal peon could not be granted for the applicant at that stage. Apart from this no other explanation has been provided. 5. Regarding Relief No. 3 it is stated by the respondent that total amount of Rs. 92,135/- (Rs. 72,135/- due to over payment of Dearness pay + Rs. 20,000/- for excess use of office hired vehicle and mobile, phone) has to be adjusted from the dues of the applicant. The dues on account of leave encashment was only Rs. 64,888/-. Therefore the excess amount of Rs. 27,247/- was to be adjusted from the pension and pension relief due to the applicant from the Railway Claims Tribunal. It is further stated by the respondent with reference to both Relief (3) & (4) that decision was taken by the respondent towards payment of Railway Claims Tribunal pension in favour of the applicant. The sanction of the competent authority dated 12.3.08 was communicated to the applicant. The Railway Claims Tribunal, Kolkata also decided that the dues of Rs. 27,247/- should be recovered from the Dearness relief on pension. By this submission the respondent say that grievance regarding delay in payment of pension has been take care of and finally the pension is going to be paid after deducting the dues of Rs. 27,247/-. 6. The response of the response of the respondent to the only other remaining relief i.e. provision of Rule 10 of the Railway Claims Tribunal is that the provision is not inconsistent with the other provisions. It is provided in the Rules keeping in mind the dignity of the Member of the Claims Tribunal. It is also stated by the learned Counsel for the Respondent during oral submission that the Railway Claims Tribunal Act as an act of the Parliament and the Tribunal has no authority to examine the vires of any provision of the enactment by the Parliament. What the Tribunal can do at the most is examine the provisions of subordinate legislations and Rules framed thereunder. Therefore, if the Tribunal is without any jurisdiction in so far as this relief is concerned. 7. We have gone through the submissions and the reasons put forth by the applicant. We have also examined the answer to the definite points made by the applicant. We have also applied out mind to the oral submissions made by the learned Counsel during the hearing. Regarding the dispute of the applicant on the proviso under Rule 3 of the Railway Claims Tribunal Act we hold the view that the Respondent' explanation is tenable and acceptable. On the perusal of the provisions it is clear that provision of Rule 3 does not have an aura of exclusivity. It is not true that persons who would become Members after seeking voluntary retirement from a pervious employer will not come under the purview of Section 3. We also cannot subscribe to the view expressed by the applicant that proviso to a Rule is not an integral part of the Rule. We, therefore, uphold the decision of the Respondent to modify or adjust the amount of salary payable to the applicant as Member of the Claims Tribunal on account of pension drawn by him from the previous service. 8. Regarding the provision of Bungalow Peon we are not satisfied by the explanation given by the Respondent. It is not disputed that the applicant was entitled to persona peon. The Respondent slept over the matter for over one year and only when the remaining service of the applicant fell short of one year, they invoked the provisions of CPOs circular to deny him service of a Bungalow Peon. The applicant, therefore, deserves to be compensated for not being provided with the service of personal peon to which he was entitled. Therefore, we direct the Respondent to compensate him for the same at the rate of the monthly salaries of such peon for the length of his service in the Claims Tribunal. 9. Regarding deduction of Rs. 27,247/- the Respondent' action will justified provided they are able to satisfy the applicant with proper documents as to the excess use of mobile phone and office hired vehicle to the tune of Rs. 20,000/-. We hold otherwise that the respondent are justified in recovering the over payment of Dearness Pay of Rs. 72,135/- from the retiral dues of the applicant. The applicant's contention that the respondent have no right to adjust the amount as the over payment was made by previous employer is not acceptable. However, we do not find enough explanation as to the allegation of excess use of mobile phone and office hired vehicle. The respondent have not stated anything beyond saying that this has been observed by the Audit. The applicant, it appears, has been kept in the dark as to the month, year, etc. of such excess use and the bills pertaining to such excess use. The respondent, therefore, owe the applicant an explanation in the matter. We, therefore, direct that respondent No. 4, Chairman, Railway Claims Tribunal will issue a speaking order in this matter explaining how the respondent will be justified in making recovery of this Rs. 20,000/- from the retirement dues of the applicant. This speaking order should also cite the bills etc. of the period during which such excess use was made. Only after such explanation through a speaking order the respondent will be justified in recovering Rs. 27,247/- from the pension/pension relief due to the applicant from the Railway Claims Tribunal. Unless the respondent decide to offer such explanation only Rs. 7,247/- can be recovered from the retirement dues from the Railway Claims Tribunal. 10. Regarding the applicant's challenge of Section 10(c) of the Railway Claims Tribunal Act we are satisfied with the explanation given by the respondent. Without going into the question whether the provision is inconsistent or consistent with the other provisions of the Act. We hold that this Tribunal does not have the jurisdiction to scrutinize the provision of an Act which is passed in the Parliament as is vested with the Supreme Court or High Court. It is not a rule framed under a statute. 11. With the above directions the O.A. stands disposed of. No order as to costs.
(3.) In the writ application, petitioner has prayed the following reliefs: (a) Issue a writ of Mandamus and/or writ in the nature thereof setting aside and/or cancelling and/or rescinding and/or modifying the impugned order commanding and/or directing and/or compelling the respondent and/or each of the respondent to pay to the petitioner the amount of the pension of his previous service which was deducted from his monthly salaries in the R.C.T. Kolkata and to pay him the leave salary and arrears of pension for the service in the R.C.T. without any deduction and to pay him compensation for not providing him Bungalow/ personal peon as per the order in para 8 of the impugned order forthwith; and to declare that Section 10(c) of the Railway Claims Tribunal Act being inconsistent with other provision of that Act and having being made to take away or abridge the rights conferred by Article 14 and 16 of the Constitution is in contravention of Article 13(2) of the Constitution and is void accordingly. (b) issue a writ of certiorari and/or writ in respect of the nature thereof against the impugned order wherein there are errors on the face of record, commanding the respondent and/or each of them to transmit to this Hon'ble Court the records/Rules/circulars/orders relating to the impugned order for their examination and for quashing the same if found illegal void and contrary to law and far rendering conscionable justice to the parties; (c) Issue writ of prohibition and/or writ in nature thereof prohibiting the Central Administrative Tribunal from acting going beyond its jurisdiction and commanding the respondent and/or each of them not to take any illegal benefit out of the impugned order which is subject to scrutiny in this writ petition; (d) Issue any other writ and/or order and/or direction under Article 226 of the Constitution; (e) Issue Rule NISI interims of prayers (a), (b), (c) and (d) above; (f) Pass ad-interim order against the respondent No. 2 directing him to pay the dues to the petitioner forthwith interims of prayers at (a) above; (g) Pass an order for costs of and incidental to this petition.;