R.S.A. No. 3243 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3243 of 2010 (O&M) Date of decision : 17.8.2010 ... Krishan Lal ................Appellant vs. State of Haryana and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Pankaj Maini, Advocate for the appellant ... K.C. Puri, J. This is a regular second appeal preferred by the plaintiff- appellant against the judgment dated 26.4.2010, passed by Ms. Raj Rahul Garg, Additional District Judge, Hisar. The challenge in the suit by the plaintiff is to order dated 8.11.2006 passed by defendant No.3, vide which an amount of Rs.34,500/- has been demanded as penal rent. Briefly stated, the case of the plaintiff is that he joined the services with defendant State on 8.8.1966 and remained posted at Hisar as well as, Jhajjar till his retirement on 31.5.2006. The plaintiff served the defendants honestly and sincerely and there had been no complaint of any kind against him during the entire service career. In the year 2000, the plaintiff was transferred to District Jhajjar and then Hisar and he remained posted there w.e.f. 1.3.2000 to 31.12.2000. At R.S.A. No. 3243 of 2010 -2- the time of his transfer the plaintiff was having Government accommodation situated in the premises of defendant No.3. As per Government rule, an employee can retain the Government accommodation at transferee station for a period of four months from the date of transfer and thereafter, he is liable to pay the penal rent as per prevailing rules. After order of transfer of plaintiff, the plaintiff requested the defendants to retain the aforesaid Government accommodation till 31.8.2000 on the ground that his son Jitender Kumar was getting training from All India Council of Pharmacy at General Hospital, Hisar. Defendants kept the matter pending till 20.12.2000 and vide order of that date, defendant No.3 allowed the plaintiff to retain the aforesaid accommodation till 30.6.2000 and ordered for recovery of penal rent from 1.7.2000. Against the order dated 20.12.2000 of defendant No.3, the plaintiff submitted his representation before defendant No.3 and requested him to withdraw the same, upon which on the basis of endorsement dated 13.2.2001, defendant No.3 passed an order dated 10.4.2001 re-allotting the aforesaid quarter to the plaintiff w.e.f. 8.1.2001. On the representation of the plaintiff qua illegal demand of penal rent, defendant kept the matter pending for about three years and on 28.3.2003, defendant No.2 asked defendant No.3 to send the details of recovery. Thereafter, again the defendants kept the matter pending for more than three years but surprisingly on 6.7.2006 the defendants stating that he has occupied the Government quarter unauthorizedly w.e.f. 1.7.2000 and as such he is liable to pay the amount of penal rent @ Rs.5,750/- per month i.e. fifty times of the normal rent and issued R.S.A. No. 3243 of 2010 -3- show cause notice to the plaintiff. On 28.8.2006 plaintiff submitted his reply to the above said show cause notice stating that notice is contrary to the statutory rules. Instead of dealing with the same, defendant No.3 passed the order dated 8.1.2006 imposing amount of Rs.34,500/- as penal rent. On the basis of the above said order, the defendants have withheld the amount of gratuity/pensionary benefits to the tune of Rs.34,500/-. Hence the suit. Defendants resisted the suit of the plaintiff taking preliminary objections on the ground of cause of action, maintainability, locus standi. On merits, it was stated by the defendants that in accordance with the Government instructions dated 20.1.1995, a Government employee is permitted to retain the Government accommodation for an initial period of two months in normal circumstances, on his transfer while he can be permitted to retain the Government accommodation for additional two months on the reasons of his or his family member's illness or on the grounds of education of his children, subject to the approval of the competent authority. The plaintiff at the time of his transfer was working as Assistant in the office of Assistant Director, Hatchery, Hisar under the Chief Superintendent Live Stock Farm and was occupying House No. D-7 under the charge of defendant No.3. The plaintiff was relieved on transfer from Hisar on 1.3.2000 to Jhajjar and according to Government instructions he was entitled to retain the Government accommodation for an initial period of two months i.e. upto 30.4.2000 but he continued to occupy the Government quarter beyond four months without seeking approval from the competent authority R.S.A. No. 3243 of 2010 -4- for the additional period of two months. On 12.7.2000 the plaintiff applied for extension upto 31.8.2000 for retention of the said quarter to Chief Superintendent Live Stock Farm, Hisar and not to defendant No.3, who was the only competent authority to grant extension for retention of the said quarter. Ultimately, his request for extension for more than four months was declined. After four months, the defendants are entitled to the penal rent. Replication was filed by the plaintiff reiterating the stand taken in the plaint, while denying the contents of the the written statement. From the pleadings of the parties, following issues were framed:- 1. Whether plaintiff is entitled to mandatory injunction as prayed for ? OPP. 2. Whether plaintiff is entitled to permanent injunction as prayed for? OPP. 3. Whether the suit is not maintainable? OPD 4. Whether plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaintiff is estopped by his own act and conduct? OPD 6. Relief. In order to prove the case, plaintiff examined Devki Nandan as PW-1 and himself appeared as PW-2 and closed the evidence after tendering certain documents. In rebuttal, defendants examined DW-1 Devkinandan s/o Gordhan and closed the evidence. R.S.A. No. 3243 of 2010 -5- Learned trial Court has taken up issues No. 1 and 2 together and returned the finding on these issues in favour of the the plaintiff. Issues No. 3 to 5 were also decided in favour of the plaintiff. Consequently, the suit of the plaintiff was decreed vide judgment dated 28.8.2009 passed by Sh. Tayyab Hussain, Civil Judge (Junior Division), Hisar and defendants were restrained from withholding the retiral benefits of the plaintiff but plaintiff was ordered to pay the market rent assessed by PWD (B&R) Branch. Feeling dissatisfied with the above said judgment dated 28.8.2009, the State as well as, plaintiff-appellant Krishan Lal, filed two separate appeals. The appeal preferred by the State was accepted, whereas the appeal preferred by Krishan Lal was dismissed. The suit of the plaintiff was dismissed, holding that order dated 8.11.2006 Exhibit P-9 as valid, vide judgment dated 26.4.2010 passed by Mrs. Raj Rahul Garg, Additional District Judge, Hisar. Feeling dissatisfied with the judgment dated 26.4.2010, referred to above, the plaintiff-appellant preferred the present regular second appeal. The appellant in para No. 13 of the grounds of appeal, has mentioned that following substantial questions of law have arisen in the present appeal:- i) Whether the show cause notice issued by respondent No.3 on 6.7.2006 pertaining to the year 2000 as well as, the impugned orders passed on 8.11.2006 could sustain in the eyes of law, when the respondents have taken no action even for three years from the date of retirement R.S.A. No. 3243 of 2010 -6- of the appellant i.e. in the year 2003 in accordance with the Rule 2.2 (b) of the Punjab Civil Service Rules, Volume II as applicable to State of Haryana? ii) Whether the judgments passed by the learned Lower Court could sustain in the eyes of law where the Hon'ble Supreme Court of India as well as, the various High Courts have clearly held that amount of gratuity and provident fund cannot be adjusted against penal rent? Learned counsel for the appellant has submitted that the judgment passed by the Ist Appellate Court is against the provisions of Rule 2.2 (b) of the Punjab Civil Services Rules, Volume II, as applicable to the State of Haryana. The proceedings for recovery has been initiated after a period of four years and as such the same are void and liable to be ignored. I have carefully considered the said submission. This aspect of the case has been dealt with by the Ist Appellate Court in para No.3 of its judgment. It has been held by the Ist Appellate Court that proceedings for recovery were initiated immediately after the plaintiff was found in over staying the Government accommodation. That is the finding of fact recorded by the Ist Appellate Court and as such the same cannot be interfered in the second appeal. Learned counsel for the appellant could not point out that Ist Appellate Court has in any way misinterpreted and misread the evidence recorded on the file. Learned counsel for the appellant has further submitted that the Hon'ble Supreme Court and this Court has held that amount of penal rent cannot be ordered to be recovered from the gratuity and R.S.A. No. 3243 of 2010 -7- provident fund. To support this contention, learned counsel for the appellant has relied upon authorities reported as Dr. H.K. Saxena vs. Dr. Harisingh Gaur Vishawavidyalaya, Sagar and another 2004 (8) SLR 335 and Dhanwant Rai and others vs. Delhi Transport Corporation 2005 (2) RSJ 224. The authority in Dhanwant Rai's case (Supra), has been dealt with by the Ist Appellate Court in para No. 31 of its judgment. It has been rightly observed by the Ist Appellate Court that abovesaid authority is distinguishable. In the said case, the gratuity was not paid as the Government accommodation was not vacated. In the present case there is no such dispute. The authority in Dr. H.K. Saxena's case (Supra), is also distinguishable on the same grounds. Otherwise the respondents are not recovering the amount of penal rent from gratuity and provident fund of plaintiff-appellant. A tendency has occurred in the Government employees to not to vacate the Government accommodation after their transfer or retirement even after the authorised period. The other Government employees who are in queue to have the Government accommodation suffer. The Hon'ble Supreme Court and various High Courts of the country, including Punjab and Haryana High Court, have constantly held that Government employees should vacate the Government accommodation after the expiry of period of their entitlement to keep the Government accommodation. The said message has not perculated in the mind of Government employees. A Government employee who knowingly overstayed in Government accommodation is required to be dealt with iron hand. The plaintiff in the present case R.S.A. No. 3243 of 2010 -8- has knowingly overstayed in the Government accommodation after the period of his entitlement to keep the Government accommodation. So, plaintiff-appellant is not entitled to any relief claimed by him in the present appeal. So, in view of the above discussion, both the substantial questions of law raised by the appellant, stand answered against the appellant, on the facts of the present case. Consequently, the appeal is without any merit and the same stands dismissed with costs quantified as Rs.5,000/-. ( K.C. Puri ) 17.8.2010 Judge chugh