Central Administrative Tribunal - Delhi
Shri Rajender Singh vs Union Of India on 3 September, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3488/2011 Order reserved on 06.08.2013 Order pronounced on 03.09.2013 Honble Shri G George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member(A) Shri Rajender Singh, S/o Late Shri G.R. Yadav, R/o 511, Golden Height Apartments, Pocket-8, Sector-12, Dwarka. .. Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India, The General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, State Entry Road, New Delhi. 3. Sr. Divisional Engineer/Estate, Northern Railway, DRM Office, State Entry Road, New Delhi. ..Respondents (By Advocate: Shri R.L. Dhawan and Shri Rajender Khatter) O R D E R
Shri G. George Paracken, M(J) The applicants grievance is against the impugned letter No.720E/3/40275/P-13 dated 16.03.2010 of the respondents informing him that his gratuity will be released only after receiving the final electricity bill and rent recovery letter from the competent authority.
2. The brief facts of the case as stated by the applicant are that he was appointed as Head Canteen Manager in Northern Railway department on the post of on 23.01.1979 and retired from that post on 31.08.2008. On the aforesaid date of his appointment, his father late Shri G.R. Yadav was also in employment in Northern Railway as Head Clerk and he was in occupation of quarter No.108/23 Thompson Road, New Delhi allotted to him by the railway authorities. On his retirement on 30.09.1981, the applicant applied for its regularization in his name as per the existing rules but the Respondents did not consider it at all for five years. Thereafter, he and his father approached the High Court of Delhi, vide WP(C) No.465/1986, seeking regularization of the allotment of the said accommodation in his name. The High Court, as an interim measure, vide order dated 27.02.1986, passed an order restraining the respondents from dispossessing and/or evicting the petitioner from the premises No.108/23 Thompson Road, New Delhi. Thereafter, the aforesaid Writ Petition came up for final disposal only on 19.09.2008. By then the Applicant has also retried on superannuation. Therefore, the High Court disposed of the said Writ Petition passing the following order:-
Mr. R.K. Saini, learned counsel appearing for the petitioner, submits that as per the petitioner has retired with effect from 31st August, 2008 he will be handing over possession of the premises, in question, within four months of the said retirement as per the extant rules. Therefore, the relief claimed in the petition, so far as the allotment of quarter is concerned, has been rendered infructuous. Mr. Saini states that the petitioner reasonably anticipates that damages will be claimed against the petitioner on the ground of unauthorized use and occupation. There is no prayer to this effect in the petition and, therefore, the present Writ Petition is to be decided on merits, this question would not have been adjudicated.
We find no ground to restore the Petition. However, we clarify that whatever defences are available to the petitioner against the claim/anticipated levy of damages, he shall be open to pursue.
3. Later on, the applicant vacated the aforesaid accommodation on 09.04.2009. Since he was in possession of the aforesaid accommodation, the respondents did not release his gratuity after his retirement on 31.8.2008. Applicant made repeated requests for releasing his gratuity. The last representation was made on 07.12.2009. Thereafter, he made an application dated 19.01.2010 under the Right to Information Act, 2005 seeking the reasons for not releasing his gratuity and in reply to the same, the DRM Office, vide its Annexure A-3 letter dated 10.02.2010, informed him that his gratuity will be released only after he vacates the Railway quarter in his possession. On receipt of the said letter, he informed the respondents, vide his Annexure A-4 letter dated 05.03.2010, that he had already vacated the quarter on 09.04.2009 and a copy of the vacation report was also furnished to them along with the said letter. Again, he requested them to release his gratuity without any further delay. However, the DRMs office vide, its letter dated 16.03.2010 informed the Applicant that neither his rent recovery bill nor his final electricity bill in respect of the aforesaid accommodation has been received from the concerned authorities and only on receipt of the aforesaid two documents, his DCRG could be released. When no further action was being taken by the Respondents to release his gratuity, he again approached the DRM office. Then he came to know that the Sr. Divisional Engineer Estate had already issued a letter dated 25.05.2009 to the General Secretary, IRCA/DRM Office Complex, S.E. Road, New Delhi with copy to a number of authorities intimating the details of the recoveries to be made in respect of the aforesaid quarter. However, its copy has never been addressed to him or given to him. Later, he obtained a copy of the same and it is reads as under:-
NORTHERN RAILWAY No.33-EO/1-1986/82 DRMs Office Dt. 25.05.2009 New Delhi General Secretary, IRCA/DRM Office Complex, S.E. Road, New Delhi.
Sub : Unauthorized Occupation of Rly. Quarter No. 1082 at Thompson Road/New Delhi by Sh. G. R. Yadav, Ex. Hd. Clerk / IRCA retired on 30.09.81.
Ref :- (i) Honble High Court /Delhi orders dated 29.09.2008 in C.M. No. 110006/2008 in W.P. (C) 465/1986 (Copy enclosed) Sh. G. R. Yadav Ex. Hd. Clerk/IRCA was in occupation of Rly. Quarter No. 108/2 at Thompson Road/New Delhi. He was retired from service on 30.09.81. He was taken permission to retain the above quarter after retirement upto 30.11.81. After retirement of Sh. G. R. Yadav, Ex Hd. Clerk/IRCA his son Sh. Rajinder Singh, Hd. Manager/Canteen under CDO/NZM was residing unauthorized in this quarter who has also been retired from services on 31.08.2008 and vacated above quarter by him on 09.04.2009.
Following recoveries may please be made from the settlement dues of Sh. G. R. Yadav Clerk/IRCA, If recoveries not fulfill from the settlement dues to Sh. Rajinder Singh Ex. Hd.Manager, Canteen under CDO/NZM who was also in unauthorized occupation of above said quarter.
(1)(i) W.E.F. 01.10.81 to 30.11.81 @Normal Rent @ Rs.42.42 P.M.
(ii) W.E.F. 01.12.81 to 31.03.89 @Five times of Assessed rent or 10% of basic pay which is higher
(iii) W.E.F. 01.04.89 to 31.05.91 @Rs.15/- P.M./p.sqm of plinth area 104.72 sqm
(iv) W.E.F. 01.06.91 to 30.11.93 @Rs.30/-P.M./P.sqm on plinth area
(v) W.E.F. 01.12.93 to 31.05.95 @Rs.34/-P.M./P.sqm on plinth area
(vi) W.E.F. 01.06.95 to 31.10.97 @Rs.42/-P.M./P.sqm on plinth area
(vii) W.E.F. 01.11.97 to 31.10.99 @Rs.49/-P.M./P.sqm on plinth area
(viii) W.E.F. 01.11.99 to 30.04.02 @Rs.57/-P.M./P.sqm on plinth area
(ix) W.E.F. 01.05.02 to 30.11.04 @Rs.114/-P.M/P.sqm on plinth area
(x) W.E.F. 01.12.04 to 08.04.09 @Rs.132/-P.M./P.sqm on plinth area
(ii) Water Charges W.E.F. 01.12.81 to 08.04.09 @Rs.25.50 P.M.
(iii) Conservancy Charges W.E.F. 01.12.81 to 08.41.09 @Rs.4/-P.M. Plinth Area of the above quarter is 104.72 sqm.
Sr. Divl.Engineer/Estate N. Rly. New Delhi
4. The applicant challenged the aforesaid letter in the present OA and sought the following reliefs:-
That the Honble Tribunal may graciously be pleased to pass an order directing the respondents to release the gratuity amount and other retirement benefits of the applicant immediately with interest.
That the Honble Tribunal may further graciously be pleased to pass an order of quashing the impugned order dated 25.05.2009, declaring to the effect that the same is illegal and arbitrary and consequently pass an order directing the respondents to release the gratuity of the applicant to the applicant with interest and release the gratuity of the father of the applicant to the legal heirs as per rules with interest.
Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant with the costs of litigation.
5. In this regard, the learned counsel for the Applicant Shri Yogesh Sharma has invited an attempt to the instructions issued by the Railway Administration under Rule 16 of the Railway Service (Pension) Rules, 1993 and which 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 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 the adjustment made under clause (c), may also be recovered without the consent of the pensioner by the concerned Accounts Officer 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 Unauthorized 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.
6. According to him, the law is well settled by the Apex Court in its judgment in Union of India and Ors. v. Madan Mohan Prasad reported in 2003(1) ATJ 246 that penal rent/damages does not come under the head admitted or obvious dues and, therefore, the DCRG of the railway servants cannot be withheld after retirement on account of any outstanding dues or penal rent/damages. The relevant part of the said judgment reads 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.
7. He has further relied upon an 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.
8. He has also relied upon another Order dated 21.10.2011 of a co-ordinate Bench of this Tribunal in OA No.3114/2010 Shri Radhe Shyam v. Union of India and Ors. In the said OA, also the applicant therein challenged the order dated 28.07.2009 of the respondents Railways asking him to vacate the Railway Quarter and to handover the vacant possession of the same and order dated 20.07.2010 directing him to pay the balance amount of `12,96,260 /- (after adjusting the DCRG) plus electricity charges etc. Allowing the aforesaid OA, this Tribunal held as under:-
9. We have heard the learned counsel for both sides and have been through the pleadings on record.
10.1 The respondents have levied penal rent on the applicant for the period of the alleged unauthorized occupation from 09.02.2004 to 30.11.2009. It is noticed that in compliance of this Tribunals directions passed in OA No.1468/2010, the case of the applicant was reviewed and the following order (dated 20.07.2010) was passed by the respondents:
3. Vide your representation dt. 30/04/04 received in office on 05/05/2004 you have admitted the fact of unauthorized construction under the pretext that it was existing prior to your occupation of this house. It is also on record that Sh. Suresh s/o Sh. Ram Chander (your brother-in-law as per your representation) has signed on the site check report and written in his own hand writing that 30 bags of turmeric were lying in the store which clearly substantiate that house was subletted to Sh. Suresh s/o Sh. Ram Chander which was being used for commercial purpose. Your allegation that your brother in law Sh. Suresh was forced to sign the documents shown to him by the checking party is merely an after thought. The record also revealed that the General Secretary., Uttar Railway Majdoor Union also approached the administration for taking action against you for subletting the house. Working president of the URMU also mentioned that how does it matter if the representative of URMU could not associate specially when it has been established beyond doubt that the said quarter was subletted to outsider by him who had made unauthorized construction also in Qr. No.T-28/A illegally. He also mentioned that URMU never supported or encourage persons indulged in illegal activities. Further General Secretary/NFIR vide his letter dated 24.01.09 also represented to review the case of subletting against you. However, to provide natural justice your case was re-examined and recovery of damage rent + other charges was pended vide order dated 25.10.2004 till further order and complete record and facts relevant to the case were put up to competent authority i.e. General Manager, Northern Rly. who after giving due consideration found that you have not vacated the quarter even after laps of more than one year after your retirement on 31.05.2008 and passed the orders to evict him and take action as per rules. 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:
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 &0rs. [JT 2000 (SuppI 1) SC515] 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. From the above, it is clear that in the case in this OA too, penal damages cannot be considered to be admitted or obvious dues, Thus, the same cannot be recovered from the retirement dues of the applicant. However, normal house rent as per rules, inclusive of electricity and water charges, would constitute `admitted dues.
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.
13. The OA is disposed of in terms of the above directions. No costs.
9. He has also relied upon the recent judgment of the Honble High Court of Delhi in WP(C) 74/2012 Union of India vs Radhe Shyam. The said Writ Petition has been filed by the Respondent-Railways challenging the aforesaid order of the Tribunal dated 21.10.2011. 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 Unauthorised 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.
10. The respondents have filed their reply. They have not disputed the factual position with regard to the employment of the applicant and his father and the allotment of the accommodation to him. They have also not disputed the facts stated by the applicant regarding the pendency of the WP(C) No. 465/1986 before the Honble High Court, the interim order dated 27.02.1986 and the final order dated 19.09.2008 passed therein. However, according to them, the applicant remained in unauthorized occupation of the quarter No.108/23 allotted to his father from 01.10.1981 to 09.04.2009 and, therefore, the following dues are recoverable from him:-
Penal rent from 01.10.1981 to 08.04.2009, as per calculation Sheet filed as Annex. R-1 = Rs.22,25,214
(ii) Electricity Bill = Rs. 97,598 Total Amount = Rs.23,22,812
11. They have further stated that on his retirement on 31.08.2008, he was entitled for an amount of Rs.3,12,771 on account of DCRG but the said amount has been adjusted against the arrears of damage rent and final electricity bill recoverable from him to the tune of Rs.23,22,812/-. Therefore, he is required to deposit the balance of Rs.20,10,041/- with the railway department. They have also stated that in terms of Rule 16 of the aforesaid pension rules, 1993, and in terms of Rule 15 of Railway Service (Pension) Rules, 1993 the gratuity is not payable till vacation of the railway quarter and the dues including arrears are recoverable from the DCRG amount.
12. The learned counsel for the respondents Shri R.L. Dhawan has also relied upon the judgment of the Apex Court in Union of India Vs. Sisir Kumar Deb 1999 SCC (L&S) 781 wherein it has been held as under:-
3. The respondent having retired from service was expected to vacate the quarter occupied by him as an employee of the Railway Administration. He failed to do so. In proceedings bearing No.148 of 1988 arising out of MA No.223 of 1987 in the matter of TA No.1019 of 1986, the Central Administrative Tribunal (Calcutta Bench) passed an order to the following effect:
Therefore, in our opinion, he has really committed contempt of this Tribunal. However, we give him a last chance to vacate the quarter and pay the arrears of rent within a month failing which he would be sent to civil prison until he complies with the order passed by the Tribunal in MA No.223 of 1987 and the present order.
4. After this order was passed, since the respondent did not comply, the Railway Administration deducted the amount due from the pension relief admissible to the respondent. The respondent thereupon filed OA No.599 of 1992 in the Central Administrative Tribunal (Calcutta Bench). This OA was heard by the Judicial Member, Shri N. Sen Gupta who was also a Member of the Bench which heard the application and passed the extracted order. Even after taking note of the earlier order passed by the Bench to which he was a party, and was in fact its author, he proceeded to pass the impugned order by which the Department was precluded from recovering the amount from the pension relief and directed refund of the amount already recovered. What is now surprising is that after taking note of the earlier order in para 4 of the impugned order, istead of taking action against the respondent as per the earlier order, he directed the Railway Administration to refund the amount and even left the matter in regard to grant of complimentary passed open. Therefore, instead of taking action in contempt against the respondent, by the impugned order, the Department was prevented from realizing its dues from the respondent who overstayed the period post-retirement. The Tribunal also did not take note of this Courts decision in union of India v. Shiv Charan by which this Court had permitted deduction of the charges due from the occupant from the dues payable to him. Besides, no valid ground has been given for not permitting the deduction to the Department. We find it difficult to comprehend the rationale for the view taken by the Judicial Member. Instead of ensuring delivery of possession from a person who, in violation of the Tribunals order, was continuing to occupy the quarter and who could not have been said to have approached the Tribunal in OA No.599 of 1992 with clean hands, the Tribunal has virtually rewarded him, in that, he can now continue to remain in occupation of the quarter indefinitely and also not pay the charges for the same. The learned Member should have visualized the situation that would arise by the said order. We, therefore, cannot allow the order to stand.
5. In the result, we set aside the impugned order dated 25-201993. We further make it clear that the Railway Administration will be free to take possession of the quarter from the respondent, if necessary, by use of force, if he does not deliver the possession within 15 days. The Railway Administration will also be free to recover its dues from any amount payable to the respondent and if the same falls short, the difference in accordance with law.
13. Further, he has 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 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 5 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 15 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.
14. He has also relied upon the judgment of a co-ordiane Bench of this Tribunal in OA No.799/2007- Hari Narayan Tandon v UOI & Ors. The relevant part of the said judgment is reproduced as under:-
14. It would appear that applicant did not receive sanction for retention of bungalow beyond two years. Thereafter, he continued living without permission. However, only 11 months penal interest had been charged for overstay after these two years (in spite of the fact that applicant was much lower in the list for obtaining bungalow) and after second transfer to Moradabad, the authorities regularized his stay in the said bungalow and he continued therein till his retirement and then vacated the bungalow in May, 2005. The crux of the issue is whether penal interest can be charged from officers of the Railways from retirement dues. Many case laws have been quoted in this connection. Rule 323 of Railway (Pension) Rules, 1950 is clear that retiral dues are obvious in the legitimate grounds for recovery of obvious dues against retired officers, which includes the licence fee and penal rent for Bungalow.
15. It would appear from the facts of the case and the rule on the subject that the applicant seems to have at every stage not cared to abide by rules or the letters sent to him for vacation of Bungalow and the authorities are certainly, strictly as per rules, in their right to charge this penal rent from his retiral dues as per Rule 323 of Railway (Pension) Rules, 1950. It is also obvious that the officer overstayed in the Bungalow for his own convenience without caring for consequences or rules on the subject. However, since the officer has now retired and the penal rent amounting to Rs.2,69,918/- for 11 months is quite large, it may be in the fitness of things if the Railway Board authorities re-consider the case of applicant. It is possible that there would be other such instances in the past and they may like to be guided by such precedents, if any. It is not to be construed that we would like to show leniency towards the applicant since he is at fault but there should not be any room for injustice. The applicant would possibly need to apply to Railway Board for reconsideration of his case. This he may do within a period of two weeks after receipt of this order. Thereafter, it is directed that that this case may be looked at afresh and orders passed within a period of three months. Thereafter, if some dues need to be deducted, it may be done and remaining DCRG may be released to applicant.
16. In view of above, OA is disposed of. No costs.
15. He has also relied upon the order of this Tribunal in OA No.523/2003 Ashok Kumar v General Manager. The operative part of the said order reads as under:-
7. Full Bench of this court in Ram Poojans case supra held that no specific orders are required to cancel the allotment of Railway accommodation. Moreover, in view of the decision of the Apex Court in Wazir Chand v. Union of India & Others, JT 2000(Sup.1) SC 515, recovery of outstanding dues is permissible from the gratuity.
8. The decision cited by the applicant is distinguishable and would not apply to the facts and circumstances of the present case.
9. In the result, having regard to the aforesaid, the OA is disposed of with direction to applicant to handover the vacant possession of the Railway accommodation within two weeks from the date of receipt of a copy of this order. Thereupon the respondent shall work out the arrears due and realize it from the withheld gratuity and rest of the amount shall be disbursed to the applicant within one month thereafter. OA is disposed of accordingly. No costs.
16. Lastly, he has relied upon the Full Bench judgment of this Tribunal in Ram Poojan v UOI and Ors. (1996) 34 Administrative Tribunals Cases 434(FB). The relevant part of the said order reads as under:-
19. Now the submission advanced by the learned counsel for the applicant be considered. The learned counsel for the applicant has cited the following decisions of the Tribunal on the questions in issue. The decision are:-
Mangla Prasad v. Union of India Awdhesh Kumar v. Union of India Kamla Prasad Srivastava v. Union of India xxx xxx xxx xxx
32. Another decision cited in the same context by the learned counsel for the applicant is Union of India v. S. Krishna Moorthy. In the said case it was held that Rules with retrospective operation would be valid if the statute empowers for the same provided vested rights are not taken away. This decision is also unhelpful.
xxx xxx xxx xxx
35. The other decision which the learned counsel for the respondents cited is Railway Board v. P.R. Subramaniam. There the question that was considered was whether Rule 20(b) of the IREM, Vol. 1 will prevail over Railway Boards letter dated 2-3-1962 contained in Exhibit R-9. It was held that the said letter had the force of the Rule made under Rule 157 of the Code and will prevail over Rule 20(b) of the Manual. In the case in hand, though as held by us there is no inconsistency between the Railway Boards circulars and Para 1711 of IREM still even in the event of any inconsistency, in view of the said decision the Railway Boards circulars would prevail over the provisions of Para 1711.
xxx xxx xxx xxx
39. We may also refer to a decision of a Division Bench of CAT, Calcutta in J.K. Chatterji v. Union of India. Before the Division Bench the judgment of Allahabad Bench of the Tribunal reported in Awdhesh Kumar v. Union of India also came up for consideration. The said decision was dissented from.
17. We have heard the learned counsel for the applicant Shri Yogesh Sharma and learned counsel for the respondents Shri R.L. Dhawan and Shri Rajender Khatter. We have also perused the departments file made available to us. In our considered view, this is a classic case of administrative mismanagement by the authorities of the Northern Railway and total negligence and dereliction of duty by the concerned employee. They have virtually allowed the Applicant to occupy their premises No.108/2, Thomson Road, New Delhi by the Applicant without their authority for 29 years till he vacated it at his own convenience. The Railway Administration has sat over the application of the Applicant for regularization of the allotment of the aforesaid accommodation in his name, on his retirement from service on 30.09.1981. None of the concerned authorities in Railway Administration has bothered to take any action in the matter either by regularizing the allotment in the name of the Applicant or, if he was not entitled for such regularization, rejecting his request and getting the accommodation vacated. However, after 5 years of waiting, the Applicant and his father approached the Honble High Court of Delhi vide CWP No. 465/1986 seeking a direction to the Respondents to regularize the allotment of the said accommodation in the name of the former. Considering the fact that a prima facie case against the Applicant, while issuing notice in the said Writ Petition to the Respondents, the High Court, vide order dated 27.2.1986, granted him the interim relief against his dispossession from the said accommodation. High Court has never restrained the Respondents from considering his case for regularization or recovering the result/damages as admissible under the rules. However, they have not taken any action in that direction. As a result, the Applicant continued to stay in the said accommodation till his retirement and beyond. Later on, he on his own vacated the said accommodation finally on 09.04.2009. If, according to the Respondents, the Applicant was not entitled for the regularization of the said accommodation, they should have at least moved suitable application before the Honble Court to get the stay vacated and to take back the possession of the accommodation. In fact they came to know that the Applicant was still in occupation of the said accommodation without their authority only after several years when he himself asked them to release the DCRG after he retired from service on 31.8.2008 and vacated the accommodation on 09.04.2009. Again, they have not initiated any action against the Applicant to recover the dues payable by him, even though according to their own calculation an amount of Rs.23,22,812/- is recoverable from him. The only action taken by them so far is to adjust the amount of Rs.3,12,771/- payable to him on account of DCRG against the aforesaid amount of Rs.23,22,12/-. In their reply, they have only stated helplessly that an amount of Rs.20,10,041/- is still recoverable from the applicant as if they have no authority or power to recover it.
18. However, the question for consideration in this OA is whether the Respondents have any legal right to adjust the Applicants DCRG against the arrears of licence fee/damage rent for the Railway accommodation which was in his possession. As held by the Apex Court in Madan Mohan Prasads case (supra), the respondent Railway can make claim against the Railway servant only under the provisions of Rule 323 in the Manual of Railway Pension Rules, 1950. According to the said Rule, claim from the Railway servant can be made only under the following 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."
The Apex Court in the aforesaid judgment held in clear terms that the rent/damage rent in respect of the Railway accommodation being not admitted and obvious dues, cannot be recovered from the DCRG or any other terminal benefits of the applicant. The Apex Court reiterated the aforesaid position in its judgment in Wazir Chands case (supra) where it has been stated 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. This Tribunal has also followed the aforesaid judgment of the Apex Court in the case of Shri Radhe Shyam (supra) and the Honble High Court of Delhi upheld the said decision in Writ Petition (Civil) No.74/2012 filed by the Union of India. The case laws relied upon by the respondents are not applicable in this case. In the case of Sisir Kumar Deb(supra), the Apex Court has only reiterated the power of the Railway Administration to take possession of the quarter from the unauthorized occupant, if any, by use of force. Again, in the case of Wazir Chand (supra), what the Apex Court held was that a retired employee who has been unauthorizedly occupying the government quarter was liable to pay the penal rent in accordance with the rules. The other judgments in Hari Narayan Tandon (supra), Ashok Kumar (supra) and Ram Poojan (supra) also do not come to the rescue of the respondent to recover the penal/rent damage from the DCRG of the Railway servant as against Rule 323 of the Pension Rules, 1950.
19. In view of the aforesaid facts, circumstances and legal position and in the interest of justice, we dispose of this original application with the following directions:-
(i) The Respondents shall consider the representation of the Applicant for regularization of the Railway Quarter No. 108/23, Thompson Road, New Delhi allotted to his late father, in his name, in accordance with the rules and take decision under intimation to him within three weeks from the date of receipt of a copy of this order, if not already taken. If the decision is not in favour of the Applicant, he shall have the liberty to challenge the same in accordance with the rules.
(ii) Simultaneously, the respondent shall determine admitted and obvious dues of normal licence in respect of the aforesaid accommodation recoverable from the applicant as per the rules fixed from time to time and deduct the same from the applicants DCRG.
(iii) The applicant shall furnish No Demand Certificate from the authorities concerned regarding Electricity and Water in respect of the aforesaid accommodation immediately but in any case within 15 days from the date of receipt of a copy of this order to the Respondent. In case of any failure on the part of the Applicant in this regard, the Respondents may withhold a reasonable amount from his gratuity as and when the aforesaid No Demand Certificates are produced by him.
(iv) Thereafter, the respondent shall release the balance amount of DCRG to the applicant as early as possible but in any case, within a period of one month from the date of receipt of a copy of this order.
(v) They may also recover the balance amount of penal rent/damage, if any, in respect of the aforesaid accommodation from the applicant in accordance with the prescribed procedure as provided under the relevant rules.
(vi) Respondent No.1 shall also take appropriate steps so that cases of occupation of the Railway accommodation without the approval of the competent authority in accordance with the rules as the present case do not go unnoticed.
20. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh