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Judgment
ORDER
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following specific reliefs:
(i)That the Hon'ble Tribunal may graciously be pleased to pass an order declaring to the effect that whole action of the respondent No.2 & 3 re-casting the leave record of the applicant during the period between 2.10.87 to 31.12.99 by the impugned statement dt.20.7.2017 is illegal, arbitrary and against the law and consequently, pass an order of quashing the same with further direction to the respondents to release the leave encashment of the applicant after taking into account the 180 LAP and 80 HAP during the period from 2.10.1987 to 31.12.1999 along with other LAP & HAP of reaming period as per the leave record with arrears and interest @ 12% PA from the date of retirement till the date of payment.
(ii)Any other relief which the Hon’ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
Briefly stated, the facts of the case are that the original applicant, Late Shri Ram Singh Rawat, was initially appointed on 02.10.1987 to the post of Assistant Station Master in Northern Railway, Bikaner Division. Subsequent to the establishment of the new Zonal Railway w.e.f. 01.04.2003, the Bikaner Division was transferred under the North Western Railway, whereas the applicant remained deployed under the Delhi Division of Northern Railway. He eventually superannuated on 31.07.2019 from the post of Station Superintendent while posted at Delhi Cantt Railway Station. The grievance of the applicant stems from the non-transfer of his leave account for the period 02.10.1987 to 31.12.1999 from the Bikaner Division to the Delhi Division, despite repeated representations submitted on 08.04.2016, 15.09.2017 and 05.02.2018. Upon his superannuation on 31.07.2019, Respondent No. 2 issued an impugned recasting leave statement dated 26.07.2017, deciding that "No leave credit will be given for the leave account not available for 2.10.87 to 31.12.99", primarily on the ground that there were 249 days of Leave Without Pay (LWP) recorded in his account.
During the pendency of the present proceedings, the original applicant passed away, and his legal heir, Smt. Mamta Devi (wife), was duly substituted to pursue the claim.
Having considered the rival contentions and perused the record, it is observed that the Railway Board Circular RBE No. 5/93 dated 13.01.1993 explicitly provides comprehensive guidelines for recasting missing leave accounts. For the sake of clarity, the RBE Circular No. 5/93 dated 13.01.1993 is reproduced as under :
R.B.E. No. 5/93
Subject: Recasting of leave accounts of the employees whose leave accounts reported to be missing.
No. E(G)91 LE1-3, dated 13.1.1993
During the meeting of DC under the JCM scheme held on 5/6.9.1991, when the question about recasting of leave accounts of the Railway employees whose leave accounts are reported to be missing was raised, it was explained that the matter is being examined in consultation with the Railway Administrations.
The matter has accordingly been examined and it is considered that in cases of a part of leave account being lost, the balance brought forward, as indicated in the part leave account still available, should not be ignored but should be accepted as authentic and the cumulative balance worked out on the basis of the same. In other cases of missing leave accounts these can be reconstructed on the basis of leave account charts, pay bill ledgers, service register entries, office orders on leave, the employee's own statement, muster rolls, absentee statements etc. Provisions contained in Rule 1019-1021 of MRPR* are also relevant.
The practice being followed by Eastern Railway appears to be satisfactory. A copy of letter No. E.637/0/Pt. II dated 5/17.9.1991 is therefore enclosed for guidance. There is also a practice that leave at credit as on 1st January and also as on 1st July is advised to all the employees which may also be followed.
Attention is also invited to the general instructions issued vide letter No. E(G)83 LE1/3 dated 30.6.1989. The Railway Ministry desire that these instructions be followed rigidly so that the difficulties being faced by the Railway employees particularly at the time of retirement, are avoided.
ENCLOSURE
Copy of Letter No. E.637/0/Pt. II, dated 5/17.9.1991 from Eastern Railway
Subject: Recasting of leave account of the employees whose leave accounts are reported to be missing.
Reference:
(1)Board's letter No. E(G)91 LE1-3 dated 09.08.1991.
(2)Board's letter No. E(G)91 LE1-3 dated 26.08.1991.
The issue has been examined and this railway has the following recommendation to offer.
1.From the incremental stages since appointment it is to be ascertained whether there was any LWP or period(s) which do not qualify for earning leave viz. suspension, dies-non for etc. If there is any period of LWP for more than 2 (two) days at a stretch, it should be assumed that the leave account bears no credit on that date.
2.The length of service after that date or if there is no such LWP from the date of appointment, leave that would have been earned upto the date of missing of the leave record should be calculated. While calculating the leave earned, it should be seen that the balance of leave (Leave on Average Pay) on that date is not more than 180/240 days as the case may be.
3.To ascertain the quantum of leave taken, the following procedure should be adopted.
Leave (LAP) taken during the 5 (five) years from the date the leave record is available should be totalled up and divided by 5 (five) to find out the yearly average of LAP taken. Applying this factor in the number of years of service upto the date for which the leave records are lost, the quantum of leave that might have been enjoyed can be worked out.
The difference of 2 and 3 above will give the balance of LAP upto the date the leave record is not available. Balance so arrived at should be recorded as balance brought forward from the date leave record is available in the leave account, which should be attested by one Accounts Officer and one Personnel Officer/Leave record maintaining officer. Thereafter, the leave upto the date of retirement or the date of such attestation, as the case may, should be updated.
Sd/-
for General Manager
Furthermore, the Hon’ble High Court of Delhi in Union of India & Ors. v. J.R. Dhiman (W.P.(C) No. 7992/2012, decided on 14.05.2013) has firmly settled that the Railway administration, being the custodian of service records, cannot take advantage of its own failure in maintaining records. It was held that penalising an employee for missing leave records by adopting irrational methods of recasting is impermissible under law.
In view of the settled principles of law, the governing circular RBE No. 5/93 dated 13.01.1993, and the dictum laid down in J.R. Dhiman (supra), this Original Application is disposed of with a direction to the respondents to recalculate/re-cast the leave account of Late Shri Ram Singh Rawat for the period from 02.10.1987 to 31.12.1999 strictly in accordance with the applicable rules and the governing circulars. If, upon such recalculation, any balance leave encashment benefits are found admissible, the Respondents shall release the balance amount to the substituted applicant, Smt. Mamta Devi, within a period of three weeks from the date of receipt of a certified copy of this order.
Pending MA, if any, also stands disposed of. There shall be no order as to costs.