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2008 Supreme(Pat) 1549
PATNA HIGH COURT
R.M.Lodha and Kishore K.Mandal JJ.
General Manager, East Central Railway, Hajipur
Versus
Central Administrative Tribunal, Patna Bench, Through Registrar
Civil Writ Jurisdiction Case No. 6609 of 2006 ;
Decided On : OCTOBER 22, 2008
The recovery of penal rent from retiral benefits should be in accordance with the principles of assessment of damages as prescribed under the Act of 1971, and should involve prior show cause notice and opportunity before recovery.
Headnote:
Railway - Recovery of Penal Rent - Railway Services (Pension) Rules, 1993, Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - The judgment discusses the recovery of penal rent from retiral benefits of a retired railway employee. The court analyzed the Railway Services (Pension) Rules, 1993 and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to determine the legality of the recovery. The court found that the rules did not provide for the determination of penal rent, and the recourse should have been taken under the Act of 1971 for such determination. The court also referred to the Supreme Court's observations on the recovery of penal rent, emphasizing the need for prior show cause notice and opportunity before recovery. The court upheld the Tribunal's decision and dismissed the writ petition.
Fact of the Case:
The respondent, a retired railway employee, continued to occupy an official quarter after retirement. The railway authorities deducted Rs. 29,613 as penal rent from his retiral benefits. The Tribunal held the recovery of penal rent as bad in law.
Finding of the Court:
The court found that the Railway Services (Pension) Rules did not provide for the determination of penal rent, and the recourse should have been taken under the Act of 1971 for such determination. The court also emphasized the need for prior show cause notice and opportunity before recovery. The court upheld the Tribunal's decision and dismissed the writ petition.
Issues: Recovery of penal rent from retiral benefits, legality of the recovery under Railway Services (Pension) Rules and Act of 1971, need for prior show cause notice and opportunity before recovery.
Ratio Decidendi: The rules did not provide for the determination of penal rent, and the recourse should have been taken under the Act of 1971 for such determination. The recovery of penal rent without prior show cause notice and opportunity was not justifiably sustainable.
Final Decision: The court upheld the Tribunal's decision and dismissed the writ petition.
1. The Railway authorities have filed this writ petition aggrieved by the order dated 12th August, 2005 passed by the Central Administrative Tribunal, Patna Bench, Patna to the extent it declared that order of recovery of Rs. 29,613/- towards penal rent from retiral benefits was bad in law.
2. The controversy arises from the facts which may be noticed first Subhadra Jha (respondent no. 2) retired from the post of Commercial Superintendent, North Eastern Railway, Sonepur Division on 31st January, 1995. Even after his retirement, he continued to occupy the official quarter which was given to him during the service. While settling his retiral dues, the amount of Rs. 29,613/- was deducted on account of damages for unauthorised occupation of the Railway quarter after his retirement. We need not refer to the facts with regard to the stoppage of increment, non-payment of pension at the pay last drawn by him and the salary for unutilized leave etc. as these aspects which were in issue before the Tribunal, are not for consideration before us in the writ petition. The Tribunal relied upon the decision of the Supreme Court in the case of Gorakhpur University and Others V/s. Dr. Shitla Prasad Nagendra and Others, (2001)6 Supreme Court Cases 591, and held that penal rent could not be recovered from the retiral dues and that recovery of Rs. 29,613/- towards penal rent was bad in law. As noticed above, it is only this part of the order that is challenged in the present writ petition.
3. Rule 15 of the Railway Services (Pension) Rules, 1993 makes a provision for recovery and adjustment of Government or railway dues from pensionary benefits which read thus:
"15. Recovery and adjustment of Government or railway dues from pensionary benefits. (1) It shall be the duty of the Head 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 remain outstanding till the date of retirement or death of a 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 licence fee, if any;
(b) dues other than those pertaining to railway or Government accommodation, namely balance of housebuilding or conveyance or any other advance, over-payment 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) loses (including short collection in freight charges, short-age in stores caused to the Government or the railway as a result of negligence or fraud in the part of the railway servant while he was in serve;
(b) other Government dues such as over-payment 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 Pensions 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 reti
