om:102-cl-2020-Aug — Applicant is held responsible for loss of Railway stores to the tune of &#x20B9 76,13,479.13 for the year 1995-96 and hence his DCRG is withheld. That recovery is in violation of judicial pronouncements brought out in the judgment and hence the recovered amount shall be refunded

Applicant is held responsible for loss of Railway stores to the tune of &#x20B9 76,13,479.13 for the year 1995-96 and hence his DCRG is withheld. That recovery is in violation of judicial pronouncements brought out in the judgment and hence the recovered amount shall be refunded — O.A. No. 350/820 of 2017: Case involving an applicant held responsible for loss of Railway stores worth Rs 76,13,479.13 in 1995-96, withheld DCRG and the illegality of recovery due to violation of ju... — Facts:Applicant is held the charge of stores, through shortage pertaining to 1995-96 which was deducted as per report submitted on 21-9-2016. Applicant pleaded that there is nothing in the report to make shortage attributable to the Applicant due to his negligence. A departmental enquiry was to be conducted before holding the Applicant guilty invoking Rule 9 of the Railway Servants (D & A) Rule, 1968. But unilaterally Applicant is held responsible for negligence and misappropriation of huge quantity of Railway stores thereby have acted illegally and against the fundamental principles of natural justice. It is also well settled that gratuity is a part of pension and the gratuity in part or full could have been withheld only if the Applicant was found guilty of misconduct or negligence during the service period. Such right is also vested with President of India as per Rule 9 of Railway Pension Rules. Gratuity is earned due to dint of service which is a part of pension. In support, Applicant placed reliance on the judgment of Prabir Kumar Chandra v. Union of India and others [ O.A. No. 431 of 2011 ].

The issue cropped up for determination in this OA is therefore, the legality and propriety of impugned order and the manner in which the entire gratuity has been withheld permanently.

Tribunal examined O.A. No. 913 of 2008 where an Office Order, dated 28-10-2013 issued by the Senior Divisional Engineer II, Eastern Railway, Howrah holding the Applicant solely responsible for the shortage of the rail as reflected in the stock sheets of 1998-99 was assailed. Paras. 12, 13, 14, 15 and 16 of the OA is reproduced and also held Respondents will be free to institute disciplinary proceedings as per Railway Servants (D&A) Rules on those found responsible. Two judgments in O.A. No. 426 of 2011 and O.A. No. 189 of 2013 is produced for similar treatments, other those similar cases are also quoted.

In the case of recovery from retiral benefits, the Tribunal quoted the case of State of Punjab and others v. Rafiq Masih (Whitewasher and others) reported in 2015 (2) SCC ( L & S) 33.

In the case of Shyam Babu Verma v. Union of India [1994 (2) SCC 52], Para. 11, it was ordered that no steps should be taken to recover or adjust any excess amount paid to the petitioners therein due to the fault of the Respondents, the Petitioner being in no way responsible for the same. Similar two other cases are quoted.

"Summarizing the following few situations, where recoveries by the employees, would be impermissible those situations are quoted: Primarily

(i) Recovery from the retired employees or the employees who are due to retire within one year of the order of recovery and

(ii) Recovery from employees, when the excess payment has been made for a period in excess of 5 years, before the order of recovery is issued."