Subhash Gond And Others vs Union Of India And Others

Om Prakash VII, Member (J)

The present O.A has been filed by the applicants under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-

“(i) quash the impugned order dated 5.4.2021 passed by Chief Karkhana Manager, Karmik Yantrik Karkhana, North Eastern Railway, Gorakhpur (respondent No.3). Or in the alternative.

(ii) Direct the respondent authorities to release the amount of provident fund of late Ram Vriksh Ex-Khalasi, Ticket No. 7637 along with interest of 12 percent in favour of the applicants.

(iii) grant such other relief, as the applicants might be found entitled to, in the facts and circumstances of the case.

(iv) allow the original application with cost of the proceeding in favour of the applicants”.

The facts, in brief, are that father of the applicants was retired from service in the railway department on 21.5.1975. Father of the applicants died on 26.1.1998. Applicants submitted in the OA that they made several representations before the respondents but no heed was paid by the department. Lastly applicants filed representation dated 29.6.2020 to the respondents. When nothing done by the side of respondents for deciding the representation of the applicant, then they filed OA No. 330/00114/2021, which was heard and decided by the Tribunal on 29.1.2021 directing the respondents to consider and decide the representation of the applicants dated 29.06.2020. Thereafter respondents after considering all the points raised by the applicants in their representation disposed it of by a reasoned and speaking order dated 05.04.2021, which was challenged by the applicants in this OA.

I have heard Shri Shashi Kant Upadhyay, learned counsel for the applicants and Shri Ajay Kumar Rai, learned counsel for the respondents and perused the record.

Submission of the learned counsel for the applicants is that applicants are the sons of deceased employee Ram Vriksh, who was posted in respondents department on 15.10.1956 on the post of Khalasi. His ticket number was 7637. Deceased employee retired from service on 31.5.1975, thereafter he died on 26.11.1998. It is further argued that GPF amount subscribed by the father of the applicants have not been paid to him nor to the legal heirs. Due to this reason, applicants on many occasions approached before the respondents but no heed was paid. It is further argued that written representations were also moved as are annexed in the OA but no order was passed on the representation. Thereafter applicant approached before this Tribunal through OA No. 114/2021, which was decided on 29.1.2021 directing the respondents to decide the representation within a period of three months. It was further argued that impugned order passed by the respondents is illegal. Neither amount relating to GPF was ever paid to the deceased employee during his lifetime nor to the legal heirs. Referring to the impugned order dated 5.4.2021, it was further argued that all the records relating to service of the deceased employee will be in the custody of the respondents, therefore, it is their responsibility to keep them safely. It is further argued that if the plea taken by the respondents regarding weeding out is taken into consideration then also some information regarding the service of the deceased employee and other details regarding payment of dues would have been maintained in proper register. Thus, respondents cannot say that no record is available with them to insure that whether GPF amount has been paid or not. To substantiate his arguments, learned counsel for the applicants further referred to the provisions of Section 101 of Indian Evidence Act and further argued that burden lies upon the respondents. Thus, prayer made in the OA be allowed and entire GPF amount subscribed by the deceased employee along with interest be paid to the applicants as they are the sons of the deceased employee.

Learned counsel for the respondents, referring to the counter affidavit and impugned order, argued that as per statement made in the OA deceased employee retired on 31.5.1975, he died on 26.11.1998. Had the GPF amount not been paid to him? He would have raised said demand. Nothing is on record to show that deceased employee had raised any demand for payment of GPF amount in his lifetime. It is further argued that records are kept safely for only 35 years. Deceased employee retired in the year 1975. More than 45 years have elapsed, it will not be practicable or possible to collect the record and insure the payment. Document submitted by the learned counsel for the applicants along with the OA are also not sufficient to hold that no payment at any point of time was made to the deceased employee. Thus, referring to the pleading contained in the counter affidavit, prayer was made to dismiss the O.A.

I have considered the rival submission and gone through the entire records.

As is clear from the pleadings of the parties, late Ram Vriksh, the father of the applicants retired on 31.5.1975, he died on 26.11.1998. Nothing is on record to show that he has not raised any demand during that period. Record also reveals that on the first time, in the year 2010 written representation was moved by the sons of the deceased employee (present applicants). Department passed the impugned order disclosing the fact that no record regarding the services of the deceased employee is available with them. Certainly in this matter more than 45 years have been elapsed since the date of retirement of the deceased employee. Records are preserved by the respondents only for 35 years. Had the deceased employee not been paid the GPF amount during his lifetime certainly he would have raised such demand in his lifetime.

Considering the entire facts and circumstances of the case comparing the same with the submission raised across the bar and observation recorded in the impugned order, court is of the opinion that at a belated stage when records are weeded out, it will not be practicable or possible to collect/reconstruct the records to insure whether payment has been made or not particularly when 45 years have been elapsed. If the provision of Section 101 of Indian Evidence Act in context with the submission raised on behalf of the applicants is taken into consideration in the facts and circumstances of the present matter, certainly there is only statement disclosed in the representation and pleadings regarding non-payment of GPF amount. This fact has to be established before the Court by the applicants who are desiring from the court to grant a relief in their favour. In this matter, no clear proof of document regarding non-payment of GPF amount has been filed by the applicants. Thus, prayer made in the OA for direction for payment of GPF amount of the deceased employee to the applicants for the reasons discussed hereinabove cannot be given to the respondents. Accordingly, OA deserves to be dismissed and it is dismissed. No order as to costs.