Central Administrative Tribunal - Allahabad
Dudh Nath S/O Late Purshuttom vs Union Of India Through General Manager on 25 April, 2012
[Reserved on 10.2.12] CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD (THIS THE 25th DAY OF APRIL, 2012) PRESENT: HONBLE MR. D.C. LAKHA, MEMBER-A ORIGINAL APPLICATION NO. 1079 OF 2008 (U/s, 19 Administrative Tribunal Act.1985) Dudh Nath s/o late Purshuttom, aged about 61 years r/o Gram Rampur, Post Sriniwas Dham, District Mirzapur. . . . . . . . .Applicant By Advocate: Shri A.K. Dave Versus 1. Union of India through General Manager, East Central Railway Danapur. 2. Divisional Railway Manager, East Central Railway, Danapur. 3. Senior Divisional Personal Officer, Danapur. 4. Senior Divisional Engineer (Coord) East Central Railway, Danapur. 5. Section Engineer, Jahanabad. . . . . . . . . . Respondents By Advocate: Shri P.N.Rai O R D E R
(DELIVERED BY:- MR. D.C. LAKHA, MEMBER-A Impugned order dated 1.7.2008 by respondent No. 2, passed in compliance of orders dated 25.4.2008 of C.A.T. Allahabad Bench in O.A. 421 of 2008, directing the respondents to dispose of the representation of the applicant dated 16.1.2008, by which the applicant had requested for releasing the amount of D.C.R.G. and leave salary, has been challenged in the O.A. Prayer has also been made restraining the respondents from recovering the penal rent treating the possession by the applicant of quarter allotted to him as unauthorized.
2. Undisputed fact is that the applicant was allotted quarter No 3 ABC Colony Patna in the year 1996 when he was working as Hammerman. The applicant superannuated on 31.7.2007 from Jahanabad and on 2.6.2007, he vacated the said quarter. In his Pension Payment Order dated 30.7.2007 no mention was made about the gratuity and leave salary. On enquiry, from the settlement section, the applicant came to know that the gratuity and leave salary has been withheld on account of non vacating of the quarter at Patna after transfer of the applicant to Jahanabad from 1.4.1999. It is stated in the O.A. that Patna is adjacent to Jahanabad and he was never asked to vacate the railway quarter at Patna and he continued to pay regular rent. Section Engineer (PWI) Jahanabad had already intimated by his letter dated 18.4.2000 to Section Engineer (PWI) Patna with copy to Assistant Engineer, Jahanabad and DEN Danapur stating that the applicant belongs to the category of essential staff and his services were also required near Patna Railway campus, to prevent any detention and safety hazard, since he was working under the control of PW/3/PPN at Patna Jn, as such there was no question for the possession of the quarter being unauthorized. Letter dated 18.4.2000 is marked as Annexure A-6. On this, query was made from AEN Patna by Senior Divisional Personnel Officer Danapur as to why penal rent was not recovered from the applicant after 31.3.1999 on his transfer from Patna to Jahanabad. Accordingly, recovery was made and sent to office so that the gratuity and leave salary may be paid accordingly. The applicant did not get the coy of the same, though it was marked to him also. Copy of this letter is Annexure A-7. In response to letter dated 31.7.2007, Section Engineer Jahanabad and Assistant Engineer Patna jointly sent letter dated 6.8.2007 to Senior Divisional Engineer Co-ordination stating that since the applicant belongs to the category of essential staff and his presence near Patna campus was required, as such he was not allowed to vacate the quarter in question due to jurisdiction of PWI, Jahanabad being very close to Patna and one Gang was stationed at Patna, hence the said quarter was retained on administrative ground by the applicant, therefore, the rest of the settlement dues may be finalized. Copy of this letter dated 6.8.2007 is at Annexure A-8. The applicant, thereafter, kept on approaching the respondents for payment of his leave salary, but to no avail. Thereafter, he sent a legal notice dated 5.10.2007 through speed post to Senior Divisional Engineer Co-ordination, East Central Railway Danapur Division, Divisional Railway Manager, P.M.R., Danapur and Divisional Personnel Officer PNR Danapur, but till date no payment has been made. He sent remainder on 16.1.2008 to respondent No.3, but it also did not pay heed to. Copy of the legal notice and representation are annexed as A-9 and A-10 respectively. The applicant has also stated that no notice for vacation of this quarter was ever given, but the respondents are wrongly withholding the gratuity and leave salary without any justification, as a result of which about Rs. 3.00 lacs has been withheld, that is why he had to file O.A. No. 421/2008. But even in the impugned order of this O.A., the matter of gratuity and leave salary has not been dealt with and disposed of by the respondents. The plea taken in the impugned order is that AEN Patna and S.E. Jahanabad did not propose retention on administrative ground but it was beyond their competence to allow the quarter being retained by the applicant. Therefore, the retention, after transfer from Patna to Jahanabad on 13.3.1999 upto 2.6.2007 has been treated as unauthorized and accordingly, damage rent is admissible for this unauthorized retention and the officer who acted beyond his competence has also been proceeded against under the rules. The applicant has taken the legal ground that for deciding about the unauthorized retention and damage rent thereof, no notice or opportunity of hearing was given to the applicant till his retirement. So, the applicant is not at all responsible and he had no intention to retain the quarter on his own. The respondents have initiated no proceedings in this respect, after they had treated the retention by the applicant of the government quarter as unauthorized and the applicant was treated as liable for paying the damage rent. The applicant being illiterate employee had obeyed the orders of Section Engineer under whom he was working. But, for not vacating the quarter, the respondents failed to give any notice to the applicant and normal rent was being paid and the same was being accepted by the respondents Under these circumstances, the impugned order is not sustainable in the eye of law.
3. In the Counter reply filed on behalf of the respondents, it has been contended that since the Section Engineer (PWI) is not the competent authority to approve for retention of the railway quarter after transfer of the employee, it is assumed that the Section Engineer exercised is power beyond his competence, that is why he has been proceeded against, by way of disciplinary proceedings. Show cause notice was issued to the applicant directing him to show cause as to why penal rent may not be recovered from him for the unauthorized period. There was no agglomeration between Patna and Jahanabad and for want of any order by the competent authority the retention of quarter was treated as unauthorized.
4. In Rejoinder affidavit almost same points have been reiterated as averred in the O.A. In addition, it has been stated, in reply to para 9 of the Counter reply that the respondents did not furnish the copy of the show cause notice, as alleged and date of the said show cause notice has also not been mentioned. If the applicant had received the show cause notice, certainly he could have replied within time. One Supplementary Counter reply has been filed on behalf of the respondents in which almost same points have been repeated.
5. The learned counsel for both the parties are heard and their pleadings are perused. They have also submitted their written arguments in support of the contentions made in the Counter reply. On behalf of the applicant, learned counsel repeated the same grounds which have already been taken in the O.A. as well as Rejoinder Affidavit. Main emphasis has been laid on the fact that no show cause notice was ever served upon the applicant for the recovery of panel rent for the alleged unauthorized retention of government quarter by the applicant and illegally the gratuity and leave salary of the applicant has been withheld. The learned counsel for the applicant has also argued that the officer under whom the applicant was working, allowed the quarter to be under the occupation of the applicant even on transfer to Jahanabad and thereafter, and during the retention of the quarter, he has been paying the normal rent. The applicant was supposed to obey the orders of officers under whom he was working and it was none of his concern whether the Assistant Engineer and Section Engineer were not competent to allow the quarter to be retained by the applicant. Hence, the retention period by the applicant of the said quarter, cannot be treated as unauthorized and there is no question of panel rent accordingly. The decision to withhold the gratuity and payment of leave salary by the respondents on that ground is totally untenable and legally incorrect. The learned counsel for the respondents has also vehemently argued that the permission to allow the applicant to retain the same quarter given after transfer from Patna to Jahanabad was wrong because Assistant Engineer and Section Engineer were not competent to do so. The show cause notice was issued by letter dated 31.7.2007 and letter dated 30.10.2007 addressed to Assistant Engineer and Senior Divisional Engineer (Co-ordination) with copy, interalia endorsed to the concerned official, i.e. the applicant as well. But the applicant has denied the service of these letters. The learned counsel for the applicant has stated that these letters do not connote any notice to the applicant. These letters are internal correspondence from one office to the other.
6, I have given thoughtful consideration to the pleadings of the parties and their arguments. In view of the arguments put forth in this case by both the parties in support of their averments and contentions in the O.A., Counter reply and other pleadings, I find that the applicant was allowed to retain the said quarter by the Senior officers under whom he was working. About the competence of the officer, the applicant was not supposed to enquire. Normal rent of this quarter was being paid by the applicant and the same was being accepted for about 8 years from 1.4.2000 to 2.6.2008. It is only at the time of retirement of the applicant that the respondents woke up and found that the permission to retain the quarter having been given by Section Engineer and the A.E. was wrong and these two officers were not competent to do so. This was an error on the part of the respondents that they could not find out the mistake for so long a period and only at the time of retirement, when P.P.O. was issued, that they have treated this period as unauthorized retention of the Government quarter and by way of impugned order the withholding of gratuity and leave salary is being justified. No government servant, as per settled law of the land and as per rules, can be penalized for the fault of his superior officers. The applicant was never given notice by the respondents that the quarter allotted in Patna was being retained by the applicant unauthorizedly. Gratuity and leave salary at the time of superannuation cannot be withheld in this manner without any opportunity of hearing. The Hon. Supreme Court in the case of Lakshmi Narayan Mukhopaadhyaya vs. Union of India, (2002) 10 SCC 379, has held that no recovery could be effected without affording an opportunity to the applicant. In view of these facts and circumstances I observe that the impugned order is not at all sustainable. It is set aside and quashed. The O.A. is accordingly allowed. The respondents are directed to calculated the gratuity and leave salary of the applicant and the same be settled by way of payment within a period of 2 months from the date of receipt of certified copy of the order by the respondents.
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