Mubarak Ali Khan vs Union Of India & Ors.

That theapplicant was working in the post of Chowkidar (Ex-M.V Driver, GR-II) in the office of the Respondent No.5 at Cuttack under East Coast Railway in the year 2013.

On 08.03.2013, the Respondent No.4 moved from Cuttack to Bhadrak in the Office Vehicle-Tata Sumo driven by the applicant. The applicant left the Respondent No.4 at Bhadrak and on his direction he moved to Jakhapura with the Vehicle. The Officers from Jakhapura moved in the said vehicle for TSS and station inspection. After inspection the applicant moved to Cuttack in the said vehicle alone being directed by Officer of Jakhapura. While moving to Cuttack on road the applicant met with an accident at Arua. As a result the applicant sustained serious multiple injuries on whole part of his body and facture on his right leg and vehicle was damaged partly.

The applicant was immediately taken to Badachana Hospital by the local people and after getting First Aid there he was transferred to Railway Hospital, Cuttack for treatment. The applicant's injuries being serious in nature he was referred to S.C.B. Medical College & Hospital by the railway doctor for treatment.

During treatment, the applicant being asked by the Respondent No.5 to submit a detail statement of accident, he submitted the same to the Respondent on 10.03.2013 giving details of occurrence.

It is material to state here that, the department did not lodge any report before police and he was also instructed by Respondent No.4 not to lodge any report before the Police because it will take more time to release the vehicle from police custody.

It is material to state here that, in course of treatment, the applicant was called for by Respondent No.4 & told him that estimate for vehicle repairing given by TATA Show-room on 12.03.2013 is Rs.2,17,025.00 and the Insurance Company will pay Rs. 1,75,000/- and the rest amount of Rs.37,025/- was not be paid by Railway. The Respondent No.4 talked to Respondent No.3 over telephone about adjustment of the rest amount and told the applicant that the Respondent No.3 will adjust Rs.10,000/- and how much amount the applicant will want to pay, the same should be given on writing. Rest amount will be adjusted from other heads. As per direction, the applicant gave on writing in Odia on 30.04.2013 that he will pay Rs. 10,000/-after getting the same on loan as he was running with acute financial hardship due to huge expenditure on his medical treatment.

Again on the same day, the applicant was called for by the Respondent No.4 and told him that his proposal was not accepted by Respondent No.3 and that if he will pay Rs.27,025/-then no D & A action will be taken, otherwise he would be put in difficulties. Thereafter, the Respondent No.4 got a letter typed in his office computer and asked the applicant to sign on it and the applicant being afraid of put his signature on good faith without going through the letter as it was written in English. The vehicle was repaired and payments towards repairing cost was made by the Insurance Company and the Department.

That the applicant is a low paid employee and to recover from accidental injuries, he spent about Rs. 70,000/- towards medicine, different tests and diagnosis by incurring loan from his kith and kins.

After two months 7 days prolonged treatment, the applicant was declared fit on 15.05.2013 by Railway Doctor and the applicant resumed his duty. But the applicant has suffered a lot both physically and financially. Due to non-reporting of the accident by the Railway Authority to the police, the applicant could not able get temporary disabled benefits.

The period of medical treatment has been treated as injured on duty (IOD) but no medical expenses was paid to him eventhough he was referred by Railway Medical to S.C.B. Medical College & Hospital, Cuttack for treatment.

While the matter stood as such the applicant received a copy of a letter/order No. EI/TRD/KUR/G-03/2014/1178 Dt.24.03.2014 issued by the Respondent No.3 to Sr. Divisional Personnel Officer (Bills), East Coast Railway, Khurda Road to recover a sum of Rs.81,425/- from the salary of the applicant as per suitable installment towards repairing charges of accident vehicle No.OD-05-B-2880 (Tata Sumo) for his responsible.

It is humbly submitted that the applicant on receipt of the copy of the above letter submitted a representation dt.12.05.2014 to Respondent No.3 which copies were forwarded to Sr. Divisional Personnel Officer (Bills) and Sr. DFM, E.Co. Railway, Khurda Road stating the detail fact as has been stated at Paragraph-4-6 of this application and requested to cancel / withdraw the order dt.24.03.2014.

The Respondent No.3 has not considered the representation of the applicant and the bill section deducted an amount of Rs.1425/-, Rs.5000/, Rs.5000/- from the salary of the applicant for the month of April, May and June, 2014 respectively towards Misc-Rec as has been directed by the Respondent No.3.

That as the representation dt. 12.05.2014 of the applicant has not been considered by the concerned authority, the applicant approached this Hon'ble Tribunal in O.A. No.596/2014 by challenging the illegal and arbitrary action of the Respondent No.3 in recovering the amount spent on repairing of the accidental vehicle.

That it is humbly submitted here that the Hon'ble Tribunal has been pleased to disposed of the said O.A. on 01.08.2014 in directing the Respondent No.3 to consider the representation and communicate the decision thereof to the applicant through a reasoned and speaking order within a period of 30 days from the date of receipt of the order and no recovery shall be effected from the salary of the applicant till representation is decided by the authority.

That the Respondent No.3 received the order dt.01.08.2014 of the Hon'ble Tribunal on 12.08.2014 and did not dispose of the representation of the applicant within the time specified by the Hon'ble Tribunal. Rather the said Respondent intentionally caused delay and continued to recover the amount from salary of the applicant for the month of August & September, 2014 by violating the direction of the Hon'ble Tribunal. For the violation of the Hon'ble Tribunal's Order dt.01.08.2014, the appiciant has filed a contempt petiton bearing C.C. No.58 of 2014. After consuming more than three months time, the Respondent No.3 rejected the representation of the applicant on 22.11.2014 arbitrarily and illegally. Later on the Respondents paid back the amount deducted from the salary for the month of August and September, 2014. Accordingly the contempt petition was dropped.

That after rejection of the representation dt. 12.05.2014, the applicant finding no other alternative remedy approached this Hon'ble Tribunal by filing an original application bearing O.A. No.18 / 2015 in challenging the order dt.24.03.2014 and order dt.20.11.2014 of the Respondent No.3 on the ground that, there was no fact finding enquiry against the applicant and alleged suomotto admission of the applicant to pay the balance amount of repairing charges of the departmental vehicle.

That, the Respondents, in their counter filed in O.A. No.18/2015 have pleaded that a fact finding enquiry was conducted and responsibility was fixed on the applicant for causing the accident due to rash and negligent driving and also causing loss to the Railway Administration by damaging the vehicle and he also gave in writing to bear the balance amount i.e. Rs.81,425/- for repairing of the damaged vehicle on his own volition. A copy of the said so-called undertaking of the applicant also appended as Annexure-R/2 to their counter affidavit. It is also pleaded that, considering the applicant's written application and taking lenient view in the matter as the applicant was about to get promotion and had suffered physically, no D & A action was taken. The above contention of the Respondents have been denied by the applicant in its counter-rejoinder in the said O.A.

That, it is humbly submitted that, this Hon'ble Tribunal, after pleadings were completed heard the O.A. No. 18/2015 and disposed of the same on 23.04.2021 and reminded back to the Respondent Authorities for consideration of the representation of the applicant dt. 12.05.2014, with observation that the so-called preliminary enquiry does not have any importance as the same was made behind the back of the applicant and without the knowledge of the applicant. Further the Hon'ble Tribunal observed that a mere fact that the applicant was expecting promotion cannot be ground by itself to sustain liability on him to pay the balance amount towards repairing the damaged vehicle. Further direction was given to the Respondents to come to a specific finding on the basis of material available on record and further it is to be produced by the applicant in the background and circumstances of the case as to whether the applicant by himself has given an undertaking vide Annexure-R/2 out of his own volition, toward any compulsion or coercion on his part.

That, on receipt of the copy of the order dt.23.04.2021, the applicant sent the same with a forwarding letter dt.08.06.2021 with request to Respondent No.3 to take necessary steps in the matter. The Respondent No.3, with scant regard to the observation and direction made in the order dt. 23.04.2021 of this Hon'ble Tribunal, passed the order on 07.07.2021 illegally and arbitrarily by confirming its order dt.24.03.2014.

That, the contention of the Respondent No.3 in its order dt.07.07.2021 are similar to its previous order dt.20.11.2014. Sitting in the chamber, the Respondent No.3 passed the impugned order without calling for the applicant for hearing in the matter nor made any enquiry / query with regard to the so-called letter dt.30.04.2013 alleged to have written by the applicant which is total disregard to the observation of the Hon'ble Tribunal in its order dt. 23.04.2021. The Respondent No.3 have taken the fact finding enquiry into consideration, when the Hon'ble Tribunal gave finding that he does not give any importance to the so-called fact finding enquiry made behind back of the applicant and without knowledge of the applicant. It is a fact that, the applicant had never given such a letter dt.30.04.2013 to pay the balance amount after deducting the amount paid by the Insurance Company from total repairing cost, The contention of the Respondent No.3 that with due consent of the applicant, the order was issued on 24.03.2014 for recovery of the balance of the balance amount of Rs.81,425/-, is false and hence denied. As already stated earlier, the Respondent No.4 to sign on it or otherwise strict disciplinary action will be taken against him. The applicant being a low paid employee and afraid of disciplinary action was compelled to sign on the computer typed paper i.e. Annexure-A/9. It is denied that the applicant out of his own volition agreed to pay the balance amount of Rs.81,425/-. If the Respondents could have lodged the F.I.R. before the Police, availability of Truck and Two-wheeler could have been traced out by the Police in their investigation. But the Respondents did not lodge the F.I.R.

The letter / order dt.07.07.2021 and dt.24.03.2014 passed by the Respondent No.3 as at Annexure-A/4 & A/11 are illegal, arbitrary. contrary rules in vogue and in violation of principles of natural justice.

That, the applicant tried to show that the applicant was seriously injured and the vehicle was partly damaged which is false. The vehicle was badly damaged. The applicant was injured but not so serious otherwise he could not attend Badachanna hospital and SCB medical Out door facility. Rather he would be admitted in hospital.Hence, the averment used by the applicant that he was seriously injured seems not justified.

That, in regard to the averment made at Paragraph 4.4 of the OA it is humbly submitted that as per prevailing system a preliminary inquiry/ fact finding inquiry is conducted after any accident. Accordingly in the instant case the procedure is followed.SSE/OHE/CTC was advised to conduct a preliminary inquiry which was conducted on Dtd. 10.03.2013. As the applicant was in home & not admitted in hospital the statement of the applicant was recorded.

That, in regard to the averment made at Paragraph 4.5 of the OA, it is humbly submitted that SSE/OHE/CTC immediately visited the site and found that the vehicle was fallen down into the road side culvert and the vehicle neither hit anybody nor anybody hit the vehicle. Hence, FIR against whom Railway had to lodge.The contention of the applicant that Respondent No.4 instructed him not to lodge FIR is totally baseless and false and not borne out of record.

That, in regard to the averment made at Paragraph 4.6 of the OA it is humbly submitted that the applicant gave in writing in his volition that he will bear the balance amount of Rs.81,425/- of the repairing cost. He was never threated by Respondent 4 as alleged. It is a false and baseless allegation. Threatening is a serious crime and legal action can be taken approaching Police Station.The contention made that the applicant did not understand the meaning of the letter as it is written in English and he put his signature in faith is not acceptable. The reason for this are

The applicant is well educated. The applicant has passed 9th standard in 1983.

It is to mention here that the applicant had submitted many document in English.

He statement was not written in bewildering English language.

The repairing cost of the vehicle was Rs.2,17,025/- out of which the insurance company had borne Rs.2,10,000/- and the balance amount has to be paid by the applicant. D&A Rule-1968 of Indian railway says that "Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government or Railway Administration by negligence or both. Hence, Railway administration processed for the amount from the employee.

That, it is humbly submitted that the applicant was taken to SCB Medical College which is Govt. Hospital by the recommendation of the Railway Doctor. The applicant had availed all the facilities from Railway Administration while he was under treatment including the duty pay as he was treated Injured on Duty.The applicant is eligible to get back the amount he spent for his treatment through reimbursement as per the existing provision,

That, it is humbly submitted that the applicant had not partial or total disability due to the accident. The applicant has completely recovered from injury after accident.In reply to recovering the compensation amount it is to state that, the applicant did not state any vehicle number of Truck or Bike for which the accident occurred. Hence, the question for recovering the compensation does not arise.

That, it is humbly submitted that the applicant was a Railway Servant and Railway organization has tie-up with several private medical including S.C.B Medical College, Cuttack for medical treatment of its employee. Railway Organization had borne all the cost of the medical expenses of the employee.The applicant did not claim through medical reimbursement to the Railway hospital of the amount borne by him during his treatment. Hence, the averment made in the rejoinder that "Railway organization did not pay any medical expenses to him" does not arise.

That, it is humbly submitted that as per the consent given by the party for payment of the rest amount of the repairing, it was written to Sr. Divisional Personnel Officer (Bills), East Coast Railway, Khurda Road to recover a sum of Rs.81,425/- from the salary of the applicant in easy installment.

That, it is humbly submitted that after going through the report of fact finding submitted by SSE/OHE/CTC it was cleared that the accident had happened due to rough and negligence driving of the party. So he was responsible for this accident. Hence, the representation of Sri M.A.Khan of dtd. 12.05.2014 has been disposed of and the applicant request to cancel/withdraw the order dtd.24.03.2014 regarding deduction of Rs.81,425/-from his salary has been rejected.

That, it is humbly submitted that as the party held responsible for the accident, his representation was rejected. As the party was a low paid employee it was decided by Railway administration to recover the amount of Rs.81,425/- from his salary through easy installment and as a result of which Rs.1425/-, Rs.5000/- & Rs.5000/- was recovered from the salary. However, as per the direction of the Hon'ble court the same was refunded to the party.

That, it is humbly submitted that the applicant approached before Hon'ble CAT/CTC vide OA No.596/2014 against the decision of the administration.The contention made that the action of the Respondent No.3 was illegal and arbitrary is totally false and baseless. Railway administration observed that the applicant was responsible for the accident due to which Railway organization TRON had sustained financial loss. Hence, Railway administration decided to recover the amount.

That, it is humbly submitted that as per the direction of the Hon'ble Tribunal Railway Administration had taken into consideration the appeal of the applicant of dtd. 12.05.2014 and accordingly the speaking order was issued to the applicant on 20.11.2014.

That, it is humbly submitted that immediately after the receipt of the order of this Hon'ble Tribunal, Respondent No.3 started the process for complying the direction. But unfortunately due to some oversight while the matter was processed for getting the opinion of higher-ups in the hierarchy of the administration, inadvertently the office of the Deponent has failed to stop the recovery from the salary of the applicant for the month of Augsut-2014, Septemeber-2014 & October-2014. However, immediately after the matter came to the notice of the deponent, the recovery was stopped and the Respondent 3 tendered unconditional apology and requested the Hon'ble Tribunal to accept it. Moreover, the recovered amount was repaid to the applicant in the month of November-2014.

That, it is humbly submitted that the applicant approached before Hon'ble Tribunal for cancellation of the Order of the Respondent of dtd.24.03.2014 & 20.11.2014 vide OA No.18/2015 which was disposed on dtd.30.04.2021.

That it is humbly submitted that as already stated above that the applicant initially given in writing for payment of the balance repairing cost and later on when once deduction was started, the applicant approached before Hon'ble Tribunal to escape from the same.As per the D&A Rules 1968, Railway administration can recover the partial or full amount of the losses to Railway. Accordingly. Railway organization initiated to recover the amount.The applicant was to be promoted to Tech-l which was to be implemented from 01.11.2013. Hence, the applicant very cunningly escaped from D&A by giving undertaking for payment of the partial repairing cost.

That, it is humbly submitted that Hon'ble Tribunal on his order dtd.23.04.2021 to OA No.18/2015 directed the respondent to reconsider the representation of the applicant. Accordingly Respondent-3 had gone through the entire case file and passed the order. Respondent-3 disposed the representation with regretting the relief sought by the applicant. Respondent-3 passed the order dtd.07.07.2021 after going through the available records and documents in the office. That, it is humbly submitted that it is totally fabricated story created by the applicant that the letter got typed at the office of the Respondent-4 and the applicant signed being threated.The applicant tries to escape from the payment of the partial repairing cost by stating the above.

That, it is humbly submitted that the fact finding inquiry was conducted taking the written statement of the applicant.Hence, the contention of the applicant that the fact finding inquiry was conducted behind the back of the applicant was totally false & baseless.That, it is humbly submitted that the applicant was not admitted in the hospital. When the fact finding inquiry was conducted on 10.03.2013, the applicant submitted the written statement. Hence, the contention of the applicant that no fact finding inquiry was conducted is totally false and baseless.

That, it is humbly submitted that as per the contention of the applicant he applied the break from the left side truck due towhich the vehicle slipped which proves that he vehicle was in speed otherwise it could be stopped when the applied the brake. Hence, the contention of the applicant that for such accident when the applicant has no contribution is totally false and baseless. It is due to the drivers fault and speed driving the new departmental vehicle got damaged.

That, it is humbly submitted that the applicant had understood that the balance repairing cost is Rs.81,425/-. Hence, his appeal for depositing Rs.10,000/- for the repairing cost was not acceptable. The fact is that when the applicant realized that due to his faulty/reckless driving the new vehicle was damaged and action may be initiated against him due to loss of Railway property, the applicant requested administration not to take any D&A action and given consent for payment of the balance amount. There was no pressure on the applicant.The applicant is well educated employee. He could complain against the higher authority of Railway Administration or Local police for any illegal/forceful action by Railway authority which he did not do.

That, it is humbly submitted that the then Respondent 3 immediately directed the SSE/PSI/CTC to go to the site and make one inquiry about the incident. SSE/PSI/CTC along with staff rushed to the accident site and SSE/PSI/CTC submitted the report which is placed as R/7 for your perusal. After then the fact finding inquiry was As the applicant was not admitted in the hospital, he was in home. He submitted the written statement to the fact finding inquiry committee after which Fact finding inquiry committee submitted his report wherein the applicant was found guilty.That it is very strongly denied that Railway Administration said the applicant not to lodge FIR also there is no documentary evidence to prove it. It is the contention of the applicant only to escape from the depositing of damage cost. After the accident the applicant informed the office staff as well as to his relatives through his phone whereas he did not made call to police station about the incident. Moreover, the applicant was not admitted in the hospital. He could approach the police station for this incident what he did not do. The relative person of the applicant, who was present there, did not state that the vehicle met with the accident due to any other person. Railway administration did not lodge any FIR to save the applicant from any other harassment. Moreover the vehicle was breakdown vehicle which is very essential for day to day maintenance. Hence, keeping in view all the above aspects the accident vehicle was shifted to the show room for repair.

That, the applicant was a Railway Servant and Railway organization has tie-up with several private medical including S.C.B Medical College, Cuttack for medical treatment of its employee. Railway Organization had borne all the cost of the medical expenses of the employee. The applicant did not claim through medical reimbursement to the Railway hospital of the amount borne by him during his treatment. Hence, the averment made in the rejoinder that "Railway organization did not pay any medical expenses to him" does not arise. That, no inquiry is conducted on the basis of so-called declaration" is totally false, hence, denied. A fact finding inquiry was done on 10.03.2021 where in Senior Supervisor and other officials participated. And in the inquiry it is found that the applicant is responsible for the accident. Hence, there was no dispute in the inquiry.

That, it is humbly submitted that i. The applicant Sri M.A. Khan was always provided with chance to prove his innocence. Hence, Article 14 & 16 of the Constitution of India provides for equality before the law or equal protection of the laws within the territory of India is not violated. ii. Respondent has no personal agony with the applicant. Due to faulty drive of the applicant the accident occurred. Hence, Respondent tried to recover the amount of balance repair cost from the employee. Employee had never told the applicant to deposit the total repair cost nor had taken any Disciplinary Action against the employee. Hence, Article 21 of Constitution of India: Protection of Life and Personal Liberty" is not violated.

That, it is humbly submitted that the applicant was responsible for the accident due to which Railway had sustained financial loss. The breakdown allowance is meant for normal maintenance of the vehicle and not for that vehicle which was damaged by the applicant due to his reckless and careless driving which was proved during fact finding inquiry. As per the D&A Rules 1968, Railway administration can recover the partial or full amount of the losses to Railway. Accordingly, Railway organization initiated to recover the amount.