Central Administrative Tribunal - Delhi
Chhagan Lal Mahar vs Housing And Urban Affairs on 19 December, 2024
(Item 45/C-V) OA No. 1733/2023
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1733/2023
Reserved on 28.11.2024
Pronounced on 19.12.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Chhagan Lal Mahar, Currently working as
Member(Technical), Customs, Excise & Service Tax Appellate Tribunal
Bench at Ahmedabad, Group A, aged around 64 years
S/o Sh. Harbhajan Lal, R/o-C-4/4003, Vasant Kunj, New Delhi-110070.
...Applicant
(By Advocates: Mr. Setu Niket with Ms. Esha Mazumdar)
V/s
1. Union of India
Through Secretary
Ministry of Housing and Urban Affairs, Nirman Bhawan
Maulana Azad Road, New Delhi-110011
2. Union of India, Through Secretary
Ministry of Finance, North Block, New Delhi-110001
3. Customs, Excise & Service Tax Appellate Tribunal
Through Registrar, Principal Bench, West Block-2
R.K.Puram, New Delhi-110066.
4. Drawing and Disbursing Officer
Customs, Excise & Service Tax Appellate Tribunal
Principal Bench,West Block-2, R.K.Puram
New Delhi-110066
...Respondents
(By Advocate: Mr. Pradeep Kumar Sharma)
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(Item 45/C-V) OA No. 1733/2023
ORDER
By Hon'ble Mr. Manish Garg, Member (J) :
In the record of proceedings dated 02.06.2023, it has been observed as under:
"Aggrieved by an assessment report dated 08.09.2021 followed by letter dated 14.09.2021 whereby recovery of a sum of Rs. 916433/- has been ordered on account of what is called telescopic rent, the applicant has approached this Tribunal seeking the following reliefs :
"A. Call for records.
B. Quash and set aside provisional rent assessment report dated 08.09.2021 and demand letter dated 14.09.2021 demanding recovery of Rs. 416433/- issued by Respondent No. 1;
C. Award costs to the Applicant, D. Any other relief which this Hon'ble Tribunal may deem fit and proper in the interest of justice;"
Issue notice to the respondents.
Learned counsel for the respondents accepts notice. Four weeks' time is granted to the respondents to file reply. Two weeks' time thereafter is granted to the applicant to file rejoinder. Meanwhile, learned counsel for the applicant prays for consideration of the applicant's prayer for interim relief which reads as under :
"A. Pass ex parte ad interim order staying provisional rent assessment report dated 08.09.2021 and demand letter dated 14.09.2021 demanding recovery of Rs. 916433/- during the pendency of the present OA.
B. Any further/other order in the interest of Justice and in favour of the Applicant."
She submits that in case the recovery ordered vide the impugned communication is not stayed, the applicant is likely to be put to severe financial disadvantage and the prayer sought for in the OA may 2 (Item 45/C-V) OA No. 1733/2023 become complicated if the applicant succeeds in challenge to the recovery notice.
Learned counsel for the respondents is directed to obtain appropriate instructions or in the alternative file a short reply to the applicant's prayer on 09.06.2023.
Meanwhile, the respondents may not proceed ahead with making the recovery pursuant to the impugned communications. However, whether such a direction is to continue or not, shall be decided on the next date of hearing.
List on 25.08.2023.
Process Dasti as well."
2. Narrating the facts of the case, learned counsel for the applicant submitted as under:
2.1. The applicant has impugned the order dated 22.12.2021, which reads as under:-
"Sub: Forwarding the request of Sh. Chhagan Lal Mahar, Retd. Member (Technical), CESTAT- reg.
Sir, I'am to forward herewith the request letter (copy enclosed) of Sh. Chhagan Lal Mahar, Retd. Member (Technical), CESTAT who has informed this office that a penalty of sum of Rs. 9,16,433/- was imposed upon him vide letter F. No. D-1/NMB/6A/1110382738 dated 14.9.2021 and has claimed that the amount is factually incorrect. DDO, CESTAT Delhi has issued a certificate for amount of Rs. 1,10,395/- (copy enclosed) for the license fee recovered from the official. Thus this letter is forwarded for further action at your end, please."3
(Item 45/C-V) OA No. 1733/2023 2.2 The applicant was appointed as Member (Technical) in Customs,
Excise & Service Tax Appellate Tribunal (CESTAT) w.e.f. 29.03.2018 and as per the rules in vogue at the time of appointment, the applicant was due to retire on 09.08.2020.
2.3 The applicant was allotted Qtr. No. D-I/Tower-3, New Delhi a Type 6A, residential accommodation by respondent No. 1 for the usual monthly license fee and the applicant occupied the quarters from 15.10.2018 at a monthly license fee of Rs. 1980 per month (revised to Rs.
2330 per month w.e.f. 01.07.2020) which was being deducted by respondent No. 4 on regular basis from the pay and emoluments drawn by the applicant while working as Member (Technical) with the respondent No. 3.
2.4. During the tenure of the applicant as Member (Technical) with respondent No. 3, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 was notified by the Union of India, increasing the terms of Members of Tribunal/Appellate Tribunals to 4 years. Therefore, the applicant preferred a representation dated 05.03.2020 seeking extension of term as Member (Technical) for a period of 4 years. Since, the respondent No. 2 did not take any decision on the said representation, the applicant moved the Hon'ble Supreme Court in IA No. 66296/2020, 4 (Item 45/C-V) OA No. 1733/2023 66298 and 66299/2020 in MA No. 1152/2020, arising out of Writ Petition No. 279/2017 and the Apex Court passed an order dated 04.08.2020 directing as under:
"Application for intervention is allowed.
The applicant was appointed as a Member (Technical) in CESTAT on 29.3.2018. According to Rule 16 of 1987 Rules, the age of superannuation of a Member is 62 years. The applicant is sought to be retired on 9.8.2020 by applying the old Rules. It is submitted by Mr. С.Ѕ. Vaidyanathan, learned senior counsel that the applicant is entitled to continue for a period of four years in accordance with Tribunal, Appellate tribunal and other Authorities (Qualification, Experience and other conditions of Service of Members) Rules, 2020 ("2020 Rules"). For the present, we extend the term of the applicant for a period of three months.
Mr. C.A. Sundaram, learned senior counsel submits that appointments are not made even after selections have been completed and names recommended by the Selection Committee.
A status report relating to the appointments to the posts of Members of Central Administrative Tribunal shall be filled before the next date of hearing.
List the I.A.'s on 7.9.2020.
The Registry is directed to list Writ Petition (Civil) Dy. No.16100 of 2020 for admission on 10.8.2020."
2.5 Further, vide order dated 09.10.2020, the Hon'ble Supreme Court in MA No. 1058/2022 in W.P. (C) No. 640/2017 directed as under:
"Permission to file Petition is granted. Application(s) for intervention/impleadment is/are allowed.
Leave granted.
Arguments concluded.
Judgment reserved.
Parties are permitted to file Writtensubmissions, if any, within ten days. We are informed that the terms of some Vice- Chairperson and Chairperson are for Members, expiring. As 5 (Item 45/C-V) OA No. 1733/2023 we have reserved the matter judgment, the terms of such of those Members, Vice- Chairperson and Chairperson which are about to expire stand extended till 31 December, 2020."
2.6 Accordingly, the term of the applicant as Member (Technical) was extended upto 31.12.2020 in terms of the afore-quoted order. The aforesaid Petitions in the Hon'ble Supreme Court were decided on 27.11.2020 and the term of the applicant as Member (Technical) was curtailed to 27.11.2020, as evident from Annexure A/6, dated 17.12.2020, which states as follows:
"Subject:Retirement of Sh. C.L. Mahar, Member(Technical), CESTAT - reg.
Sir, I am directed to refer to the subject mentioned above and to say that in terms of the Hon'ble Supreme Court judgement dated 27.11.2020 in W.P(C) No. 804 of 2020, titled Madras Bar Association Vs. UOI, Sh. C.L Mahar has retired from the post of Member(Technical) in CESTAT w.e.f the date of the judgement i.e. 27.11.2020. It is therefore requested that all subsequent actions with respect to his retirement may be taken accordingly.
2. This issues with the approval of the Finance Secretary."
2.7 The rent/license fee for the extended occupation of the accommodation was deducted from the applicant's gratuity, as per Office Order dated 09.02.2021.
2.8 The learned counsel for the applicant argued that as per the applicable rules and instructions on the retention of government accommodation after demitting office, a six-month grace period was 6 (Item 45/C-V) OA No. 1733/2023 permissible. This period, in the applicant's case, was valid until 27.05.2021. However, the Office Memorandum dated 13.05.2021 provided for a suo -moto relaxation of this retention period due to the COVID-19 pandemic, uniformly extending it for all GPRA holders from 01.04.2021 to 30.06.2021.
2.9 The applicant vacated the premises on 08.09.2021, beyond the six- month retention period, and subsequently submitted a representation dated 22.06.2021 to the competent authority, seeking an extension on the grounds of labor unavailability due to COVID-19. This representation remains undecided till date.
2.10 The learned counsel further relied on the notification dated 16.06.2017 issued by the Directorate of Estates, Ministry of Urban Development, highlighting the definition of "employee" under Rule 2(j) "employee" means an employee of the Central Government whose salary is drawn from the Consolidated fund of India."
2.11 The learned counsel submitted that Part V of the Retention of Accommodation Rules, specifically Rule 40 Sub-rule (i) and Sub-rule (ii), is applicable to the applicant's case. He argued that Sub-rule (i) is not applicable, and the case falls squarely within Sub-rule (ii). 7
(Item 45/C-V) OA No. 1733/2023 2.12 Based on the above contentions, the applicant impugns Office Order Annexure A/1. The learned counsel argued that the impugned office order has been issued without adjudicating the applicant's claim for retention for the period beyond 30.06.2021 to 08.09.2021. Further, telescopic damages have been imposed w.e.f. 28.12.2020, upon the expiry of one month's retention period.
3. Opposing the grant of relief, learned counsel for the respondents contended that the applicant failed to submit any formal application for extension of the retention period.
3.1 He further argued that the applicant, being appointed as a Member of the Tribunal, does fall in category of "non- regular government servant"
and not under "an allottee who is not a regular government servant".
Hence, as per Clause 40(i) of the Retention of Accommodation Rules, only one month's normal license fee is applicable. The respondents emphasized that Clause 40 (ii), relied upon by the applicant, is not applicable to the present facts.
3.2 The respondents also contends that, in light of the Apex Court's order in W.P. (C) No. 279/2017, the benefit of one month's retention was accorded only up to 31.12.2020 and not beyond that. It has also been contended that OM dated 13.5.2021 cannot be retrospectively applied and acted upon in the facts of the present case.
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(Item 45/C-V) OA No. 1733/2023 3.3 The learned counsel for the respondents justifies the action of the
respondents and telescopic damages thereto.
4. Heard learned counsel for the parties and perused the records of the case.
5. ANALYSIS :
5.1. The principle question which is to be determined in the present OA is whether the respondents were justified in imposing the telescopic damages, which were exemplary and punitive in nature.
5.2 Clause 40 (i) and Clause 40 (ii) of the GPRA Rules, 2017 read as under :-
"40. Concessional period of retention.
(1)The allottee may, subject to the conditions laid down in these rules, be permitted to retain the accommodation on the happening of any of the events specified in column (2) of the table below, for the period specified in the corresponding entry in column (3) thereof, provided that the accommodation is required for the bonafide use of the allottee or members of his family:
Table Sl. Events Permissible period for retention of No. accommodation (1) (2) (3)
(i) Resignation, dismissal or removal one month on normal licence fee from Service, termination of service or unauthorised absence without permission, compulsory retirement [under CCS (CCA) Rules,1965]and 9 (Item 45/C-V) OA No. 1733/2023 for non-regular Government servants.
(ii) Retirement, voluntary retirement, retirement on medical grounds, terminal leave or compulsory retirement [underFR 56(j)], retirement on deputation from ineligible organizations during the initial constitution of such organisation, technical resignation, death of allottee on reemployment (irrespective of retention availed on retirement) and death of an allottee who is not a regular Government servant or deputation outside India.
5.3. Section 63 and 64 of Part XI, i.e., Unauthorized Occupation of the GPRA Rules, 2017, read as under:
"63. Unauthorised occupation after cancellation of allotment.
- Where, after an allotment of accommodation has been cancelled or is deemed to have been cancelled under any provisions of these rules, the accommodation remains or has remained in occupation of the allottee to whom it was allotted or of any person claiming through, such allottee shall be liable to pay damages for use and occupation of the accommodation, services, furniture and garden charges, as may be determined by the Central Government from time to time.
64. Issue of vacation notice and show cause notice to the allottees. (1)The vacation notice shall be issued to all the allottees of accommodation or to their families at least fifteen days before the date of expiry of the permissible period of retention.(2)In case where the allottees have not vacated the quarters after expiry of permissible retention period, the concerned authority will issue show cause notice to such unauthorised occupants under the PublicPremises (Eviction of Unauthorised Occupants) Act, 1971(40 of 1971)."10
(Item 45/C-V) OA No. 1733/2023 5.4 In Civil Appeal No. 3123 of 2020 - Dr. Jaishri Laxmanrao Patil
Versus The Chief Minister & Anr. decided on 05.05.2021, the Hon'ble Supreme Court observed as under:
"12. It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the legislature. However, the object-oriented approach cannot be carried to the extent of doing violence to the plain language used by re- writing the section or structure words in place of the actual words used by the legislature. The logical corollary that flows from the judicial pronouncements and opinion of reputed authors is that the primary rule of construction is literal construction. If there is no ambiguity in the provision which is being construed there is no need to look beyond. Legislative intent which is crucial for understanding the object and purpose of a provision should be gathered from the language. The purpose can be gathered from external sources but any meaning inconsistent with the explicit or implicit language cannot be given.
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18. Craies culled out the following principles of interpretation of legislation: -
1.Legislation is always to be understood first in accordance with its plain meaning.
2. Where the plain meaning is in doubt, the Courts will start the process of construction by attempting to discover, from the provisions enacted, to the broad purpose of the legislation.
3.Where a particular reading would advance the purpose identified, and would do no violence to the plain meaning of the provisions enacted, the Courts will be prepared to adopt that reading.
4. Where a particular reading would advance the purpose identified but would strain the plain meaning of the provisions enacted, the result will depend on the context and, in particular, on a balance of the clarity of the purpose identified and the degree of strain on the language.11
(Item 45/C-V) OA No. 1733/2023
5. Where the Courts concluded that the underlined purpose of the legislation is insufficiently plain, or cannot be advanced without an unacceptable degree of violence to the language used, they will be obligated, however regretfully in the circumstances of the particular case, to leave to the legislature the task of extending or modifying the legislation ( Craies on Legislation, 9th Edition Pg. 643 )."
5.5 The word 'and' signifies two forms or two words to be read together. In contrast to 'or', where of the two, either of them can be used, and both are relevant. The word 'and' signifies conjunction and not disjunction. [(see Sahara India (Form) v. CIT (2008) 300 ITR 403 (SC)]. 5.6 The word "and" has generally a cumulative sense requiring the fulfillment of all the conditions that it joins together, and herein it is the antithesis of 'or'. Sometimes, however, even in such a connection, it is, by force of a context, read as "or". [Ishwar Singh Bindra v. State of U.P., AIR 1968 SC 1450, 1454; Chandra v. Nabadwip, AIR 1931 Cal 476] 5.7 The cession of a tenure of a member from Tribunal is not a resignation but has to be read in context of word " Retirement", nor it is a case of dismissal or removal from service, termination of service or un- authorized absence. The usage of wordings in Clause 40 (i) makes it amply clear that once a government servant resign(s), dismissed or removed from service, terminated from service or remains un-authorized absent , which are in nature of penalty, thus, by fiction of statute, he no 12 (Item 45/C-V) OA No. 1733/2023 longer a 'government servant ' but becomes a "non- regular government servant ". There is permanent cession of relationship that of government and its servant unless and until rescinded as a natural consequence(s) of disciplinary action which flows in accordance with law. The usage of word "and" has to be read in conjunction and not disjunction. The word "Retirement" has not been used in Clause 40(i), whereas the word "Retirement" has been used twice including "compulsory retirement" in Clause 40 (ii) .
5.8 The telescopic damages have been imposed as under :-
28.12.2020 27.01.2021 1 0 116500.00 116500.00 Telescopic Damages 28.01.2021 27.02.2021 1 0 128160.00 128160.00 Telescopic Damages 28.02.2021 27.03.2021 1 0 139800.00 139800.00 Telescopic Damages 23.03.2021 31.03.2021 0 4 163100.00 21045.16 Telescopic Damages 01.04.2021 30.04.2021 1 0 2330.00 2330.00 Telescopic Damages 01.05.2021 31.05.2021 1 0 2330.00 2330.00 Telescopic Damages 01.06.2021 30.06.2021 1 0 7330.00 2330.00 Telescopic Damages 01.07.2021 27.07.2021 0 27 163100.00 142054.84 Telescopic Damages 13 (Item 45/C-V) OA No. 1733/2023 28.07.2021 27.08.2021 1 0 209700.00 209700.00 Telescopic Damages 28.09.2021 08.09.2021 0 12 302900.00 119857.20 Telescopic Damages 5.9 As a matter of fact the Directorate of Estates vide Provisional Rent Assessment Report regarded, the cancellation category as "Retirement".
Hence, the case of the applicant shall fall under Clause 40(ii). Therefore, the applicant had six months time from 28.12.2020 to vacate the premises. The Office Memorandum dated 13.05.2021 provided for a suo-moto relaxation of this retention period due to the COVID-19 pandemic, uniformly extending it for all GPRA holders from 01.04.2021 to 30.06.2021. Thus, by operation of Office Memorandum dated 13.05.2021, the said period was further extended till 30.6.2021. The applicant vacated the premises on 08.09.2021. It is this period from 01.07.2021 till 08.09.2021, which is also questionable being also termed as un- authorized. We may say that period from 01.04.2021 to 30.06.2021, i.e., period of three (3) months ought to be excluded from purview of concession of six months afforded in Clause 40(ii) ought to be excluded in peculiar circumstances due to prevailing covid -19 situation. Even ,we find that there in no finding arrived at by the competent authority to adjudicate the period to be construed to be un-authorized. The Office 14 (Item 45/C-V) OA No. 1733/2023 memorandum dated 13.5.2021 has been ignored all-together and it cannot be said that said OM is not retrospectively applicable as provisional rent assessment report dated 08.09.2021 and demand letter dated 14.09.2021 issued at a later date. We also find that due process of law as to issuance of show cause notice and initiating proceedings in terms of PART XI- Unauthorized occupation under Section 63 and Section 64, GRPA , 2017 Rules have been taken out.
5.10. Undoubtedly, it is within the realm of executive to impose the telescopic damages. However, the doctrine of exemplary or punitive damages in the nature of telescopic damages must justify that the action taken by the respondents is in good faith after following the due process of law. It is undisputed that before imposing of telescopic damages, the respondents have not even taken care to issue a show cause notice in terms of GPRA Rules, 2017. We find that a peculiar situation has arisen in the present case wherein tenure of the applicant was extended by virtue of the orders of Apex Court. The respondents have violated their own OM dated 13.05.2021, which exempted the government servant from surrendering accommodation. There is no order on record to show as to whether the representations made by the applicant were considered by the competent authority while calculating provisional damages of rent, including telescopic damages. We observe that no reasoned order has 15 (Item 45/C-V) OA No. 1733/2023 been passed by the competent authority so as to come to a conclusion that there is some wrong/malafide intention on the part of the applicant. There is nothing on record to prove the same by preponderance of evidence. The respondents failed to take action as per the established procedure which postulates issuing of show cause notice and passing of reasoned order upon the representation. There is also no material on record to show that the act of the applicant resulted in deprivation of the usage of accommodation, which can be commensurate with imposition of telescopic damages.
5.11 The respondents also contended that in light of the Apex Court's order in W.P. (C) No. 279/2017, the benefit of one month's retention was accorded only up to 31.12.2020 and not beyond , thereafter. We may add that pursuant to the liberty granted by the Apex Court in the judgment of Rojer Mathew, the Union of India filed Miscellaneous Application No.1152 of 2020 In Writ Petition No.279/2017 placing the 2020 Rules and seeking a direction that the 2020 Rules would apply to all persons appointed as Members, President, Chairperson, etc. of Tribunals after the appointed day i.e. 26.05.2017. The said WP No.279/2017 is still pending consideration before a Larger Bench of seven Judges in view of the Reference order reported as Rojer Mathew v. South Indian Bank Limited And Ors.- (2020) 6 SCC 1.
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(Item 45/C-V) OA No. 1733/2023 6. CONCLUSION : 6.1 In view of the detailed analysis herein above, we allow the present
O.A. thereby quashing and setting aside the provisional rent assessment report dated 08.09.2021 and demand letter dated 14.09.2021 demanding recovery of Rs. 9,16433/- issued by Respondent No. 1. 6.2. Pending M.A.s, if any, shall also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/arti/
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