Madras High Court
N. Govindan vs The Chief Personnel Officer, I.C.F. ... on 13 October, 1999
Equivalent citations: 1999(3)CTC588, (2000)1MLJ389
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER
1. The above civil revision petition is directed against the judgment and decree dated 28.3.1996 made in CMA No. 55 of 1995 by the II Additional Judge, City Civil Court, Madras, thereby confirming the order dated 3.4.1995 made in No. W/W/25 by the Estate Officer, Integral Coach Factory, Madras-600 038.
2. The starting point of the dispute is the show cause notice issued by the Office of the Chief Engineer dated 24.11.1994 as per his proceeding in No.W/W/25 under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (hereinafter referred to as the 'Act') contending thereby that the petitioner herein is in unauthorised occupation of the railway quarters bearing No. 248/4 I.C.F. North Colony, Madras- 38, from 1.11.1994 beyond the permitted period of four months from the date of his retirement on 30.6.1994 and thereby calling upon him to show cause on or before 3.12.1994 as to why such an order of eviction should not be made?
3. For the said show cause notice, the petitioner has given a reply dated 30.11.1994. But the Office of the Chief Engineer not being satisfied with the reply to the show cause notice, had passed an order of eviction dated 3.4.1995 addressing to the Inspector of Police, K-7 Police Station, ICF, Madras-38, and with a copy marked to the petitioner on 4.4.1995, testifying the validity of which the revision petitioner has preferred an Appeal in CMA No. 55 of 1995 before the II Additional Judge, City Civil Court, Madras, and the said Appellate Authority, confirming the eviction order passed by the Estate Officer has dismissed the Appeal with costs.
4. Challenging and testifying the validity of the orders passed by both the revision petitioner has come forward to file the above revision on certain grounds, such as, (i) that the order passed by the authority below is not a speaking order; (ii) that the authority below ought to have held that the son of the petitioner is entitled to continue in the same quarters on out of turn basis under the father-to-son rule; (iii) that there are instances that many such others, viz., M. Suresh Babu, D. Ragunathan, D. Krishnakumar and Sridhar have been allotted with quarters by the respondents and the petitioner's son is only discriminated against in observance of the rule; (iv) that in view of the detailed representation to the show cause notice, the order of eviction is unwarranted; (v) that the second respondent did not apply his mind before passing the impugned order of eviction and he could not arrive at a subjective satisfaction for drawing his conclusions especially when such an order is passed under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971; (vi) that a conjunctive reading of the show cause notice dated 24.11.1994 and the reply dated 30.11.1994 would clearly disclose that the impugned order is hit by discrimination and such of the acts of the respondents is nothing but arbitrary, discriminatory and, showing nepotism, (vii) that the learned Judge has failed to note that the respondents are deducting HRA from the salary of the petitioner's son since 1.12.1993 till date and hence the petitioner cannot be termed as unauthorised occupant of the quarters; (viii) that the learned Judge has erroneously conclude as if the second respondent has passed the order of eviction only on the basis of the reply to the show cause notice; (ix) that the learned Judge ought to have held that the eviction order passed by the second respondent is not only violative of principles of natural justice, but also arbitrary exercise of powers. With the above grounds.
the revision petitioner would pray for setting aside the orders passed by the authorities below.
5. During arguments, the learned counsel appearing for the petitioner would contend that the petitioner is a railway employee and retired on 30.6.1994; that while he was in service, he was allotted Type-II quarters and his eldest son, viz., Jeyakumar also got employed since 1988; that he got promoted to the Scale Grade -III in November 1993 thereby becoming entitled to claim Type-II quarters on account of his promotion; that in the mean time, the petitioner's wife was indisposed of and his son, who was living separately, joined the family; that as a token of merger of the family from 1.12.1993, the house rent allowance (HRA) was deducted from the petitioner's salary and that of his son; that there was a circular dated 15.1.1990 by virtue of which, provision was made for allotment of quarters from father-to-son; that the son made a representation dated 24.3.1994 to the authorities concerned, but the same was negatived. Subsequently, he moved the Central Administrative Tribunal also and since the matter was likely to be settled with the department, he withdrew the application, that on such account of the O.A.No. 896 of 1994 was dismissed, as per orders of the Tribunal dated 12.2.1994; that thereafter, a show cause notice dated 24.11.1994 was issued for which the reply dated 30.11.1994 had been sent; that however, an eviction order dated 3.4.1995 had been passed by the authorities concerned, testifying the validity of which, the CMA was preferred; that without proper consideration, the Appellate Authority had dismissed the appeal as a result of which, the petitioner has come forward to file the above civil revision petition.
6. In reply, the learned counsel appearing for the respondents would contend that the son got appointed on 22.7.1988 and at that time staring that he was residing independently, offered the address as 44, Nattal Garden St, Perambur, Madras-11, and started receiving the HRA; that his father retired on 30.6.1994; that seven months prior to his retirement stating that he joined his father on 6.12.1993 as the first time, he came forward to make it known that because of his mother's illness, he had to settle down with his father; that inspite of his mother suffering from illness right from 1985, only at the end of 1993, for reasons known to him, he disclosed his mother's illness in order to take advantage of Clause 2 of the circular issued by the Railway Board in its (Reb.No.7/1990) No. E(G) 85 ORI-9 dated 15.1.1990.
7. The learned counsel for the respondents would further contend that even though Clause 2 of the Railway Board circular provides for the scheme of allotment of the quarters in favour of the son, daughter, wife, husband or father of the retiring railway employee on out of turn basis, it is Clause 3(viii) which is applicable to the present case in hand that clause 2 is not appreciable him because he was admittedly drawing the HRA; that even if he becomes entitled to, the benefit of Clause 2 has to be read with Clause 3(viii) of the Railway Board circular and he will become ineligible under Clause 3 (viii); that he gave false declaration and drew the HRA.
8. The learned counsel would then point out that only the retired employee is before the Court as the petitioner and not the son; that the defence available to the son cannot be agitated and the only defence of the retired employee could be settled; that the son joining hands with the father, moved the Administrative Tribunal for out of turn allotment and transfer of the quarters from father-to-son and that was turned down by the Tribunal; that the order of the Tribunal has become final; that the son has no independent right or locus standi. Hence an enquiry was contemplated under the Act and show cause notice was issued on 24.11.1994; that the petitioner herein is in unauthorised occupation of the quarters from 30.6.1994 and since the facts are disputed, no further enquiry is called for; that in the instant case the father is a party and not the son; that the issue had already been sealed by the Tribunal that the defence available to the son cannot be availed by the father; that the proceedings here are by the father and the show cause notice has been issued only to the father and the order made by the Tribunal is not a bar to the order made by the authorities under this Act; that if the son has chosen to adopt a uniform policy of regularisation of the allotment, the petitioner would not have visited with such an order at all.
9. In clarification of certain ambiguities that has occurred in the arguments and the reply as elicited above, the learned counsel for the petitioner would further contend that it is Section 4 of the Act that contemplates the issue of show cause notice, the service of the same and the other procedures that are to be followed thereunder. At this juncture, the learned counsel would cite a Judgment delivered in M/s. Wire-Netting Stores v. Delhi D.A. wherein it is held:
(i) The question whether the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 is ultra vires or need not be decided in this case as the petitioners are entitled to succeed on the non-fulfilment of Section 4 of the Act."
(ii) The procedure laid down by Section 4 of this Act was not followed by the respondents. No opportunity appears to have been given to the petitioners for showing cause against the proposed eviction which is not only contrary to law but also to the principles of natural justice."
10. Citing the above proposition arrived at in the judgment based on Section 4 of the Act, the learned counsel would exhort that the recovery of eviction proceeding in view of the above defects becomes vitiated; that whether the order is in terms of the provisions of the Act is the paramount point for consideration; that under Section 5 of the Act, three grounds are laid down failing to follow which the order becomes liable to be set aside, since it is nothing but a statutory violation; that so far as the circular is concerned, seven months prior to the retirement that is from 12.12.1983 till date the HRA is being deducted from the son's salary; that the petitioner was not given adequate opportunity to appear before the authorities concerned not only to adduce evidence, but also to file documents; that the show cause notice has not been issued in consonance with Section 4 of the Act; that no reasons were recorded by the authorities for passing the order, nor is there any application of mind and hence the order made by the authorities concerned is arbitrary and discriminatory; that here, it is an application filed under the relevant provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and it has nothing to do with the Tribunal order that the views expressed by the Tribunal are not applicable to the present case in hand; that Clause 3 (viii) is not at all a bar, since the petitioner's son stopped drawing the HRA prior to the hallmark of six months back from the date of his father's retirement. The learned counsel would conclude his argument ultimately praying to set aside the orders passed by the original and appellate authorities.
11. To assess the facts of the case, the petitioner herein is the father and a railway employee, who retired from service on 30.6.1994; that while he was in service, he was allotted Type-II quarters and his son, viz., Jeyakumar also got employed in the same department in the year 1988 and by virtue of promotion to the Scale Grade-III in November 1993, he became entitled to claim Type-II quarters, such as that of his father. It is the case of the petitioner that his son was living separately and was drawing HRA and on account of the petitioner's wife's ill-health, the son also joined him to live under one and the same roof with the petitioner and on such development, the son stopped claiming HRA from 1.12.1993, but the same was deducted from the petitioner's salary and that of his son; that the circular dated 15.1.1990 provides for allotment of quarters from father-to-son and hence the son made a representation on 24.3.1994 which was negatived.
12. It is the further case of the petitioner that in the above circumstances, they were left with no option, but to move the Central Administrative Tribunal filing O.A.No. 896 of 1994 which, among other grounds, on account of expressing to withdraw, the same came to be dismissed on 12.2.1994; that thereafter, the respondents issued a show cause notice dated 24.11.1994 which was replied on 30.11.1994 explaining their position which would have only given way for an order in their favour; But inspite of the same, an eviction order dated 3.4.1994 had been passed, challenging which the petitioner had preferred CMA No. 55 of 1995 and the Appellate Court also having confirmed the eviction order, the petitioner has come forward to file the above civil revision petitioner on certain grounds as stated supra.
13. On the part of the respondents, it would be contended that the son of the petitioner, who initially stated that he was independently residing at 44, Nattal Garden St, Perambur, Madras- 11, was falsely claiming HRA and in order to claim the quarters on account of his father's retirement on 30.6.1994, seven months prior to the said date, stating that on account of his mother's ill-health, he joined his father on 6.12.1993. But except to take advantage of Clause 2 of the circular of the Railway Board issued in REB No. 7/1990 in its No. E(G) 85 ORI-9 dated 15.1.1990, there is no bona fides attached to such claim. But on the contrary, on facts to the case of the petitioner and his son, it is Clause 3(viii) which is applicable and it is false to say that he is entitled to get transfer of the quarters of his father on out of turn basis.
14. It is relevant to extract Clause 2 and Clause 3(viii) of the aforementioned circular of the Railway Board, which are as follows:
Clause 2 "When a Railway employee who has been allotted railway accommodation retires from service or dies while in service, his/her son, daughter, wife, husband or father may be allotted railway accommodation on out of turn basis provided that the said relation was a railway employee eligible for railway accommodation and had been sharing accommodation with the retiring or deceased railway employee for atleast six months before the date of retirement or death and had not claimed any H.R.A. during the period. The same residence might be regularised in the name of the eligible relation if he/she was eligible for a residence of that type or higher type. In other cases, a residence of the entitled type or type next below is to be allotted."
Clause 3 "Provided that in case where the retiring employees including those who take voluntary retirement or the member of his family owns house in the place of his/her posting the specified relative will not be eligible for allotment of railway quarters on out of turn basis."
Clause 3(viii) "If an employee's dependent is already drawing HRA and stops drawing the amount six months before the retirement of this employee concerned, the dependent is not eligible for allotment of regularisation of quarters."
The contention of the respondents is that under Clause 3(viii), the petitioner and his son become not eligible to get the regularisation of the quarters of the father in the name of the son.
15. It is relevant to clarify the above provisions of the Railway Board notification in the context of the case in hand. So far as Clause 2 above is concerned, it contemplates that a railway employee who has been allotted with the accommodation retires from service, his son may be allotted railway accommodation on out of turn basis, provided the son is eligible for such accommodation thereby sharing such accommodation with the retiring employee atleast six months before the date of retirement and had not claimed HRA during that period, the same accommodation might be regularised in the name of the son. So far as clause 3(viii) above is concerned, it contemplates that if the employee's dependent is already drawing HRA and stops drawing the amount six months before the retirement of the employee concerned, the dependent is not eligible for allotment of the quarters.
16. Even though it is relevant to consider the facts and circumstances encircling the whole case as pleaded by parties, the said facts and circumstances have to be weighed in the context of the position of law and the rules pertaining to the out of turn allotment of the accommodation on father-to-son basis. So far as the rules of the Railway Board notification discussed supra are concerned, the petitioner would cling to Clause 2 and would lay emphasis on the son sharing the accommodation with the retiring employee atleast six months before the date of retirement and had not claimed HRA during that period, the same accommodation may be regularised in the name of the son. It is the contention of the petitioner that the son of the petitioner being eligible in the manner prescribed by this Clause and by virtue of having shared the accommodation with his retiring father seven months before his retirement and having not claimed HRA during that period.
17. On the contrary, on the part of the respondents, it would be argued that Clause 2 should not be read in isolation, but the said Clause has to be read along with Clause 3 (viii) conjointly. So far as Clause 3 (viii) is concerned, this clause having contemplated that the dependent who is already drawing HRA stops drawing the amount six months before retirement of the parent employee, the dependent is not eligible for allotment of the quarters, does not go in consonance with Clause 2 in any manner, but the construction and meaning of this Clause is repugnant to Clause 2. Clause 2 provides for the accommodation of the dependent, who is sharing such accommodation with the retiring employee at least six months before the date of retirement provided during the said period of six months, the dependent had not claimed the HRA.
18. Quite contrarily, Clause 3(viii) postulates that if the dependent employee, who was already drawing HRA stops drawing the same six months before the retirement of the parent employee concerned, the dependent is not eligible for allotment. There is a slight deviation of Clause 3 (viii) from Clause 2 in the sense that Clause 3 (viii) deals only with those dependent employees, who have been already drawing HRA and stops drawing the same prior to six months of the retirement of the parent employee. Hence, it could be barely arrived at that any dependent, who has been drawing HRA prior to six months of the retirement of the parent employee, is not eligible to claim the allotment of the accommodation contemplated under Clause 2. This Clause 3(viii) has been framed in a narrow sense leaving many a question unanswered.
19. Moreover, Clause 2 only contemplates sharing of the accommodation with the retiring employee at least six months prior to retirement and that the dependant does not claim HRA during that period, in such event, the same accommodation might be regularised in the name of the eligible dependent employee. But, Clause 3(viii) would say that the dependent who is already drawing HRA, stops drawing the amount six months before the retirement of the parent employee, the dependent is not eligible for allotment or regularisation. It is not clarified whether in order to become eligible to get the allotment of accommodation, as per Clause 2, the dependent employee should not at all have drawn any HRA throughout, or what is the position of those dependent employees who have been drawing HRA, but stop claiming HRA before the retirement of the parent employee? what about their contribution made for HRA? Whether Clause 3(viii) obstructs only those who stop drawing the amount just six months before the retirement of the parent employee and if so, what is the effect of Clause 2 providing the facility to get out of turn allotment provided the dependent employee shares the accommodation with the retiring employee for at least six months before the date of retirement and had not claimed any HRA during that period thereby meaning that he could have claimed HRA prior to six months, which is not a bar for the authorities to allot the accommodation in his favour. These and such other many questions go unanswered because of the introduction of proviso in Clause 3(viii) in to the notification of the Railway Board dated 15.1.1990. Since the meaning of this proviso under Clause 3(viii) being vague, ambiguous, equivocal and rather repugnant to those which are contemplated under Clause. 2 of the said notification, no importance need be attached to the proviso Clause 3(viii) of the notification at all, especially relating to the case in hand.
20. Moreover, the respondents are hereby required either to review Clause 3(viii) or at least to clarify the ambiguities or the repugnant nature of Clause 3(viii) relating to Clause 2 in order to solve many a future complication that may arise in the way of the said out of turn allotments to be made. Hence, for the above discussion, it is hereby held that Clause 3(viii) cannot be taken as an operative one much less over riding the ingredients of clause 2 the meaning of which is plain and simple and the approach positive which is being attempted to be negatived by Clause 3(viii). It is clarified that in the given circumstances the authorities concerned while making such allotment as one in the case in hand are required to read Clause 2 of the Board's directive in isolation of Clause 3(viii) and can very well go by the norms fixed under Clause 2 ignoring Clause 3(viii) at present in which event, no injury will enure to the object sought to be achieved by the scheme formulated by the Board in allotting out of turn accommodation on father-to-son basis. Rules, procedures, circulars and notifications must be framed in the manner to give clarity to the object sought to be achieved and they are not expected to be cumbersome or confusing or confronting in its meaning or interpretation.
21. So far as the point involved in this case is concerned, it is not the allotment of the accommodation of any kind much less in accordance with the notification dated 15.1.1990 issued by the Railway Board mentioned supra in favour of the dependent of the petitioner but to decide whether the eviction order issued by the Office of the Chief Engineer, ICF, Madras-38, under the Public Premises (Eviction of Unauthorised Occupants) Act. 1971 is just and proper and whether the same has been issued in accordance with law? Needless to mention that this Court of revision is not expected to go in to the question such as, allotment of accommodation either on the regular basis or on the out of turn basis, or any order passed in that connection rejecting the plea of the petitioner or his son, or even any proceeding that has been taken in that regard much less in the Central Administrative Tribunal or any order passed by it as it comes to be known from the pleadings and arguments of parties.
The point for determination is whether the eviction order issued by the respondents against the petitioner herein is proper or valid and sustainable in law?
22. Focussing the attention on this vital question for determination regarding the eviction order issued by the respondents and testifying the validity of the same, it is seen that it is the firm case of the petitioner that neither the show cause notice issued under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, nor the very eviction order dated 3.4.1995 have been legally done, but they have been caused without following any of the procedures contemplated therein and the said notice. The order having been passed in an arbitrary and high-handed manner and bereft of legal force they have to be held not properly or legally done and they have to be ultimately set aside. The eviction order having been passed without an opportunity for the petitioner to be heard, it is also to held violative of the high principles of natural justice and at this score also the order becomes liable to be set aside.
23. First let us take up the show cause notice issued under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The section is extracted hereunder:
Section.4: "Issue of notice to show cause against order or eviction:- (1) If the estate officer is of opinion that any person is in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall- (a) specify the ground on which the order of eviction is proposed to be made; and
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest, in the public premises,--
(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and
(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.
3. The estate office shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.
4. Where the estate officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of sub- section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.
24. A glance at the notice dated 24.11.1994 issued to the petitioner, excepting to contend that the petitioner is in unauthorised occupation of the partners from 1.11.1994 beyond the permitted period of four months from the date of his retirement on 26.6.1994 and, therefore, in exercise of his powers as Estate office, under Section 4(1) of the Act, he has issued the notice thereby calling upon the petitioner is show cause on or before 3.12.1994 as to why such an order of eviction should not be passed? Section 4(2)(a) of the Act warrants to specify the grounds of which the order of eviction is proposed to be made. Section 4(2)(b) contemplates that the notice should require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest, in the public premises and Section 4(2)(b)(ii) requires that the notice shall specify such occupant or occupants to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired- The mandatory procedures laid down by Section 4 of the Act have not at all been followed by the respondents, nor any opportunity appears to have been given either to the petitioner or the other occupants of the quarters, which is mandatory and the show cause notice since having been issued contrary to law and the principles of natural justice as rightly held in the Judgment reported in M/s. Wire-Netting Stores v. Delhi D.A. . The show cause noticed issued in this case is hereby held a nullity based on which no order of eviction should have been passed.
25. The next point that is to be discussed and decided is that there was no opportunity afforded for the petitioner to be heard, which is not only against the procedures contemplated under Sections 4 and 5 of the Act, but also against the cardinal principles of natural justice and hence, in this score, the very eviction order and notice passed by the respondents become liable to be set aside.
26. It is pathetic to note that without affording any opportunity for the petitioner as contemplated by the relevant provisions of the Act and rules, the estate officer has addressed the order of eviction only to the local Inspector of Police, marking a copy to the petitioner even without a word of caution regarding the eviction that is to take place, either to the petitioner or to the other inmates and the said act perpetrated on the part of the respondents is nothing but arbitrary and high- handed and the same is discredited. The authorities concerned have neither followed the procedures laid down under the relevant provisions of law, especially under Sections 4 and 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 nor have they complied with the high principles of natural justice, affording sufficient and reasonable opportunity for the petitioner to be heard prior to passing the order of eviction. In the above circumstances, on account of non-compliance of the mandatory provisions of law on the part of the respondents, I am left with no option but to set aside both the show cause notice and the eviction order passed by the respondents. Consequently the order of the appellate court below since it is justifying the order of the Estate Officer, that order passed by the appellate court is also set aside.
In result, the above Civil Revision Petition succeeds and the same is allowed. The judgment and decree dated 28.3.1996 made in CMA No. 55 of 1995 by the II Additional Judge, City Civil Court, Madras, thereby confirming the order dated 3.4.1995 made in No.W/W/25 by the Estate Officer, Integral Coach Factory, Madras- 38, is hereby set aside. However, in the circumstances of the case, there shall be no order as to costs.
The statutory authorities are at liberty to consider the request of the petitioner and his son, viz., Jeyakumar, in terms of the prevailing rules subject to the remarks offered herein initiating such measures afresh in accordance with law.