Central Administrative Tribunal - Delhi
Hon Ble Shri Ashok Kumar vs Union Of India on 20 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
T.A.NO.49 OF 2013
New Delhi, this the 20th day of November, 2014
CORAM:
HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER
AND
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.
Sunil Kumar Dubey,
s/o Shir Janardan Dubey,
R/o Qtr No.90,Type III, Timarpur,
Delhi 110054 . Applicant
(In person)
Vs.
1. Union of India,
through its Secretary,
Ministry of Defence,
New Delhi
2. Union of India,
through its Secretary,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
3. Director,
DRDO/DIPR,
Ministry of Defence,
Lucknow Road,
Delhi 1210054
4. The Director,
Directorate of Estates,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi 110011 .. Respondents
(By Advocate: Shri Rajinder Nischal)
5. Janardan Dubey,
Qr No.90, MS Flats,
Type III, Timarpur,
Delhi 110054 Impleader/Intervenor
(In person)
ORDER
Raj Vir Sharma, Member(J):
The applicant had filed W.P. (C) No.7909 of 2010 before the Honble High Court of Delhi praying for the following relief:
(a) Issue a writ in the nature of mandamus or any other writ, order, direction, directing the respondents to stop illegal, arbitrary and unfair deduction of 1/3rd salary of the Petitioner towards the recovery of pending alleged dues, if any, of his father towards the payment of the quarter No.MS-90, Type III, Timarpur, Delhi 110054;
(b) Issue a writ, order or direction directing the Respondents to refund the amount already deducted from the salary of the Petitioner towards the alleged dues of his father;
(c ) Pass any other or further order (s) as this Honble Court deems fit and proper in the facts and circumstances of the case. The Honble High Court of Delhi transferred the aforesaid writ petition to the Principal Bench of the Tribunal, vide order dated 18.7.2013. The writ petition on being received on transfer from the Honble Court was registered by the Principal Bench of the Tribunal as T.A.No.49 of 2013.
2. Brief facts of the applicants case are that he joined as an Assistant Hindi in DIPR/DRDO, Ministry of Defence, Lucknow Road, Timarpur, Delhi (respondent no.3) on 27.8.2003. He was living with his family members in Quarters No.90(MS), Type III, Timarpur, Delhi, which had been allotted to his father Shri Janardan Dubey (Impleader/Intervenor). After retirement of his father, allotment of the said quarters was regularized in favour of the applicant with effect from 1.3.2008. Respondent no.4, vide letter dated 26.4.2010 (Annexure P-2), informed the Administrative Officer, office of the CAO/A-3(B), Ministry of Defence, New Delhi, that dues amounting to Rs.66,667/- are outstanding against Shri Janardan Dubey, the father of the applicant, in respect of Qrs.No.MS-90, Timarpur, New Delhi, which was regularized in favour of the applicant. Accordingly, by the said letter dated 26.4.2010, the said Administrative Officer was requested to deduct the said amount from the DCRG payable to the father of the applicant and remit the payment through Bank Draft, along with the missing recovery certificates from 1.7.1992 to 30.6.1997 and August 1997. Copy of the said letter was sent to the father of the applicant. Similar intimation was also sent to the father of the applicant by respondent no.4, vide letter dated 4.6.2010(Annexure P-1 collectively). The applicant, vide his letter dated 11.6.2010 (Annexure P-4 collectively), disowned his liability to clear the dues outstanding against his father and requested respondent no.4 to recover the license fee only in respect of Qrs.No.90(MS), Type III, Timarpur, Delhi, with effect from 1.3.2008. Thereafter, Respondent no.4, vide letter dated 22.6.2010 (Annexure P-1 collectively), again requested respondent no.3 to recover the said dues of Rs.66,667/- and license fee for the period from 1.3.2008 to 31.3.2010 amounting to Rs.7,525/- in addition to normal license fee @ Rs.301/- per month from the salary of the applicant and remit the same through Bank Draft. By the said letter, respondent no.4 also intimated that the aforesaid dues included Rs.60,826/- in respect of Type II Qrs.No.1385, Timapur, Delhi, and that the applicant managed to get the regularization of the quarters No.90(MS), Timarpur, Delhi, without completing the formalities in the matter of regularization of Government quarters in favour of wards of retired Government servants. The father of the applicant was also requested to remit the said amount. With reference to the respondent no.4s letters dated 22.6.2010 and 9.7.2010, the applicant submitted a representation dated 12.7.2010 requesting respondent no.4 to desist from recovering the dues stated to be outstanding against his father. In response to the applicants letter dated 12.7.2010, respondent no.4, vide his letter dated 5.8.2010 (Annexure P-3 collectively), also intimated the applicant as follows:
.as per computer records in the GAMS, Sh.Janardhan Dubey retired on 30.6.07 and the allotment of Qr No.90(MS), Timarpur, New Delhi, was cancelled w.e.f. 1.11.07 after allowing concessional period of four months as admissible under the rules on retirement. His license fee accounts in respect of Qr. No.90, Timarpur, Delhi, have been calculated for the period ending 20.2.08 and a sum of Rs.65,663/- has been found due against you. In the outstanding dues a sum of Rs.3924.00 is on account of his overstay at Qr.No.S-4/432, Timarpur, New Delhi, for the period from 27.06.95 to 13.1.97 when he was in occupation of two residences which is not permissible under the rules and hence damages rate in respect of Qr.No.S-4/432, Timarpur, New Delhi for the period from 27.6.95 to 13.1.97, Timarpur, New Delhi for the period from 27.6.95 to 13.1.97 when he was in occupation of two residences which is not permissible under the rules and hence damages rate in respect of Qr.No.S/4/432, Timarpur, New Delhi is recoverable. A copy of the statement outstanding dues is enclosed. As per rules allotment of regularization to the dependent relation is made only after all outstanding dues are cleared as per provisions in O.M.No.12035/18/2002 Pol.II dated 20.08.02 (copy enclosed). Respondent no.4, vide letter dated 7.9.2010 (Annexure P-1 Collectively), informed the applicant as follows:
3. The Licence Fee of Rs.301/- will be deducted from the month of Aug 2010. Lilcence Fee for the period 01.03.2008 to 31.7.2010 amounting to Rs.8729/- will be deducted as per detail given below:
Rs.5110/- in Aug & Rs.3619/- in the month of Sept.2010.
4. Deduction of Rs.66,667/- will be made as per details given below:
Oct.2010 to June 2011 (9 instalments @5110/-) =Rs.45990/-
July 2011 to Sept. 2011 (3 instalments @5273/-) =Rs.15819/- Oct.2011 (1 instalment @3854/-) = Rs. 4858/
Referring to the aforesaid letter dated 5.8.2010 (Annexure P-3 collectively) and another letter dated 17.9.2010, respondent no.3 issued order dated 5.10.2010 (Annexure P-1 Collectively) for recovery of Rs.65,663/- from the applicant by way of deduction from his salary in the following manner:
Oct.2010 to June 2011 (9 instalments @5110/-) =Rs.45990/-
July 2011 to Sept. 2011 (3 instalments @5273/-) =Rs.15819/- Oct.2011 (1 instalment @3854/-) = Rs. 3854/-
The applicant also made a representation dated 11.10.2010 (Annexure A-4 collectively) to the SA to the Honble Defence Minister to order appropriate enquiry into the matter and direct the concerned authorities not to recover from his salary the dues outstanding against his father, but to no effect.
3. Opposing the O.A., the respondents have filed a counter reply wherein it is, inter alia, stated that the allotment of Qrs.No.90(MS), Timarpur, Delhi, was regularized w.e.f. 1.3.2008 in the name of the applicant, vide letter dated 22.6.2009. The applicant was asked to convey acceptance of the allotment and obtain the license fee bill from the Directorate of Estates after clearing all dues in respect of the said quarters up to the period ending 29.2.2008. As per provisions contained in O.M. dated 20.8.2002, the allotment or regularization of Government accommodation to the ward of a retired Government servant is made only after all outstanding dues in respect of the Government accommodation are cleared. Since the applicant did not clear the dues, he was not issued standing license fee bill. The license fee accounts in respect of Qrs.No.90, Timarpur, Delhi, were calculated for the period ending 29.2.2008 and a sum of Rs.66,667/- was found due against the father of the applicant. The applicant had submitted an undertaking that he would make the payment of dues, if any, against his fathers name in respect of Government accommodation. Since the applicants father did not clear the Government dues, the pending dues were intimated to the applicant and his Department where he is working. It is stated by the respondents that the applicant is bound to pay the dues outstanding against his father in respect of the Government accommodation. Subsequently, the dues were recast and a sum of Rs.65,663/- were found due against the father of the applicant. Requests were made to the applicants father and the applicant as well to clear the Government dues. Since both of them failed to clear the dues, despite repeated requests, as per the undertaking furnished by the applicant, his Department was requested to recover the dues from his salary.
4. Refuting the stand taken by the respondents, the applicant has filed a rejoinder reply wherein it is, inter alia, pointed out that the undertaking, on the basis of which the respondents have attempted to justify their action for recovery of the dues outstanding against his father, relates only to the dues pertaining to Qrs.No.90 (MS), Timarpur, Delhi and therefore, the respondents have acted illegally and arbitrarily in recovering any dues outstanding against his father in respect of other quarters by way of deductions from his salary.
5. On the prayer made by Shri Janardan Dubey, the father of the applicant, the Tribunal allowed him to intervene in the matter. He has filed a written note of submissions along with as many as 23 documents as Annexures A-1 to A-23.
6. We have perused the pleadings and heard Shri Janardan Dubey, the father of the applicant, arguing for himself and also on behalf of the applicant, and Shri Rajinder Nischal, learned counsel appearing for the respondents. We have also carefully perused the written notes of submissions filed by the applicant and his father.
7. It is mainly contended by the applicant that the Directorate of Estates having failed to recover the alleged dues from his father while he was in service and at the time his retirement from service, their action to recover the same from him is against the rule of law; that regularization of allotment of Qrs.No.90 (MS), Type III, Timarpur, Delhi, in his favour with effect from 1.3.2008 goes to show that the prerequisite condition of clearing of all dues in respect of the said Government accommodation was fulfilled and there were no dues outstanding against his father; that the Directorate of Estates has fabricated the statement of dues outstanding against his father; that the Directorate of Estates, instead of determining the dues outstanding against his father in accordance with law, has acted illegally and arbitrarily in asking the applicants Department to recover the said dues from his salary.
8. It is contended by Shri Janardan Dubey, the father of the applicant, that challenging the order of eviction passed by the Estate Officer in respect of Qrs.No.1385(MS),Timarpur,Delhi, he had filed PPA No.148 of 1997 before the District Judge, Delhi. During pendency of the said appeal, the Directorate of Estates allotted Qrs.No.90(MS), Timarpur, Delhi, in his favour, and accordingly he had vacated the said Qrs.No.1385(MS),Timarpur, Delhi and taken over possession of Qrs.No.90(MS), Timarpur, Delhi, after getting all sorts of clearances. In view of allotment of Qrs.No. 90(MS), Timarpur, by the Directorate of Estates and vacation of the Qrs.No.1385(MS), Timarpur, by him, the appeal preferred before the District Judge, Delhi, became infructuous and was disposed of. After more than two decades, the Directorate of Estates levied damages on him in respect of Type II Qr.No.S-IV/432, Timarpur and Type II Qr.No.1385,Timarpur, Delhi, although no such damages or other charges had earlier been levied on him. At the time of making application for extension of the period of retention of Qrs.No.90(MS), Timarpur, consequent upon his retirement from service, he had also deposited the requisite payment, and there were no dues outstanding against him as on 29.2.2008. Therefore, according to him, the respondent-Directorate of Estate has acted mala fide and arbitrarily in levying damages and other dues in respect of the said two quarters. Referring to some of the letters issued by the officers of the Department, where he was working, vide Annexures A/13, A/15 and A/16 to the written note of submissions, Shri Janardhan Dubey claimed that all dues pertaining to the Government accommodations, referred to above, were deducted from his salary. In view of this, Shri Janardan Dubey prayed that all the amount recovered from his son (the applicant) be refunded and irresponsible officers of the Directorate of Estates as well as DIPR/DRDO, Ministry of Defence, be reprimanded for their act and fined for causing loss to the Government as well as intentional harassment to him and his son.
9. It would be beyond the scope and ambit of the present proceedings before the Tribunal to consider and decide the question of validity, or otherwise, of the levy of damages as well as recovery on account of short payment of normal license fee in respect Qrs. Nos.432 and 1385, and 90(MS), Timarpur, Delhi, which had admittedly been in occupation of Shri Janardan Dubey, the father of the applicant.
10. The questions that arise for consideration of this Tribunal are: (1) Whether, or not, the applicant is liable to make payment of the dues outstanding against his father Shri Janardan Dubey in respect of Government accommodations, i.e., Qrs.Nos.432, 1385 and 90(MS), Timarpur, Delhi, prior to regularization of allotment of Qrs.No.90(MS), Timarpur, Delhi, in favour of the applicant with effect from 1.3.2008; and (2) Whether, or not, the respondents are justified in recovering from applicant the aforesaid dues outstanding against his father Shri Janardan Dubey by way of deductions from his salary.
11. It is not in dispute that the Directorate of Estates (respondent no.4) communicated the demand statement of rent and other charges to the applicant and his father Shri Janardan Dubey, as well as to the concerned officers of respondent nos. 1 and 3 under whom the applicant has been working and his father was working prior to his retirement with effect from 30.6.2007. The said demand statement of rent and other charges, which has been filed by the applicants father and the respondents, reads thus:
Government of India Directorate of Estates Demand statement of rent and other charges Dues on account of damages in r/o Type II Qr.No.S-IV/432, Timarpur Damages for overstay: 27.6.95 to [email protected] = 39424.00 Dues on account of damages in r/o Type II Qr.No.1385, Timarpur Damages for overstay: 7.8.97 to [email protected] = 7044.00 1.11.97 to [email protected] = 1776.00
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48244.00 Dues on account of short recovery/missing recovery of normal license fee:
(1) Dues in r/o Qr.No.S-IV/432, Timarpur Recoverable Recovered Dues 24.3.86 to 28.2.89 =Nil 3/89 to 6/90@88 = 1408.00 3/89 to 6/95 Missing 7/90 to 6/93@108 = 3888.00 7/93 to 26.6.95@113/-= 2697.00 7993.00 7993.00 (2) Dues in r/o Qr.No.1385, Timarpur 27.6.95 to 30.6.96@136= 1650.00 7/95 to 6/97 Missing 1.7.96 to 27.11.96 = 691.00 7/97 @ 150 150.00 Technical accepted 28.11.96 to 6.8.97@ 150=1244.00
------------------- ---------
3585.00 150.00 ---------- Less Recovered 150.00 ------------------- 3435.00 -------------------- 3435.00 (3) Dues in r/o Qr.No.90(MS), Timarpur 30.7.97 to 30.6.99@181=4175.00 1.7.99 to 31.3.01@210= 4410.00 8/97 - Missing 1.4.01 to 30.6.04@254= 9906.00 9/97 to 6/04=14842.00 1.7.04 to 30.6.97@298= 10728.007/04 to 6/07@217=7812.00 1.7.07 to 31.8.07@301= 602.00 Paid in cash in 11/07:1748.00 1.9.97 to 31.10.07@576= 1152.00 Paid in cash in 12/07: 6100.00 1.1.08 to 29.2.08@1648=3296.00 30502.00 36,493.00 Less Recovered 30502.00 ------------- 5991.00 5991.00 -------------- ------------ Net balance (48244+7993+3435+5091) 65663.00 ------------
12. If at all there was any illegality in the above noted demand statement of rent and other charges in respect of Qrs.No.432,1385 and 90(MS),Timarpur, Delhi, the applicants father Shri Janardan Dubey should have brought the same to the notice of the Directorate of Estates by making appropriate representation or preferred appeal before the competent authority challenging the legality and validity of the said demand statement. The said Shri Janardan Dubey, though allowed to intervene in the present proceedings, has not filed any document showing that he has made any representation or appeal in the said matter. In his application dated 16.7.2010 (Annexure 22 to his written note of submissions), Shri Janardan Dubey asked for certain informations pertaining to the said demand statement. It is thus clear that he had duly received the said demand statement from the Directorate of Estates. The statement of Shri Janardan Dubey that he had cleared all the dues in respect of Qrs.No.90(MS), Timarpur, at the time of making application for extension of the period of retention of the said Government accommodation after retirement and that there were no dues outstanding against him is not correct inasmuch as the said payment has been taken into account in the demand statement in which the outstanding dues have been determined at Rs.65663/-. In the present proceedings, he intervened and questioned the legality and validity of the said demand. As already noted, the question regarding legality and validity of the said demand cannot be gone into in the present proceedings.
13. As there was no response and/or as Shri Janardan Dubey, the father of the applicant failed to make payment of the aforesaid outstanding dues, the Directorate of Estates moved the officers of the Department where his son, i.e., the applicant is working, to recover the same from the salary of the applicant. It is the case of the respondents that as per the undertaking given by the applicant on 12.8.2009 (Annexure R/5), the applicant is liable to pay the dues outstanding against his father Shri Janardan Dubey. It is not disputed by the applicant or his father Shri Janardan Dubey that any such undertaking was ever given by the applicant on 12.8.2009. The said undertaking dated 12.8.2009 reads thus:
UNDERTAKING I, Sunil Kumar Dubey, s/o Shri Janardan Dubey, hereby undertake to make the payment of dues, if any, against my fathers name in r/o Qr.No.90(MS), Type III, Timarpur, Delhi 54, which is being regularized in my name.
Date 12 Aug 2009 Sd/ (Sunil Kumar Dubey) Assistant Hindi DIPR, DRDO,Min. of Defence Lucknow Road, Timarpur Delhi 11054
14. In view of the above undertaking, the applicant cannot disown his liability to make payment of dues outstanding against his father in respect of Qr.No.90(MS), Type III, Timarpur, Delhi 54. But, as regards the dues outstanding against his father Shri Janardan Dubey in respect of Qrs.Nos.432 and 1385, Timarpur, Delhi, the plea of the applicant about his non-liability appears to have some force. But the fact of the matter is that consequent upon retirement of his father, the allotment of Qrs.No.90(MS), Timarpur, Delhi, was regularized in favour of the applicant, vide Directorate of Estates letter dated 22.6.2009. It appears that both the applicant and his father Shri Janardan Dubey have been residing in the said quarters, and that the aforesaid demand statement of rent and other charges and all correspondences have been sent by the Directorate of Estates to Shri Janardan Dubey at the said quarters address. Despite receipt of the demand statement and letters of request sent by the Directorate of Estates, Shri Janardan Dubey did not respond, nor did he make any representation or appeal against the same. Only when the recovery of the said outstanding dues was made from the salary of the applicant by the Department where the applicant is working and when the present proceeding was initiated, Shri Janardan Dubey intervened and argued before this Tribunal for himself and on behalf of the applicant challenging the legality and validity of the said demand statement of rent and other charges and the recovery as well. It is thus clear that while the applicant has availed of the benefit of regularization of the allotment of the Qrs.No.90(MS), Timarpur, Delhi, in his favour because of his being the son of the retired Government servant Shri Janardan Dubey as per the Government policy, he is pleading his non-liability to make payment of the dues outstanding against his father in respect of Qrs.No.432, 1385, and 90(MS), Timarpur, Delhi. It is also found that both the applicant and his father Shri Janardan Dubey have joined together to evade the Government dues and sue the Directorate of Estates and other Government functionaries on some pretext or the other. When the applicant has got the benefit of regularization of allotment of the Qrs.No.90(MS) because of his status as son of Shri Janardan Dubey, the retired Government servant, he cannot be allowed to shirk his responsibility of making payment of the Government dues outstanding against his father in respect of the Government accommodations. It also transpires from the records that the Directorate of Estates had moved the officers of the Department where Shri Janardan Dubey, the father of the applicant was working, to recover the aforesaid outstanding dues from the DCRG payable to him on retirement, but to no effect. Neither the applicant nor his father Shri Janardan Dubey has filed copies of NDCs supposed to have been obtained by Shri Janardan Dubey from the Directorate of Estates in respect of the said Qrs.Nos.432, 1385 and 90(MS) at different times. It is thus clear that the father of the applicant managed to get the DCRG released in his favour after his retirement without obtaining NDC from the Directorate of Estates. It is also clear that both father and son were capable of getting things done in their own fashion right from the stages of vacation and taking over of possession of Qrs.Nos.432,1385 and 90(MS), Timarpur, Delhi. Firstly, when Shri Janardan Dubey vacated the Qrs.No.432, he had not obtained NDC from the Directorate of Estates before taking over possession of Qrs. No.1385. Secondly, when Shri Janardan Dubey vacated the Qrs.No.1385, he had not obtained NDC from the Directorate of Estates before taking over possession of Qrs.No.90(MS). Thirdly, Shri Janardan Dubey and his son (the applicant) had not cleared the outstanding dues in respect of Qrs.No.90(MS) at the time of regularization of the allotment in respect of the said quarters in favour of the applicant with effect from 1.3.2008, nor did the applicant collect the rent statement from the Directorate of Estates in respect of the said quarters, for which the rent was not being deducted regularly from his salary by the Department where he is working. After the allotment of Qrs.No.90(MS) was regularized in his favour with effect from 1.3.2008, vide Directorate of Estates letter dated 22.6.2009, the applicant submitted an undertaking on 12.8.2009 that he would make payment of the dues outstanding against his fathers name in respect of the said quarters. All this clearly goes to show that both the applicant and his father Shri Janardan Dubey have not approached the Court/Tribunal with clean hands. Undoubtedly, it is a matter which has arisen due to sheer administrative lapse. The other aspect of the matter is whether the Government dues could be waived out because of some administrative lapses. Admittedly, father of the applicant has not been issued with the NDCs, albeit, he has received all the retiral dues. But that ip so facto would not confer upon him any right to immune from paying off the Government dues. It is not in dispute that as per the policy decision of the Government, wards of retired employees are entitled to Government accommodations by way of regularization. It is also an admitted position that the applicant has submitted an undertaking to make the payment of dues, if any, against his fathers name in respect of Qr.No.90(MS), Type III, Timarpur, Delhi 54 that was being regularized in his name. In the face of outstanding dues against the father of the applicant in respect of Qr.No.S/IV/432 and No.1385, Timarpur, the aforesaid undertaking cannot be read in isolation as the said outstanding is intertwined with Qr.No.90(MS), Type-III, Timarpur. Therefore, it is a case which involves passing on of liability of the father to son. In the circumstances, the Tribunal is required to weigh the balance of convenience having regard to the facts and circumstances of the case. It is the settled position of law that the authorities are not divested of the power to rectify their own mistake. There was certainly an omission on the part of the Respondents to ask the applicant to make payment or to undertake to pay the dues outstanding against his father in respect of the said two quarters also before the order regularizing the allotment of the Qrs.No.90(MS) was issued by them. If this be so, then, there is nothing wrong on the part of the respondents to rise to the occasion for recovering the Government dues outstanding against the father of the applicant. In this view of the matter, the respondents cannot be faulted for taking recourse to the recovery of the said lawful dues of the Government from the applicant by way of deduction from his salary, more so when during statutory audit the non-recovery of the said Government dues came to light and further when the applicants father Shri Janardan Dubey did not respond to the aforesaid demand statement of rent and other charges issued by the Directorate of Estates, nor did he make any representation or prefer appeal against the same.
15. In the light of the above discussions, we hold that the applicant has not been able to make out a case for the relief claimed by him in the O.A. The O.A. being devoid of merit is liable to be dismissed.
16. In the result, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN