Central Administrative Tribunal - Jodhpur
Raj Kumar vs M/O Railways on 26 February, 2019
1
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
Original Application No.290/00519/2016
Reserved on : 07.02.2019
Pronounced on: 26.02.2019
CORAM:
HON'BLE MRS. HINA P.SHAH, MEMBER (J)
Raj Kumar s/o Shri Fateh Singh, aged about 59 years,
resident of village Deva Muklan, Tehsil & District Hisar
(Haryana), presently posted as Pointsman (A), North
Western Railway at Arjansar (AS), Tehsil Loonkaransar,
District Bikaner (Raj.).
...Applicant
(By Advocate: Shri Deepak Nehra)
Versus
1. Union of India through General Manager, HQ Office,
North-Western Railway, Malviya Nagar, Near Jawahar
Circle, Jaipur-17.
2. The Divisional Railway Manager, North Western Railway,
Bikaner Division, Bikaner.
3. The Senior Divisional Operational Manager, North
Western Railway, Bikaner.
...Respondents
(By Advocate: Shri Vinay Chhipa)
ORDER
In this OA filed u/s 19 of the Administrative Tribunals Act, 1985, the applicant prays for the following reliefs:- 2
(i) This Hon'ble Tribunal may kindly be pleased to accept and allow the present original application and the impugned order dated 21/07/2014 (Anx.A/1) may kindly be declared illegal and void and the same may kindly be quashed and set aside along with all consequential benefits. The respondents may be directed to repay the amount recovered and deducted from the salary of the applicant in lieu of penal/damage rent for the quarter in question and allow all consequential benefits to applicant as if the impugned order was never in existence;
(ii) The respondents may kindly be directed to take their proper and legal recourse to get the quarter in question vacated from the unauthorized occupants and the applicant may kindly be held not liable for payment of any penal/damage rent for the quarter in question;
(iii) Any other appropriate order or direction, which this Hon'ble Tribunal deeds fit, just and proper may kindly be passed in favour of the applicant.
(iv) Cost of the O.A. may kindly be awarded in favour of the applicant.
2. Brief facts of the case, as stated by the applicant, are that he was appointed in the railways in 1987 and since then he has been discharging his duties in satisfactory manner. He was transferred from Sirsa (Haryana) to Arjansar, District Bikaner and relieved from Sirsa on 31.08.2010. He joined at Arjansar immediately. Before transfer he was occupying railway quarter No. L-66 D+C in the Railway Housing Complex, Sirsa and was living with his family i.e. his wife and son. It is stated by the applicant that the relations between the applicant and his wife were strained. On transfer, the applicant vacated the aforesaid quarter on 31.08.2010 and intimated his superior officers 3 about the same. Facts remain that the applicant's wife was in wrongful and forceful possession of the aforesaid quarter w.e.f. 1.9.2010 onwards. The applicant intimated the Station Master, Sirsa vide a representation dated 8.2.2011 stating that he has already vacated the said quarter and if any person is occupying the said quarter illegally and forcefully, then appropriate action be taken to get the quarter vacated. The respondents thereafter issued various letters dated 8.12.2011, 15.02.2012, 7.5.2012, 22.6.2012 and 20.7.2012 asking the applicant to vacate the aforesaid quarter failing which disciplinary action will be taken and he would be liable to pay damage rent to the tune of Rs. 6336/- per month, which would be recovered from him. The applicant tried to convince the respondents that he has already vacated the railway quarter on 31.8.2010 itself and he is no more in the house since then. It was further stated that since his wife is wrongfully and unauthorizedly occupying the said house, therefore, the railways are to get the said quarter vacated immediately. It was also stated by the applicant that the railways were authorised to take any legal course against the unauthorized occupant, but the railway did not proceed and no steps were taken by them to get the house vacated, instead they have only issued 4 notices for vacating the said house. Thereafter, the applicant served legal notice dated 20.7.2012 to the railway authorities asking to take legal action against Smt. Sona Devi for not vacating the house and also for restraining the railways from taking disciplinary action against him or making any recovery of damage rent from his salary. When no action was taken by the respondents, the applicant filed a Civil Suit before the Court of Civil Judge (Senior Division), Sirsa against the respondent authorities as well as Smt. Sona Devi, which was withdrawn by him with a liberty to take proper remedy available to him. In the meanwhile, respondent No.3 passed impugned order dated 21.7.2014 whereby directions have been issued for deducting of Rs. 2,91,456 in lieu of penal/damage rent for the period from 1.9.2010 to 30.6.2014 and Rs. 6336/- per month in lieu of penal/damage rent w.e.f. 1.7.2014 from the salary of the applicant. After passing the impugned order dated 21.7.2014, the respondent No.3 issued letter dated 17.8.2015 to Station Superintendent, Arjansar stating that the proceedings for getting the railway quarter vacated be done under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (PP Act) (Ann.A/4). In pursuance to the said letter, the Station Superintendent, Arjansar issued 5 a notice dated 26.8.2015 asking the applicant to vacate the house failing which proceedings under PP Act, 1971 would be taken against him (Ann.A/5). It is the case of the applicant that he is getting net pay of Rs. 10,405/- out of which he has to pay Rs. 3000/- per month to his wife as maintenance allowance in compliance of the order dated 30.3.2015 issued by the Judicial Magistrate, I Class, Sirsa. He, therefore, stated that in these circumstances, it is impossible for him to maintain himself and the railways is not justified in passing the impugned order and recovering the penal rent from his salary. He, therefore, prayed for quashing and setting aside the order dated 21.7.2014 with all consequential benefits and for repay of the impugned recovery and deduction from his salary in lieu of the penal/damage rent for the said quarter in question.
3. After issue of notice, the respondents have filed reply on 24.7.2017 raising preliminary objection of limitation to the effect that the applicant is challenging the legality and validity of the order dated 21.7.2014 by filing the present OA on 21.9.2016. As per Section 21 of the Administrative Tribunals Act, 1985 as well as in view of the judgment in the case of Ramesh Chand Sharma vs. Udham Singh Kamal and Ors. reported in 1999 (8) SCC 304, if the OA is not 6 preferred within the limitation as prescribed u/s 21 (1) &(3) of the A.T. Act, 1985, this Tribunal has no right in deciding the same on merit while overlooking the statutory provisions. Therefore, the respondents pray that the present OA deserves to be dismissed on this count itself.
The respondents have further stated that the order of deducting Rs. 2,19,456/- in lieu of damage/penal rent for the period from 1.9.2010 to 30.6.2014 and further deduction of Rs. 6336/- per month from the salary of the applicant for unauthorized occupation of railway quarter No. L-66 (D+C) at Sirsa is justified as despite notices/reminders the applicant has not vacated the railway quarter till date. The service record of the applicant was also not satisfactory and he was punished with stoppage of Privilege Passes on two occasions for remaining absent from duty. The respondents stated that although it is true that the applicant was transferred from Sirsa to Arjansar in the year 2010 but there is no substance in the plea of the applicant that he has vacated the railway quarter on 31.8.2010. It is clear that the above numbered railway quarter was never vacated by the applicant and the same is still occupied by the applicant and his family members and this fact is clear from letter dated 17.8.2015 (Ann.A/4). It is further stated 7 that the applicant being railway employee, the quarter was allotted to him, therefore, it was the duty of the applicant to hand over peaceful physical possession of the quarter to the railway authorities on transfer from Sisra to Arjansar, but the applicant failed to do so. The submission of the applicant that there was some dispute with his wife and she is forcibly residing in the said quarter is applicant's personal problem and railway is not concerned with it. Since the applicant failed to handover the physical possession of the quarter, hence the order of penal/damage rent was issued, which is in consonance with law. It is further stated that the Division has written letter dated 9.9.2015 to the Sr. DEN/East/Bikaner to arrange vacation of above quarter by taking action under PP Act, 1971 (Ann.R/1). The Civil Suit filed by the applicant was withdrawn on the basis of the statement of the applicant but no liberty was given by the learned Civil Judge for redressal of his grievance. The applicant was provided ample opportunity to vacate and handover peaceful possession of the quarter by way of serving notices/reminders, but the applicant failed to vacate the said quarter, therefore, recovery order/deduction of demage/penal rent was issued against the applicant, which is in consonance with the rules. The respondents, 8 therefore, pray that the orders passed by the respondents are justified in the above circumstances.
4. Heard Shri Deepak Nehra, counsel for the applicant and Shri Vinay Chhipa for the respondents and perused the material available on record.
5. Besides reiterating the submissions made earlier, the applicant states that no action can be taken against the applicant as he himself has written a letter to the respondents that he has vacated the accommodation in question on 31.8.2010 itself. He, therefore, reiterates that as per letter dated 8.2.2011 (Ann.A/2) he was not occupying the said quarter for the last one month. Neither any family members nor any relative was residing in the said quarter and if at all any persons were residing in the said quarter, the said house may forcibly be got vacated. It is further stated that he has already paid the electricity charges etc. and he is not responsible for any other deductions. He further stated that the railway authorities are not authorise to take action under PP Act and, therefore, the impugned order dated 21.7.2014 deducting penal/damage rent from the salary of the applicant for the quarter in question is highly improper and unjustified. The applicant further contended that no opportunity of hearing 9 was granted to the applicant as the respondents have issued order of recovering penal rent on their own. Therefore, the impugned order deserves to be quashed and set-aside as the same is passed by the respondents against rules and regulations. Also no action can be taken by the respondents under PP Act, as he was not made party to the same and the action was taken by the estate authorities against his wife. Therefore, he should not be held responsible for the same and accordingly, no deduction can be made from his salary.
In support of his contention, the applicant has relied on the judgment of the CAT-Principal Bench, New Delhi in the case of Angoori Devi vs. Union of India and Ors., OA No.13/2012 decided on 9.1.2014 wherein the railway authorities had taken decision to charge penal/damage rent from the DCRG or any other terminal benefits payable to the applicant in respect of the railway quarter and the impugned order deducting penal/damage rent were quashed and set aside by the Tribunal.
The applicant also relied on the judgment of Union of India vs. Madan Mohan Prasad reported in 2002 (Supp.1) SC 65 wherein it has been held that penal/damage rent cannot be recovered but one has liability to recover 10 normal house rent inclusive of electricity and water charges.
6. On the other hand, the contention of the respondents is that the applicant has not vacated and handed over physical possession of the quarter in question and the same has been vacated only on 20th April, 2018. No divorce petition was filed by the applicant to prove that he is having strained relations with his wife. Therefore, since his wife was occupying the said premises, it is clear that the said quarter was not vacated by the applicant/ his wife.
The respondents have relied upon the judgment of the CAT-Chandigarh Bench in OA No.246/2011 in the case of Purshotam Dass vs. Union of India decided on 28th day of September, 2011 where in an identical situation it is observed that unless and until the applicant has legally divorced his wife through some competent court of law, it is obligation on the part of the applicant to pay rent or penal rent for the period his wife has remained in occupation of that house after normal period of occupying the Govt. accommodation irrespective of the fact that the applicant was having strained relations with his wife.
The respondents also relied on the Full Bench of CAT- Allahabad judgment dated 22.2.1996 in the case of Ram 11 Poojan vs. Union of India and ors., wherein it was held that a railway servant on transfer, retirement or otherwise, if does not vacate the railway accommodation even after the expiry of permissible period, retention of the accommodation by the railway servant would be unauthorized and penal/damage rent can be levied. The respondents further relied on the judgment of the CAT-Allahabad Bench in OA No.127/2008 in the case of Kamla Prasad Pandey vs. Union of India and Ors. wherein the Bench relying on the decision of the Calcutta Bench of the Tribunal rendered in 1993(2) ATJ 553 - Shanker and Ors. and Sudha Iswar Rao vs. Union of India reported in 1994(2) ATJ 553 held that it has been clearly been laid down in these two decisions that Section 7 of the PP Act is nothing but an alternative procedure for recovery of rent dues from Government employee and cannot be treated as the only mode of recovery.
The respondents have also relied upon the judgment dated 16.1.2013 of the CAT-Bombay Bench in OA No.515/2008, Sunil N.Bajare vs. Union of India and ors. wherein the Bench relied upon the judgment in the case of Ram Poojan (supra) as well as the case of Bombay High Court in A.M.Attar vs. Union of India in Writ Petition 12 No. 2944/2002 wherein it was held that there is no need to move under the PP Act, 1971 and held that the railway administration was justified in effecting recovery of damage rent from the salary of the employee. In another judgment dated 29.1.2013 in the case of A.K.Saxena vs. Union of India, OA No.397/2011 of the Bombay Bench of this Tribunal, similar view has been taken wherein it was clearly held that after a permissible period, possession of railway quarter becomes unauthorized and the occupant is liable to pay penal rent.
The respondents have further relied upon the judgment dated 31.3.2015 of the Patna High Court in Civil Writ Jurisdiction case No. 1412/2009 in the case of Union of India and Ors. vs. Rajeshwari Prasad Sinha, wherein it was held that railway administration can recover penal/damage rent as per Railway Board circular from the retiral dues.
In an another case of Coordinate Bench of this Tribunal at Jabalapur in OA No.211/2011 decided on 31.8.2018 in the case of Smt. Nirmala Tiwari vs. DRM, Jabalpur, while considering the case of Union of India and Ors. vs. Madan Mohan Prasad and Smt. Angoori Devi (supra) and 13 other judgments on the subject, it was held that for unauthorized occupation of railway quarter, the railway administration can recover damage rent from the retiral dues of the railway employee.
The respondents also relied on the judgment of the Hon'ble Apex Court in Civil Appeal No(s). 9176 of 2018 in (@ SLP (C) No(s)22444 of 2017) with Contempt Petition (C) No.717 of 2018 in SLP (C) No(s) 22444 of 2017 in the case of Prabhat Ranjan Singh & Anr. vs. R.K.Kushwaha and Ors. decided on 7.9.2018 had held that provisions of IREM has statutory force and has been issued in exercise of the powers conferred by the provisions of Article 309 of the Constitution of India.
The respondents have further relied upon RBE No.8/90 dated 15.9.1990 pertaining to retention of railway accommodation by railway employees wherein it is very clear that on expiry of the permissible/permitted period, the allotment of quarter in the name of employee at the old station will be deemed to have been terminated automatically. Retention of quarter by the employee after expiry of the permissible period will be treated as unauthorised and during the period of unauthorised 14 occupation the employee should be required to pay damages rate of rent in respect of the railway quarter. As per Para 1711 (b) of the Indian Railway Establishment Manual Vol.II - Notwithstanding anything contained in sub- caluse (a) Railway Administration may, by general or special order, provide for charging a rent in excess of 10 per cent of the emoluments from a railway servant:-
i) Who, is not required or permitted to reside on duty at the station at which the residence is supplied to him, or
ii) Who, at his own request, is supplied with accommodation which exceeds that which is appropriate to his status, or
iii) Who is permitted to subject the residence supplied to him, or
iv) Who sublet without permission the resident supplied to him, or
v) Who does not vacate the residence after the cancellation of allotment.
The provisions of sub-para 8.1(a) of Para-8 of Master Circular No.49 reads as under:-
"8.1 Permanent Transfer a. A Railway employee on transfer from one station to another which necessitates change of residence, may be permitted to retain the railway accommodation at the former station of posting for a period of 2 months on payment of normal rent or single flat rate of licence fee/rent. On request by the employees, on educational or sickness account, the period of retention of railway accommodation may be extended for a further period of 6 months on payment of special licence fee, i.e. double the flat 15 rate of licence fee/rent. Further extension beyond the aforesaid period may be granted on educational ground only to cover the current academic session on payment of special licence fee.
Provisions of Para 8.22 of the Master Circular No.49 provides as under:-
"On expiry of the permissible/permitted period indicated in all the above cases, the allotment of quarter in the name of the employee at the old station will be deemed to have been terminated automatically. Retention of quarter by the employee after expiry of the permissible period will be treated as unauthorised. During the period of unauthorised occupation the employee should be required to pay damages rate of rent in respect of the railway quarter. Realisation of damages rate of rent should not be pended on the ground that the employee has appealed or the case of employee has been referred to the Ministry of Railways for regularisation of the excess period of retention. If the appeal of the employee succeeds he will be allowed refund as due."
In view of above, the respondents state that penal/damage rent can be recovered from a railway employee beyond the permissible period of retention of the railway quarter.
7. Considered the rival contention of both the parties.
8. Admittedly the railway quarter no. L-66 D+C at Sirsa was allotted to the applicant. Subsequently, the applicant was transferred from Sirsa to Arjansar. Though the applicant has stated that he has vacated the quarter and he is no more residing in the said quarter from 1.9.2010 16 onwards, but it is clear from his representation dated 8.2.2011 that physical possession of the said quarter was not handed over by him to the respondent authorities. The applicant has made clear in his letter that action be taken against the illegal occupant of the quarter. The applicant states that he was having strained relations with his wife and his wife was illegally occupying the said quarter, but it is clear that a legal divorce is not obtained from the competent court of law, therefore, it is unfair on the part of the applicant to say that he has handed over the possession of the quarter to the railway authorities since his wife was very much residing in the quarter with her son. Time and again the applicant was intimated to hand over physical possession of the railway quarter to the railway authorities but the applicant did not pay any heed to the notices/reminders of the railway authorities. The applicant has supported his contention by stating that he has vacated the quarter but it is only his wife who was residing in the said house and action be taken by the authority forcefully to get the said quarter vacated, which is of no help to the applicant. In support of this contention he has relied on the case of Union of India vs. M.M.Prasad (supra), but the said judgment cannot be made applicable to the facts and 17 circumstances of the present case. Also the case of Smt. Angoori Devi (supra) relied by the applicant cannot be applied to the present case as the fact and circumstances of the present case are different. In that case the applicant retained the railway accommodation allotted to her husband without any objection from the respondents for a long time. The applicant has made representation to retain to the respondents to allow her to retain the accommodation till family pension is sanctioned to her. The respondents sanctioned family pension after 8 years and during that period her request for appointment on compassionate ground was also pending for consideration. The respondents took over 9 years to grant her compassionate appointment and during all these years, the accommodation allotted to her remained in her occupation uninterruptedly without any interference from the respondents. When the respondents raised bill for aforesaid accommodation, the applicant filed OA and on the intervention of the Tribunal the respondents recalculated her liability towards penal rent. The applicant further disputed the aforesaid claim also stating that since penal rent claimed by the respondents is a disputed amount, the respondents can recover the same only after adjudication under the provisions of PP Act, 1971 and it 18 cannot be adjusted against terminal benefits payable to her after the demise of her husband.
9. On the other hand, the judgment cited by the respondents i.e. the judgment of the Full Bench in the case of Ram Poojan is applicable to the present case. In the said case, it is held that the railway authorities can recover penal/damage rent by deducting the same from the salary of the railway servant as per the Railway Board circular and it is not necessary for the railway authorities to take resort to the proceedings under PP Act, 1971. Further, the case of Pursotam Das squarely covers the present controversy wherein in identical facts and circumstances, it has been held by the CAT-Chandigarh Bench that the employee is liable to pay penal rent for the period of unauthorised occupation and it has also been observed that it is obligation of the applicant to pay rent or penal rent for the period the employee's wife has remained in occupation of the said house after normal period of occupying the accommodation irrespective of the fact that the applicant was having strained relation with his wife. Also the judgments in the case of Kamla Prasad Pandey and Sunil N.Bajare, A.K.Saxena, Rajeshwari Prasad Sinha, Smt. Nirmala Tiwari (cited supra) supports the 19 contention of the respondents. After considering various judgments and the circulars of Railway Board and provisions of IREM mentioned above, it is clear that action of the respondents in recovering penal/damage rent for the period of unauthorised occupation is justified and is as per provisions of the law. Therefore, the impugned order dated 21.7.2014 requires no interference. Accordingly, after normal permissible period under the relevant rules, since the applicant's wife remained in unauthorised occupation of the railway quarter and since the applicant never physically handed over the said quarter to the respondents authorities till 20th April, 2018, the applicant is liable to pay penal/damage rent for the said period for the simple reason that unless and until the applicant has legally divorced his wife from the competent court of law, it is his obligation to pay rent for the period his wife was in occupation irrespective of the fact that the applicant was having strained relations with his wife.
10. In view of above discussions, the OA is dismissed with no order as to costs.
(HINA P.SHAH) Judl. Member R/