IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.3.2009 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.29034 of 2004 K. 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. .. Respondents Writ petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified Mandamus to call for the records pertaining to the order in O.A.No. 747 of 1999 dated 20.4.2000 of the 4th respondent and order bearing No.SGW/PCF/KKK, dated 7.5.99 of the 2nd respondent to permit the petitioner to remit the actual amount of Rs.6,520/- minus his P.F. Subscription amount of Rs.1,036/- (i.e.) Rs.5,484/-) to the respondent and to direct the respondents to include the period of break from 21.1.1956 to 6.8.56 and condone the break in service and include the same as qualifying service for pensionary benefits and grant all consequential benefits. For Appellant : Mr R. Ramesh For 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, since the counsel for the respondents was absent, the matter has been listed under the heading 'for orders'. When the matter is called today, there is no appearance on behalf of the respondents. 2. The petitioner was serving under the respondents from 20.7.1977 to 31.1.1996. Since the petitioner had earlier retired from another service voluntarily on 18.8.1976, there was a request made for counting the earlier period for the purpose of pension. By communication dated 25.11.1977, the request of the petitioner to treat the service from 18.8.1976 to 19.7.1977 was approved only for counting the said period for the purpose of qualifying service for pension. Subsequently, in the course of the communication between the department, it was communicated by a letter dated 26.7.1989 that a sum of Rs.6,520/- should be recovered from the petitioner as the said amount had been withdrawn by him at the time of his earlier voluntary retirement. This document is available at page No. 8 of the typed set of papers. The petitioner at that stage made a request to the authorities to recover the amount in instalments as apparent from the documents available at page Nos. 9 and 11 of the typed set of papers. Subsequently, by letter dated 11.12.1995, the petitioner wrote to the authorities concerned for issuing an appropriate letter to the Chief Cashier of the Railways to enable the petitioner to remit the entire sum of Rs.6,520/- which had been received towards the retirement benefits. This is apparent from the document at page No.12 of the typed set of papers. Inspite of all these correspondence, since no concrete steps were taken by the authorities, the petitioner himself filed O.A.No. 890 of 1996 before the Central Administrative Tribunal for issuing a direction to the present respondents to pay all retirement benefits after enhancing the pension by taking into account the entire period of service including the earlier break-in-service which had already been condoned by the railway administration. 3. The Tribunal by its order dated 23.7.1998, while rejecting the contention of the department to the effect that the present petitioner was not entitled to the benefit claimed by him, issued the following directions:- " i) The respondents are directed to recalculate the pensionary benefits due to the applicant, by including the period prior to the condoned break also, as qualifying service and giving him the benefits thereon as per rules in this regard. https://hcservices.ecourts.gov.in/hcservices/ ii) Any amount to be refunded by the applicant to the Railways as per rules, should be limited to him and the applicant should refund them in the time given to him by the respondents". At that stage, the respondents issued the letter dated 25.11.1998, wherein it was indicated that the petitioner was required to pay a sum of Rs.53,383/- as on 31.3.1999 together with subsequent interest. Apparently, this amount included a sum of about Rs.47,000/- towards interest on the sum of Rs.6,520/- refundable by the petitioner. The petitioner made a further representation stating that the claim of interest made by the authorities was not justified. However, such representation having been turned down, the petitioner filed original application and as such original application has been dismissed, the present writ petition has been filed. 4. There is no dispute that the order of the Tribunal which was based on the earlier order of the Government condoning the break in service for the purpose of counting the pension had become final. There is also no dispute that the petitioner was liable to refund the amount which he had received at the time of his earlier voluntary retirement. The petitioner from time to time had indicated his willingness to refund such amount in instalments but no reply was sent to him. Subsequently, the petitioner himself volunteered to deposit the entire amount of Rs.6,520/- but there was also no response at that stage. Thereafter, only when the Tribunal had issued a direction for treating the break in service as part of the service for the purpose of counting the pension, the department came out with the novel idea of claiming a sum of Rs.47,000/- as interest on the sum of Rs.6,520/- which was payable by the petitioner. Since the department had kept quiet for a long period inspite of repeated letter by the petitioner to pay the amount either in instalments or lump sum, there was no justification for the department to claim any amount towards interest. As a matter of fact, when all these correspondence were going on between the parties, the petitioner was still in service and nothing prevented the department from recovering the amount from his salary either in lump sum or in instalments as has been requested by the petitioner. 5. In these circumstances, we allow the writ petition and quash the impugned order to the extent that the interest has been claimed in such impugned order. It is made clear that the petitioner is liable to pay a sum of Rs.6,520/-. The counsel for the petitioner submitted that such amount shall be paid by the petitioner within a period of two weeks from the date of receipt of the present order. On such payment, the retirement benefits of the petitioner must be revised by taking into account the earlier period of break in service as part of the service for the purpose of calculating the pension. https://hcservices.ecourts.gov.in/hcservices/ 6. The writ petition is allowed subject to the above direction. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ra To 1. 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 2004 MA {CO} TP/18.4.2009. https://hcservices.ecourts.gov.in/hcservices/