In the High Court of Punjab and Haryana, Chandigarh C.W.P. No. 5887-CAT of 2010 Date of Decision: October 14, 2010 Sohan Lal …Petitioner Versus Union of India and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. J.S. Puri, Advocate, for the petitioner. Mr. D.D. Sharma, Advocate, for respondent Nos. 1 to 4. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution challenges order dated 24.7.2009 (P-1), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), holding that the respondents are well within their rights in withholding the Death-cum- Retirement Gratuity (DCRG) of the applicant-petitioner in lieu of the penal rent recoverable from him. The applicant-petitioner has also challenged notice dated 9.6.2004 (P-7) and order dated 10.7.2007 (P-16), raising a demand of Rs. 3,95,869.62 paise on account of penal rent and other charges in respect of C.W.P. No. 5887-CAT of 2010 railway quarter No. B-71. Still further, challenge has also been made to the order dated 4.12.2009 (P-22), which has been passed by the respondents rejecting the claim of the applicant-petitioner for release of two sets of complementary railway passes. 2. Facts of the case may first be noticed. The applicant-petitioner was working as Senior Loco Inspector in the Northern Railways. He was allotted railway quarter No. B-71 (Type-IV), Railway Colony, Ambala Cantt. The son of the applicant-petitioner, namely, Shri Rajesh Kumar is also working in the Northern Railways. In 2001, the son of the applicant-petitioner was promoted as Head TCR under SS/UMB and he was also posted at Ambala Cantt. The son of the applicant-petitioner was also entitled to allotment of a Type-III railway accommodation. On 29.1.2001, he made an application that he along with his family had shifted to the house allotted to his father, therefore, the House Rent Allowance being paid to him may be stopped (P-2). On 26.5.2001, permission was granted for sharing of the said railway quarter with the condition that the son of the applicant-petitioner will not draw HRA during the time of sharing and that on transfer/removal/resignation of the applicant-petitioner he would hand over the vacant possession of the quarter (P-3). 3. The applicant-petitioner made a request to the respondent authorities that he was residing in the railway quarter for the last 15 years and all the similar quarters situated in old railway colony were bifurcated into two portions due to shortage. He, therefore, made a request for bifurcation of the railway quarter allotted to him (P-4). On 18.6.2003, the said request was forwarded by the office of the Divisional Railway Manager, Northern 2 C.W.P. No. 5887-CAT of 2010 Railways, Ambala Cantt. to the Headquarters Office at New Delhi (P-5). On 31.8.2003, the applicant-petitioner retired from service on attaining the age of superannuation. On 1.4.2004, administrative approval for bifurcation of the said railway quarter was accorded by the Headquarter Office at New Delhi. The same was ordered to be bifurcated into two portions - one as Type-I and the other as Type-III (P-6). The applicant-petitioner and his son occupied that portion of the quarter which was bifurcated as Type-III and vacated the other portion on 8.7.2004. 4. On 9.6.2004, a notice was served upon the applicant-petitioner to the effect that he was required to vacate the railway quarter on 30.4.2004. But he failed and, thus, remained in unauthorized possession. Cancelling the allotment w.e.f. 1.5.2004 on normal rent, the applicant-petitioner was directed to vacate the quarter within 10 days failing which action was to be taken again him. It was also stated in the said notice that after expiry of the period electricity and water connection would be disconnected and monthly rent at the rate of Rs. 15,327.72 per month would be charged till the vacation of the quarter (P-7). 5. It is claimed that on 22.6.2004 the son of the applicant-petitioner addressed a letter to the DSE(E), Northern Railways, Ambala Cantt., informing that he was sharing accommodation with his father and stopped drawing HRA w.e.f. 26.5.2001. He was not allotted any Type-III accommodation and still living with his father in Quarter No. B-71. Since the applicant-petitioner was to vacate the said quarter, therefore, his son made a request for allotment of the same quarter or in the alternative any other Type- 3 C.W.P. No. 5887-CAT of 2010 III accommodation (P-8). The said request was forwarded to the concerned authority vide letter dated 28.6.2004 (P-9). 6. Though the Headquarter Office at New Delhi had accorded administrative approval for bifurcation of the quarter in question vide letter dated 1.4.2004 (P-6), the actual bifurcation has taken place when a letter dated 14.9.2004 was issued by the DEN/HQ/UMB. In the said letter it has been clearly mentioned that the occupant of the quarter has vacated the portion of the quarter to be bifurcated into Type-I (P-10). For ready reference, the contents of the letter dated 14.9.2004 are reproduced as under: “Subject: Bifurcation of railway Qr. No. B-71, Type-IV, into Type-I and Type-III Qtr. On the request of Sr. DME/O&F the proposal for the bifurcation of above said quarter was forwarded to HQ duly approved by DRM/UMB for the approval of HQ. The competent authority has accorded the approval for the bifurcation of existing quarter No. B-71, Type-IV, into Type-I and Type-III quarter. The occupant of the quarter has vacated the portion of the quarter to be bifurcated into Type-I as per the approved plan as intimated by Sr. DME/O&F vide his letter No. 716-M/Misc/UMB/04/M-1 dated 13.9.2004. Therefore, you are advised to carry out the physical bifurcation of the said quarter into Type-I and Type-III as per the approved plan.” (Italics by us) 7. Pursuant to the letter dated 14.9.2004, bifurcation of the quarter was completed on 2.11.2004 as per approved plan (P-11). The authorities 4 C.W.P. No. 5887-CAT of 2010 further decided to bifurcate the quarter in question, which was originally a Type-IV quarter, into two Type-III quarters. Therefore, on 19.4.2005, the son of the applicant-petitioner made a request that he may be allotted one portion of the proposed Type-III quarter and the period be regularised (P-13). The said request was declined by the competent authority, vide order dated 19.8.2005 (P-14). The son of the applicant-petitioner preferred an appeal. On 9.3.2006, the competent authority ordered that Type-III Quarter No. B-71/A, which was bifurcated into two Type-III units numbered as B-71/A and B-71/B, vide order dated 7.3.2006, be allotted to Shri Rajesh Kumar son of the applicant-petitioner on out of turn basis (P-15). 8. It is also pertinent to mention here that in the interregnum eviction proceedings under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for brevity, ‘the Public Premises Act’), were also initiated against the applicant-petitioner by the designated Estate Officer of the Northern Railways, who was the same person who issued the letters of bifurcation of the railway quarter in question. The Estate Officer issued a notice under Section 4 of the Public Premises Act to the applicant- petitioner to show cause as to why he be not evicted from the premises in question due to un-authorised occupation. The applicant-petitioner replied to the said notice informing that he was not in un-authorised occupation as the quarter stood already bifurcated and vacated by him. Thereafter, no further action under the Public Premises Act was taken against him. 9. On 10.6.2007, the Divisional Personnel Officer, Northern Railway, Ambala Cantt., issued another communication asking the applicant- petitioner to deposit a total sum of Rs. 3,95,869.62 paise towards penal rent 5 C.W.P. No. 5887-CAT of 2010 and other charges in respect of railway quarter No. B-71 so that his DCRG could be released. Feeling aggrieved against the recovery of penal rent and other charges to the tune of Rs. 3,95,869.62 paise (P-16), the applicant- petitioner approached the Tribunal by filing Original Application No. 625/HR of 2007 (P-18). The applicant-petitioner also sought a direction for releasing of his DCRG as well as two set of complementary railway passes due to him as per Rules after his retirement. 10. The respondents contested the Original Application by asserting that the applicant-petitioner remained in un-authorised occupation of the railway quarter No. B-71 w.e.f. 1.5.2004 onwards and an amount of Rs. 3,95,869.62 paise is outstanding against him. According to the respondents the amount of DCRG of the applicant-petitioner has rightly been withheld in terms of the general conditions laid down under Railway Service (Pension) Rules, 1993 (for brevity, ‘the Rules’) and Circular No. 243/1990. It was also highlighted in the written statement filed before the Tribunal that as per Rule 16 of the Rules the railway authorities can recover/adjust the outstanding amount pertaining to the railway accommodation from the DCRG of the employee and no separate order regarding withholding of DCRG are required to be passed. However, the factum of bifurcation of the quarter in question from Type IV to Type-I and Type-III initially and then two Type-III units as well as allotment of one Type-III unit in favour of Shri Rajesh Kumar, son of the applicant-petitioner, vide order dated. 9.3.2006, has not been disputed. 11. During adjudication before the Tribunal it was portrayed by the respondents that the applicant-petitioner and his son remained in unauthorised occupation of both the portions upto 2006 and, therefore, the applicant- 6 C.W.P. No. 5887-CAT of 2010 petitioner was liable to pay penal rent. It was further urged that the son of the applicant-petitioner could only be allotted quarter on out of turn basis only if other claims who were senior to him in the priority list had been accommodated. The out of turn allotment in his favour was made on 9.3.2006 on the basis of his priority in the list of claimants for out of turn allotment. The Tribunal was impressed with the above assertion of the respondents and came to the conclusion that the respondents were well within their rights in withholding the DCRG in lieu of penal rent recoverable from the applicant- petitioner. Accordingly, the Tribunal rejected the claim of the applicant- petitioner. With regard to claim of the applicant-petitioner for release of two sets of complementary railway passes, the Tribunal directed the respondents to consider his request and to take an appropriate decision after passing a speaking order within a period of two months from the date of receipt of the order (P-1). 12. The respondents considered the claim of the applicant-petitioner for releasing of two sets of complimentary passes in the light of the order dated 24.7.2009 passed by the Tribunal, and rejected the same vide order dated 4.12.2009, on the ground that as per Rule No. (XX) of Schedule IV of the Pass Manual, complimentary passes could not be issued to a railway employee who remains in unauthorised possession of the railway quarter (P-22). The aforementioned Rule No. (XX) of Schedule IV of Pass Manual reads thus: “Rule No. (XX) of the Schedule IV of Pass Manual: One set of post-retirement complimentary pass shall be disallowed for every month of unauthorised retention of railway quarters by retired officers/staff. For this purpose, a part of a month exceeding 10 7 C.W.P. No. 5887-CAT of 2010 days in any calendar month shall be taken as a full month. A show cause notice to this effect may be issued to the concerned retired employee before disallowing the complimentary passes. The concerned retired employee shall be allowed the post retirement complimentary passes after the period during which forfeited passes could have been admissible is over.” 13. We have heard learned counsel for the parties at considerable length and perused the paper book with their able assistance. At the outset it would be profitable to read the relevant provisions of the Master Circular No. 49, dated 19.1.1993, issued by the Government of India, Ministry of Railways on the subject of ‘Allotment of Quarters and Retention thereof on transfer etc.’. Relevant extract of Clause 4 and Clause 8.19 of the Master Circular (supra) reads thus:- “4. xxx xxx xxx (i) When a railway employee who has been allotted railway accommodation retires from service or dies while in service, his/her son, daughter, wife husband or father may be allotted railway accommodation on out of turn basis provided that the said relation was a railway employee eligible for railway accommodation and had been sharing accommodation with the retiring or deceased railway employee for at least six months before the date or retirement or death and had not claimed H.R.A. during that period. The same residence might be regularized in the name of the eligible relation if he/she was eligible for a 8 C.W.P. No. 5887-CAT of 2010 residence of that type or higher type. In other cases a residence of the entitled type or a type next below is to be allotted. (ii) xxx xxx xxx Note:- (i) Orders regarding non-drawal of house rent allowance are applicable only in cases where the dependent is employed in the station where the station where the Railway employee has been allotted railway accommodation.” “8.19 Retirement.- A Railway employee on retirement including voluntary retires may be permitted to retain the railway accommodation for a period of 4 months on payment of normal rent/flats rate of licence fee/rent and the next 4 months on educational or sickness account on payment of special licence fee, i.e., double the normal rent or double the flat rate of licence fee/rent. This is also applicable to audit staff doing railway audit work.” 14. A bare perusal of sub-clause (i) of Clause 4 of the Master Circular shows that the relation of a retiring railway employee viz. son, daughter, wife or husband can be allotted railway accommodation on out of turn basis subject to fulfilling the following conditions– (a) He/she should have been a railway employee; (b) He/she must be eligible for railway accommodation; 9 C.W.P. No. 5887-CAT of 2010 (c) He/she must be sharing accommodation with the retiring employee for at least six months before the date of retirement; (d) He/she should not have claimed House Rent Allowance during that period. 15. In case the above conditions are fulfilled, the railway accommodation which the retiring employee has been allotted, could be regularised in the name of the eligible relation if he/she was eligible for a residence of that type or higher type. In other cases a residence of the entitled type or a type next below is to be allotted. 16. Clause 8.19 of the Master Circular in clear words contemplates that a railway employee on retirement may be permitted to retain the railway accommodation for a period of 4 months on payment of normal rent/flats rate of licence fee/rent and thereafter for a period of further 4 months on the ground of education or sickness by paying special licence fee, i.e. double the normal rent or double the flat rate of licence fee/rent. 17. In the present case, the son of the applicant-petitioner, namely, Shri Rajesh Kumar fulfills all the conditions of Clause 4(i) of the Master Circular (supra). From the above narrated factual matrix it is evident that he is a railway employee. In 2001 he was transferred to Ambala Cantt. and started sharing railway quarter No. B-71 with the applicant-petitioner in whose name the said quarter was allotted. The said quarter was a Type-IV at that point of time. On 29.1.2001, the son of the applicant-petitioner requested the respondent authorities for stoppage of HRA payable to him (P-2). Even his request for sharing the railway quarter with the applicant-petitioner was 10 C.W.P. No. 5887-CAT of 2010 allowed, vide order dated 26.5.2001. He was also entitled for allotment of a Type-III railway accommodation. On 31.8.2003, the applicant-petitioner retired from service on attaining the age of superannuation. In terms of Clause 8.19 of the Master Circular (supra), he was entitled to retain the railway quarter for a period of 4 months i.e. upto 31.12.2003. However, vide order dated 1.1.2004, the Senior DME permitted him to retain the said railway quarter till 30.4.2004. 18. Six months prior to his retirement, the applicant-petitioner made a request to the respondent authorities for bifurcation of railway quarter No. B-71, Type-IV into two portions (P-4). On 18.7.2003, a proposal was forwarded to the Headquarters Office of the Northern Railway at New Delhi, for bifurcation of railway quarter No. B-71 into two portions i.e. one as Type-I and the other as Type-III (P-5). The administrative approval for bifurcation was accorded by the competent authority i.e. Chief Bridge Engineer, Northern Railway, as is evident from letter dated 1.4.2004 (P-6). It has also come on record that upon bifurcation of the railway quarter No. B-71, the applicant- petitioner and his son vacated that portion of the railway quarter on 8.7.2004 which was converted into Type-I and, thus, remained in occupation of the other portion which was converted into a Type-III accommodation. In terms of sub-clause (i) of Clause 4 of the Master Circular (supra) the son of the applicant-petitioner was entitled for allotment of said Type-III accommodation on out of turn basis as a result of retirement of the applicant-petitioner on 31.8.2003 and the same could be easily regularised in his name w.e.f. 1.9.2003. However, for the reasons best known to the respondents instead of regularising and allotting the said Type-III portion in the name of the son of 11 C.W.P. No. 5887-CAT of 2010 the applicant-petitioner they resorted to initiate eviction proceedings under the Public Premises Act against the applicant-petitioner. After the reply to the notice under Section 4 of the Public Premises Act was submitted by the applicant-petitioner, the Estate Officer did not proceed further because he was the same authority who had passed orders for bifurcation of the railway quarter in question and was aware of the fact that the applicant-petitioner was not in un-authorised possession and, in fact, already vacated the Type-I portion. Subsequently, the respondents bifurcated the said railway quarter No. B-71 into two Type-III portions, which were numbered as B-71/A and B-71/B and eventually allotted one Type-III portion in favour of the son of the applicant- petitioner, vide order dated 9.3.2006. 19. It can be safely concluded that the applicant-petitioner and his son never remained in un-authorised possession of the railway quarter in question and the respondents have wrongly proceeded against the applicant-petitioner with folded eyes in withholding his amount of DCRG and raising a demand of Rs. 3,95,869.62 paise towards recovery of penal rent and other charges, which were never due against him. Even the Tribunal has committed a patent error on facts in coming to the conclusion that the applicant-petitioner and his son remained in unauthorised occupation of both the portions upto 2006 and the respondents were well within their rights in withholding the DCRG in lieu of the penal rent recoverable from the applicant-petitioner. 20. As a sequel to the above discussion, the instant petition is allowed. The impugned judgment dated 24.7.2009 (P-1), passed by the Tribunal, notice dated 9.6.2004 (P-7) and orders dated 10.7.2007 and 4.12.2009 (P-16 and P-22 respectively) are hereby set aside. The respondents 12 C.W.P. No. 5887-CAT of 2010 are directed to forthwith release the amount of DCRG to the applicant- petitioner. The respondents shall re-consider the claim of the applicant- petitioner for release of two sets of complimentary passes by passing fresh orders within one month from the date of receipt of a copy of this order. The respondents are further required to pass appropriate orders in terms of Clause 4 (i) of the Master Circular (supra) regulaising the railway quarter in favour of Shri Rajesh Kumar son of the applicant-petitioner with effect from 1.9.2003. Keeping in view the peculiar facts and circumstances we deem it appropriate to award cost in favour of the applicant-petitioner, which are quantified as Rs. 20,000/-. 21. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (RITU BAHRI) October 14, 2010 JUDGE Pkapoor 13