CAV Judgment

N.S. Sanjay Gowda, J.

[1] Shri K. V. Damodaran, the deceased husband of respondent Smt. Samjathaben, was issued a charge sheet on 17.02.2004, whereby he was charged with acting with gross negligence and lack of devotion to duty, and with not maintaining proper accounts and ensuring the safe custody of the stores under his charge.

[2] Shri Damodaran challenged the charge sheet by approaching the Central Administrative Tribunal (hereinafter referred to as "the CAT") in Original Application No.196 of 2004, and the said OA was dismissed. The order passed by the CAT was also confirmed by this Court in Special Civil Application No.15789 of 2004 on 29.12.2004.

[3] On 09.03.2005, Shri Damodaran sought voluntary retirement on medical grounds. This was rejected by the Railways, and as a consequence, he challenged the rejection by filing an application before the CAT. The CAT, by order dated 09.03.2005, directed the Railway Administration to refer Damodaran for a medical examination within a fortnight, and the medical board was required to examine him and submit recommendations within six weeks thereafter regarding his medical condition.

[4] Pursuant to the said order, the Railways once again rejected his claim, and he therefore approached the CAT once again in Original Application No.215 of 2005. This application was disposed of on 15.06.2005, directing the Railways to refer him for medical examination within a fortnight and thereafter to take appropriate steps, as it deemed fit, based on the recommendation of the medical board.

[5] On 22.11.2005, the petitioner approached the CAT with a request that he be permitted to retire voluntarily with effect from 31.03.2005. In the meantime, he was declared medically unfit and was permitted to retire. Consequently, he withdrew Original Application No.486 of 2005 but was granted liberty to make a representation for regularization of his absence during the intervening period.

[6] On 12.06.2006, Shri Damodaran approached the CAT once again with a prayer to direct the Railways to release his retirement dues. An interim order was granted by the CAT directing the disbursal of retirement benefits, and the said order was complied with.

[7] Pursuant to the charge sheet that had been issued to him, the disciplinary authority proceeded to impose a penalty of withholding the entire Death-cum-Retirement Gratuity (hereinafter referred to as "the DCRG"). Shri Damodaran was also directed to pay Rs.50,60,416/-, which was stated to be the amount due to the Railways on account of shortage of stock. Shri Damodaran challenged the said order. The Railways thereafter passed a speaking order calling upon Shri Damodaran to deposit a sum of Rs.50,60,416/- within 15 days and also one month's salary towards contribution. This order was challenged by Shri Damodaran in OA No.307 of 2007 before the CAT, and the said application was disposed of with a direction to the Railways to consider the application as a revision petition and to pass an order within a stipulated time frame.

[8] However, before the order could be passed, Shri Damodaran passed away on 17.08.2008.

[9] The revisional authority, before whom the revision was pending, passed an order on 05.01.2009 and imposed a penalty of reduction of DCRG to 50% instead of the earlier order of 100%. This order was challenged before the CAT in OA No.205/2009, but the same was dismissed. Thus, the penalty of reduction of 50% of DCRG for misconduct was passed and confirmed by the CAT, and this order has attained finality.

[10] Thereafter, on 19.11.2012, the Railways directed that the outstanding amount be recovered from the family pension of his widow, Smt. Samjathaben, i.e. the first respondent.

[11] Smt. Samjathaben challenged this order by approaching the CAT in OA No. 507 of 2012. The CAT, by the impugned order, has set aside the order directing recovery from the family pension on the ground that the same was not in consonance with Rule 15 of the Railway Services (Pension) Rules, 1993 (hereinafter referred to as "the Rules").

[12] As a consequence, the Railways are before this Court challenging the order of the CAT.

[13] Learned counsel for the Railways strenuously contended that the CAT could not have passed the impugned order restraining the Railways from recovering a loss, which was a loss to the public exchequer, and the recovery of the amount due was perfectly justified. It was argued that the first respondent, being the widow of the former employee, would be legally bound to clear the outstanding amount of her husband, and the Railways had only sought recovery of the amount from the dearness relief and not from the basic family pension.

[14] The Railways, basically, contended that they are entitled to recover the railway dues from the pensionary benefits on the basis of Rule 15 of the Rules.

[15] At the outset, it is to be stated that Rule 15 of the Rules will be attracted only if the Railways intend to proceed against the railway servant for recovery of its dues. This rule, which enables the Railways to proceed against its employee, cannot be used to proceed against the family pension that is granted to the legal heir of the deceased employee. Rule 15 does not directly or indirectly enable the Railways to proceed against a family pension, and it explicitly states that the Railways can recover only from the dues of the pensionary benefits of the employee. This would, therefore, indicate that the Railways can proceed only against the pension that its former employee was drawing, and this rule cannot be extended to the person who is a legal heir and gets a family pension on a completely different entitlement.

[16] Rule 98 of the Rules provides for the adjustment of government dues or railway dues, and the said rule stipulates the dues that pertain to government accommodation. Sub-rule (2) of Rule 98 reads as follows:-

          "(2) The Head of Office shall, within one month of the receipt of intimation regarding death of a railway servant, take steps to ascertain if any dues as referred to in rule 5 and sub-rule (6) of rule16 were recoverable from the deceased railway servant. Such ascertainable dues shall be recovered from the amount of death-cum-retirement gratuity becoming payable to the family of the deceased railway servant."

[17] As is evident from sub-rule (2), in the event of the death of a railway servant, the dues, if any, referred to under Rule 15 and Rule 16(6), which were recoverable from the deceased railway servant, can be recovered only from the amount of DCRG payable to the family of the deceased. Thus, the rule clearly stipulates that any outstanding dues of a railway servant, including those relating to residential accommodation, can be recovered solely from the DCRG payable to the family of the deceased former servant. The Pension Manual does not contain any provision enabling the Railways to recover any amount from the family pension payable to a member of the deceased employee's family.

[18] It is obvious that reason why no such rule has been provided is that the Railways were conscious of the fact that a legal heirs of an employee cannot be made liable for any dues of the employee. A family pension is granted to enable the surviving legal heirs of the employee to sustain themselves, and it cannot be treated as a money available for recovery to satisfy the dues to the Railways.

[19] As noticed above, the only procedure prescribed for recovery in respect of a deceased former employee is recovery from the DCRG to which the family is entitled. In the absence of any express provision enabling the Railways to proceed against the family pension, the Railways cannot be permitted to recover either the dearness relief or any from the family pension to satisfy or adjust the dues of the deceased railway servant.

[20] The Tribunal was therefore justified in coming to the conclusion that the family pension to which Smt. Samjathaben was entitled to by virtue of her status as a widow, and such family pension cannot be regarded as an estate left behind by the deceased employee. The Tribunal was also justified in coming to the conclusion that this family pension, which Smt. Samjathaben was entitled to receive was immune from any recovery, including the dearness relief, which forms a part of the family pension or from the basic family pension itself.

[21] We are, therefore, of the view that the Tribunal was justified in passing the impugned order, and the petition is accordingly dismissed. Rule is discharged. Interim relief stands vacated forthwith.

[22] If, by virtue of the interim relief granted, any amounts were recovered, the same shall be returned to the respondent herein.

[23] All pending applications stand consigned to records.