Central Administrative Tribunal - Delhi
Dharambir Singh vs M/O Defence on 8 September, 2016
1 OA No.100/2045/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No.100/2045/2013
New Delhi this the 8th day of September, 2016
Hon'ble Mr. Justice, M. S. Sullar, Member (J)
Hon'ble Shri K.N. Shrivastava, Member (A)
Shri Dharambir Singh
S/o Late Shri Suraj Bhan
MES-373200, FGM (SH)
R/o Quarter No.P-13/1, Uri Enclave,
Delhi Cantt., New Delhi-110010. .Applicant
(Argue by: Shri Ajeet Kandiyan, Advocate)
Versus
1. Union of India,
Ministry of Defence
Through its Secretary,
South Block, New Delhi.
2. Station Commander,
Station Headquarters,
Delhi Cantt.10. ..Respondents
(By Advocate : Mr. T.A. Ansari)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) The matrix of the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant Original Application (OA), and exposited from the record, is that, applicant Dharambir Singh, was working in Military Engineering Service, on the post of FGM(HS), Electric Supply, Delhi Cantt. A criminal case was registered against him on accusation of having committed an offence u/s 420 IPC vide FIR 190 of 2011. He was detained by the police on 05.12.2011 in the criminal case of cheating and he was accordingly suspended 2 OA No.100/2045/2013 in contemplation of a Departmental Enquiry (DE), as per Central Civil Services (Classification, Control & Appeal) Rules, 1965 [hereinafter to be referred as "CCS(CCA) Rules"]. A Show Cause Notice (SCN) was issued on 25.07.2012 to him as to why discretionary (out of turn) allotment of his Govt. accommodation be not cancelled by the competent authority. In pursuance thereof, he filed the reply dated 04.08.2012, wherein he has stated that as he is a lawful allottee of the house in question, so the allotment cannot be cancelled.
2. Taking into consideration, the totality of the facts and the reply, the Govt. accommodation of the applicant was cancelled, vide impugned order dated 05.06.2013.
3. Aggrieved thereby, the applicant has preferred the instant OA, challenging the impugned order dated 05.06.2013 on the following grounds, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985:-
"A. The applicant is a permanent employee and is entitled for the Government accommodation as a Govt. person and the Govt. accommodation was allotted to him in a lawful manner which he is maintaining for the last 12 years which cannot be3 cancelled.
B. That the applicant is not drawing any house rent allowance on account of living in the Government Accommodation.
C. Because the impugned order is totally illegal, perverse as there is no rule which called for the cancellation of the allotment. The Respondent is illegally and unlawfully relied upon Clause 6(g) of MES Rules Personnel letter. It is submitted that that the applicant has not been found alcoholic nor involved in any indiscipline, nor medically or physically unfit and so far as the words for any other reason has not been spelled out in the impugned order as to what are those reasons in fact cancellation of the allotment is a colourable exercise of power by the Respondents which is liable to be set aside.
D. Because the applicant cannot be held responsible for non- performance of the duty as a key personnel as he has been falsely placed under suspension and not permitted to perform the duties. On the contrary, the applicant has not only represented for revocation or 3 OA No.100/2045/2013 suspension, but also filed an appeal before this Hon'ble Tribunal which is pending.
E. Because the Respondents failed to appreciate that the courts have time & again held that if the charges in the criminal case against the concerned employee are not so serious, which may have direct nexus to the discharge of duties, the competent authority may exercise the description of permitting the employee to discharge duties by reinstatement in service. In the instant case though discretion is to be exercised in favour of the applicant as FIR No. 207/2011 has already stood cancelled against the applicant, on the basis of which he was placed under suspension, yet suspension has been continued by them and the applicant was compelled to file OA No. 1632/2013.
F. Because the Respondents failed to appreciate that despite suspension, the applicant continued to be MES personnel and entitled to obtain the accommodation, as such the cancellation is bad in law.
4. On the strength of the aforesaid grounds, the applicant has sought quashment of the impugned orders, in the manner indicated hereinabove.
5. The respondents refuted the claim of the applicant and filed their reply, wherein it was pleaded as under:-
"1. Th. Dharambir Singh was allotted a Key Personnel Accommodation P- 13/1, Uri Enclave (Type II) on June 2002.
2. As per para 6(g) and 17 of E-in-C's Br Key Personnel policy letter No. 42179/Policy (Qtr) dated 03.05.2005, in case a MES key personnel is ineffective and cannot perform the essential duties because of being alcoholic or involved in indiscipline or medically/physically unfit or for any other reason, CWE/GE may take up the case with Station Commander for issue of notice to the individual to vacate the key personnel accommodation within 30 days, failing which eviction action including levy of damage rate of licence fee can be initiated by the Station Commander.
3. Sh. Dharambir Singh was detained by the police on 05.12.2011, which is also the date of suspension from service and finally arrested on 09 Dec 2011 in FIR No. 190/11 U/s 420 IPC dated 08.12.2011 and individual has been suspended as per CCS Rules.
4. HQ CWE(U) and GE(U) have intimated vide their letter mentioned below that Sh. Dharambir Singh is in under suspension we.f. 05.12.2011 and now he is not able to perform duties as a key pers:-
(i) Hq. CWE (U) suspension order bearing No. 15032/DS/162/EIC dated
20.12.2011.
(ii) As per Sub rule (2) of Rule 10 of CCS (CCA) Rule 1965, Board of officers dated 04.02.2012 and dated 27.07.2012 to review the suspension order of MES-373200 Sh. Dharambir Singh, CGM (HS) of AGE E/M-111 of GE (U) Elect Supply was recommended. The board findings listed out the Criminal charges against Sh. Dharambir Singh who is on bail. The copy of the both board proceedings alongwith findings have already been provided to your office vide our letter No. 202/6/A/P-13/1/UE/Q5 dated 27.10.2012. However, a copy of the same are annexed as ANNEXURE R-
1. 4 OA No.100/2045/2013
5. GE(U) letter No. 1302/DB/170/EIC dated 17.01.2012, which clearly shows that when an individual is unable to perform the duties of key personnel he is not entitled to retain the accommodation earmarked for MES KEY Personals. There is no doubt that when an individual is placed under suspension, he is not performing his duties and as such he falls within the parameter laid down under para 6(g) of MES Key personal policy dated 03.05.2005".
6. The case of the respondents further proceeds that an SCN was issued, to which the applicant filed the reply and keeping in view all the facts and circumstances, the allotment of Government accommodation of the applicant was rightly cancelled. Virtually acknowledging the factual matrix and reiterating the validity of the impugned order, the respondents have stoutly denied all other allegations and grounds contained in the main OA and prayed for its dismissal.
7. Controverting the pleadings in the reply of the respondents and reiterating the grounds contained in the OA, the applicant filed his rejoinder. That is how we are seized of the matter.
8. We have heard the learned counsel for the parties and gone through the records with their valuable help.
9. A bare perusal of the interim orders of this Tribunal dated 16.12.2015 and 11.01.2016, would reveal that the applicant had sought many adjournments to produce certified copy of judgments of the Criminal Court. Subsequently, Mr. Ajit Kadiyan, learned counsel for the applicant pleaded that he had no instructions from the applicant. Consequently, the OA was dismissed for non-prosecution, vide order dated 05.05.2016 by a Coordinate Bench of this Tribunal. 5 OA No.100/2045/2013
10. However, on an Miscellaneous Application No.2114 of 2016, the OA was ordered to be restored, subject to payment of cost of Rs.2000/- to be paid by the applicant to the CAT Bar Library, vide order dated 15.07.2016. In other words, the OA remained dismissed in default from 05.05.2016 to 15.07.2016.
11. Meanwhile, in the wake of Ejectment Petition filed by U.O.I. through Station Hq. (SSO-C Branch), Delhi Cantt. against the applicant, under Section 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter to be referred as "P.P. Act"), it was held that applicant was in an unauthorized occupation of the premises in question and eviction order dated 12.07.2016 was passed by the Estate Officer, Delhi Military Station, Station Headquarters, Delhi Cantt.
12. Aggrieved thereby, the applicant has already filed a statutory appeal in the Court of District Judge, Patiala House Courts, New Delhi (Appellate Authority) under the Act.
13. In this view of the matter, learned counsel for the respondents has vehemently urged that since the ejectment order has already been passed and the applicant has already filed the statutory appeal against that, the present OA becomes infructuous.
14. On the contrary, the learned counsel for the applicant sought to argue that since the eviction order was wrongly 6 OA No.100/2045/2013 passed by the Estate Officer, thus the instant OA is maintainable.
15. Having regards to the rival contentions of the parties, we are of the considered view that the instant OA has become infructuous.
16. As is evident from the records, applicant has challenged the impugned order dated 05.06.2013 by virtue of which the out of turn allotment of the Govt. accommodation in favour of the applicant was cancelled by the competent authority, in the instant OA. It is not a matter of dispute that the court of Estate Officer, Delhi Military Station, Station Headquarters, Delhi Cantt. has already passed the eviction order dated 12.07.2016 against the applicant under the provisions of the P.P. Act. Sequelly, the applicant has already filed a statutory appeal in the Court of District Judge, Patiala House Court, New Delhi (AA) against the said order.
17. In that eventuality, the argument of the learned counsel for the applicant that this Tribunal has jurisdiction to decide the legality, validity or otherwise of the eviction order, cannot be accepted. We have no jurisdiction to decide the validity or otherwise of the indicated eviction order passed by the Estate Officer. The same can only be decided, in an already filed statutory appeal under the P.P. Act by the District Judge, Patiala House Courts, New Delhi (AA). Therefore, the 7 OA No.100/2045/2013 argument of learned counsel for the applicant cannot legally be accepted in the obtaining circumstances of the case.
18. In the light of the aforesaid reasons, and without commenting further anything on merits, lest it may prejudice the case of either side, during the course of hearing of the statutory appeal under the P.P. Act, by the District Judge, Patiala House Courts, New Delhi (AA), the OA, having become infructuous, which is hereby dismissed. No order as to costs.
(K.N. SHRIVASTAVA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
08.09.2016
Rakesh