K. Kareem Khan v. Union of India, rep. by Chief Personnel Officer, Southern Railways, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.3.2009CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE M.JAICHANDRENW.P.No.29034 of 2004K. Kareem Khan .. Petitioner vs.1. Union of India, rep. by Chief Personnel Officer, Southern Railways, Chennai.2. Chief Works Manager, Signal & Telecommunication Podanur, Southern Railways at Perambur, Chennai 600 023.3. Senior Personnel Officer, Madras Division, Southern Railway, Chennai 600 003.4. The Registrar, Central Administrative Tribunal, Chennai. .. RespondentsWrit petition filed under Article 226 of the Constitution ofIndia to issue a writ of certiorarified Mandamus to call for therecords pertaining to the order in O.A.No. 747 of 1999 dated20.4.2000 of the 4th respondent and order bearing No.SGW/PCF/KKK,dated 7.5.99 of the 2nd respondent to permit the petitioner to remitthe actual amount of Rs.6,520/- minus his P.F. Subscription amount ofRs.1,036/- (i.e.) Rs.5,484/-) to the respondent and to direct therespondents to include the period of break from 21.1.1956 to 6.8.56and condone the break in service and include the same as qualifyingservice for pensionary benefits and grant all consequential benefits. For Appellant : Mr R. RameshFor respondents : No Appearance https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by P.K.MISRA,J.,)The counsel for the petitioner was heard earlier but, sincethe counsel for the respondents was absent, the matter has beenlisted under the heading 'for orders'. When the matter is calledtoday, there is no appearance on behalf of the respondents.2. The petitioner was serving under the respondents from20.7.1977 to 31.1.1996. Since the petitioner had earlier retiredfrom another service voluntarily on 18.8.1976, there was a requestmade for counting the earlier period for the purpose of pension. Bycommunication dated 25.11.1977, the request of the petitioner totreat the service from 18.8.1976 to 19.7.1977 was approved only forcounting the said period for the purpose of qualifying service forpension. Subsequently, in the course of the communication betweenthe department, it was communicated by a letter dated 26.7.1989 thata sum of Rs.6,520/- should be recovered from the petitioner as thesaid amount had been withdrawn by him at the time of his earliervoluntary retirement. This document is available at page No. 8 ofthe typed set of papers. The petitioner at that stage made a requestto the authorities to recover the amount in instalments as apparentfrom the documents available at page Nos. 9 and 11 of the typed setof papers. Subsequently, by letter dated 11.12.1995, the petitionerwrote to the authorities concerned for issuing an appropriate letterto the Chief Cashier of the Railways to enable the petitioner toremit the entire sum of Rs.6,520/- which had been received towardsthe retirement benefits. This is apparent from the document at pageNo.12 of the typed set of papers. Inspite of all thesecorrespondence, since no concrete steps were taken by theauthorities, the petitioner himself filed O.A.No. 890 of 1996 beforethe Central Administrative Tribunal for issuing a direction to thepresent respondents to pay all retirement benefits after enhancingthe pension by taking into account the entire period of serviceincluding the earlier break-in-service which had already beencondoned by the railway administration. 3. The Tribunal by its order dated 23.7.1998, whilerejecting the contention of the department to the effect that thepresent petitioner was not entitled to the benefit claimed by him,issued the following directions:-" i) The respondents are directed to recalculatethe pensionary benefits due to the applicant, by includingthe period prior to the condoned break also, as qualifyingservice and giving him the benefits thereon as per rules inthis regard. https://hcservices.ecourts.gov.in/hcservices/ ii) Any amount to be refunded by the applicant to theRailways as per rules, should be limited to him and theapplicant should refund them in the time given to him by therespondents".At that stage, the respondents issued the letter dated 25.11.1998,wherein it was indicated that the petitioner was required to pay asum of Rs.53,383/- as on 31.3.1999 together with subsequent interest.Apparently, this amount included a sum of about Rs.47,000/- towardsinterest on the sum of Rs.6,520/- refundable by the petitioner. Thepetitioner made a further representation stating that the claim ofinterest made by the authorities was not justified. However, suchrepresentation having been turned down, the petitioner filed originalapplication and as such original application has been dismissed, thepresent writ petition has been filed. 4. There is no dispute that the order of the Tribunalwhich was based on the earlier order of the Government condoning thebreak in service for the purpose of counting the pension had becomefinal. There is also no dispute that the petitioner was liable torefund the amount which he had received at the time of his earliervoluntary retirement. The petitioner from time to time had indicatedhis willingness to refund such amount in instalments but no reply wassent to him. Subsequently, the petitioner himself volunteered todeposit the entire amount of Rs.6,520/- but there was also noresponse at that stage. Thereafter, only when the Tribunal hadissued a direction for treating the break in service as part of theservice for the purpose of counting the pension, the department cameout with the novel idea of claiming a sum of Rs.47,000/- as intereston the sum of Rs.6,520/- which was payable by the petitioner. Sincethe department had kept quiet for a long period inspite of repeatedletter by the petitioner to pay the amount either in instalments orlump sum, there was no justification for the department to claim anyamount towards interest. As a matter of fact, when all thesecorrespondence were going on between the parties, the petitioner wasstill in service and nothing prevented the department from recoveringthe amount from his salary either in lump sum or in instalments ashas been requested by the petitioner. 5. In these circumstances, we allow the writ petition andquash the impugned order to the extent that the interest has beenclaimed in such impugned order. It is made clear that thepetitioner is liable to pay a sum of Rs.6,520/-. The counsel for thepetitioner submitted that such amount shall be paid by the petitionerwithin a period of two weeks from the date of receipt of the presentorder. On such payment, the retirement benefits of the petitionermust be revised by taking into account the earlier period of break inservice as part of the service for the purpose of calculating thepension. https://hcservices.ecourts.gov.in/hcservices/

6. The writ petition is allowed subject to the abovedirection. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. raTo1. Chief Personnel Officer, Union of India, Southern Railways, Chennai.2. Chief Works Manager, Signal & Telecommunication Podanur, Southern Railways at Perambur, Chennai 600 023.3. Senior Personnel Officer, Madras Division, Southern Railway, Chennai 600 003.4. The Registrar, Central Administrative Tribunal, Chennai. + 1 CC To Mr.R.Ramesh, Advocate SR NO.9484 WP No. 29034 of 2004MA {CO}TP/18.4.2009.