IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 OP (CAT).No. 984 of 2011(S) --------------------------- OA.645/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER:- ------------------ I.SIVAKUMAR, AGED 59 YEARS, S/O. IRUDAYAN, TECHNICIAN/MECHANICAL GR-I/SOUTHERN RAILWAY/ KOCHUVELI R.S. & P.O.,/ TRIVANDRUM DIVISION, RESIDING AT: RAILWAY QUARTERS NO.3A, KOTTAYAM RAILWAY STATION, KOTTAYAM. BY ADVS. SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ SMT.KALA T.GOPI RESPONDENTS: ------------------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600 003. 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, THIRUVANANTHAPURAM-695 014. 3. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, THIRUVANANTHAPURAM-695 014. 4. THE ASSISTANT PERSONNEL OFFICER & CHAIRMAN, QUARTERS COMMITTEE, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, THIRUVANANTHAPURAM-695 014. R1 TO R4 BY ADV. SRI.C.S.DIAS, SC, RAILWAYS THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 11/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------- O.P.(CAT) No.984 of 2011 ------------------------------------------------------------ Dated this the 11th day of April, 2011 JUDGMENT Basheer, J. The short question that arises for consideration in this original petition filed under Article 227 of the Constitution of India is whether the Railway Administration is justified in effecting recovery of penal rent from the petitioner in respect of the residential quarters in his occupation. 2. The Central Administration Tribunal while dismissing the original application held that the petitioner having continued to occupy the quarters even after his transfer to another station was liable to pay penal rent since the rules and circulars governing the field gave ample authority to the administration to recover such penal rent. 3. Shorn of necessary details, relevant facts may be briefly noticed. 4. Petitioner is working as a Technician/Mechanic Grade I in Thiruvananthapuram division of the Southern Railway. It is beyond controversy that petitioner while working as Khalasi in Kottayam was allotted Type I quarters at Kottayam during 1983- 84. Even though he was later promoted as Fitter Grade III, Fitter Grade II, and Fitter Grade I etc. he was not allotted Type O.P.(CAT) No.984 of 2011 2 II quarters which he was entitled to get. But ultimately in the year 2004 he was allotted a Type II quarters at Kottayam. In March 2005, the Carriage and Wagon section at Kottayam was closed down and all the men and material were shifted to Ernakulam. At that time the petitioner was also ordered to be transferred to Ernakulam. He made a request to the administration to allow him to retain his quarters at Kottayam due to some “family problems”. The administration acceded to his request and permitted him to occupy Type II quarters till May 3, 2007. Later permission was further extended and he was allowed to continue to occupy Type II quarters till May 3, 2008. According to the petitioner during this period he was allotted a Type I quarter at Kottayam which was totally uninhabitable due to total disrepair. Therefore he requested the administration to allot him another Type II quarter. It was pointed out by him that several Type II quarters were remaining vacant. The petitioner has produced Annexure A14 and A15 lists of available quarters which will show that his request was only genuine and reasonable. But the administration did not accede to his request, and on the contrary started to recover penal rent to his request, and on the contrary started to recover penal rent O.P.(CAT) No.984 of 2011 3 from him at the rate of Rs.5,720/- per month from his salary. It was at that stage that the petitioner approached the Tribunal seeking appropriate reliefs. 5. The administration contended before the Tribunal that there was wilfull failure on the part of the petitioner to vacate the quarter allotted to him even after granting him two extensions. The administration relied on a circular dated 8.9.04 which authorized recovery of penal rent. The Tribunal accepted the above contention and dismissed the original application. Hence this Original Petition. 6. When this Original petition came up for consideration before us on an earlier occasion, learned counsel for the petitioner informed us that the petitioner is prepared to vacate the Type II quarter at Kottayam forthwith. Accordingly, we directed the petitioner to do so without any further delay. We are informed today that the petitioner has vacated the quarter and handed over the key to the administration. Learned counsel for the Railway submits that the key has been received. 7. What remains is only the question whether the administration was justified in effecting recovery of a sum of Rs.5,720/- from the petitioner every month towards penal rent. O.P.(CAT) No.984 of 2011 4 As has been noticed already petitioner was allowed to continue to occupy the Type II quarter till May 2008. The specific case of the petitioner is that during this time he was allotted a Type I quarter sometime after May 2008. But since it was found total uninhabitable, he had requested the administration to allot him a Type II quarter which he was entitled to get going by the category of his post. But the said request was not acceded to even though several Type II quarters were lying vacant. 8. In this context it may be noticed that the administration has not been able to show that no Type II quarters were lying vacant at that time. It is true that the Administration has vaguely denied the above assertion. But the documents produced by the petitioner will prima facie show that several Type II quarters were in fact available at Kottayam itself. 9. Any how, fact remains that the petitioner has now given vacant possession of the quarter which he had been in his occupation. It is true that going by the norms prescribed by the administration, an employee is not entitled to retain the quarter alloted to him on his transfer /retirement etc. It is also not in dispute that he will be liable to pay penal rent. But in the case on hand it is apparent that the petitioner had not been O.P.(CAT) No.984 of 2011 5 given Type II quarter which he was entitled to get. As has been noticed already petitioner was given permission to occupy Type II quarter till May 3, 2008. But some time thereafter he was allotted a Type I quarter. The administration ought to have ensured that he was allotted another Type II quarter either at Kottayam or Ernakulam as requested by him. The Tribunal has failed to advert to this aspect. In that view of the matter, we have no hesitation to hold that the petitioner cannot be mulcted with the liability to pay penal rent. Therefore, the impugned order passed by the administration ordering recovery of penal rent from the monthly salary of the petitioner at the rate of Rs.5,720/-cannot be sustained. It follows that the impugned order passed by the Tribunal is liable to be set aside. We do so. 10. Learned counsel for the administration has invited our attention to the decision in State of West Bengal and Others V. Sultan Singh (1998 KHC 1349) and also in Secretary, ONGC Ltd. and Another v. V.U.Warrier (2005 (5) SCC 245). Learned counsel submits that these two decisions leave no room for any ambiguity as regards the liability of an employee to pay penal rent in the event of any unauthorized occupation. 11. However having regard to the peculiar facts and O.P.(CAT) No.984 of 2011 6 circumstances of this case, we are satisfied that the petitioner can be directed to pay penal rent at the rate of Rs.600/- per month from May 4, 2008 till April 5, 2011. It is made clear that this order is being passed by us keeping in view the peculiar facts and circumstances of this case. The rent at the above rate shall be adjusted from the amount if any recovered from the petitioner already and the balance amount shall be realized from him in three equal monthly instalments. Original Petition is disposed of in the above terms. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. rkc