Central Administrative Tribunal - Allahabad
Rajesh Kumar Srivastava Aged About 52 ... vs Union Of India And Ors. And On The ... on 18 November, 2010
(OPEN COURT) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 18th day of NOVEMBER 2010. Present: Honble Mr. Justice S.C. Sharma, Member (J) ORIGINAL APPLICATION NO. 895 OF 2007 Rajesh Kumar Srivastava aged about 52 years, son of late Shri U.S. Srivastava, working as Assistant Commercial Manager, North Central Railway, Allahabad. Applicant. VE R S U S 1. Union of India through General Manager, N.C. Railway, Headquarter, Allahabad. 2. Divisional Railway Manager, N. C. Railway, Allahabad 3. Sr. Divisional Commercial Manager, N.C. Railway, Allahabad. 4. Divisiona Personnel Officer, N.C. Railway, D.R.Ms Office, Allahabad. ..Respondents Advocate for the applicant: Sri Sudama Ram Advocate for the Respondents : Sri S.K. Anwar O R D E R
Under challenge in this O.A., is the order dated 13.03.2007 (Annexure A-1), letter dated 21.3.2007 passed by the Senior Divisional Commercial Manager, N.C. Railway, Allahabad (Annexure A-2) and damage rent started from regular salary from August 2007 (Annexure A-3) as per instructions by Divisional Personnel Officer, N.C. Railway, Allahabad and direct the respondents to refund the recovered damage rent made in pursuance of the aforesaid impugned orders with 12% interest.
2. The pleadings of the parties may be summarized as follows:-
While the applicant was appointed on compassionate ground in Commercial Department, he was allotted Railway accommodation No. 505-B, Lalit Nagar Colony, Allahabad in 1977. The applicant was selected as Assistant Commercial Manager and posted at Kanpur on 22.10.2003 and no accommodation was provided to him at Kanpur. However, one room accommodation was given in the Rest House in December 2005. Application was submitted on 13.11.2003 for permission to retain the Railway Quarter at-least for six months on the ground of study of children. But permission was granted only for 2 months from 23.10.2003 to 22.12.2003 vide letter dated 10.1.2004. In February 2004, the mother of the applicant aged 70 years became seriously ill as she was fully dependent on applicant. Hence there was no alternative with the applicant except to retain the quarter in medical care. She was under treatment of Railway Hospital, Allahabad. Due to various problems of mother and want of any male member, the applicant had to retain the house. Certificates were also issued by the Railway Doctor in this connection. Vide letter dated 19.9.2006, the applicant was directed to vacate the accommodation otherwise treating him as unauthorized occupant. It was also alleged in the letter that medical certificate was demanded from the applicant w.e.f. 1.4.2004 but the applicant remain failed in submitting the medical certificate but the case of the applicant was not considered properly. The respondents worked out the damage rent for the period of 31 months from 1.4.2004 to 25.10.2006 @ Rs. 7058.70 total Rs. 2,18819.10 besides conservancy charges etc. total a sum of Rs. 2,19,749.70/- was demanded vide letter dated 08.11.2006. The damage rent was worked without following due procedure as per Rule of the Railway Board. The recovery has also been made illegally w.e.f. August 2007. The applicant is entitled for refund of that amount alongwith interest.
3. The respondents contested the case and filed written reply. The respondents denied the allegation of the application. However, it has been admitted that applicant was transferred at Kanpur. Pursuant to the transfer order, he joined there on 23.10.2003 but applicant retained the house at Allahabad. On family ground, applicant was permitted to retain the house for two months on normal rent and thereafter upto 31.3.2003 on double the normal rent. The representation was made by the applicant for permission to retain the house but period was not mentioned in the representation. On medical ground, maximum one year can be allowed to an employee to retain the house on certain conditions but the applicant failed to vacate the house even after one year. As the applicant retained the quarter as unauthorized occupant, hence damage rent was recovered from the salary of the applicant. The damage rent was recovered from the applicant as per directions of the Railway Board. The judgment of the Honble Apex Court referred in the O.A. is not applicable to the facts of the case. The action initiated against the applicant is legal and within the jurisdiction of the Authority concerned. The O.A. is liable to be dismissed.
4. I have heard Shri Sudama Ram, Advocate for the applicant and Shri S.K. Anwar, Advocate for the respondents and perused the entire facts and material available on record.
5. From the pleadings of the applicant, it is evidently clear that certain facts have been admitted by the learned counsel for the respondents. It is admitted fact that applicant was posted at Allahabad and while posted at Allahabad, a Government accommodation No. 505-B, Lalit Nagar Colony, Allahabad was allotted to him and the applicant continued to live in the house till he was transferred from Allahabad to Kanpur on 22.10.2003. It is also admitted fact that on his transfer, the applicant moved an application to the respondents for permission to retain the house. The respondents were pleased to permit the applicant to retain for 2 months from 23.10.2003 to 22.12.2003 and further he was allowed to retain the house for a period of 3 months from 23.12.2003 to 31.3.2004 on double of the normal rent basis.
6. It has been alleged that after expiry of this period, as the applicant continued to live in the house illegally. Hence his possession since 1.4.2004 is that of unauthorized occupant and Railway Administration is entitled to recover damage rent. It has not been disputed by the applicant that whether after 1st April 2004 any permission was granted to the applicant to retain the house?. Hence it is fact that applicant continued to live in the house after 31.3.2004 without any permission to retain the house.
7. It is vehemently argued by the applicant that due to serious illness of the mother of the applicant, applicant continued to retain the house. Representation as well as application was made to the respondents to permit the applicant to retain the house. But no order has been produced regarding according permission to the applicant by the respondents to retain the house beyond 31.3.2004.
8. Learned counsel for the applicant in this connection also argued that the application of the applicant was not forwarded to the Higher Authority for granting permission beyond 31.3.2004. Learned counsel for the applicant also argued that the applicant continued to recover the rent till 31.5.2007 on double of the normal rent. It was only after 31.5.2007 that damage rent of earlier period was recovered.
9. Annexure C.A-4 is a relevant Circular/letter of the Railway Board that the retention of the Railway Quarter in the event of transfer, deputation and retirement in service. It has been provided in para 3 (iii) of the Circular/letter that the retention of Railway accommodation beyond the permissible period on medical grounds may be granted by the Competent Authority for a period not exceeding one year in any case. It is the case of the respondents that utmost on medical ground, maximum 1 year period can be allowed to retain the house by an employee but it must be only subject to submission of the medical certificate by the Competent Authority. In this connection, learned counsel for the respondents also argued that applicant was directed to submit certificate to provide him the benefit of this clause for retention of house for 1 year but he failed to produce any certificates of the Competent Authority. But it is a fact that house could have been permitted to retain on medical ground for a period of one year and it can be only on double the normal rent. It has been demonstrated before me that the mother of the applicant was seriously ill and she was dependent on the applicant and it was not possible to shift her in that precarious condition. Hence there was valid reason for the applicant not to vacate the house. Medical certificates have been filed to show that mother of the applicant was seriously ill. It is evidently clear that the applicant had not submitted any medical certificates and as the mother of the applicant was seriously ill and it was not possible to shift her and then in view of clause 3 (iii) of the above Circular/letter at the most the applicant was entitled to retain the house for a period of 1 year, from the date of transfer and not beyond that. There can be problem in providing him the benefit of 1 year. At this stage, learned counsel for the respondents cited the judgment reported in C.A.T. Full Bench judgment, 1994-96 page 244 Ram Poojan Vs. Union of India and Ors. and on the strength of this Judgment of Full Bench of the CAT, Allahabad, learned counsel for the respondents argued that the applicant was in occupation of railway accommodation without any specific order, and that no order is required regarding cancellation of allotment of accommodation on expiry of permissible/permitted period of retention of quarter on transfer, retirement or otherwise and automatically after expiry of this permissible period allotment of railway quarter has already been cancelled. Although learned counsel for the applicant argued that this judgment of Allahabad Full Bench has been superceded by A.T. Full Bench judgment 2002-2003, Bombay High Court page 212. It has been held by the Honble High Court, Bombay The Tribunal, in the instant case has, by placing reliance upon the decision in Ram Poojan Vs. Union of India reported in 1996 (1) ATJ 540, concluded that in such case, it is permissible to pass an order as is issued in the instant case. In our view, the Tribunal committed a parent error in upholding the order dated 30.10.1996 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 of adjudication of the dues. The order does not indicate as to whether any hearing was given to the petitioner before the recoveries were effected.
10. From the perusal of Honble High Court, Bombay, it was evidently clear that prior to making recovery from the applicant, he must be provided an opportunity of hearing. In the case of Ram Poojan Vs. Union of India, it has been held that cancellation of allotment shall be automatic after expiry of permissible period. I think this part of the judgment has not been set aside.
11. In this connection, learned counsel for the applicant placed reliance on Annexure A-18, a Circular/letter issued by the Railway Board No. R.B.E. No. 100/2001 dated 1.6.2001. It has been held that beyond the permitted/permissible period, however, no further extension will be allowed on any ground, whatsoever. Therefore no request or representation on this score shall be entertained. For all occupations beyond the permitted period, therefore, immediate action should be taken to cancel the allotment, declare the occupation as unauthorized and initiate eviction proceedings, charging damage rent for the over stay. In the judgment of Ram Poojan (supra), it has been held by the Full Bench of C.A.T. Allahabad that after expiry of permissible period, the allotment shall stand cancelled automatically and no order is required. However, in the Railway Board Circular/letter, it has been provided that action must be initiated for cancellation of allotment. But in view of law laid down in Ram Poojan (supra) after expiry of permissible period, allotment shall stand cancelled automatically. I disagree with the argument of the learned counsel for the applicant that after expiry of one year as provided in the letter dated 9.6.2000 for retention for 1 year on medical ground, no order is required to be passed for cancellation of allotment. However, proceeding can also be initiated after expiry of one year for eviction of occupation. In the present case, the controversy is not regarding initiating of eviction proceeding. Here controversy and dispute is regarding illegal recovery alleged by the applicant from the salary of the applicant. Hence I am confined only considering the matter regarding recovery and not regarding eviction, although after expiry of one year, the Railway Authority is authorized to initiate the proceeding for eviction before the Competent Authority.
12. As the matter in the present case is regarding recovery and applicant has alleged that illegal recovery has been made from the salary of the applicant. Till 31.5.2007 from the salary of the applicant deductions were made at the rate of double the normal rent and hence after 31.5.2007, it most unjustified on the part of the respondents to recover the damage rent. What must be the damage rent is also to be decided in the present case. It has been pleaded on behalf of the respondents that market rate is the damage rent, which can be recovered from the applicant for over stay in the Government or the Railway accommodation. In this connection, learned counsel for the applicant cited the judgment of the Honble Apex Court reported in 2005 Supreme Court Cases (L&S) 117 Chandra Prakash Jain Vs. Principal/DIG, Police Training College-II, Moradabad and another. In this judgment, it has been held thus, he remained in unauthorized occupation of the quarters fore more than six year. The question for consideration is what is the rent which he is liable to pay for such unauthorized occupation of the quarters? Certain rules, circulars and executive instructions have been placed before us by the appellant and also learned Senior Counsel for the respondents. We are satisfied that the deduction of the sum of Rs. 2,07,979 from the retrial benefits of the appellant, is erroneous. The calculation is based on a circular which is not applicable in the case. Considering the facts of the case, we are of the view that applicant is liable to pay three times standard rent of the residential quarter in his possession during the period of over stay beyond four months from the date of retirement.
13. Learned counsel for the applicant argued that in view of judgment of Honble Apex Court, three times of standard rent may be recovered during the period of over stay. I am not aware as it is not clear from the perusal of the judgment that whether the period of one year was deducted or after expiry of four months from the date of transfer. It was provided that rent can be recovered from the applicant but at the most I can provide that from the applicant three times of the standard rent may be recovered commencing 1st April 2004 because applicant cannot be held entitled for double benefit. Firstly applicant may be allowed to retain the house beyond the permissible limit and even then providing him the benefit of retaining the house for a period of one year as permissible on medical ground. In this case, applicant might have vacated the house after one year then he was entitled to pay rent on double the normal rent. But as he had not vacated hence that latitude cannot be given to him. The main controversy is what should be the damage rent and in view of judgment of Honble Supreme Court beyond permissible period for overstay, the applicant can be held liable to pay the rent @ three times of standard rent, whereas respondents have recovered the rent at the market rate. Learned counsel for the applicant stated that the amount of damage rent has been levied but recovery has been stayed by the Tribunal. Hence recovery has not been made till date and double of the normal rent had already been recovered from the salary of the applicant. As no judgment contrary to the judgment of Honble Supreme Court has been produced before me. Under these circumstances, there appear no reason except to decide that the respondents are entitled to recover the rent from the applicant three times of the standard rent for the period of overstay. O.A. deserves to be disposed of accordingly.
14. O.A. is disposed of finally and impugned order Annexure A-1 and Annexure A-2 are quashed. It is provided that respondents are entitled to recover 3 times of standard rent from the applicant for the period of overstay w.e.f. 1.4.2004 till the house was vacated by him. The respondents are directed to recalculate the amount within 3 months by applying the principle as has been held above in view of judgment of Honble Supreme Court and thereafter recovery be made from the salary of the applicant by bifurcating the equal amount within a period of 24 months. The amount already recovered from the salary of the applicant as rent will be adjusted for the payment of this recalculated amount. No costs.
Member (J) Manish/-
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