Central Administrative Tribunal - Allahabad
Brij Nandan Prasad vs General Manager E C Rly on 19 July, 2023
RESERVED ON 07.07.2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 19th of JULY 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 330/00767/2012
With
Original Application No. 330/00766/2012
Original Application No. 330/00767/2012
Brij Nandan Prasad, aged about 63 years, son of Late Bal Chand Ram,
resident of Choteki Near Durga Sthan, PNB Ki Gali Me Post Office
Rajauli, Gaya (Bihar).
. . . Applicant
By Adv: Shri A.K. Srivastava/Shri M.K. Srivastava
VERSUS
1. Union of India, through General Manager, East Central Railway,
Hajipur, Bihar.
2. Divisional Railway Manager, East Central Railway, Mughal Sarai
Division, Mughal Sarai.
3. Senior Divisional Personnel Officer, East Central Railway, Mughal
Sarai Division, Mughal Sarai.
. . .Respondents
By Adv: Shri Saurabh
Original Application No. 330/00766/2012
Amna Khatoon wife of late Mohammad Siraj Uddin aged about 56 years,
Resident of Panchayati Akhara, Raj Bagicha, Maqsoodpur Khoti, Nai
Godam, Gaya (Bihar)
......Applicant
By Adv: Shri A.K. Srivastava/Shri M.K. Srivastava
Versus
1. Union of India, through General Manager, East Central Railway,
Hajipur, Bihar.
2
2. Divisional Railway Manager, East Central Railway, Mughal Sarai
Division, Mughal Sarai.
3. Senior Divisional Personnel Officer, East Central Railway, Mughal
Sarai Division, Mughal Sarai.
. . .Respondents
By Adv: Shri Ajay Kumar Rai
ORDER
Since both the original applications are related to same issue, therefore, they were heard together and are being decided by a common judgment.
2. The present Original Applications have been filed by the applicants under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-
RELIEF IN OA No. 767/2012i) By means of writ of certiorari quashing the impugned order if any as being recovered from monthly salary from March 2008 to July 2009 Rs. 2000/- per month i.e. total 34000/- and 31358/- as interest.
ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to refund the amount from the monthly salary of the applicant as damage rent with interest, which have already being recovered by the applicant.
iii) Issue any other suitable writ, order or direction as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case.
iv) Award the costs of the original application in favour of the applicant.RELIEF IN OA No. 766/2012
i) By means of writ of certiorari quashing the impugned order if any as being recovered after retirement from retiral benefits.
ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to refund the amount from the 3 monthly salary of the applicant as damage rent with interest, which have already being recovered by the applicant.
iii) Issue any other suitable writ, order or direction as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case.
iv) Award the costs of the original application in favour of the applicant.
3. During the pendency of the OA No. 766/2012, the original applicant had expired and his widow has been substituted as applicant in the OA No. 766/2012.
4. The brief facts of both the OAs are that applicant in OA No. 767/2012 was in possession of Quarter 156C Type - II, Loco Colony, Gaya and the husband of applicant OA No. 766/2012 was in possession of Quarter No. 996C Type-II, Loco Colony, Gaya. Both the applicants were transferred from Gaya to Mughal Sarai. Senior Divisional Electrical Engineer (Operation), Mughal Sarai wrote a note in regard of taking over of Type-I, Railway Quarters of TRS/OP Pool at Gaya but respondents have not taken over the charge of the said quarters as well as Type II quarter despite of note dated 03.01.2006. Assistant Engineer, ECR/Gaya further wrote a letter to Senior Section Engineer (Works) Colony, E.C. Railway Gaya dated 31.01.2006 asking for action in regard to the pendency of taking over the charges of quarters in reference to the letters. The said quarters were not allotted to any other employee to whom the applicant had handed over the charge of the quarters in question, though the applicants have prayed for handing over the charge of the quarters, but no one came up for taking over the charge. It is further argued that the applicant has not been paid House Rent Allowance during the stay at Mughal Sarai. It has also been contended that respondents have recovered the damage rent when the applicant in OA No. 767/2012 was posted at Mughal Sarai from his salary from March 2008 to July 2009 @ Rs. 2000/- per month i.e. total Rs. 34000/- and Rs. 31358/- with interest. In regard to OA No. 766/2012, after the death of original applicant, respondents have recovered Rs. 148915/- from the retiral benefits of original applicant. It is also contended that no order of recovery from the applicant has been supplied to the applicant.
45. I have heard Shri A.K. Srivastava, learned counsel for the applicants in both the OAs and Shri Ajay Kumar Rai, learned counsel for the respondents in OA No. 766/2012 and perused the records. None present for the respondents in OA No. 766/2012.
6. Submission of the learned counsel for the applicants is that initially applicants were posted at Gaya Junction. Thereafter they were promoted and were transferred to Mughal Sarai. Again they were transferred to Gaya. Accommodation allotted to the applicants at Gaya could not be vacated due to non-allotment of Quarter at Mughal Sarai, thus, applicants were not claiming any HRA. Recovery made from the salary of the applicants as damage rent is illegal and without jurisdiction. It is further argued that if applicants were illegally occupying the quarters in question, then respondents ought to have taken recourse to the provision of Section 7 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as an 'Act'). No adherence of the provision of 'Act' itself indicate that recovery made by the respondents is illegal. Learned counsel for the applicant placed reliance on the following case laws:-
(i) Union of India Vs. Sh. Rasila Ram & ors. Reported in (2001) 10 SCC 623
(ii) Naresh Prasad II Vs. The Union of India and others decided on 14th December 2010 in OA No. 506/2010.
(iv) Ram Poojan Vs. Union of India and others reported in 1994-96 A.T Full Bench Judgments 244.
(v) N.C. Sharma Vs. Union of India reported in 2004 (3) BomCR 24.
(vi) Gorakhpur University & others Vs. Dr. Shitla Prasad Nagendra in Appeal (Civil) 1874 of 1999 on 07.08.2001.
(vii) Union of India and others Vs. Madan Mohan Prasad reported in 2002 (93) FLR 1185.5
(viii) B. Kapur Vs. Director of Inspection (Painting) reported in JT 1994 (6) SC 354.
(ix) Hari Singh and others Vs. The Military Estate Officer reported in 1972 AIR 2205.
It was further argued that both the applicants have retired from service and they have vacated the quarters in question.
7. Learned counsel for the respondents argued that since applicants had illegally occupied the quarters allotted to them at Gaya, despite their transfer at Mughal Sarai and competent authority assessed the matter and calculated the damage rent and on that basis recovery was made. It is also argued that there was no need to take recourse to the provision of Section 7 of the 'Act' and to approach before the Civil Court. The respondents were enough competent to deduct the damage rent in case employee did not vacate the quarter allotted to him. Thus, prayer was made to dismiss the OA. In support of his contention, learned counsel for the respondents relied upon following case laws:-
(i) Indrajeet Singh Vs. Ministry of Railways and another in WP (C) No. 8170/2020 on 19.10.2020 by Hon'ble Delhi High Court.
(ii) Raj Kumar Vs. Ministry of Railways in OA No. 290/00519/2016 on 07.02.2019 by CAT Jodhpur Bench.
8. Since learned counsels have placed common submissions in all the OAs, hence the submissions which have to be discussed in this judgment are related with both the OAs.
9. I have gone through the judgment referred by the learned counsel for the applicant.
10. Learned counsel for the respondents has placed on record Master Circular No. 49 wherein para 11.1.1 mentions as under:-
"Automatic termination of allotment on expiry of permitted period 6
(a) On expiry of the permissible/permitted period indicated in all the 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 unauthorized. During the period of unauthorized occupation, the employee would be required to pay damage rate of rent in respect of the Railway Quarter. Realization of damage rate of rent should not be pended on the ground that the employee has appealed or the case of the employee has been referred to the Ministry of Railway for regularization of the excess paid of retention".
11. In the case of Rasila Ram (supra), the Hon'ble Supreme Court has specifically held that:-
"1. The aforesaid appeals are directed against the order of the Full Bench of the Central Administrative Tribunal in a batch of applications before it, recording a finding that an order passed by the competent authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for eviction would also come within the purview and jurisdiction of the Administrative Tribunal constituted under Administrative Tribunals Act, 1985. The Tribunal by the impugned order has construed the expression 'service matter' defined in Section 3(q) of the Administrative Tribunals Act and because of the expression any other matter whatsoever' occurring in Clause (v) thereof, it has come to the conclusion that the eviction of unauthorised occupants from the Government quarter, would tantamount to a service matter, and therefore, Tribunal retains jurisdiction over the same, in view of the overriding effect given to the Act by virtue of Section 33 of the said Act.
2. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the "Eviction Act") was enacted for eviction of unauthorised occupants from public premises. To attract the said provisions, it must be held that the premises was a public premises, as defined under the said Act, and the occupants must be held unauthorised occupants, as defined under the said Act. Once, a Government servant is held to be in occupation of a public premises as an unauthorised occupant within the meaning of Eviction Act, and appropriate orders are passed thereunder, the remedy to such occupants lies, as provided under the said Act. By no stretch of imagination the expression, "any other matter," in Section 3(q)(v) of the Administrative Act would confer jurisdiction on the Tribunal to go into the legality of the order passed by the competent authority under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this view of the matter, the impugned assumption of jurisdiction by the Tribunal, over an order passed by the competent authority under the Eviction Act, must be held to be invalid and without jurisdiction. This order of the Tribunal accordingly stands set aside. The appeals are accordingly allowed".7
In another case of Naresh Prasad II (supra), the CAT, Patna Bench has held as under:-
"7. It is the settled principles of law that for charging damage rent recourse is to be taken under section 7 of the 'Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Admittedly, no action was taken under the said Act. From the perusal of the order dated 14.05.2010, passed in OA 127 of 2009, it transpires that this Tribunal considered the decision of the Apex Court in the case of Union of India Vs. Rasila Ram & Ors. {2001 (1) ATJ 261} in which it was held that the Railway authorities are not competent to make any deduction from the salary of an employee by way of penal/damage rent for unauthorized occupation of railway quarter. It was further held that in order to realize such rent, the railway authorities have to take recourse to Section 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The Tribunal also considered the decision of the Division Bench of Bombay High Court in the case of N.C. Sharma Vs. Union of India {2004 (1) ATJ 481} in which it was held that penal rent for unauthorized occupation of a railway quarter can be recovered only by institution of proceedings under section 7 of the aforesaid Act. Admittedly, no such recourse was taken by the respondents in the present case".
12. From the perusal of decision in the case of Ram Poojan (supra) that following questions were formulated for the decision by the Larger Bench:
"a. Whether in respect of a railway employee in occupation of a railway accommodation a specific order cancelling the allotment of accommodation on expiry of the permissible / permitted period of retention of the quarters on transfer, retirement or otherwise, is necessary as unauthorised and penal/damage rent levied or;
b. Whether the retention of accommodation beyond the permissible period can automatically be considered as unauthorised without any specific order of cancellation of allotment and the penal/damage rent levied accordingly.
13. The Full Bench of Central Administrative Tribunal, Allahabad has answered these questions in the following terms:
"a. In respect of railway employee in occupation of a railway accommodation, in our considered opinion, no specific order cancelling the allotment of accommodation on expiry of the permissible/ permitted period of retention of the quarters on transfer, retirement or otherwise is necessary and further retention of accommodation by the railway servant would be unauthorised and penal/damage rent can be levied.8
b. Our answer is that retention of accommodation beyond the permissible period in view of the Railway Board's circulars would be deemed to be unauthorised occupation and there would be an automatic cancellation of an allotment and penal rent/damage rent can be levied accordingly to the rates prescribed from time to time in the Railway Board's circular."
14.. From the perusal of above Full Bench Judgment it is clear that no specific order cancelling the allotment of accommodation on expiry of permitted period of retention of quarter after retirement is necessary and further retention of allotted quarter by the retired Railway employee would be unauthorized and penal/damage rent can be recovered from him. It is also clear that there would be an automatic cancellation of allotment of said quarter after the permissible period and it is not necessary to issue any specific order cancelling the allotment of said quarter. It has also been held by the Full Bench that it is open to Railway Authorities to recover penal/ damage rent from the railway employee and it would not be necessary to take resort to proceedings under Public Premises (Eviction of Unauthorized Occupant) Act, 1971.
15. Another decision cited by the learned counsel for the applicant in the case of N.C. Sharma (supra), the Hon'ble Bombay High Court has held that:-
"The Tribunal, in the instant case has, by placing reliance upon the decision in Rampujan v. Union of India reported in 1996(1) ATJ 540, concluded that in such cases, it is permissible to pass an order as is issued in the instant case. In our view, the Tribunal committed a patent error in upholding the order dated 30th October 1996 impugned before it. A perusal of this order makes it abundantly clear that the recoveries that are being effected thereunder are not as a consequence of any assessment or adjudication of the dues. The order does not indicate as to whether any hearing was given to the petitioner before the recoveries were effected".
Hence, in view of aforesaid judgment, the Hon'ble Bombay High Court has overruled the Full Bench judgment of Ram Poojan.
16. The judgment cited by the learned counsel for the applicant are not relevant in the present case since the case of Dr. Shitla Prasad Nagendra (supra) is related to Gorakhpur University and the court did not 9 adjudicate upon the question whether penal rent for the alleged unauthorized occupation of the house is realizable from the petitioner or not and without going into merit of the case it has been held that pension and other retiral benefits cannot be withheld or adjusted or appropriated for the satisfaction of any dues outstanding against the retired employee.
17. From the perusal of record, it is also evident that the respondents were deducting monthly house rent and the other taxes including the charge of electricity in respect to the said allotted railway quarter. By the note dated 03.01.2006, the Senior DEE/OPH ECR Mughal Sarai wrote a note regarding taking over the quarters in question. It seems that the applicants neither vacated the aforesaid allotted quarters nor handed over the quarters to the new allottees. Hence, according to the aforesaid Master Circular No. 49, respondents are fully entitled to recover the penal/damage rent from the salary/retiral benefits of the applicants.
18. According to the aforesaid Master Circular, respondents obviously have recovered the penal/damage rent from the salary/retiral benefits of the applicant but the core issue involved in this OA is that whether the Tribunal can entertain the case where penal/damage rent is charged to the employee concerned.
19. Learned counsel for the applicant specifically relied upon the judgment of Naresh Prasad II (supra), in which Patna Bench of this Tribunal has relied upon the judgment of Rasila Ram (supra) and N.C. Sharma (supra) and observed that "penal/damage rent was charged by the respondents against the applicant without following the legal procedure and hence, in view of the decision referred to above, it is not sustainable in law.
20. According to the judgment of Rasila Ram (supra) passed by Hon'ble Supreme Court, the Tribunal has no power to entertain the cases where issue of penal/damage rent would be recovered from the concerned employee.
21. In the judgments of Rasila Ram (supra), the Hon'ble Supreme Court has held that respondents can realize penal/damage rent from the employees only taking recourse to the provision of Section 7 of the 'Act' 10 whereas Tribunal has no power to entertain the case where recovery was ordered under Section 7 of the 'Act'.
22. Aforesaid CAT Jodhpur Bench judgment relied upon by the learned counsel for the respondents wherein judgment of the Full Bench in the case of Ram Poojan (supra) is applicable to the case of aforesaid case was overruled by Hon'ble Bombay High Court in the case of N.C. Sharma (supra), hence the case of Raj Kumar (referred to above) is not helpful to the learned counsel for the respondents.
23. I may also refer to the judgment of CAT Principal Bench, New Delhi by which the aforesaid Tribunal has held that:-
"In the instant case, it is an admitted fact that no final order has been passed as the applicant has not been giving any appearance. However, there are interim orders that have been passed besides procedural orders. The question would thus arise whether this would be sufficient to attract the ratio laid down by the Apex Court in the case of Union of India vs. Rasila Ram (supra) or it becomes necessary that final order should be passed by the competent authority under the Eviction Act before it goes out of bounce of the Tribunal. Here we have to examine assuming that final order has not been passed yet would it confer jurisdiction upon the Tribunal to stay or quash any such proceedings or make any amendment or would such order tantamount to vesting the powers of appellate or reviewing authority over the Eviction Act, which has not been laid down/prescribed within the Act itself. Once a notice has been issued under this Act, which creates a liability upon the noticed person to appear and to establish that he is not an illegal occupant in respect of the premises involved. The passing of final order is only a stage in the proceedings. Hence, it is quite clear that Tribunal is not competent to take a view whether a person is unrest occupant of the public premises. It cannot be interfered at any stage of the proceedings irrespective of the fact that final orders have not been passed. It is on this count, I find that there is full applicability of the judgment of the Apex Court in the case of Union of India vs. Rasila Ram (supra) and once the proceedings are commenced under the Eviction Act, the jurisdiction of this Tribunal stands ousted. Moreover, Section 15 of the Eviction Act bars jurisdiction of other courts. Section 15 of the Eviction Act reads as under:-
15. Bar of jurisdiction.
No court shall have jurisdiction to entertain any suit or proceeding in respect of-
(a) The eviction of any person who is in unauthorised occupation of any public premises, or
(b) The removal of any building, structure or fixture or goods, cattle or other animal from any public premises under Section 5A, or 11
(c) The demolition of any building or other structure made, or ordered to be made, under section 5B, or] [(cc) The sealing of any erection or work or of any public premises under section 5C, or]
(d) The arrears of rent payable under subsection (1) of Section 7 of damages payable under sub-section (2), or interest payable under subsection (2A), of that section, or
(e) The recovery of-
(i) Costs of removal of any building, structure or fixture or goods, cattle or other animal under Section 5A, or
(ii) Expenses of demolition under Section 5B, or
(iii) Costs awarded to the Central Government or statutory authority under subsection (5) of Section 9, or
(iv) Any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority".
24. In view of law laid down by the Hon'ble Supreme Court in the case of Rasila Ram (supra) since applicants occupation over the houses in question was unauthorized, recovery were being made under PP Act, thus, the Tribunal has no jurisdiction to entertain the OAs and quash the recovery process. Proper recourse was available to the applicants to take recourse under PP Act, thus OA is being devoid of merit and is liable to be dismissed. Accordingly, both the OAs are dismissed. No order as to costs. All associated MAs are also disposed of.
25. Copy of this order be placed in OA No. 766 of 2012.
(Justice Om Prakash -VII) Member (J) Manish/-