Central Administrative Tribunal - Delhi
Sh. M.S. Rakesh vs The C.M.D on 8 July, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
TA-618/2009
New Delhi this the 8th day of July, 2009.
Honble Mr. N.D. Dayal, Member(A)
Sh. M.S. Rakesh,
S/o Shri K.L. Rakesh,
R/o Quarter No.25/4C/DIZ,
Kalibari Marg, New Delhi. . Applicant
(through Sh. M.K. Bhardwaj, Advocate)
Versus
1. The C.M.D.,
Mahanagar Telephone Nigam Limited,
Delhi.
2. The C.G.M. NTR,
BSNL, 7th Floor, Kidwai Bhawan,
New Delhi. . Respondents
(through Ms. Rachna Joshi Issar with Mr. Shailendra Kumar, Advocate)
O R D E R
This matter was filed before the Honble High Court of Delhi as Writ Petition No. 8902/2005. On 24.05.2005 the Court directed that pending further orders, there shall be stay of the demand for recovery made by the respondents in the letter dated 13.04.2005. Respondents No. 1 and 4 were deleted with approval of the court from the memo of parties and the only respondents remaining are MTNL and BSNL. Subsequently, this matter has been transferred to the Tribunal as per directions dated 11.02.2009 pursuant to Notification dated 25.10.2007 under Section 14(2) of the Administrative Tribunals Act, 1985.
2. The applicant herein is seeking quashing of orders dated 13.04.2005 and 15.06.2004 issued by the Mahanagar Telephone Nigam Limited (MTNL) whereby a sum of Rs. 2,56,062/- is sought to be recovered, with direction upon the respondents to treat the applicants stay in Quarter No. B-14/307, Himgiri Apartment, Sector-34, Noida as authorized stay.
3. It is submitted by the applicant that he had initially joined the Department of Telecommunication (DOT) but later his services were transferred to MTNL where he was allotted the above official accommodation by letter of 01.05.2000. It is stated that he was transferred from the office of CE(BW)II to the office of CE(C) Telecom. North Zone, Delhi in BSNL by letter of 16.08.2000. According to the applicant since he had opted for permanent absorption in MTNL on 18.10.2000, he made a representation seeking retention of the above accommodation but the same was not agreed to as his continuation in the accommodation was treated as unauthorized. A representation was made to AGM (Building) NTR stating that on account of his joining in BSNL the allotment should be regularized afresh. The BSNL authorities wrote on 2.5.2001 (Annexure P-6) to MTNL for interchange of the quarter allotted to the applicant by MTNL with another one, giving reference of earlier correspondence initiated by MTNL for interchange of the quarter. The applicant states that he again submitted option for absorption in MTNL on 26.02.2002 and since there was no action on it he sent an option for permanent absorption in BSNL on 19.09.2003 and made a representation to AGM BSNL for regularization of the quarter in his occupation. The MTNL wrote to BSNL on 8.1.2004 (P-9) reverting to their earlier letter of 10.7.2001 and seeking consent for inter pool exchange of quarter. A copy was endorsed to the applicant w.r.t. his letter of 30.12.2003 (Annexure-P8) in which he had requested regularization of quarter on educational grounds as his daughter was in Class-XI. The BSNL allotted a quarter to the applicant on 18.1.2004 (Annexure P-10). Thereafter in their letter of 15.06.2004 the MTNL inter-alia stated that quarter allotted to the applicant by them has been cancelled on transfer to BSNL but later retention was permitted upto 16.04.2001. The subsequent period was treated as unauthorized occupation as no permission to retain the quarter was issued and damage rent was to be charged for it. As such a recovery of Rs. 2,56,062/- was to be made. It is seen that such recovery was further insisted upon after considering the applicants case by letter of 13.04.2005 and followed up.
4. The MTNL have, by their written statement, clarified that although the applicant was allotted the quarter by letter of 01.05.2000 he was transferred to BSNL by order dated 16.08.2000 (Annexure R/1) in the office of CE (Telecom) North Zone. As such he was initially granted retention of quarter for two months, which was subsequently extended on payment of twice the normal licence fee on medical grounds/education upto 16.4.2001. It had been made clear in that communication of 7.02.2001, which is at Annexure-R4, that extension beyond this period will be charged on market rent, but the applicant failed to vacate the premises and retained them till 22.03.2004. As such in terms of S.R. 317-B-22 of FRSR the applicant is liable to pay damages from 17.04.2001 to 22.03.2004. They have relied upon the judgments of the Honble Supreme Court in the case of U.O.I. & Ors. Vs. Wg. Cdr. R.R. Hingorani (1987(1)SCC 551) and U.O.I. & Ors. Vs. Shiv Charan (1991(Supplementary 2) SCC 386) to contend that if a quarter is occupied after cancellation of allotment, damages are liable to be paid.
5. It is further explained that upon the applicants transfer to BSNL he ceased to be an employee of MTNL from 16.08.2000 and no decision was taken on exchange of quarters with BSNL. Therefore, the correspondence in that regard could not form the basis for the applicant to claim the relief in this OA. It is asserted that the applicant was never permanently absorbed in the MTNL and references in that regard are misleading. As such, the recovery imposed upon the applicant by way of damage rent is justified and the O.A. is devoid of merits.
6. The BSNL have also filed a reply denying and disputing the applicants case.
7. In his rejoinder the applicant has reiterated the arguments earlier advanced in support of the claim.
8. I have heard the learned counsel for both sides and perused the pleadings as well as the written arguments/documents produced.
9. The learned counsel for the applicant has drawn attention to the impugned orders and stated that there was no specific declaration after 16.04.2001 that he was an unauthorized occupant of the quarter and once the respondents had simultaneously taken steps for exchange of quarters, the applicant was led to believe that the retention of the quarter by him would be adjusted accordingly but instead damage rent amounting to Rs.2,56, 062/- has been imposed. By ordering such recovery, the respondents have also acted in contravention of the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and under Section 7 sub-section 3 thereof a show cause notice should have been given before determining the damage rent to be levied. The applicant has been paying the regular licence fee through out and therefore in the above circumstances he cannot be accused of unauthorized occupation. A reliance has been placed on decision of a Co-ordinate Bench of the Tribunal at Bombay in the matter of Suraj Pratap Tiwari Vs. Union of India & Ors., OA-1217/1993 reported in 1998 (3) ATJ 461 wherein it was held that penal rent can be recovered as provided under the rules from the salary but should not exceed 50% thereof as per Payment of Wages Act, 1936. Another decision of Co-ordinate Bench at Calcutta in R.P. Mondal Vs. U.O.I. & Ors., OA-1106/1996 reported in 2001(2)ATJ 600 is relied upon which says that recovery of damage rent is not permitted from the salary and it has to be realized in accordance with provisions of the Public Premises (Eviction of Unauthorized Occupants Act, 1971. There appears to be a certain contradiction here and the contention is not very clear.
10. The learned counsel for the respondents have enlarged upon the grounds taken in the counter replies and stated that the applicant had no right to remain in possession of the quarter of MTNL especially when he had been transferred to BSNL on 16.08.2000 and had availed retention thereafter for the permissible period as was allowed to him. He cannot therefore claim that because he preferred options for absorption he could presume to continue in occupation of the quarter. It is emphasized that once the quarter stood cancelled the applicant was liable to pay damage rent as per rules for the period of unauthorized occupation.
11. It is observed that the applicant had joined BSNL on transfer from MTNL and availed the retention of the quarter allotted by MTNL for the permissible period till 16.04.2001 as per Rules. He preferred an option for absorption in BSNL on 19.02.2002 (page-49) and for absorption in MTNL on 26.02.2002 (Annexure P-4). The applicant further submitted an option for permanent absorption in BSNL and MTNL in that order of preference on 19.09.2003 (Annexure P-7). He was permanently absorbed in BSNL w.e.f. 01.10.2000 (forenoon) as per order dated 31.03.2004 (Annexure RR/1 to the counter reply filed by BSNL at page-82). The BSNL allotted a quarter to the applicant on 18.01.2004 by letter at Annexure P-10. However, the applicant did not shift immediately and continued to occupy the MTNL quarter till 22.03.2004. Although the MTNL and BSNL made the effort to exchange quarters, which could have enabled the applicant to continue in the quarter allotted by MTNL as the same would have then become a BSNL quarter, apparently no final decision could be taken thereon by that time. If the BSNL could not allot a quarter to the applicant after his joining there on transfer in the year 2000 and until 18.01.2004, the reasons for the same are not known and no particular averment has been made in that regard.
12. It is not disputed that the applicant was with the DOT before he joined MTNL. The MTNL found the applicant entitled to a quarter and allotted him one. Upon his joining in BSNL on transfer the applicant was allowed to retain the quarter as per rules. Accordingly, MTNL did not extend the quarter in the applicants name after 16.5.2001. But, as evident from the BSNL letter dated 02.05.2001 to MTNL, it seems that the latter had written to BSNL earlier on 12.3.2001, before the extended period for retention expired on 16.04.2001, suggesting quarter 85/Sector-12, R.K. Puram belonging to NTR pool for interchange with the quarter of the applicant. The BSNL proposed quarter 5/IV Shakti Nagar, for exchange which appears to have been asked for by MTNL itself still earlier by letter of 20.09.1999. From MTNL letter dated 8.1.2004 it is observed that a reference has been made therein to an earlier communication dated 11.7.2001 and consent for exchange of quarter has been sought. Apparently such effort was being made by the MTNL consistently over the years in the interest of the applicant and even till such late stage, as the terms and conditions for absorption in MTNL reflected in Annexure P-13, para relating to residential quarters, did not include any provision for continuation in MTNL quarter by those who were not absorbed in MTNL, and there was no decision on absorption or otherwise of the applicant by MTNL till then as per material on record. They may have also been influenced by the BSNL decision to allow retention of BSNL quarters until 30.09.2005 on payment of standard licence fee even to those officers who had not opted for absorption in BSNL or those occupying Estate pool quarters. The applicant was endorsed a copy of the communication dated 8.1.2004 by MTNL, no doubt to keep him informed & enable him to act in the light of the same. The MTNL being a model employer appears to have been taking this initiative so that by exchange of quarter, the applicant may be able to continue in the same quarter without having to shift his family & disturb the childrens education. At the same time, large scale family movements with attendant difficulties for the respondents themselves consequent upon absorption in MTNL/BSNL may have also been, thereby, minimized.
13. As per SR 317-B-22, relied upon by the respondents, the allotment of quarter having been deemed to be cancelled, the applicant became liable to pay damages. It is seen that GOI(5) under SR 317-B-11 makes clear that in case of non-vacation of accommodation retained for an extended period on medical/educational grounds, immediately upon expiry of such period eviction proceedings should be initiated asking the allottee to vacate and recovery of damage rate of licence fee should be enforced for the unauthorized period. These provisions of SR and criteria for assessment of damages are seen to be based on instructions of the Directorate of Estates, in the Ministry of Urban Development and the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and Rules made thereunder. The details of calculation of the recovery amount now produced by the respondents show that they are based on rates fixed by the Directorate of Estates (GOI). Thus, while the MTNL did not communicate the recovery amount on expiry of retention period, the applicant was kept informed of the efforts to exchange his quarter with BSNL instead of initiating eviction proceedings.
14. It seems that from the approach and conduct of the respondents it would not have been unreasonable for the applicant to have expected that the MTNL was inclined to let him stay on in the quarter by interchange and he was unlikely to face the extreme penal consequences. He would also have been entitled to expect that MTNL would succeed in finalizing inter change of quarter, especially since there was no objection but active cooperation by both MTNL and BSNL in this endeavor. If the allotment of quarter by BSNL on 18.01.2004, and vacation of MTNL quarter on 22.03.2004 came before a decision could be taken on interchange, should it have resulted in imposition of damages of more than Rs. 2 lakhs in such circumstances by treating the period since 16.04.2001 as unauthorized absence in accordance with the Rules, or were the principles of equity and legitimate expectation required to be taken into consideration?
15. The concept of legitimate expectation is fashioned by Courts for judicial review of administrative action and is based on the requirement of a higher degree of fairness in administration action. It has been developed in the context of principles of natural justice. Although it is not an enforceable right, it may entitle an expectant to an opportunity to show cause or to an explanation as to the cause for denial. The Honble Supreme Court in a catena of decisions have considered the doctrine of legitimate expectation. In the case of Sethi Auto Service Station and Anr. Vs. Delhi Development Authority, 2009(1)SCC 180, the Apex Court had occasion to refer to a decision by the House of Lords in Council of Civil Service Unions Vs. Minister for Civil Service, 1985 AC 374 wherein Lord Diplock had inter alia observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person by depriving him of some benefit or advantage which he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon.
16. In the case of Confederation of Ex-Servicemen Associations and Others Vs. U.O.I. and Ors.,2006(8) SCC 399 a Constitution Bench of the Apex Court held as follows:-
33.. No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to 'judicial review'. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue.
* * * *
35. In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in the absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised. (emphasis in original)
17. In Bharat Petroleum Corporation Ltd. Vs. Great Eastern Shipping Co. Ltd., (2008) 1 SCC 503 the Apex Court held that an acceptance need not always have to be given in so many words. Under certain circumstances silence coupled with conduct, takes the form of a positive act and may constitute an acceptance an agreement sub silentio.
18. The respondents have relied upon Wg. Cdr. R.R. Hingorani (supra) wherein the fact of transfer outside Delhi had been concealed and there was nothing to show that the Government had done anything to mislead or to induce the Wg. Cdr. to believe that he was permitted to occupy the flat in question on payment of normal rent or to change his position on the faith of any representation or conduct. It was held that no notice was required and no relaxation in the Rules under SR 317-B-25 for payment of damages could be presumed merely on the ground of governments failure to take action for sometime. The facts of the instant case are at variance and the conduct of the respondents has played a part in inducing the applicant to act in a manner that has been to his detriment.
19. In view of the foregoing discussion, I am of the considered opinion that in all fairness imposition of damage rent of Rs. 2,56,062/- for the period beyond 16.04.2001 till vacation of quarter requires review in the light of the above observations and in terms of SR 317-B-25. It would be appropriate that this matter be reconsidered at the level of Secretary, Ministry of C&IT. As the applicant is absorbed and working in BSNL, respondent No.2 is directed to place the issue before the Secretary who shall consider the prayer of the applicant and pass orders in accordance with law within a period of three months from the date of receipt of a certified copy of this order. Till such time status quo be observed with regard to the recovery against the applicant.
20. The T.A. is disposed of accordingly. No costs.
(N.D. Dayal) Member(A) /vv/