Central Administrative Tribunal - Mumbai
Dated This ________ vs Union Of India on 21 August, 2012
1 O.A. No. 204/2012 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI ORIGINAL APPLICATION NO.:- 204 of 2012 Dated this ________, the ____ day of ________, 2012 CORAM:- HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER(J) Houshala Prasad Mishra R/at. Railway Quarter No.44/A, at Dadar Jn., near to Station Master (Yard Office), Mumbai - 400 028. ... Applicant (By Advocate Shri M. Sahu) Versus 1. Union of India, through the General Manager, Western Railway, Churchgate, Mumbai - 400 023. 2. The Divisional Railway Manager, Western Railway, Mumbai Central Mumbai - 400 008. ... Respondents (By Advocate Shri V.S. Masurkar) O R D E R Per: Smt. Chameli Majumdar, Member(J)
The Applicant in this Original Application challenged the order dated 13.09.2011 passed on behalf of DRM(E)BCT whereby the Applicant has been allotted a railway quarters type-II at MRU as an Alternative Accommodation in lieu of Tool Room at DDR. The Applicant initially moved this Original Application challenging two orders namely the Order of Allotment of staff quarters dated 13.09.2011 which is now subject matter of challenge in the instant Original Application as well as the Order of Transfer dated 28.02.2012 2 O.A. No. 204/2012 whereby the Applicant was transferred and posted under ADEN(E)NDB.
2. When this Original Application was initially moved on 30.03.2012, this Hon'ble Tribunal held that the Original Application was filed for two non-
connective issues. In para 4 of the order dated 30.03.2012, this Tribunal held that "4) The learned counsel has agreed to amend the OA i.e. to delete the impugned order of transfer. He may file a separate OA for the same if so advised and liberty is granted."
3. This Hon'ble Tribunal was pleased to pass an interim order on Original Application No.204/2012 in the following manner:
"a) In the meantime, the learned counsel for the Applicant prays for interim stay to the order dated 13.09.2011 for shifting the Applicant's quarters from Dadar to Matunga on the ground that the examination season is going on and the children of the Applicant should not be disturbed during the examination time. This ground has been raised only today when the matter came up.
b) Shri V.S. Masurkar, learned counsel, volunteers to accept notice and waives the requirement of service. He seeks and is granted two weeks time to file reply.
c) Interim relief granted with a direction that the Respondents -Railways shall not evict the Applicant from his present residence at Dadar till next date of hearing.
Respondents shall file reply within two weeks on the question of interim relief and detailed reply in four weeks."
4. The Applicant filed a separate Original Application No.227 of 2012 wherein the Applicant impugned the above mentioned transfer order. The 3 O.A. No. 204/2012 Respondents filed their reply and stated that the authority was considering to cancel the Order of Transfer. The Hon'ble Tribunal was pleased to pass an interim order of status-quo on 04.05.2012. The said Original Application is also being disposed of as infructous in view of the order passed by the authority dated 31.07.2012 cancelling the impugned transfer order.
5. The case as made out by the Applicant in the Original Application is inter-alia as follows:
"a) That vide memorandum dated 11.07.2000, the Applicant was allotted service quarters No.44/A at Dadar Junction, Mumbai, for the residential purposes for himself and for the members of his family, wherein he has continued to reside all these years.
b) That adjacent to the aforesaid railway quarters, the tool Box No.21 Room is situated.
About 10 to 15 gangmen of the Respondents used the said Tool Box No.21 room for their personal purposes like washing themselves, changing clothes, apart from keeping their equipments after their work is over. The toilet of his quarters is situated outside and is near to the aforesaid tool Box No.21.
c) That whenever the Applicant's members of the family used to visit their toilet, which is outside the quarters and near to the said adjacent Tool Room, the gangmen used to pass sarcastic remarks and creating nuisance to the Applicant and the members of his family.
d) The gangmen put a boundary with sleeper wood between the toilet and the Applicant's quarters, thereby denying the Applicant's family's access to this toilet.
e) It was brought to the notice of the Respondent No.2 herein that as per the Rules & Regulations of Railways, the 'Tool Box' ought not to have been placed near the residential quarters. There is a mandatory provision 4 O.A. No. 204/2012 wherein the "Tool Box Room" is bound to be placed atleast 500 metres away from any residential accommodation.
f) The aforesaid gangmen used to talk loudly and deliberately disturb the studies of the Applicant's children. An incident took place, in which one of his son was beaten up by one gangman and the Applicant therefore having no other alternative, but to lodge a non- cognizable offence at the Dadar Police Station on 24.02.2010.
g) That vide Letter No.E/QC/58/HC.Engg.'C' dated 13th September, 2011, the Respondent No.2's office issued the Applicant another Allotment Letter in respect of Type II Railway quarters No.99/1 at MRU, in place of his original quarters in Dadar."
6. The Respondents appeared and filed their reply. The Respondents inter-alia contended:
"a) The Memorandum dated 11.07.2000 deals with allotment made to the applicant and the same is at page 48 of the OA. The said order clearly states that it is and it was survey and Construction Store Room. Therefore, it is amply clear that the said premises are not a Railway quarters for residential use and hence the Applicant has no right to continue to occupy the same, when Railway residential quarters is allotted to him at Matunga, Mumbai.
b) Vide letter dated 30.06.2010, the ADEN (T/S), PL addressed to Sr. DEN(S) BCT has stated as under:-"In my earlier report, this house is located in secluded place and is unsafe for family living. Gang tool box is ideally located for attention to track and should not be relocated.
Personal allegation on CPWI appears to be based on personal grudge. As per party himself that antisocial element visit the place. In my opinion this desolate place is not suitable for family living."
c) The vacant quarters position at Matunga Road was called for from the office of LOW, SSE-Works, Parel and based on the said vacant quarters position, the competent authority has allotted quarters No.99/1, Matunga Road, Type 5 O.A. No. 204/2012 II. Admittedly this quarters is as per the entitlement of the Applicant.
d) The applicant did not take possession of the said Residential quarters and therefore the competent authority has no alternative but to order the recovery of penal rent from the applicant."
7. I have heard Shri M. Sahu, learned counsel appearing for the Applicant and Shri V.S. Masurkar, learned counsel appearing for the Respondents and perused the documents.
8. The learned counsel for the Applicant submits that the Applicant merely reported his difficulties to the Respondents. His prayer was to shift the Tool Box Room from the area. He never asked for any alternative accommodation. The Respondents, instead of taking steps to punish the gangmen and shift the Tool Box Room, harassed the Applicant in issuing the impugned order allotting him a quarters at Matunga.
9. It appears from the memorandum dated 11.07.2000 that allotment of accommodation which was given to the Applicant was not a regular Railway Staff Quarters. According to the service status of the Applicant, he is entitled to a regular Type-II staff quarters. It is clearly written in the said Allotment Order dated 11.07.2000 that the structure near Station ED office at Dadar junction which was previously used as S&C store room, was then allotted to the Applicant. It is also relevant to mention that the Applicant himself has mentioned in the advocate's notice that the 6 O.A. No. 204/2012 toilet adjacent to the said premises was allotted to the Applicant for his use vide Allotment Order No.Q/14/PL/2000 dated 22.07.2000. Therefore, there cannot be any dispute with regard to the fact that the make-shift arrangement of accommodation for the Applicant was not in any means a regular Railway quarters. The Allotment Order dated 11.07.2000 describes the allotted railway quarters as a structure which was previously used as store room.
10. The Applicant made a series of representations/complaints individually and through his learned advocate. The consistent plea of the Applicant was that it would be impossible for him to live in his present accommodation due to nuisance and disturbance created by the gangmen who come to the Toolbox Room to keep and take heavy equipments. Therefore, the Tool Box Room has to be shifted to some other place.
11. It is evident from the said representation that the Applicant and the gangmen who were using the Tool Box Room adjacent to the allotted accommodation of the Applicant were having regular disputes & fighting amongst themselves. According to the Applicant, he and his family were exposed to serious problems due to the nuisance created by the gangmen while using the said Tool Box Room. As such he prayed before the Respondents to shift the Tool Box Room from that place. It appears from the record that the untoward situation 7 O.A. No. 204/2012 reached upto lodging FIR and filing criminal cases against each other. The complaint filed by the Applicant is as follows:
"The Complaint of the Complainant herein is that the Opponent is working in Railway as Gangmen and near the Residential House of the Complainant there is having a Tool Room of the Opponent and his associate workers for the purpose of keeping their working materials. In the past a quarrel had been taken place with the son of the Complainant of the Opponent and his associate workers. And by keeping in mind the anger about the same when the complainant was on duty on 22.02.2010 the opponent broken the name plate which was near the residential house of the Complainant and caused damage and also threatened to see him, hence this complaint is against the opponents."
12. Thereafter, the Respondents have also annexed two reports -one filed by SSE(P way)DDR dated 23.01.2010 subject being "manhandling with gangmen of gang No.21 by son of Shri Hosla Prasad Mishra, Driver of road vehicle along with outsiders". Some extracts from the said report are set out herein below:
"Shri Hosla Prasad (Road vehicle driver working at Western Railway DRM office) with his family are residing in a railway structure at DDR Junction since many years. In past this structure was used as emergency guest house for apprentices. But later this structure has been converted into quarters & allotted the same to Shri Hosla Prasad.
Tool room of Gang No.21 is situated just beside this quarters since last 20 years. In course of time Shri Hosla Prasad has spread out the quarters area illegally by making fencing & gate out of the way, which makes a great problem for gangmen working day & night for using the tool room. But still they are shy for the share of maintain discipline.
But on 20.01.2010 at 17.45 Hrs when the gangmen just enter in to their tool room for return back their tools etc. suddenly 10 Nos.8 O.A. No. 204/2012
outsider led by eldest son of Shri Hosla Prasad attacked to these gangmen badly by some big stones, weapons, etc. These tired and feared gangmen just tried to escape from this attack & came on track. But the attackmen not stop their operation & throwing stones continuously to them as well as on track also resulting 5 Nos. of gangmen deeply injured.
After receiving this occurrence PWI-DDR Shri Mukharjee rush in to the site, giving fast-aid to the injured men by SS-DDR & report the same to Sr. P.I. GRP, DDR, IPF-DDR & concerned officers.
There after a complaint was lodged to GRP-DDR by the gang No.21. GRP-DDR sent the injured track men for medical examination to KEM Hospital at PL after receiving the medical report police GRP-DDR is investigating the matter.
In this concern it is also to inform you that many times Shri Hosla Prasad is creating problem and abuses the gangmen and gives troubles to gang while the comes at there tool room."
13. On 06.04.2010, another report was submitted by ADEN(T/S)PL addressed to Sr.DEN(S)BCT. From the said report it appears that the site was inspected and following facts have been narrated in the said report:
"1) Residence of Shri Hosla Prasad is in isolated location with no other residential quarters near by and is unsafe from family point of view.
2) Gang tool room is in very poor shape and need to provide a new tool room exists.
3) Conflict at work place is not safe for workmen also.
4) Behavior report of Shri Hosla Prasad from various sources received including other department also indicate his negative side in dealing with gangmen.
5) Various unions have also taken stand to shift the residence of Shri Hosla Prasad."
14. The Applicant in his Rejoinder contended that the dispute/altercation and subsequent police complaint lodged by him in the local Police Station only shows 9 O.A. No. 204/2012 that the gangmen were having grudge and enmity on the Applicant. He never opted for transfer of his accommodation to the quarters. On the contrary, he prayed to shift the Tool Room itself. The Tool Room was initially measuring 12 ft. x 12 ft. However, gangmen encroached upon the quarters of the Applicant and took away the room with the door of the staff quarters of the Applicant. The Applicant, also, in his representations contended that as per Railway rules and regulations, the Tool Box Room should be atleast 500 meters away from the residential quarters.
15. The Applicant has annexed the photographs of the quarters of the Applicant as well as the adjacent Tool Room. The photographs reveal close proximity of two structures with tin or asbestos corrugated shed. It, further, reveals that the accommodation of the Applicant which was used for his residence was not a Railway Staff Quarters. The Tool Room is also in a very bad shape. This should be a matter of serious concern for the Respondents in as much as this Tool Room is used for keeping of heavy equipments for the purpose of maintenance of tracks by the gangmen. Therefore, for public interest, the Tool Room should be properly located for regular attention of the track and should be maintained in proper manner. The Applicant also admitted that ideally the Tool Room should be near the tracks and away from the residential quarters.
10 O.A. No. 204/201216. From rival contentions of the parties, the following facts emerge:
1) One structure/store room was allotted to the Applicant to use as residence. The memorandum allotting an accommodation dated 11.07.2000 mentions as follows:
"The structure near Station Master (Yard office) at Dadar JN. which was previously being used S&C store room is now allotted to Shri Hosla Prasad, MLD of AFO(Engg)PL."
2) The toilet was not attached to the said structure and was not allotted on the same day. The toilet was allotted after 10 days from the date of allotment of the residential accommodation. The Applicant stated in Original Application that the toilet was outside his quarters and near to the Tool Box Room and the toilet was allotted on 22.07.2000.
3) It was never a regular staff quarters. The structure earlier was being used as a survey and construction store room.
4) The Tool Box Room for keeping of heavy equipments for the maintenance of tracks was adjacent to the said accommodation of the Applicant and the said Tool Room was frequented by the gangmen for the purpose of keeping and taking the heavy equipments for the purpose of maintenance of track.
5) Serious disputes and fights arose between the 11 O.A. No. 204/2012 Applicant and gangmen which resulted to lodging of FIR and complaints by the parties. In view of the complaint by the gangmen, a report was sought by the Railway authorities and the report reflected as follows:
(i) The residence of the Applicant was in isolated location with no other residential quarters around Applicant.
(ii) The Tool described in the adjacent to the Applicant and it the accommodation of the Box Room which has been report gang tool room was said accommodation of the was in a very poor shape.
There was regular quarrels and fighting among the gangmen and the Applicant and his family.
(iii) As the Applicant was facing difficulties created by the gangmen, the gangmen were also facing difficulties in working day and night for using the tool room where they keep the heavy equipments used for the maintenance of the tracks.
(iv) It is an admitted position that the Tool Box Room should be atleast 500 mtrs. away from the family quarters and the Tool Box Room should be ideally located near the track for the purpose of attending the track day and night.
(v) The learned counsel admitted that the 12 O.A. No. 204/2012 present accommodation which is being used by the Applicant will not be allotted to any other person as a residential accommodation and the Tool Box Room will be extended and renovated to give the same a proper shape which is extremely urgent for the maintenance purpose.
17. Both the learned counsel for the Applicant and Respondents admitted that the allotted Railway quarters at Matunga is situated only at a distance of 2-3 kms. from the present accommodation of the Applicant.
18. Under the facts and circumstances involved in this case and in view of situation stated above, I find nothing wrong on the part of the Respondents in issuing the impugned order dated 13.09.2011 allotting a regular type-II Railway Staff Quarters to the Applicant according to his entitlement in lieu of tool room at Dadar. The Applicant will be at liberty to move to the allotted Railway Quarters withing four weeks from the date of receipt of the copy of the order.
19. The Original Application is dismissed. No order as to costs.
(Smt. Chameli Majumdar) Member(J) ssn.