Central Administrative Tribunal - Delhi
Partosh Nath vs M/O Railways on 19 July, 2023
1
OA No.2735 of 2017
Court No.6 (item No. 52)
Central Administrative Tribunal
Principal Bench
OA No.2735 /2017
Reserved on: 12.07.2023
Pronouncement on: 19 .07. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
Partosh Nath,
Aged about 57 years
S/o Shri Ram Naresh
Working as Gateman
Group „D‟
Under Traffic Inspector,
Northern Railway
Panipat
R/o Railay Qtr. No. 154/D
Panipat -Applicant.
(Through Advocate: Mr. K.K. Patel)
Versus
1. Union of India
Through its General Manager,
Northern Railway,
Baroda House, New Delhi.
2. Divisional Railway Manager,
DRM Office,
State Entry Road,
New Delhi-110 055
-Respondents
(Through Advocate: Mr.G.S.Virk)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
2OA No.2735 of 2017
Court No.6 (item No. 52) The present application has been filed by the applicant being aggrieved by the action of the respondents in recovering Rs 2, 00,000/- from the salary of the applicant towards penal rent in respect of alleged unauthorized occupation of Quarter no. 154/D at Paniapt.
2. Brief facts of the case is that the applicant is a Railway employee who was posted as Gateman in Panipat. During his posting at Panipat he was allotted Quarter no. 154/D at Panipat. The applicant was transferred from Panipat to Kukrana Vide letter no. 941E/567/IV/P-1 dated 14.8.2012 and he was relieved from his duties at Panipat on 27.8.2012 (Annexure-R1). Vide the said communication the applicant was issued notice to vacate the official residence within 10 days from issuance of the notice. The applicant made a representation (evident from documents submitted by the applicant (Annexures- A2 & A3) to retain the said accommodation on medical grounds in respect of his wife. Vide reference dated 5.11.2014 placed at Annexure-A2, the respondents allowed the applicant to retain the till 27.4.2013 by payment of normal as well as double 3 OA No.2735 of 2017 Court No.6 (item No. 52) the licence fee for the relevant periods. It was also mentioned in the said reference that the period beyond 27.4.2013 would be treated as unauthorized occupation for which penal rent would be imposed. The respondents started recovering penal rent from the salary of the applicant from December 2013. Being aggrieved, the applicant has come to this tribunal in the present OA seeking the following relief:
(a). Call for the records of the case.
(b). Declare the recovery of panel rent by the Respondents for retaining the railway quarter No. T/154/ D/ Panipat to be illegal, has been done without following the legal procedure, and further direct the Respondents to pay the applicant all the money recovered from the applicant‟s salary on account of the same along with interest.
(c ) Award exemplary costs of the proceedings.
3. On admission of the OA notices were issued to the respondents and they have filed their counter 4 OA No.2735 of 2017 Court No.6 (item No. 52) affidavit to which the applicant has also filed his rejoinder to the same.
4. The applicant in his OA as well as through the pleadings by his counsel have taken the following grounds seeking the aforementioned relief.
a) The Railway Board vide RBE No. 8/90 dated 15.1.1990 clause 1.4 has allowed the retention allotted official quarters at the previous place of posting under certain conditions. Clause 1.4 states:
"An employee posted at a station in the electrified suburban area of a Railway may on transfer to another station in the same electrified sub-urban area, may be permitted to retain the railway quarters at the former station on payment of normal rent/flat rate of licence fee/rent provided:
(i) The Railway Administration is satisfied and certifies that the concerned employee can conveniently commute from the former station to the new station for performance of duty without loss of efficiency; and
(ii) The employee is not required to reside an earmarked Railway quarter."
In the instant case, the applicant claims that Kukran, to which place he was transferred from Panipat is only 7.5 kms away from Panipat and it falls under Jind Sub-division of Panipat Division and 5 OA No.2735 of 2017 Court No.6 (item No. 52) it is a Sub-urban station of Panipat. The applicant has not been allotted any official accommodation at Kukran. In view of this, as per the aforementioned Railway Board policy, the applicant was entitled to retain the official accommodation at Panipat.
b) The respondents have not issued any notice, nor initiated any proceedings under the Pubic Premises Act before recovering penal rent from the salary of the applicant with effect from December 2013. 4.1 To buttress his arguments, the learned counsel for the applicants drew attention to the order of this Tribunal in OA no. 3204 of 2009 decided 18th April 2011 vide which the tribunal passed the following order:
"16. Considering the above facts and circumstances of the case and our analysis thereon and taking cognizance of the existing guidelines of the Railway Board in RBE No.8/90 we are of the considered opinion that the Respondents have not taken into account the appropriate facts and the guidelines of the Railway Board while passing the impugned orders dated 25.07.2006, 31.07.2007 and 09.03.2009. Thus, all these orders being passed in an arbitrary and illegal manner are quashed and set aside. The respondents are directed not to recover any penal rent from the Applicant for the period from 05.08.2002 to 12.05.2005. If any recovery has been effect to that effect, the same shall be refunded back to the applicant 6 OA No.2735 of 2017 Court No.6 (item No. 52) within a period of 9 weeks from the date of receipt of a certified copy of this order. 4.2 The learned counsel for the applicant further stated that in the instant case the respondents have not considered the case of the applicant in terms of RBE No.8/90. The facts and circumstances of the present case are exactly similar to those in case of OA No. 3204 of 20019. In view of this, the applicant‟s prayer to grant the aforementioned relief should be accepted.
5. In response to the contentions of the applicant and his counsel, the learned counsel for the respondents drew attention to the counter affidavit filed by the respondents. He stated that the applicant was given adequate notice to vacate the official premises vide notice dated 1st January 2013 and regularization/ vacation notice/ order dated
5.11.2014 ( Annexure R-1 and Annexure R-2 respectively). His representation to retain the official quarters at Panipat on medical grounds in respect of his wife has been duly considered and he was allowed to retain for further 6 months with effect from 28.10.2012 till 27.4.2013. He was also 7 OA No.2735 of 2017 Court No.6 (item No. 52) intimated that the period beyond 27.4.2013 would be treated as unauthorized occupation. In view of this, the respondents have followed due procedure of law to recover penal rent from the salary of the applicant.
6. I have gone through the records of the case and heard the arguments. From the pleadings and records of the case, there is no evidence that the applicant had not made any representation to retain the allotted quarters at Panipat invoking the provisions under RBE No.8/90. On the contrary, he had applied to retain the said official quarters on medical grounds of his wife which was allowed till 27.4.2013 (though the order is dated 5.11.2014). The applicant has not made any representation against the first deduction of penal interest with effect from December 2013. He was well aware of the fact that the respondents have started recovering the penal interest from his salary of December 2013. Further, before coming to this Tribunal in the present OA, the applicant has not made any representation to the respondents to consider his case under RBE No.8/90. In other words, he has not exhausted the administrative avenues available to him before 8 OA No.2735 of 2017 Court No.6 (item No. 52) approaching this Tribunal. On the other hand, the respondents have not acted appropriately in respect of the vacation of the accommodation by the applicant. When the applicant started overstaying in the official quarters, they have not issued any vacation notice immediately after or before the expiry of the permissible stay. The applicant‟s request for retaining the official quarters was not immediately dealt with. The applicant‟s transfer was with effect from 14.8.2012 and he was relieved with effect from 28.08.2012. The permission to retain the official residence on medical grounds was decided on 27.4.2013 and the notice for unauthorized occupation and payment of penal rent was issued on 5.11.2014. Surprisingly, the recovery had already started vide their letter dated 2.12.2013. It seems, the decision of the respondents on 5.11.2014 is post facto justification for the recovery already effected from December 2013.
6.1 Because of the above the facts and circumstances of the instant case are quite distinguishable from those obtaining in OA no. 9 OA No.2735 of 2017 Court No.6 (item No. 52) 3204 of 2009. Hence, the ratio of that order is not applicable in the instant case.
6.2. In the instant case, both the applicant and the respondents have botched in respect of due procedure for claiming and granting retention of official accommodation by the applicant at Panipat. The matter needs fresh consideration by the respondents. The respondents are directed to consider the present OA as fresh representation by the applicant and consider the same as per the provisions under RBE 8/90. The respondents shall pass a reasoned and speaking order in respect of the applicability of RBE 8/90 for retention of the official residence by the applicant at Panipat after his transfer to Kukrana, within a period of 6 weeks from the receipt of certified copy of this order.
7. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /mk