IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03..4..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 14031 of 2004 and W.P.M.P. No. 16540 of 2004 1. Union of India Rep. by the Chairman Railway Board Raj Bhavan, New Delhi 2. The General Manager Integral Coach Factory Chennai - 38 3. The Chief Personnel Officer Integral Coach Factory Chennai - 38 .. Petitioners vs. 1. S. Rajendran 2. The Registrar Central Administrative Tribunal Chennai – 104 ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records on the file of the Tribunal pertaining to the order dated 06.02.2004 passed in O.A. No. 667 of 2003 and quash the same. For Petitioner : Mr. V. Radhakrishnan,SC. For Respondent 1 : Mr. K.M. Ramesh R-2 : Tribunal https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by K. CHANDRU, J.) Heard the arguments of Mr. V. Radhakrishnan, learned Standing Counsel representing the petitioners and Mr.K.M.Ramesh, learned counsel appearing for the first respondent and perused the records. 2. Challenging the order of the Central Administrative Tribunal [for short, 'CAT'] dated 06.02.2004 passed in O.A. No. 667 of 2003, the Union of India represented by the Chairman, Railway Board and two other officers of the Integral Coach Factory have filed the present writ petition. 3. The first respondent joined the second respondent Integral Coach Factory (ICF) in the year 1983 and after completion of the training, he was posted as Chargeman A in 1984 and thereafter, promoted as a Deputy Shop Superintendent in April 1986. He was further promoted as a Senior Section Engineer in March 1993 and as Assistant Works Manager in September 2002. He was allotted Staff quarters (Type IV) bearing Door No. 223/3 North Colony. Subsequently, he was given a change of quarters at 138/1 West Colony in the year 1994. The rent for the staff quarters was recovered from the pay of the first respondent. The first respondent applied for leave for six months from 01.6.1998 and subsequently, it was extended for one more year every six months. Totally, the first respondent availed 16 months of leave, which was also sanctioned by the second petitioner. 4. During September 1999, he applied for vacating the staff quarters. The second petitioner permitted the applicant to vacate the quarters in terms of paragraph 6.1 of the Railway Board's letter dated 15.01.1990. It was stated by the second petitioner that since the first respondent did not seek permission for retention of quarters during the leave period, in the first instance upto 120 days, thereafter, for the remaining leave period, his retention of quarters was unauthorised and, therefore, damage rate of rent was to be recovered from him, which worked out to Rs.7244.16 per month. 5. According to the first respondent, the allotment order did not contain the said stipulation and that whenever he had asked for extention of leave, he should seek for its retention, was not intimated to him. The first respondent preferred an https://hcservices.ecourts.gov.in/hcservices/ appeal dated 08.10.1999 to the Senior Personnel Officer (third petitioner). But, however, the second petitioner, by a letter dated 16.11.1999, informed the first respondent that he was liable to pay Rs.87,171/- and hence, Rs.5000/- per month will be deducted from his salary from November 1999 onwards. The first respondent submitted that since his appeal was not disposed of, he should not be made to pay the amount pending the appeal. Notwithstanding his submissions, amounts were deducted from his salary from November 1999 onwards. Upto July 2003, a sum of Rs.57,000/- was deducted from his salary and he was also informed that the Railway Board had rejected his request for waiver. The first respondent approached the Central Administrative Tribunal (CAT) with O.A. No. 667 of 2003 challenging the order of recovery. 6. A reply statement was filed by the petitioners in October 2003 to which the first respondent filed a rejoinder dated 03.01.2004. 7. The CAT, by its order dated 06.02.2004, allowed the Original Application and quashed the impugned order dated 30.9.2002. It also directed the petitioners to levy only the normal rent and the excess amount was directed to be refunded. It is against this order, the writ petition was filed by the petitioners and an interim stay from demanding the refund of the balance amount was granted by this Court. 8. Mr. V. Radhakrishnan, learned Senior Counsel appearing for the Railways, submitted that the finding of the CAT holding that the Railway Board circular has no statutory force and, therefore, is not binding, is erroneous. He submitted that the Railway Board Circular, even in the absence of any statutory rule, is binding on the parties. He also submitted that the very allotment of quarters itself is not a statutory condition of service and it is contractual. The allotment of a quarters and the rent levied was on the basis of leave and Licence. He doubted even the jurisdiction of the CAT in dealing with such an issue as it cannot be held to be a service grievance of a Government servant, in which case alone the CAT can deal with such an issue. 9. It is seen from paragraph 6 of the consolidated circular issued by the Ministry of Railways gives guidelines regarding retention of quarters. As per that circular, the occupation of the Railway quarters may be permitted while on leave for a period not exceeding 120 days on payment of normal rent, provided the authority sanctioning the leave certifies that the employee concerned is likely to be posted back to the old station on expiry https://hcservices.ecourts.gov.in/hcservices/ of leave. Even in case of transfer for certain period, they are eligible to retain the quarters on the basis of the old rent. 10. In the light of the above provision, Mr.V.Radhakrishnan argued that when the rule position is clear, there is no discretion left for the CAT to interfere in a case of this nature. He also relied upon the judgment of the Supreme Court in Secretary, ONGC Ltd. v. V.U. Warrier [(2005) 5 SCC 245] and more particularly, referred to the following passages found in paragraphs 26 and 28:- Para 26: "The matter can be considered from another angle also. It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that article can be exercised by the High Court “to reach injustice wherever it is found”. More than fifty years before, in Veerappa Pillai v. Raman & Raman Ltd., the Constitution Bench of this Court speaking through Chandrasekhara Aiyar, J., observed (at SCR p. 594) that the writs referred to in Article 226 of the Constitution are obviously intended to enable the High Court to issue them “in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice”." (emphasis supplied) Para 28: "As already adverted to by us hereinabove, the facts of the present case did not deserve interference by the High Court in exercise of equitable jurisdiction under Article 226 of the Constitution. The respondent-petitioner before the High Court was a responsible officer holding the post of Additional Director (Finance and Accounts). He was, thus, “gold collar” employee of the Commission. In the capacity of employee of the Commission, he was allotted residential quarters. He reached the age of superannuation and retired after office hours of 28-2-1990. He was, therefore, required to vacate the quarters allotted to him by the Commission. The Commission, as per its policy, granted four months’ time to vacate. He, however, https://hcservices.ecourts.gov.in/hcservices/ failed to do so. His prayer for continuing to occupy the quarters was duly considered and rejected on relevant and germane grounds. The residential accommodation constructed by him by taking loan at the concessional rate from the Commission was leased to the Commission, but the possession of that quarters was restored to him taking into account the fact that he had retired and now he will have to vacate the quarters allotted to him by the Commission. In spite of that, he continued to occupy the quarters ignoring the warning by the Commission that if he would not vacate latest by 30-6-1990, penal rent would be charged from him. In our judgment, considering all these facts, the High Court was wholly unjustified in exercising extraordinary and equitable jurisdiction in favour of the petitioner — respondent herein — and on that ground also, the order passed by the High Court deserves to be set aside." In the light of the above observations, he pleaded for settinbg aside the order of the CAT. 11. However, Mr. K.M. Ramesh, learned counsel for the first respondent, submitted that the ONGC case (Cited supra) relied on by the Senior Counsel appearing for the Railways has no application to the facts of this case. The consolidated circular dated 15.01.1990 was not made of part of the allotment condition. Alternatively, he submitted that the circular is of a general nature and will not apply to ICF. The ICF staff do not go out on transfer except on deputation. In any event, he submitted that paragraph 6 of the circular permits retention of quarters for 120 days and, therefore, for charging penal rent even for that period was illegal. 12. The question that the retention of quarters for 120 days will be permitted only when the leave sanctioning authority certifies that the employee is likely to be posted in the old station, will not arise in the case of the first respondent since his leave was thrice extended by the same authority and the first respondent cannot be penalised for non-grant of such certificate. But the contention that the circular will have no application or does not form part of the allotment order has to be rejected because the consolidated circular was also marked to the second petitioner ICF and the employee must be deemed to be aware of the same. Even if the first respondent did not get a certificate https://hcservices.ecourts.gov.in/hcservices/ that he will be posted back in the ICF after the expiry of leave, he is eligible to have the quarters retained for a period of 120 days as per paragraph 6 of the consolidated circular. Therefore, the CAT was wrong in holding that it was an executive order which has no force of law to bind the parties. On the other hand, that is the only circular which deals with the rights of parties vis-a-vi the retention of quarters. If that position is accepted, then whether charging of penal rent during the leave period is permissible or not, is the only question to be decided herein. 13. In the present case, the retention of quarters upto 120 days is permitted provided the leave sanctioning authority certifies that the employee concerned is likely to be posted back in the same station after the expiry of leave. In case of an employee of ICF, that question may be academic because normally, there is no transfer out of ICF except by way of deputation. Even otherwise, it is for the leave sanctioning authority to grant such a certificate without the employee seeking for any such certificate. Therefore, the first respondent cannot be charged any penal rent for retaining the quarters for the first 120 days. 14. In the light of the above legal and factual position and also on grounds of equity, this Court is of the view that the petitioner ICF cannot deduct any more amount beyond Rs.57,000/- which they have already deducted from the salary of the first respondent. It is also declared that the first respondent need not pay the balance amount of Rs.37,171/- being the penal rent on the premises that his initial retention of quarters was lawful and jusitifed. Therefore, the order of the CAT impugned in the writ petition is modified accordingly. The petitioners are hereby restrained from deducting the balance of Rs. 37,171/- from the first respondent. 15. The writ petition is disposed of accordingly. However, there will be no order as to costs. Connected Miscellaneous Petition is closed. gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Registrar Central Administrative Tribunal Chennai – 104 1 cc to Mr.V.Radhakrishnan, Advocate, SR.19381 1 cc to Mr.K.M.Ramesh, Advocate, SR.18858 jp (co) dv/13.6. W.P. No. 14031 of 2004 https://hcservices.ecourts.gov.in/hcservices/