Central Administrative Tribunal - Delhi
Shri Suresh Kumar Bareja vs Union Of India: Through on 29 May, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI TA No. 40/2008 New Delhi, this the day of May, 2009 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Shri Suresh Kumar Bareja S/o Shri Lakhi Ram Working as Deputy Station Superintendent (Commercial), R/o 2-F/7738, IInd Floor, Ram Nagar, Paharganj, Delhi-110 055. .Applicant By Advocate: Shri Manjeet Singh Reen. Versus Union of India: through 1. The General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, State Entry Road, New Delhi. 3. The Divisional Engineer/Estate, Northern Railway, New Delhi. Respondents By Advocate: Shri R.L. Dhawan. O R D E R
Initially the OA filed by the applicant was dismissed as withdrawn with liberty to approach the appropriate forum for assailing his grievance on 8.1.2007 in OA 2430/2006. However, the applicant had challenged the said order before Honble High Court of Delhi whereupon this matter was transferred back to the Tribunal with a specific observation that the case is maintainable in the Tribunal. This is how this case has been listed before me now.
2. It is submitted by the applicant that a surprise check was conducted on 12.8.1997 whereupon it was found that applicant had made unauthorized room in the quarter allotted to him. Accordingly, show cause notice dated 23.9.1997 was issued (page 80) whereby he was directed to demolish the unauthorized construction failing which action would be taken against him, namely, (i) cancellation of allotment of this Railway quarter from your name w.e.f. the date of checking (ii) eviction proceedings under PPEA, 1971 (iii) disciplinary action under Railway Servants (Discipline & Appeal) Rules, 1968 and (iv) recovery of rent at damages rate.
3. Applicant gave his reply, but without following the procedure laid down under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as PPAct) respondents cancelled his allotment of Quarter No. 177/A-I, Basant Lane, New Delhi, vide order dated 13.12.2004 with retrospective effect, i.e., 12.8.1997 (page 27). Applicant vacated the quarter on 31.10.2005 (page 31). Yet vide order dated 27.2.2006 respondents issued an order for effecting recoveries from the applicant for the period from 12.8.1997 to 31.10.2005 (page 32). Being aggrieved, applicant gave a representation on 7.3.2006 stating therein that his old aged widow mother was suffering from facture in hip for which treatment was going on in the Central Hospital and in order to save his mother from sun and rain, he had put ACC sheets in the open space because she was unable to move. The said structure was also removed in 2005 after the death of his mother. He had thus prayed that the recovery should be withdrawn in lieu of the circumstances as mentioned above because he is a low paid employee (page 33). In spite of it, the respondents issued the order on 9.10.2006 that recovery be made from the salary bill of the employee (page 40). It is in these circumstances that applicant approached this Tribunal because an amount of Rs.2000/-p.m. was started to be deducted from his salary from June, 2006.
4. It is submitted by the counsel for applicant that respondents could not have cancelled allotment after 7 years with a retrospective date, that too without putting him on notice nor could make recoveries from a retrospective date as it would be barred by limitation. Moreover, in the show cause notice respondents had themselves stated that they would resort to the P.P. Act but no such procedure was followed, therefore, recovery order may be quashed. He has placed reliance on the judgment in the case of New Delhi Municipal Council Vs. Shri Charan Singh Gupta (W.P. No. 4688/1997 )(page 61), NDMC Vs. Kalu Ram, 19786 (3) SCC 407, Yugal Kishore Vs. Delhi Jal Board reported in 2007 (140) DLT 374 and Lt. Co. B.B. Asthana (Retd.) Vs. U.O.I. & Others 1997 (65) DLT 86 annexed at page 46.
5. Respondents have opposed this OA. They have submitted that applicant was allotted Railway Quarter No.177/A-I, Basant Lane, New Delhi, under the terms and conditions laid down in the Rules regarding Functioning of Housing Committees and Allotment of Railway Quarters as per extant rules. In the surprise check conducted on 12.8.1997, it was found that applicant had constructed unauthorized room, therefore, show cause notice dated 23.9.1997 was issued and quarter was cancelled on 13.12.2004. In spite of it, applicant vacated the quarter only on 31.10.2005, therefore, recovery of damages has rightly been ordered by the competent authority. They have also stated that on considering the request of the applicant, revised rent of damages has been issued in the letter dated 9.10.2006. They have thus prayed that the OA may be dismissed.
6. Counsel for the respondents placed reliance on Full Bench Judgment in the case of Ram Poojan Vs. U.O.I. & Others reported in 1994-96 AT Full Bench Judgments page 244, and also Rule 1711 of Indian Railway Establishment Manual Volume I read with Railway Boards instructions dated 15.1.1990.
7. I have heard both the counsel and perused the pleadings as well.
8. It is stated by the respondents that since in the show cause notice dated 23.9.1997 it was clearly mentioned that if applicant does not demolish the unauthorized room, damages would be charged, yet he did not demolish the unauthorised portion, therefore, no separate show cause notice was required to be issued before cancelling the quarter and since it is admitted by the applicant that he had constructed unauthroised room, therefore, he is liable to pay damages. However, perusal of the show cause notice dated 23.9.1997 shows that though applicant was directed to demolish the unauthorised room but he was also informed that (1) in case he does not demolish the allotment Railway Quarter would be cancelled (2) eviction proceedings under PP Act, 1971 would be taken (3) disciplinary action under Discipline and Appeal Rules, 1968 and (4) recovery of rent at damage rate would be taken. However, after issuing this show cause notice, no further action was taken by the respondents, as mentioned above, so naturally applicant was under the impression that respondents have accepted his request not to demolish the construction since his old bed ridden mother was staying in the temporary room. After the show cause notice dated 1997, respondents issued order only in the year 2004, i.e., 13.12.2004 whereby applicants allotment was cancelled. Since applicant was already put on notice, respondents were well within their rights to cancel the allotment. To that extent I cannot find any fault with the order dated 13.12.2004. What is wrong is that the cancellation was effected from a retrospective date, i.e. 12.8.1997. The question is whether respondents could have cancelled the allotment of the quarter with retrospective date. Since respondents had given show cause notice to the applicant for demolishing the unauthorized portion. The very fact that they did not issue any order of cancellation for good 7years gave an impression to the applicant that the respondents have permitted him to continue in the house with the temporary structure. In these circumstances, respondents could not have cancelled the allotment of Quarter No.177/A-1, Basant Lane, New Delhi, on 13.12.2004 with a retrospective date, i.e., from 12.8.1997 because cancellation could have been done only from a prospective date.
9. Counsel for the respondents strenuously argued that this was very much permissible under Rule 1711 of IREM Volume.I. However, after perusing Rule 1711 of IREM Volume I, I am satisfied that no recovery could have been made from the applicant for the period before cancellation of the quarter. It would be relevant to quote para 1711, which for ready reference reads as under:-
1711. Recovery of rent - (a) The rent charged to a railway servant in respect of quarters supplied should not exceed 10 per cent of his/her monthly emoluments irrespective of the scales of pay allotted.
(b) Notwithstanding anything contained in sub-paragraph (a). Railway Administration may, by general or special order, provide for charging a rent in excess of 10 per cent of the emoluments from a railway servant -
(i) who, is not required or permitted to reside on duty at the station at which the residence is supplied to him, or
(ii) who, at his own request, is supplied with accommodation which exceeds that which is appropriate to his status, or
(iii) who is permitted to subject the residence supplied to him, or
(iv) who sublets without permission the residence supplied to him, or
(v) who does not vacate the residence after the cancellation of the allotment.
10. Perusal of the above rule shows that respondents could charge rent in excess of 10% only in the eventuality, if a person does not vacate the residence after the allotment of quarter is cancelled as per para (v) of sub-rule (b) of Para 1711. It does not give a blanket power to the authorities to claim damages even for the period before cancellation of the quarter. Since I have already noted above that the cancellation could have been done from a prospective effect, at best the date from which respondents could have recovered damages from the applicant would be 13.12.2004 when the quarter was actually cancelled. In view of above, the cancellation of quarter with a retrospective date is not sustainable in law.
11. Counsel for the respondents further submitted that the Full Bench of the Tribunal has decided in the case of Ram Poojan Vs. U.O.I. reported in 1994-96 reported in A.T. Full Bench Judgments at page 244 that damage could be recovered from the employee without putting him on notice. However, perusal of the Full Bench judgment shows that the question before the Full Bench was whether retention of Railway Quarter after transfer, retirement etc. by the Railway employees beyond the permissible/permitted period would be unauthorized occupation and whether prior to recovery of damage rent for unauthorized occupation, a notice cancelling the allotment is necessary or not. It was in these circumstances that reference was made to the Railway Boards letter dated 17.12.1983 and 15.1.1990 in the Full Bench. Letter dated 17.12.1983 could not be produced by the respondents in spite of our directions but they have produced letter dated 15.1.1990. Perusal of letter dated 15.1.1990 shows that this dealt with only those situations where a person overstayed in the quarter after transfer, deputation, retirement because in those circumstances period is already specified till when quarter can be retained. Whereas in the instant case it is not the case of the respondents that applicant had overstayed in the quarter beyond the prescribed period after his retirement or transfer etc. In fact, this letter covers the situations when a person is on leave on medical grounds, maternity leave, leave preparatory to retirement, leave ex-India, Study leave, retention by State Government/Union Territories employees on repatriation, leave granted to employees who retire under the provision of FR 56 (i) normally retirement, resignation/dismissal/removal or death. After noting all these eventualities in the end it is stipulated as under:-
On expiry of the permissible/permitted period indicated in all the above cases, the allotment of quarter in the name of the employee at the old station will be deemed to have been terminated automatically. Retention of quarter by the employee after expiry of the permissible period will be treated as unauthorized. During the period of unauthorized occupation, the employee should be required to pay damages rate of rent in respect of the railway quarter.
12. From above it is clear that this Railway Boards letter refers only to the above situations, therefore, it is in different context. I have no hesitation in concluding that neither this Railway Boards letter nor the Full Bench judgment in the case of Ram Poojan can advance the case of the respondents. Reliance placed by the respondents on the Full Bench judgment and Railway Boards letter dated 15.1.1990 is, therefore, misplaced.
13. Counsel for the applicant on the other hand strenuously argued that since respondents have not resorted to the P.P. Act, therefore, no recovery could have been made at all. This contention also cannot be accepted because Railway employees are governed by IREM. Since in para 1711 it is specifically mentioned that Railway Administration can charge in excess of 10% of the emoluments from a Railway servant, in case he does not vacate the residence after the cancellation of the allotment, therefore, applicant would be governed by those rules. In the instant case, admittedly, the Railway Quarter was cancelled by the respondents on 13.12.2004, therefore, if applicant stayed in the Railway quarter in spite of cancellation of quarter beyond 13.12.2004, he would be liable to pay damages for the said period. Though counsel for the applicant has placed reliance on the judgments but they are not of the Railway Department so the applicants in those cases would be governed by different set of rules, therefore, those judgments cannot advance the case of the applicant on this count.
14. In view of above discussion, order dated 13.12.2004 is quashed as far as cancellation from retrospective date is concerned. Similarly order dated 27.2.2006 is also quashed and set aside because in this order recovery was effected with retrospect effect from 12.8.1997 whereas the quarter was, in fact, cancelled on 13.12.2004. Since I have already held that before 13.12.2004, no damages could have been recovered from the applicant, therefore, respondents are directed to issue fresh orders after keeping in mind that applicant had made temporary structure for the old bed ridden mother. If competent authority still feels damages need to be recovered, fresh orders would have to be passed only for the period from 14.12.2004 to 31.10.2005 as on 31.10.205 applicant had already vacated the said quarter. Any recovery which had already been made from the applicants salary would be adjusted by the respondents.
15. With the above directions, this TA is partly allowed. No order as to costs.
(MRS. MEERA CHHIBBER) MEMBER (J) Rakesh