Patna High Court
The Union Of India & Ors vs Sri Rajeshwari Prasad Sinha on 31 March, 2015
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1412 of 2009
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1. The Union of India through the General Manager, E.C. Railway, Hazipur
2. The Divisional Railway Manager, E.C. Railway, Dhanbad
3. The Senior Divisional Personal Officer, E.C. Railway, Dhanbad
4. The Senior D.E.n. (co-ordination), E.C. Railway, Dhanbad
5. The Assistant Divisional Engineer, E.C. Railway Gomoh, District- Dhanbad
6. The Senior Divisional Finance Manager, E.C. Railway, Dhanbad
.... .... Petitioners
Versus
Sri Rajeshwari Prasad Sinha son of M.M. Sharma, Ex-O.S. Grade-II, under A.E.N.
(SPL), E.C. Railway, Barkakana, resident of New Road, Sonpur, P.O.- Harihar
Kshetra, District- Saran (Chapra), Bihar.......................... .... Respondent
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Appearance :
For the Petitioner/s : Mr. SUNIL KUMAR RAVI, ADVOCATE
For the Respondent/s : Mr. M. P. DIXIT, ADVOCATE
Mr. SANJAY KUMAR CHOUBEY, ADVOCATE
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 31-03-2015
Railway being aggrieved and dissatisfied with the order of the
Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as
„the Tribunal‟) as passed in O.A. No. 473 of 2007 being judgment and order
dated 13.2.2008 has filed this writ petition. The facts are not in dispute. The sole
private respondent who was the applicant before the Tribunal is represented and
has been heard at length.
The applicant before the Tribunal was a Railway employee and
as a consequence of his employment, he was allotted railway quarter no. 57/A/B
at Kalipara, Gomoh. He was Office Superintendent Grade II. On 6.6.2001, he
was transferred from Gomoh to Barkakana on the post of OS Grade II. He was
accordingly, relieved on 2.8.2001 and on 3.8.2001 he joined the office of
Assistant Engineer (Spl) Barkakana as OS Grade-II. On 26.8.2001 he made an
application for permission to retain railway quarter which had been allotted to
Patna High Court CWJC No.1412 of 2009 dt.31-03-2015 2
him while he was posted at Gomoh for a further period. The competent
authority of the Railway permitted the applicant, respondent herein, to occupy
the railway quarter at Gomoh for eight months, i.e. from 03.02.2001 to
02.10.2001, on payment of normal rent and further for 6 months from 03.10.2001 to 02.04.2002 on double assessed rent as per the Railway Rules. The applicant, respondent herein, somehow managed to stay beyond the period permitted, i.e. 02.04.2002, and did not vacate quarter at Gomoh though he was posted at Barkakana and continued to occupy the said quarter even after he superannuated on 31.01.2004. He ultimately vacated the quarter on 1.8.2004. It may be noted that for the period of unauthorized stay i.e. from 03.04.2002 up to 01.08.2004 he continued to pay the last rent which he was permitted to pay i.e. double the assessed rent. When his retrial dues were being settled, it came to light that he had been in unauthorized occupation of the railway quarter for two years and four months which included six months after his superannuation. It is, at this stage, it was found that somehow, being Office Superintendent, he mislead the officials into grant of permission to retain the quarter at normal rent for a period of six months after retirement. When the authorities became aware that he was not duly allotted this quarter and he had been unauthorizedly staying therein, they recalled that order, which was wrongly and mischievously obtained by the applicant respondent herein. Accordingly, a claim for about Rs. 1,17,000/- was raised, which was sought to be adjusted from his retrial dues, which were withheld. It is, at that stage, when the applicant, respondent herein, approached the Tribunal, which allowed the O.A. and held that no damages could be recovered and for that the retrial dues cannot be withheld. The Tribunal directed the full payment of retrial dues without any deduction. This is what has brought the Railway to this Court.
Patna High Court CWJC No.1412 of 2009 dt.31-03-2015 3 The simple submission of learned counsel for the Railway is that in the facts aforesaid, the employee or the erstwhile employee has not disputed his unauthorized occupation. He further submits that the Railway Board had already notified the rates of damage rent on 24.7.2002, which was fixed on 1.4.1989 and has been revised from time to time and that having been fixed, there is absolutely no dispute as to quantum of damages that were liable to be paid by the applicant, respondent herein. If there is no dispute, then, it is an amount, quantified and payable at the time of settlement of retrial dues, and therefore, it can be set off as against the retrial dues. On the other hand learned counsel for the applicant, respondent herein, submits, relying on Division Bench judgment of this Court in the case of General Manager, East Central Railway, Hajipur vs. The Central Administravie Tribunal, Patna Bench & Anr. since reported in 2009 (1) PLJR page 543, that the law as laid down by this Court is that the recovery of damage rent, for unauthorized occupation of railway quarters, can only be through the process of and through the procedure as prescribed under Public Premises (Eviction and Unauthorized Occupants) Act, 1971 and the Railway not having resorted to that Act, there should be no such recovery from the applicant‟s retrial dues.
Having considered the matter, we, in our considered opinion, do not agree with the submissions made on behalf of applicant, respondent herein. If what private respondent is submitting, is accepted, then it would be giving a premium to unauthorized occupants. What he submits is that no doubt, I have defied the order of allotment and remained for two years in unauthorized manner in the government quarter, I have retired, I know I am liable to pay damage rent for unauthorized occupation, I know the quantum of damage rent that I have to pay, still I will not pay the same and the Railway cannot adjust it Patna High Court CWJC No.1412 of 2009 dt.31-03-2015 4 from money due to me from the Railway. We are unable to reconcile ourselves to such a situation.
Acceptance of such an attitude of a belligerent railway employee would be destructive to an orderly society and would only encourage errant employees. It would have been a totally different matter if the employee were to dispute the factum of unauthorized occupation or the damage rent was something that had to be assessed upon some inquiries, both of which are missing in the present case. The period of unauthorized occupation is not disputed. The amount of damage rent that is payable is not in dispute. Then, what is in dispute? The employee wants to get away with the liability by taking all his retiral dues and walking away leaving the Railway to get involved in legal tangles trying to recover amounts, for which there is no dispute, through the process of Public Premises Eviction Act (hereinafter referred to as the Act).
As we have noted, the employee has, at no point of time, challenged that he had any requisite authority or permission to stay. Learned counsel‟s repeated submission is that an employee may have unauthorizedly continued in occupation of railway quarter, knowing it to be unauthorized, without permission or authority, yet, till in a proceeding instituted by the Railway, under the provisions of the Act, a declaration is not sought for by the Railway that the occupation was unauthorized, his occupation cannot be held to be unauthorized. We have noted this only to reject it. He then, refers, repeatedly, to the provisions of the said Act to show that the damages for unauthorized occupation are to be assessed by the authority under the said Act. This is, probably, because the Circular of the Railway Board, as we have noted earlier, fixing the damage rent for different categories of accommodations, has never been looked into. The Circular of the Railway Board leaves no discretion Patna High Court CWJC No.1412 of 2009 dt.31-03-2015 5 or as it prescribes the damage rent unambiguous, then, if the unauthorized occupation is not in dispute, the quantum of damage rent is not in dispute, then if the Railway while paying the retrial dues claims adjustment can be said to be wrong or unauthorized or impermissible? In our view, „No‟.
Learned counsel for the employee then refers to the case of General Manager, Central Railway (supra). It is a Division Bench judgment of this Court. In somewhat similar circumstances, the Court held that without resort to the provisions of Act, there could be no recovery of damages from retrial benefits. We have gone through the said judgment. In paragraph 11, this is what their Lordships have held, are as follows:
"For want of any provision in Railway Services (Pension) Rules, for determination of damages/penal rent in respect of a railway accommodation in unauthorized occupation of the railway employee, obviously recourse has to be taken by the railway authorities under the Act of 1971 for determination of damages/penal rent in respect of public premises....."
From this, it is clear that it was not brought to the notice of their Lordships that Railway Board had already prescribed the rate and the manner for calculating damage rent. Their Lordships were clearly of the view that as there was no way the damage rent was to be calculated, in such circumstances, it was a dispute and, therefore, needed to be resolved in a lawful manner by authorities under the Act. This is what distinguishes the said decision with the facts of the present case. In the present case, as noted above, there is no dispute with regard to period of unauthorized occupation or the quantum of damages as prescribed by the Railway Board, apart from mathematical calculation nothing has to be done. No dispute has to be resolved. The employee was aware of the Patna High Court CWJC No.1412 of 2009 dt.31-03-2015 6 situation and knowingly he continued in a calculated manner being an Office Superintendent in a premises unauthorizedly. He cannot, now, be heard praying inequity, for, it is well settled that one who seeks equity has to come with clean hands. Then, reliance was placed on the judgment of the Apex Court in the case of Union of India Vs. Madan Mohan Prasad since reported in 2002 (4) PLJR page 12 (SC). We have gone through the said judgment and again we find that there is a difference. Their Lordships were considering the provisions of the Railway Pension Rules, 1950 which is different from the Railway Pension Rules, 1993 (hereinafter referred to as the Rules, 1993) which is applicable now. Rule 15 of the Rules, 1993 would be relevant and, in particular, Sub-Rules 1, 2 and 3 which clearly provide that before pension payment is made, it would be ascertained what are the dues and the dues that are recoverable from or payable by the employee would be adjusted against the pension dues. In the present case, there being no dispute, then, Rules 16 of the Rules clearly provide for adjustment and in absence of the adjustment, no no-dues certificate could be issued for settling pensionary benefits. Rule 16 (8) specifically provides for a situation where Railway accommodation is not vacated by a railway servant. Thus, in our view, it would neither be just nor fair nor equitable to allow judgment of Tribunal to operate. We would, accordingly, set aside the judgment of the Tribunal as impugned in this writ petition and allow the writ petition with a direction that all the retrial dues of the erstwhile employee Sri Rajeshwari Prasad Sinha be paid to him subject to adjustment of damage rent as had already been quantified and made known to him in accordance with the Circular of the Railway Board. This is to be done immediately.
Learned counsel for the employee submits that in any event if he is in dues and even if dues are recovered from him, the same cannot be Patna High Court CWJC No.1412 of 2009 dt.31-03-2015 7 recovered from his gratuity. We do not want to go into this controversy for the Railway can always appropriate the entire dues from the entire pension i.e. payable to the employee. He cannot have in both ways. Order in so far as non- recovery of damage rent is concerned, is set aside.
Accordingly, this writ petition is allowed.
(Navaniti Prasad Singh, J) (Jitendra Mohan Sharma, J) avin/-
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