Central Administrative Tribunal - Allahabad
Kamla Prasad Pandey vs Union Of India Through General Manager on 1 January, 2009
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH : ALLAHABAD ORIGINAL APPLICATION NO.127 of 2008 Allahabad, this the ________ day of ____________, 2009. Hon'ble Mr. A.K. Gaur, Member-J Kamla Prasad Pandey, aged about 50 years, S/o Shri Ram Lakhan Pandey, Qr. No.5B, Railway colony, Railway Station Chandari District Kanpur. ...Applicant. By Advocate: Shri K.K. Mishra Versus 1. Union of India through General Manager, North Central Railway, Allahabad. 2. Chief Operating Manager, North Central Railway, Allahabad. 3. Divisional Railway Manager, North Central Railway, Allahabad. 4. Senior Divisional Personnel Officer, North Central Railway, Allahabad. 5. Senior Divisional Operating Manager, North Central Railway, Allahabad. ...Respondents. By Advocate : Shri S.K. Chaturvedi O R D E R
In this OA, the applicant has challenged the recovery of damage rent issued vide letter dated 26.3.2007 (Annexure-A-8) on the ground that while posted as Cabin-Master at Chandari Railway Station. He was allotted Quarter No.5B vide order dated 12.1.2000. The applicant was transferred from Chandari Railway Station to Bhaupur Railway Station in the month of June, 2005. The applicant retained the Quarter No.5B at Chandari Railway Station even after his transfer to Bhaupur on account of accident of his son. According to the applicant the period of treatment of the son of the applicant from 17.6.2005 to 31.1.2006 has been certified by the Divisional Medical Officer, N. Railway, Pratapgarh (Annexure-A-3). Subsequently, vide order dated 3.5.2006, the applicant was transferred from Bhaupur Railway Station to Rooma Railway Station which comes under the jurisdiction of Kanpur area and consequently the Railway Quarter at Chandari retained by the applicant was regularized in his favour w.e.f. 9.8.2006. It is also alleged by the applicant that vide order dated 23/25.1.2007 the disputed Quarter No.5B regularized in favour of the applicant w.e.f. 9.8.2006 but retention of the said Quarter of the applicant w.e.f. 1.6.2005 to 8.8.2006 has been treated as unauthorized occupation and for which a direction issued to calculate the damage rent and same may be deducted from the salary of the applicant. A Copy of the same has been filed as Annexure-A-7 to the O.A. Vide letter dated 26.3.2007 an amount of Rs. 93,521.97 was directed to be deducted from the salary of the applicant towards damage rent of the Quarter in Question marked as Annexure-A-8. A detailed representation was filed by the applicant pointing out the fact and reason for retaining the disputed quarter and the order of recovery of damage rent was requested to be recalled. The request of the applicant was turned down vide order dated 3.12.2007 (Annexure-A-10). It has been contended on behalf of the applicant that as he was allowed to retain the Railway Quarter at Chandari Railway Station, as he was not allotted any other accommodation at Bhaupur Railway Station, nor he had claimed any H.R.A. the order dated 26.3.2007 is liable to be quashed by this Tribunal. It is also urged on behalf of the applicant that the action of the respondents in charging damage rent on the plea that the applicant had retained the quarter unauthorizedly is absolutely untenable.
2. Denying the pleas taken in the OA, the respondents, by filing the counter affidavit, submitted that the period from 1.6.2005 to 8.8.2006 has rightly been held to be in unauthorized occupation of the applicant and the respondents have rightly imposed the recovery of damage rent under the provisions of the rules. According to the rules the allottee would have to retain the premises on or before expiry of the permitted period and in the event of occupation of quarter after the prescribed period of retention, it shall be treated as unauthorized occupation and the damage rent will be charged from the applicant.
3. The applicant has filed rejoinder reply and submitted that the respondent No.5 has no jurisdiction for deducting damage rent in respect of public premises as this power has been conferred to Estate Officer under Section 7 of the Public Premises (Eviction of unauthorized Occupants) Act, 1971, and as such the impugned order is liable to be struck down.
4. I have heard Shri K.K. Mishra, learned counsel for the applicant and Shri S.K. Chaturvedi, learned counsel for the respondents and perused the pleadings available on records.
5. Shri K.K. Mishra, learned counsel for the applicant placed heavy reliance on the decision of Calcutta Bench of the Tribunal dated 28.6.2001 in the case of R.P. Mondal Vs. U.O.I. & ors. and submitted that in view of Section 14 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971, recovery of damage rent from salary is not permissible and the respondents must have resorted for the realization of damage rent, as per the provisions contained in PP Act. Shri Mishra has also placed reliance on the decision rendered in OA No.2458/99 in the case of Sh. Ramlal Mehta Vs. U.O.I. & ors. decided by Principal Bench, New Delhi and a decision rendered in OA No.1137/97 in the case of Brij Behari Prasad Vs. U.O.I. & ors. decided on 15.2.2002.
6. In order to buttress the contention that opportunity must have been given to the applicant in the matter while fixing the damage rent. The learned counsel for the applicant submitted that on account of delay on part of the respondents in the matter of allotment the applicant is not liable to pay damage rent. The applicant was never asked to vacate the Railway quarter in dispute and he was always ready to pay normal rent. The representations filed by the applicant have not yet been decided in accordance with the rules. Learned counsel for the applicant also placed reliance on the decision rendered by Bombay Bench of the Tribunal decided on 16.6.2006 in the case of V.K. Gedam and another Vs. The General Manager, Central Railway Mumbai and ors. and submitted that where an employee has been transferred with an impression to come back in the same place in the near future and at the same time no fresh allotment has been made in his favour at transferred place, charge of penal rent for overstaying in the accommodation after permissible period is not justified. Learned counsel for the respondents on the other hand has placed reliance on Full Bench decision of Allahabad Tribunal rendered in A.T. Full Bench Judgments 1994-96 Ram Poojan Vs. U.O.I. & ors. and submitted that no specific order canceling the allotment of accommodation after expiry of the permissible period of retention of the quarter on transfer is required and further retention of the accommodation by the railway servant would be unauthorized and panel/damage rent can be levied. Learned counsel for the respondents also argued that in view of the decision rendered by Full Bench it would be open to the Railway Administration to recover penal/damage rent by deducting the same from the salary of the Railway servant and it would not be necessary to take resort to proceedings under Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
7. I have carefully gone through the decision relied upon by the parties counsel and given my anxious thought to the pleas advance by the parties counsel. In view of the Full Bench decision of the Tribunal rendered in Ram Poojan case (supra), the argument advanced by the learned counsel for the applicant that he was not offered any opportunity to be heard before fixing liability to pay the damage rent cannot at all be countenanced. From the provisions of the Railway Board's letters, it would be apparent that retention of quarter without seeking permission on transfer beyond the permissible period will be treated as unauthorized and the applicant would be required to pay damage rate of rent in respect of the Railway Quarter. The decision of Calcutta Bench of the Tribunal rendered in R.P. Mondal's case (supra) relied upon by the learned counsel for the applicant, it is submitted, that in any event damage rent cannot be recovered without resorting to the procedure laid down in the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In this regard I must refer two decisions of Division Bench of Calcutta Bench of the Tribunal rendered in 1993 (2) ATJ 553 - Shanker and Ors. and Sudha Iswar Rao Vs. U.O.I. & Ors. reported in 1994 (2) ATJ 553. It has been clearly been laid down in these two decisions that Section 7 of the PP Act is nothing but an alternative procedure for recovery of rent dues from government employee and cannot be treated as the only mode of recovery. In the present case, the provisions of Railway Board's circular would apply and the recovery of damage rent cannot be said to be illegal. I must hold that resort to proceedings under the PP Act is only an alternative procedure which does not debar recovery as per the provisions of Railway Board's Circulars. In the decisions relied upon by the learned counsel for the applicant the question involved and decided by Full Bench of Allahabad Tribunal has not at all been considered. In the judicial comity the decision rendered by Full Bench is binding on Learned Single Member and Division Bench.
8. In my considered view, the decision rendered by Full Bench shall prevail in the facts and circumstances of the case. I have also carefully gone through the Railway Board's letter No.E (G)99 QRI-16 dated 16.3.2004, I am of the considered view that the retention of the Railway Quarter after the permitted period of retention shall be treated as unauthorized occupation and the Railway Administration will be at liberty to charge the damage rent from the applicant. The case laws relied upon by the learned counsel for the applicant is distinguishable on the facts and circumstances of the case.
9. In view of the aforesaid observations, I find no merit in this case and it is accordingly dismissed. No order as to costs.
(A.K. Gaur) Member-J RKM/ 1