Central Administrative Tribunal - Delhi
Smt. Angoori Devi vs Union Of India Through The on 9 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 13/2012 Reserved On:05.12.2013 Pronounced on:09.01.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Smt. Angoori Devi W/o Late Shri Mokha working as S&T Khallasi, Northern Railway Station, Rohtak, R/o Quarter No.T-71, Rohtak (Haryana). Applicant By Advocate: Shri Yogesh Sharma. Versus 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The General Manager (Engineering), Northern Railway, Baroda House, New Delhi. 3. The Divisional Railway Manager, North Railway, Delhi Division, State Entry Road, New Delhi. 4. The Divisional Engineer-IV, DRMs Office, Northern Railway, State Entry Road, New Delhi. .Respondents By Advocate: Shri P.K. Yadav. ORDER
Honble Mr. G. George Paracken, Member (J) The grievance of the Applicant is against the Respondents letters dated 12.08.2009 and 12.08.2011 to the extent of charging her penal rent/damage rent w.e.f. 01.04.1990 to 01.07.1998 amounting to Rs.2,22,927/- in respect of Railway Quarter No.T-71, Railway Colony, Rohtak. She has also got a grievance against the Respondents for not releasing the DCRG amount admissible to her after the death of husband.
2. The brief facts of the case are that the Applicant is the widow of late Shri Mokha, a Khalasi who was working with the Respondent-Railways. Lastly, he was posted in the Northern Railway Station, Rohtak. He died while in service on 07.02.1989. Immediately after his death, Applicant sought appointment on compassionate grounds. She has also applied for family pension and other retrial benefits. However, the Respondents insisted that she should produce the succession certificate to claim the aforesaid benefits. During his service period, the Applicants husband was allotted Railway Quarter No.T-71 at Railway Colony, Rohtak. After his death, the Applicant made representations on 08.01.1990 and 29.12.1990 for retention of the said Railway Quarter till the payment of family pension is finalized and her request for appointment on compassionate ground is considered. However, the Respondents neither took any decision on them nor rejected her request. Thereafter, the Applicant was granted family pension except Gratuity vide PPO dated 01.07.1997, i.e., after 8 years of the death of the husband of the Applicant. Later on, she was also given appointment on compassionate grounds as Water Woman vide Respondents letter dated 02.07.1998. After joining duty in terms of the aforesaid order, she requested the Respondents to deduct her House Rent Allowance (RA for short) as she was residing in the aforesaid accommodation allotted to her late husband. The Applicant has also submitted that so far the Respondents have neither cancelled the allotment of the aforesaid accommodation nor she was given any notice for eviction. As a result, she was continuing in the aforesaid Railway Quarter on the basis of the representation which was pending consideration before the Competent Authority. However, vide order dated 06.08.2007, the Respondents passed an order for recovery of Rs.7,80,092/- as damage rent for the aforesaid period from 08.02.1989 to 31.05.2007. The Respondents have also started deducting the penal rent of Rs.1359/- from the pay of the Applicant every month.
3. The Applicant has, therefore, approached this Tribunal vide OA No.674/2008 seeking stay on the recovery of the damage rent from the Applicants pay. According to the Applicant, even though interim direction was there not to recover damage rent from the Applicants pay, the Respondents continued recover it from the Applicants pay. The said OA was disposed of vide order dated 25.02.2009 with a direction to the Respondents to pass a reasoned and speaking order with regard to fixing of rent on the aforesaid quarter and the recovery of damage rent from the Applicants pay. This Tribunal has also observed that the entire period between 07.02.1989 to 31.05.2007, as referred to in the Respondents Notice for recovery and damage rent, cannot be treated as unauthorized occupation. The Tribunal has considered that when an employee dies while in service for some period the family can retain the said accommodation on payment of normal rent and then on enhanced rate. Further, if the quarter is retained only then the question of payment of damage rent arises. Again, when the Applicant has been given appointment on compassionate grounds, the date from which she was appointed the Quarter should have been regularized in her name and only normal rent can be recovered. The relevant part of the said order reads as under:-
7. In view of the accepted facts, it is very clear that the Applicant has been on continuous occupation of the Railway Quarter (T-71) from the date of her husbands death (07.02.1989) up to 31.05.2005. The damage rent has been calculated for the entire period, which cannot be considered as totally illegally occupied period. Thus the period is to be clearly split into 4 spells on the basis of nature of occupation of the quarter. First of all the Applicant as the wife of deceased employee was entitled to stay in the quarter T-71 for specific period at their normal rent as prescribed under the Railway Rules. Secondly, she is entitled to keep the quarter at the higher rate of rent for a further specific period. Thirdly, the period she should have vacated till she joined the post of Waterwoman in Railway. This is the only period she illegally occupied and must be charged the damage rent. Fourthly, the Applicant having been appointed by the Railways on compassionate grounds vide their order dated 02.07.1998, occupation of the quarter T-71 should have been regularized w.e.f. that date. This period is from 02.07.1998 to 31.05.2007, which would be normal rent. Further, the Respondents are to carry out the exercise of regularization of quarter T-71 in her favour with effect from her appointment in the Railway and she has to pay the normal rent from 02.07.1998 onwards.
4. It is in pursuance of the aforesaid directions, the Respondents have passed the impugned order dated 12.08.2009. According to the said letter, the liability of the Applicant for payment of rent has been calculated under 4 spells as under:-
1. First:- Normal Rent 08.02.1989 to 07.06.1989 = 4 months @32 PM =Rs.128/-
2. Second:-Double Rent (School Session) 08.061989 to 31.03.1990 = 09 Months 23 Days @64 PM = Rs.625/-
3. Penal Rent:-Area 69.47 Sqm 01.04.1990 to 31.05.1991 = 14 Months @ 15 per sqm = Rs.14,576/-
01.06.1991 to 30.11.1993 = 30 Months @ Rs.30 per sqm = Rs.62,469/-
01.12.1993 to 31.12.1995 = 25 Months @ Rs.34 per sqm = Rs.58,999/-
01.01.1996 to 01.07.1998 = 30 Months @ Rs.38 per sqm + Rs.79,127/-
Sewerage charge up to 31.12.1995 = 69 Months @ Rs.2 per month = Rs.138/-
Sewerage charge up to 01.07.1998 = 30 Months @ Rs.4 per month = Rs.120/-
Water charge= 99 Months = @ Rs.25 per Month = Rs.2475/-
4. Normal Rent 02.07.1998 to 31.12.2000 = 30 Months @ Rs.42 per Month = Rs.1260/-
01.01.2001 to 31.08.31.08.2001 = 08 Months @ Rs.50 per Month = Rs.400/-
01.09.2001 to 31.05.2001 = 45 Months @ Rs.58 per Month= Rs.2610/-
Total=2,22,927/-
Two Lakhs Twenty Thousand Nine Hundred Twenty Seven
5. The Applicant has challenged the aforesaid decision of the Respondents again in this Original Application on the ground that the penal rent or damage rent, if any can be recovered only under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (P.P. Act for short). He has also stated that the first time the Respondents have issued the order for the recovery of the damage rent for Rs.7,80,092/- was only on 06.08.2007 and as per the well settled principle of law the Respondents can recover the penal/damage rent only for the last three years, i.e., only w.e.f. 06.08.2004. However, since the accommodation has already been regularized in her name with effect from 02.07.1998, now the question of any recovery of damage rent does not arise at all.
6. In this regard, learned counsel for the Applicant Shri Yogesh Sharma has relied upon the judgment of the Honble High Court of Delhi in LPA No.566/2011 Som Prakash Vs. Union of India and Others decided on 25.11.2011. The relevant part of the said order reads as under:-
2. The proceedings were initiated by the respondent vide notice dated 16th March, 2009. As per the judgment of Supreme Court in New Delhi Municipal Committee, Vs. Kalu Ram and another, AIR 1976 SCC 1637, law of limitation applies even for recovery of arrears of rent determined under Section 7 of the Act. Therefore, the respondent could recover the rent for a period preceding three years from 16th March, 2009 i.e. from 17th March, 2006 till the date the appellant vacated the premises.
3. This appeal is allowed in part to the aforesaid extent. The respondents have already recovered the penal rent calculated by the Estate Officer i.e. Rs.689695/- from the retiral dues of the appellant. The actual damages payable by the appellant for three years, as mentioned above, shall be calculated and balance amount shall be paid back to the appellant within a period of one month.
7. Shri Yogesh Sharma has also relied upon the judgment in Union of India and Ors. v. Madan Mohan Prasad 2003(1) JT 2002 (supp.1) SC 68 wherein the Apex Court has examined the provisions contained in Rule 323 in the Manual of Railway Pension Rules, 1990 and held as under:-
2. The learned counsel for the appellants relied upon the decisions of this Court in Union of India v. Sisir Kumar Deb [1991 (1) SCC L & S 781], Director of Technical Education v. K. Sita Devi [1991 Supp (2) 386] and Wazir Chand v. Union of India & Ors. (JT 2000 (Suppl.1) SC 515]. In none of these decisions, the actual import or the effect to the relevant rules regarding payment of DCRG had been considered. In that view of the matter, these decisions cannot be of much help to the appellants. The relevant rule applicable so far as the respondent is concerned is rule 323 which is available in the manual of Railway Pension Rules, 1950. It is made clear therein that claim against the railway servant may be on account of three circumstances;
"(a) losses (including short collection in freight charges shortage in stores) caused to the government as a result of negligence of fraud on the part of the railway servant while he was in service;
(b) other government dues such as overpayment on account of pay and allowances, or admitted and obvious dues such as house rent, post office, life insurance premia, outstanding advance etc;
(c) non-government dues."
3. It cannot be said that the case put forth on behalf of the appellants can be brought in any one of these categories. The claim made on behalf of the appellants is not only to collect normal house rent but also penal damages, in addition. That is not within the scope of rule 323 at all. What is contemplated therein is 'admitted' and 'obvious' dues. The payment resulting in penal damages is neither 'admitted' nor 'obvious' dues apart from the fact that determination has to be made in such a matter. It is also permissible under relevant rules to waive the same in appropriate cases. In that view of the matter, it cannot be said that such due is either 'admitted' or 'obvious'. Hence, we do not think that the view taken by the tribunal calls for any interference. However, it is made clear that while the appellants have to disburse the DCRG to the respondent the normal house rent, inclusive of electricity and water charges, which are 'admitted' or 'obvious' dues can be deducted out of the same, if still due.
8. He has also referred to the order of a co-ordinate Bench of this Tribunal in OA No.806/2008 - Som Prakash v. Union of India and Ors. wherein the applicant therein has challenged the respondents railways order dated 12.12.2007 whereby he was charged penal rent and the same was ordered to be recovered from his retrial dues including retirement gratuity, leave encashment etc. Relying upon the judgment of the Apex Court in Madan Mohan Prasads case(supra), this Tribunal held as under:-
6. On careful consideration of the rival contentions of the parties, the Apex Court while considering the issue in Madan Mohan Prasads case (supra) took into consideration the decision of the Apex Court in Wazir Chand v. Union of India, JT 2000 (Supp.) SC 515 and ruled that when penal damages is neither admitted nor obvious dues and for which no determination has been made by the competent authority the same cannot be recovered, but one has a liability to recover normal house rent, inclusive of electricity and water charges, which are admitted.
7. In the above view of the matter, I am of the considered view that recovery of penal rent/damages cannot be held unless one is declared as an unauthorized occupant under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and recovery is effected as per law and methodology adopted therein. As the penal/damages etc. are not admitted dues, cannot be recovered from him.
8. Resultantly, OA is partly allowed. Impugned order is set aside. Respondents are directed to release to applicant his retrial dues like gratuity, leave encashment etc. within a period of two months from the date of receipt of a copy of this order. However, respondents are at liberty to recover normal house rent, inclusive of admitted electricity and water charges and for penal/damage rent and other charges, the methodology in law shall have to be adopted. No costs.
9. Yet another co-ordinate Bench of this Tribunal in OA No. 3114/2010 Shri Radhe Shyam Vs. Union of India and Others decided on 21.10.2011 has also considered the same issue and held as under:-
10.2. It is seen from the above that whereas the case was put up to the General Manager, who after due consideration, passed the orders to evict the applicant and take action as per rules, it has not been clarified why the respondents took no action to send a reply to the query raised by the Chairperson, HQHC vide endorsement of her order dated 25.10.2004 to the CE (P&D).
10.3. Further, in Madan Mohan Prasads case (supra), the Honble Apex Court had dealt with the issue of non-vacation of railway quarter after retirement and withholding of DCRG and leave encashment, it was held as under:
XXX XXX XXX 10.4. After the case was ordered to be listed `for being spoken to on 16.08.2011. On 01.09.2011, the respondents counsel was asked to clarify as to what action was taken by the respondents in the case on the said query mentioned in Para 3 (vide endorsement dated 25.10.2004 to the CE (P&D). He was also given one weeks time to produce the file in which the case of the applicant had been dealt with, as also to examine the case of the applicant with reference to the law laid down in the Judgement of the Honble Apex Court in Union of India & Others v. Madan Mohan Prasad (Civil Appeal Nos.4832-4833 of 1999, decided on 28.02.2002) (the Full Bench decision referred to by the learned counsel for the respondents in support of levy of penal rent was issued in the year1996). On 15.09.2011, the learned counsel for the respondents sought further time on the ground that the respondents had not located the case file. Finally, when the matter came up for hearing on 29.09.2011, although the respondents counsel opposed the OA, he could not place any case or case law to support the action of recovery of penal rent from the retirement dues keeping in view the Judgement of the Honble Supreme Court in Madan Mohan Prasad case (supra), nor was any record produced. Therefore, we have no other option but to draw an adverse inference against the respondents in the matter, viz., that no action was taken on the query of the Chairman, HQHC dated 25.10.2004. Not having taken any action in the matter (based on this query of Chairperson, HQHC, Delhi Area) from October, 2004 till the applicants retirement in 2010, it would be somewhat unfair to levy damage rent after the applicants retirement. If the respondents had wanted to recover penal rent as per rules, they could have taken action in the matter in 2005 itself along with stronger action to evict him from the quarter at that point of time.
11. The applicants counsel, on instructions from his client, agreed that for the extra period of retention of the railway quarter, the applicant would be willing to pay rent as follows:
for the first four months at the normal rent, and for the rest of the period double the normal rent but that no damage rent should be levied.
12. In view of the above facts and circumstances and keeping in view the legal position, and also in view of the omissions on the part of the concerned authorities in the respondents office too, i.e., no action taken on the Chairman, HQHCs order dated 25.10.2004 as well as no timely concrete action for vacation prior to retirement of the applicant, we feel it would be appropriate to give a quietus to this case by directing the respondents to charge from the applicant normal rent for the period of occupation upto his retirement on 31.05.2008 normal rent for the first four months after retirement and for the rest of the period after retirement double the normal rent for (the period of over stayal), and release the retirement benefits of the applicant (as due under rules) after adjusting the above rent amounts, This may be done within a period of two months from the date of receipt of a copy of this order.
10. Vide W.P.(C) 74/2012 Union of India Vs. Radhe Shyam, the Respondent-Railways challenged the aforesaid order of the Tribunal before the Honble High Court of Delhi and Honble High Court disposed of it with minor modification. The relevant part of the said order is also reproduced as under:-
11. The learned counsel for the petitioner is aggrieved by the fact that the Tribunal has directed that the respondent be paid the DCRG and that the same cannot be withheld by the petitioner. According to the learned counsel for the petitioner the damages for the unauthorised occupancy of the said quarter amounted to Rs. 17,24,071.96 whereas the amount payable towards DCRG was only Rs. 4,27,812/-. The learned counsel for the petitioner placed reliance on a decision of the Supreme Court in the case of Secretary, O.N.G.C. Ltd. and Another v. V.U. Warrier : AIR 2005 Supreme Court 3039. In particular, the learned counsel for the petitioner placed reliance on the observations of the Supreme Court in paragraph 25 and 26 which read as under:-
25. It is well settled that gratuity is earned by an employee for long and meritorious service rendered by him. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer (vide Garment Cleaning works v. Its Workmen, (1962) 1 SCR 711). In Calcutta Insurance Co. Ltd. vs. Their Workmen, (1967) 2 SCR 596, after considering earlier decisions, this Court observed that long and meritorious service must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid to the harmonious employment of labourers or workmen. The Court proceeded to state that the misconduct may be such as to undermine the discipline in the workers a case in which it would be extremely difficult to assess the financial loss to the employer.
26. In Jarmail Singh v. Secretary, Ministry of Home Affairs & others, (1993) 1 SCC 47, this court had an occasion to consider the provisions of the Central Civil Services (Pension) Rules, 1972. The definition of pension included gratuity under Rule 3. Rule 9 conferred on the President right to withhold or withdraw pension in certain circumstances. The order was passed against the appellant withholding pension and the entire amount of death-cum-retirement gratuity otherwise admissible to him. The direction was given on serious irregularities found to have been committed by the appellant. The appellant challenged that order un-successfully before the Central Administrative Tribunal. He, therefore, approached this Court. His contention was that an amount of gratuity could not have been withheld. Negativing the contention, the court held that the power to withhold gratuity was conferred on the President under the relevant rules and hence, such action could not be said to be illegal. According to the Court, there could be adjustment of Government dues against the amount of death-cum-retirement gratuity payable to Government servant.
12. On the other hand, the learned counsel for the respondent submitted that the case of the respondent was squarely covered by the Supreme Court decision in the case of Union of India & Ors. v. Madan Mohan Prasad : JT 2002 (Suppl.1) SC 65,which has also been relied upon by the Tribunal. He submitted that the Supreme Court decision in the case of Secretary, O.N.G.C. Ltd. and another (supra) is not applicable to the facts and circumstances of the present case as the rules and regulations were different in that case. He submitted that the very same rules which were considered in Madan Mohan Prasad (supra) were the ones which were applicable in the present case, namely, rule 323 of the Railway Pension Rules, 1950. He further submitted that the determination of whether the respondent was in unauthorized occupation of the quarter in question could only be done under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. He further submitted that even the damages payable for any alleged unauthorized occupancy could be determined only in terms of the said Act. The learned counsel for the respondent submitted further that since there was no proceeding under the said Act, there is no question of declaring the respondent as an unauthorized occupant or for ascertaining the extent of damages which would be allegedly due from him.
13. After having considered the arguments advanced by the learned counsel for the parties, we are of the view that the submissions made by the learned counsel for the respondent are to be accepted. First of all, the decision in the case of Secretary, O.N.G.C. Ltd. and another (supra) which has been relied upon by the learned counsel for the petitioner, as rightly pointed out by the learned counsel for the respondent, would have no application to the facts and circumstances of the present case. This would be apparent from the fact that the Supreme Court in that case was deciding the question in the backdrop of Regulation 5 of the Oil and Natural Gas Commission (Death, Retirement and Terminal Gratuity) Regulations, 1969. The said Regulation 5 has been quoted at paragraph 20 of the said Supreme Court decision and is to be following effect:-
20. Regulation 5 deals with recovery of dues of the Commission and reads thus:
Recovery of Dues: The appointing authority, or any other authority empowered by the Commission in this behalf shall have the right to make recovery of Commissions dues before the payment of the death-cum-retirement gratuity due in respect of an officer even without obtaining his consent or without obtaining the consent of the members of his family in the case of the deceased officer as the case may be.
14. It is obvious that the regulation itself stipulates that the Commission shall have the right to make recovery of the Commissions dues before the payment of the death-cum-retirement gratuity due in respect of an officer even without obtaining his consent. It is in this back drop that the Supreme Court observed that the above regulation leaves no room of doubt that the Commission has the right to effect recovery of its dues from any officer without his consent. And therefore the Supreme Court concluded that it cannot be said that the Commission had no right to withhold gratuity by deducting the amount which is found due to the Commission and payable by the respondent towards penal charges for unauthorized occupation of the quarter. In the present case the rules are entirely different. Rule 323 of the Railway Pension Rules, 1950, as has been pointed out in the Supreme Court decision in the case of Madan Mohan Prasad (supra), clearly envisages that the claim against the railway servant may be on account of only three circumstances:-
(a) losses (including short collection in freight charges shortage in stores) caused to the government as a result of negligence of fraud on the part of the railway servant while he was in service;
(b) other government dues such as overpayment on account of pay and allowances, or admitted and obvious dues such as house rent, post office, life insurance premia, outstanding advance etc;
(c) non-government dues.
15. In that context, the Supreme Court in the said decision of Madan Mohan Prasad (supra) observed as under:-
It cannot be said that the case put forth on behalf of the appellants can be brought in any one of these categories. The claim made on behalf of the appellants is not only to collect normal house rent but also penal damages, in addition. That is not within the scope of rule 323 at all. What is contemplated therein is admitted and obvious dues. The payment resulting in penal damages is neither admitted nor obvious dues apart from the fact that determination has to be made in such a matter. It also permissible under relevant rules to waive the same in appropriate cases. In that view of the matter, it cannot be said that such due is either admitted or obvious. Hence, we do not think that the view taken by the tribunal calls for any interference. However, it is made clear that while the appellants have to disburse the DCRG to the respondent the normal house rent, inclusive of electricity and water charges, which are admitted or obvious dues can be deducted out of the same. If still due.
16. Similarly in the facts of the present case, it is obvious that circumstance (a) & (c) do not apply at all. Insofar as circumstance (b) is concerned, only admitted and obvious dues such as house rent, life insurance premia, outstanding advance etc. can be adjusted against the DCRG which is payable by the petitioner to the respondent. Normal house rent inclusive of electricity and water charges fall within the category of admitted dues and they can, therefore, be deducted.
17. As a result, we feel that the Tribunals order ought to be modified. While the petitioner can deduct normal rent for the period of occupation up to his retirement on 31.05.2008 and normal rent for the first four months after his retirement and double the normal rent for the rest of the period thereafter, if not already recovered, in case the petitioner feels that any damages are due from the respondent by way of unauthorized occupation it shall be open to the petitioner to take separate action for the same under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 provided such remedy is available to the petitioner, in accordance with law.
18. With this modification of the order passed by the Tribunal, the writ petition stands disposed of. The said amount after adjustment be released within four weeks.
11. Respondents in their reply have denied all the allegations made in the OA. They have relied on orders dated 12.08.2009 and 12.08.2011 and submitted that the OA deserves to be dismissed.
12. The learned counsel for the Respondent has also relied upon the judgment of the Apex Court in the case of Wazir Chand v Union of India & Ors. JT 2000 (Supp.1) 515. The relevant part of the said judgment reads as under:-
1. These appeals are directed against the orders of the Central Administrative Tribunal rejecting the claim of the appellant, who happens to be a retired Railway servant. Admittedly, the appellant even after superannuation, continued to occupy the Government quarter, though being placed under hard circumstances. For such continuance, the Government, in accordance with Rules, has charged penal rent from the 10 retired Government servant, and after adjusting the dues of the Government, the balance amount of the gratuity, which was payable, has been offered to be paid, as noted in the impugned order of the Tribunal. The appellants' main contention is that in view of the Full Bench decision of the Tribunal against which the Union of India had approached this Court and the Special Leave Application was dismissed as withdrawn, it was bounden duty of the Union of India not to withhold any gratuity amount, and therefore, the appellant would be entitled to the said gratuity amount on the date of retirement, and that not having been paid, he is also entitled to interest thereon. We are unable to accept this prayer of the appellant in the facts and circumstances of the present case. The appellant having unauthorisedly occupied the Government quarter, was liable to pay the penal rent in accordance with Rules, and therefore, there is no illegality in those dues being adjusted against the death-cum- retirement dues of the appellant. We, therefore, see no illegality in the impugned order which requires our interference. The appeals stand dismissed.
13. We have heard the learned counsel for the Applicant, Shri Yogesh Sharma and the learned counsel for the Respondents Shri P.K. Yadav. It is seen that the Applicant continued to retain the Railway accommodation allotted to her late husband without any objections from the Respondents for a fairly long time. The Applicant, in fact, had made representations dated 08.01.1990 and 22.12.1990 to the Respondents to allow her to retain the accommodation till family pension is sanctioned to her. For reasons best known to the Respondents, they sanctioned the family pension to the Applicant only on 01.07.1997, i.e., after 8 years from the death of her husband on 07.02.1989. During this period, the Applicants request for appointment on compassionate ground was also pending for consideration. However, the Respondents took over 9 years to grant her compassionate appointment as Waterwoman w.e.f. 02.07.1998. During all these years, the accommodation allotted to her husband remained in her occupation uninterruptedly and without any interference from the Respondents. They did not take any action against her for the continued occupation of the house without any authority, all these years. Her representations have also not been considered and disposed of. Even if there was delay in granting her compassionate appointment, Respondents were not precluded from getting the Railway Quarter allotted to her husband vacated as per rules. However, it was only vide their letter dated 06.08.2007, the Respondents for the first time raised the bill for the aforesaid accommodation for the period from 08.02.1989 to 31.05.2007 amounting to Rs.7,80,092/-. Thereafter, they have also started deducting the penal rent of Rs.1359/-p.m. from the Applicants salary. However, at the intervention of this Tribunal in OA No. 674/2008 (supra) filed by the Applicant, the Respondents recalculated her liability towards the penal rent and re-fixed at Rs.2,22,927/-. However, the Applicant has disputed the aforesaid claim of the Respondent also. Her contention is 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 the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and it cannot be arbitrarily adjusted against the terminal benefits payable to her after the demise of her husband. In this regard, the learned counsel for the Applicant has also relied upon the judgment of the Apex Court in the case of Madan Mohan Prasad (supra) followed by the co-ordinate Bench of this Tribunal in Som Prakashs case (supra). According to the judgment in Madan Mohan Prasads case (supra), the claim against the Railway Servant can only be on account of the following circumstances:-
"(a) losses (including short collection in freight charges shortage in stores) caused to the government as a result of negligence of fraud on the part of the railway servant while he was in service;
(b) other government dues such as overpayment on account of pay and allowances, or admitted and obvious dues such as house rent, post office, life insurance premia, outstanding advance etc;
(c) non-government dues."
And, the payment resulting in penal/damage rent is neither admitted nor obvious. Therefore, no recovery on account of penal/damage rent can be made from DCRG. In the order in Som Prakashs case (supra) also the Tribunal held that recovery of penal rent/damages cannot be held unless one is declared as an unauthorized occupant under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and recovery is effected as per law and methodology adopted therein. As the penal/damages etc. are not admitted dues, cannot be recovered from him.
14. It is also noticed that if there is any dispute regarding recovery of damages or rent from the ex-railway employee, under Rule 16 of the Railway Service (Pension) Rules, 1993, shall be subject to adjudication by the concerned Estate Officer appointed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (40 of 1971). The same Rule reads as under:-
16. Adjustment and recovery of dues pertaining to Government or railway accommodation (1) The Directorate of Estates on receipt of intimation from the Head of Office under sub-rule (1) or rule 98 regarding the issue of No Demand Certificate shall scrutinize its records and inform the Head of Office eight months before the date of retirement of the allottee, if any licence fee was recoverable from him in respect of the period prior to eight months of his retirement. If no intimation in regard to recovery of outstanding licence fee is received by the Head of Office by the stipulated date, it shall be presumed that no licence fee was recoverable from the allottee in respect of the preceding eight months of his retirement.
(2) The Head of Office shall ensure that licence fee for the next eight months, this is up to the date of retirement of the allottee is recovered every month from the pay and allowances of the allottee.
(3) Where the Directorate of Estates intimates the amount of licence fee recoverable in respect of the period mentioned in sub-rule (1), the Head of Office shall ensure that outstanding licence fee is recovered in installments from the current pay and allowances, the balance shall be recovered out of the gratuity before its payment is authorized.
(4) The Directorate of Estate shall also inform the Head of Office the amount of licence fee for the retention of Government accommodation for the permissible period of four months beyond the date of retirement of the allottee. The Head of Office shall adjust the amount of that licence fee from the amount of the gratuity together with the un-recovered licence fee, if any, mentioned in sub-rule (3).
(5) If on any particular case, it is not possible for the Directorate of Estates to determine the outstanding licence fee, that Directorate shall inform the Head of Office that ten per cent of the gratuity or one thousand rupees, whichever is less, may be withheld pending receipt of further information.
(6) The recovery of licence fee for the occupation of the Government accommodation beyond the permissible period of four months from the date of retirement if allottee shall be the responsibility of the Directorate of Estates. Any amount becoming due on account of licence fee for retention of Government accommodation beyond four months after retirement and remaining unpaid licence fee may be recovered by the Directorate of Estates through the concerned Accounts Officer from the dearness relief without the consent of the pensioner. In such cases no dearness relief should be disbursed until full recovery of such dues have been made.
NOTE : For the purpose of this rule, the licence fee shall also include any other charges payable by the allottee for any damage or loss caused by him to the accommodation or its fittings.
(7) A railway servant shall vacate the railway accommodation immediately after his/her retirement.
(8) (a) In case where a railway accommodation is not vacated after superannuation of the Railway servant or after cessation of his services such as on voluntary retirement, compulsory retirement, medical invalidation or death, then, the full amount of retirement gratuity, death gratuity or special contribution to provident fund, as the case may be, shall be withheld.
b) The amount withheld under clause(a) shall remain with the railway administration in the form of cash.
c) In case the railway accommodation is not vacated even after the permissible period of retention after the superannuation, retirement cessation of service or death ,as the case may be, the railway administration shall have the right to withhold, recover, or adjust from the Death -cum-retirement Gratuity, the normal rent, special licence fee or damage rent, as may be due from the ex-railway employee and return only the balance, if any, on vacation of the Railway accommodation.
d) Any amount remaining unpaid after the adjustment made under clause (C) , may also be recovered without the consent of the pensioner by the concerned Accounts Officers from the dearness relief of the pensioner until full recovery of such dues has been made.
e) Dispute, if any, regarding recovery of damages or rent from the ex-railway employee shall be subject to adjudication by the concerned Estate Officer appointed under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971).
Railway Boards Decision : While the retirement/death gratuity or special contribution to P.F., as the case may be, should be withheld in full for non-vacation of Railway quarters, not only after superannuation but in all cases of cessation of service, namely, voluntary retirement, death etc. Further the amount withheld should remain with the Administration only in the form of cash without conversion into any type of security lest the very purpose of withholding full D.C.R.G. should get defeated. It may also please be kept in view that the gratuity should be released as soon as the quarter is vacated so that there is neither any hardship to the retired employee or its family nor there is any claim for payment of interest on withheld gratuity for reasons of any administrative lapse.
15. In this regard, it is also relevant to consider Section 7 of the P.P. Act and it reads as under:-
7.Power to require payment of rent or damages in respect of public premises.-(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, passess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
(3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
16. In the above facts and circumstances of the case, we allow this OA and quash and set aside the decision of the Respondents conveyed vide their letters dated 12.08.2009 and 12.08.2011 to recover the amount of Rs.2,22,927/- towards penal/damage rent in respect of Railway Quarter No.T-71, Railway Colony, Rohtak for a period from 01.04.1990 to 01.07.1998 from the DCRG and/or from any of the terminal benefits payable to the Applicant. We also direct the Respondents to release the withheld and/or any other terminal benefits like DCRG to the Applicant forthwith but in the facts and circumstances of the case, we do find it proper to direct the Respondents to pay any interest on the withheld DCRG amount to the Applicant. However, the Respondents have the liberty to initiate proceedings against the Applicant and all other concerned under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and to recover the penal/damage rent as per due process of law.
17. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh