mgn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 291 of 2009 Union of India, through the ) Chief Controller of Accounts, ) Principal Accounts Office, ) Ministry of Industry, 517-D, ) Udyog Bhavan, ) New Delhi-110 011 ) 2.The Senior Accounts Officer, ) Pay and Accounts Office, Small Scale ) Industries, Kurla-Andheri Road, ) Sakinaka, Mumbai-400 072. ) 3.The Estate Manager, Third Floor, ) Old CGO Building Annexe, 101, M.K.Road) Mumbai-400 020. )..PETITIONERS Versus Sarjerao Vithal Patil ) Compulsorily Retired Senior Account, ) Residing at Post Turchi, Taluka Tasgaon, ) District Sangli. )..RESPONDENT Mr. Y.S. Bhate, for the Petitioners. Mr. Sandeep V. Marne, for the Respondent. CORAM : FERDINO I. REBELLO & J.H. BHATIA, JJ. DATED : 25tTH JANUARY, 2010 ORAL JUDGMENT (PER FERDINO I. REBELLO, J.): Rule. Heard forthwith. 2. The respondent was in the employment of the petitioners. It was the case of the petitioners that Respondent was in unauthorised occupation and consequently would have to pay compensation in terms of the various Notifications issued by the petitioners. An order accordingly came to be passed. Aggrieved by that order the Respondent preferred O.A., O.A. No.62 of 2007 before the Central Administrative Tribunal, which by the impugned order dated 31st January, 2008 allowed the O.A., with the direction to the petitioners to charge only double license fee from the date of four months after his retirement and till he vacates the quarters in question. There was a further direction to petitioners to release the remaining pension and pensionary benefits which they have withheld wrongly within a period of two months with interest at the rate of 9% per annum. 3. The petitioners aggrieved by the said order have approached this Court. On behalf of the petitioners learned Counsel submits that the impugned order suffers from an error of law apparent on the face of the record in as much as it was not open to the Tribunal to have interfered with the compensation considering that the Respondent was and continued to be in unauthorised occupation of the premises and considering Office Memorandum of 31st March, 1992 and Office Memorandum of 30th November, 1995 and 23rd July, 2002. The amounts as claimed by the petitioners were in terms of the said office memorandums. 4. On the other hand on behalf of the respondent learned Counsel placing reliance on the judgment of the Supreme Court in Union of India & Anr. vs. Wing Commander R.R. Hingorani (Retd.) (1987) 1 SCC 551 contends that in so far as pension and commuted pension is concerned it was not open to the petitioners to withhold or make deduction in respect of the compensation from the pension amount. To that extent the order of the petitioners or of the Estate Officer was clearly without jurisdiction. It is also pointed out that it cannot be said that the order of the Tribunal based on the finding that the petitioners had not taken any steps for eviction of the respondent and considering his failing eye sight of the Respondent, it cannot be said to be illegal or disclosing an error of law apparent on the face of the record. 5. To answer the question we may only refer to a few dates. The respondent was appointed as an Upper Division Clerk (UDC) some time on 6th May, 1996. A show cause notice came to be issued to the respondent on 13th May, 1994 on the ground of unauthorised absence. An order for eviction came to be passed on 10th June, 1994. The respondent aggrieved preferred an Appeal before the Appellate Authority under the provisions of the Public Premises Eviction Act, hereinafter referred to as the Act. By an order of 24th March, 1995 the impugned order of 10th June, 1994 was set aside. The Appellate Authority was, however, pleased to grant liberty to the petitioners to issue fresh notice under Section 4(2) of the Act. A fresh order of eviction came to be passed on 31st October, 1995. That was also subject matter of another Appeal before the Appellate Authority, which once again by order dated 6th March, 1996 set aside the order with a direction to issue fresh show cause notice on the ground of sub-letting as that was fresh ground sought to be raised by the petitioner No.1. A charge sheet came to be served on the respondent No.1 on 13th September, 1996. Pursuant to the charge sheet and the enquiry held it was held that the petitioner was guilty of the charges established, punishment by way of penalty of removal from service was passed on the respondent by order dated 15th October, 1997. The respondent No.1 preferred an Appeal against that punishment. The Disciplinary Authority was pleased to reduced the penalty to one of compulsory retirement by order of 5th June, 1998. 6. It is subsequent to this order that by order dated 20th October, 2003 that the petitioner No.2 held that the respondent s allotment was deemed to be cancelled on 17 th December, 1992 and that the respondent was liable to pay damages with effect from 4th December, 1998 at the rate prescribed. The respondent vacated the premises on 19th July, 2004. The period of four months of allotment expired on 17th December, 1992 It is against this order the O.A. was filed, pursuant to which the impugned order came to be passed. 7. The question that we have to answer is as to what is the date from which the penal damages could have been awarded considering that the punishment of removal from service was reduced to one of compulsory retirement on 5th June, 1998. In terms of the Rules an employee is entitled to retain the premises for a further grace period of four months. In our opinion,therefore, once the orders of eviction were set aside as also the order of compulsory retirement it was not within the jurisdiction of petitioner No.2 to have demanded damages with effect from 17th December, 1992. The damages at the highest could have been claimed at the rate as notified with effect from 5th October, 1998 to the date of eviction i.e. 19th July, 2004. To that extent, in our opinion, the learned Tribunal totally misdirected itself in law in passing the impugned order. 8. Therefore, the order to that extent is set aside and modified whereby the respondent will have to pay damages in terms of Government Notification dated 31swt March, 1992 read with Government Notification dated 30th November, 1992 and Government Notification dated 23rd July, 2002 from 5th October, 1998 to 19th Jul, 2004. The petitioners are, therefore, directed to pass fresh orders in the above terms which will be binding on the respondent No.1 and no challenge will be available to respondent in respect of the said calculation except to the extent of any arithmetical error. 9. The next issue would be regarding the deduction from pension. In our opinion, considering the judgment of the Supreme Court in the case of Wing Commander R.R. Hingorani (supra) it will not be open to the petitioners to deduct anything from the pension or from the commuted pension. For that purpose we may gainfully refer to the observation of the Hon ble Supreme Court in the said Judgment. Placing reliance on Section 11 of the Pensions Act, 1871 the learned Supreme Court held that Section 11 protects from attachment, seizure or sequestration pension or money due or to become due on account of any such pension. Further the Court observed that even in respect of commuted pension it is not open considering Section 11 for any attachment. In other words in so far as pension is concerned it will not be open to the petitioners to make deduction from the pension benefits. Our attention is invited to the order passed on 18th January, 2010 whereby order has been passed directing the payment of arrears of pension. 10. We, however, make it clear that in so far as gratuity amounts are concerned, if any amounts are still lying with the office of the petitioners it will be open to the petitioners to recover the balance from whatever gratuity amount is due and payable. If that amount is not sufficient towards repayment of the compensation it will be open to the petitioners to take such steps in law to recover the balance amount. 11. Rule to that extent made absolute. IN the circumstances of the case there shall be no order as to costs. (J.H. BHATIA,J.) (FERDINO I. REBELLO,J.)