IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.9538-C of 2009 & RSA No.3139 of 2009 Decided on : 27.08.2009 D.C.Phaugat ... Appellant versus State of Haryana & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Ashok Gupta, Advocate for the appellant. 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant for declaration that the demand cannot be raised from him on account of damages for not vacating the official house for a period of almost 11 months. The following questions have been proposed: i) Whether the amount of pensionary benefits such as gratuity, group insurance scheme and pension can be withheld by the concerned department or not? ii)Whether the impugned letter/order dated 11.09.2000 (Ex. D-4) is illegal, unjust and arbitrary or not? iii)Whether in view of admission in para No.5 of the written statement filed by respondents/defendants No.1 & 2, the suit filed by the appellant/plaintiff deserves to be allowed and decreed in his favour or not? RSA No.3139 of 2009 -2- iv)Whether the relevant rates prevalent at the time of retirement of an employee have to be applied with regard to license fee for retaining the residential accommodation or not? v)Whether the amended rates, which came into force after retirement of an employee can be applied to him or not? vi)Whether the respondent/defendant No.3 being caretaker in the office of Prohibition Excise & Taxation Commissioner, Haryana at Chandigarh was rightly and legally handed over the keys of the residential accommodation to be further handed over to the UT Chandigarh Administration, by the appellant/plaintiff or not? Questions No.(iii) & (vi) are related. With regard to the main question of fact i.e question No.(iii), it is the case of the appellant himself that he had physically vacated the house and had handed over the keys to an employee of his department who had undertaken to hand over the same to the defendant No.4 – Chandigarh Administration i.e. allotting authority and that the omission on the part of the said employee to hand over the keys, would not render him liable for non-vacation of house. Both the Courts below have rightly declined this plea holding that the said employee was not authorised by the allotting authority to take possession, and thus the fact remains that the possession of the physical vacant house was never given to the allotting authority. The next argument made by the learned counsel is in regard to questions No.(iv) & (v) which are related. It is not RSA No.3139 of 2009 -3- disputed that the appellant moved an application for regularising the period of illegal non-vacation. At that time, the notification dated 09.08.1999 was in force and thus, the appellant cannot now be allowed to urge that he was not liable to pay the charges as notified therein. With regard to question No.(i), learned counsel has argued that vide the impugned letter, it was mentioned that a certain percentage of the said damages would be recovered from appellant's Gratuity, some from his Group Insurance Scheme and the remaining from his pension. He has further argued that the recovery from the pension could not have been made. He however, admits that in fact after recovering the dues, the remaining amount has been released to the appellant. It is also not in dispute that the entire amount could have been recovered from the gratuity. Even if in law the respondents cannot recover the amount from his pension yet in equity the same would have to be permitted because the amount from which the same could now have been recovered stands already released to the appellant. In view of answer to questions No.(i), (iii), (iv), (v) & (vi), answer to omnibus question No.(ii) would have to be against the appellant. Consequently this appeal and application for stay are dismissed. August 27, 2009 (AJAY TEWARI) sonia JUDGE