IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 WP(C).No. 18374 of 2005(S) -------------------------- OA.111/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH .................... PETITIONERS: ------------ 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN, CHENNAI. 2. ADDITIONAL DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION. 3. DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION. 4. SENIOR DIVISIONAL FINANCE MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. BY ADV. SRI.VARGHESE P.THOMAS RESPONDENT: ------------- K.GEETHA, W/O. LATE KANNAN, KAPILAR STREET, CHUNNAMPUCHOOLAI, OLD SURAMANGALAM, SALEM-5. BY GOVERNMENT PLEADER, SMT.SMITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18374/2005/S APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE O.A. NO.111/04 ALONG ANNEXURE FILED BY THE RESPONDENT BEFORE THE CAT ERNAKULAM BENCH. EXT. P2: COPY OF THE REPLY STATEMENT FILED BY THE RAILWAY ADMINISTRATION BEFORE THE CAT ERNAKULAM BENCH. EXT. P3: COPY OF THE REJOINDER FILED BY THE RESPONDENT BEFORE THE CAT ERNAKULAM BENCH. EXT. P4: COPY OF THE MISCELLANEOUS APPLICATION FILED BY RESPONDENT DATED 12.8.04 BEFORE THE CAT ERNAKULAM BENCH. EXT. P5: COPY OF ADDITIONAL REPLY STATEMENT FILED IN O.A.111/04 BY THE RAILWAY ADMINISTRATION BEFORE THE CAT ERNAKULAM BENCH. EXT. P6: COPY OF THE JUDGMENT DATED 4.1.2005 CAT ERNAKULAM BENCH IN O.A.111/04. EXT. P7: COPY OF RAILWAY BOARD LETTER NO.F(E) III 85/PNI/13 DATED 20.9.85. EXT. P8: COPY OF JUDGMENT DATED 11.8.2000 IN O.P.18561/2000 OF HIGH COURT OF KERALA. EXT. P9: COPY OF LETTER DATED 27.3.91 OF RAILWAY BOARD NO.F(E) III/86/PNI/17 CIRCULAR NO.94/91. EXT. P10: COPY OF LETTER DATED 8.10.97 OF THE RAILWAY BOARD NO.PC- V/97/I/RSRP/I. /TRUE COPY/ P.A. TO JUDGE JP C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).NO.18374 of 2005-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2008. JUDGMENT T.R. Ramachandran Nair, J. The respondents in O.A. No.111/2004 before the Central Administrative Tribunal are the petitioners herein. The Tribunal, as per the order impugned, set aside Annexures A2 and A3 orders as far as it calculate penal rent and not granting the Vth CPC scales. There is a further direction to the respondents in the O.A. to calculate only the normal rent to be recovered from the applicant for the excess period and also calculate the benefit in CPC scale granting the same to the applicant which would have been drawn by her deceased husband. There was a further direction to recalculate the family pension afresh and grant the consequential benefits within three months from the date of receipt of a copy of the order. 2. The short facts are the following: The applicant before the Tribunal is the widow of late Kannan who was working as Pointsman at Salem junction and was in lawful occupation of Railway Quarters No.115 C/Type I at Salem junction. While so, he was transferred to Kannur and he joined on 10.1.1994. Later, he was found missing from 20.12.1994. WPC 18374/2005 -2- Meanwhile, he had retained the quarters and normal rent was being recovered from his salary. The fact that he had been missing, was reported to the various Railway officers also and based on various representations filed by the applicant, the Railway Police Sub Inspector, Salem registered an F.I.R. On 31.10.1998. No family pension or other benefits were given to the applicant which compelled her to file O.A. No.477/2002. Later on, pursuant to the order passed by the Tribunal, even though pension calculation statement was issued, a sum of Rs.59,184/- was sought to be deducted from her towards rent (Rs.40,792/-) and on other accounts. The entire DCRG and leave salary of Rs.1,614/- were adjusted and balance amount of Rs.44,538/- was also directed to be recovered from the pensionary relief of the applicant. The above amount represents penal rent imposed against her. Again, a further deduction was being made at Rs.830/- per month from her family pension on the basis that the applicant was in unauthorised occupation of Railway quarters. It is in these circumstances she filed the present O.A. 3. The Tribunal, after considering various issues, found that imposition of penal rent is not justified, especially in the light of the order passed in an earlier O.A. No.477/2002. The Tribunal noted that the applicant and her 8 year old daughter were striving for survival during that WPC 18374/2005 -3- period and the petitioners herein had not taken any steps under the rules to get the quarters vacated. For all these reasons and relying upon the judgment reported in Balwant Kaur v. State of Punjab & another (1987 (5) SLR 264 P & H), the Tribunal took the view that the respondents are not justified in proceeding to recover penal rent from the applicant. But the Tribunal, based on Annexure A4 letter furnished by the applicant, wherein she had consented for recovery of normal rent for the period she was in occupation of the quarters, i.e. Till 28.12.1998, allowed the respondents to recover that amount. Regarding the payment of arrears also, the Tribunal considered the entire aspects and found that she is entitled for various benefits and consequent directions have been issued. 4. Learned counsel for the petitioners submitted that since the applicant was in unauthorised occupation of the quarters, the action taken to recover penal rent is perfectly justified and the approach made by the Tribunal is wrong. 5. We find that the above argument is not correct in the light of the proved facts of the case. The applicant's husband was missing from 20.12.1994 and the F.I.R. was launched only on 31.10.1998 based on one of her representations, by the Railway Police Sub Inspector, Salem. In the earlier order in O.A. No.477/2992, there was a clear finding in favour of the WPC 18374/2005 -4- applicant and about her eligibility for grant of family pension. Therein, the Tribunal had held that presumption of death has to be drawn from 20.12.1994 and process the case of the applicant for grant of terminal dues and family pension without any further delay. It is seen that no effective steps whatsoever was initiated by the petitioners in getting the quarters vacated and it cannot be said that the occupation is an unauthorised one to justify imposition of penal rent. No proceedings were initiated under the relevant provisions of Public Premises (Eviction of Unauthorised Occupants) Act also and no notice was issued to her before effecting recovery. The view taken by the Tribunal is a plausible one. Therefore, we are of the view that the decision taken to effect recovery of a huge amount from the family pension is not at all justified. Apart from that, even though this writ petition was admitted on 27.6.2005, respondent has not been served notice. But we have chosen to consider the matter on its merit. We therefore find no infirmity in the order passed by the Tribunal. At any rate, the view taken is not so perverse warranting interference under WPC 18374/2005 -5- Article 227 of the Constitution of India. Therefore, the writ petition is dismissed. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ WPC 18374/2005 -6- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - . No. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 6th February, 2008.