Mohd. Yusuf vs Union Of India & Ors.

By Hon’ble Ms. Manju Pandey, Member (A):-

Heard Shri Santosh Kumar Kushwaha, learned counsel for the applicant and Krishna Kumar Ojha, learned counsel for the respondents.

This Original Application is filed under section 19 of the Administrative Tribunal Act, 1985, seeking following reliefs:-

The Brief facts of the case as stated by the applicant are that the applicant was working as Shuntman-cum-Pointsman at Shahjahanpur Station and was transferred on administrative grounds to Tilhar Station in the Moradabad Division on 09.09.2011, where he joined his duties, but no Railway quarter was available at Tilhar for his accommodation. Consequently, on 21.03.2012, the applicant represented to the Divisional Railway Manager, Northern Railway, Moradabad, through the Station Superintendent, Tilhar, seeking permission to retain Railway Quarter No. 26A-I at Shahjahanpur, which he had been occupying prior to his transfer. Thereafter, on 26.03.2012, the Station Superintendent, Shahjahanpur, also addressed the Senior Divisional Operating Manager, Moradabad, recommending retention of the Railway quarters by transferred employees until alternative claimants were available. On 05.10.2012, the proposal for regularization/retention of such quarters was considered and the competent authorities, including the Senior Divisional Operating Manager and Senior Divisional Engineer-II, consented to the proposal, with the noting that such retention would not cause any loss of Government revenue. On 27.05.2014, the applicant again represented to the Assistant Engineer, Northern Railway, Shahjahanpur, seeking regularization of the quarter on the grounds, inter alia, of his medical condition and the education of his children at Shahjahanpur. Thereafter, the Station Superintendent, Shahjahanpur, recommended the applicant's case before the Area Housing Committee, and in its meeting held on 03.11.2014, the Committee considered the issue of retention of Railway quarters by transferred employees and did not object to the applicant's retention, particularly as there was no other claimant and no loss of Railway revenue. The respondents continued to deduct normal rent in respect of the quarter, including up to 03.12.2015, while the applicant had no Railway accommodation at Tilhar and was not paid House Rent Allowance; he ultimately took voluntary retirement on 12.01.2015. After retirement, however, the respondents withheld his gratuity and subsequently deducted a sum of Rs.1,29,700/- towards alleged penal/damage rent for retention of the Railway quarter, without initiating proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The applicant contends that such penal/damage rent was neither an admitted nor an obvious due recoverable from gratuity under the applicable Railway Rules and that the respondents were required to determine the alleged liability in accordance with law. The applicant further relies upon the Railway Circular dated 01.06.2001 and the provisions of Rule 15(2) of the Railway Services (Pension) Rules, 1993, as well as the judgments in Union of India v. Madan Mohan Prasad, Union of India v. Pravat Kumar Das and Smt. Angoori Devi v. Union of India & Ors. In a similar case, Shri Badri Prasad, a retired Pointsman who had also been transferred from Shahjahanpur to Banthra Station, was subjected to deduction of Rs.1,75,677/- towards alleged damage rent; however, in O.A. No.1765/2015, Badri Prasad v. Union of India & Ors., the Hon'ble Tribunal, by order dated 13.04.2017, directed refund of the deducted amount with interest at the rate of 8% per annum, and the said order was duly complied with by the respondents. The applicant, therefore, claims parity with the said case and challenges the deduction of Rs.1,29,700/- from his gratuity as illegal and seeks appropriate relief, including refund of the deducted amount with consequential benefits. Hence this Original Application.

On the other hand, the Respondents have filed counter affidavit, wherein it is stated that the applicant was transferred from Shahjahanpur to Tilhar vide transfer letter dated 09.09.2011 and thereafter joined at Tilhar Station. The respondents have denied that the applicant ever submitted any application seeking permission for retention of Railway Quarter No. 26A-I at Shahjahanpur or that any permission was granted by the competent authority for his continued occupation of the said quarter after his transfer. The respondents have further denied the existence of any valid permission from the Operating Department authorizing the applicant to retain or occupy the Railway quarter at Shahjahanpur. According to the respondents, the applicant continued to occupy the Railway quarter unauthorizedly after his transfer and retirement, and vide letter dated 04.12.2015, it was intimated that damage rent amounting to Rs.1,31,516/- was due from him for the alleged unauthorized occupation for the period stated by the respondents as 12.01.2011 to 02.12.2015. The respondents have asserted that the said damage rent was legally recoverable and that no amount was otherwise payable to the applicant. The respondents have also disputed the applicant's claim regarding any valid regularization or retention of the quarter and have contended that the grounds taken in the Original Application are not tenable in law. Consequently, the respondents have maintained that the applicant is not entitled to refund of Rs.1,29,700/- or any interest thereon and have prayed that the Original Application be dismissed with costs^.

In reply, the applicant, in his rejoinder affidavit, has denied the averments, allegations and submissions made in the Counter Affidavit, except those specifically admitted, and has reiterated that the documentary evidence filed along with the Original Application establishes that he had submitted applications for retention of the Railway quarter and that the concerned authorities were aware that the quarters were vacant and that there was no other claimant for the same. The applicant has contended that the respondents, instead of considering and explaining the documentary evidence and the recommendations/communications of their own authorities, have merely denied the same in an attempt to justify the action taken against him. It has further been asserted that retention of the Railway quarter by the transferred employee and recovery of rent therefrom was beneficial to the Railways, as otherwise the quarter would have remained vacant and resulted in loss of Railway revenue. The applicant has also reiterated that the Railway Board's circulars and the judgments relied upon in the Original Application support his claim and that the respondents have failed to offer any specific reply to the averments contained in paragraphs 4.19 and 4.20 of the Original Application, which, according to the applicant, may therefore be treated as admitted. On these grounds, the applicant has maintained that the deduction of damage/penal rent from his gratuity is illegal and that he is entitled to the relief claimed in the Original Application, along with costs.

We have heard the learned counsels of both the sides and have gone through the pleadings also.

The Applicant who was posted as Shuntman cum Pointsman at Shahjahanpur was transferred to Tilhar vide order dt 09.09.2011. The order clearly said that Quarters could be retained till the education year as per rules. On 21.03.2012, the applicant applied for extension for retaining the quarters at Shahjahanpur for 2 years as both his daughters were studying there. On 26.03.2012, the Station Suptd at Saharanpur wrote a letter to the Senior DOM, Moradabad that the said accommodation could be retained by the present incumbent, till the time someone else was posted there. As per letter dt 27.05.2014, the Station Suptd also wrote to the Chairman, Area Housing Committee of Shahjahanpur where he informed that the case had also been recommended by the Snr DOM as the houses would otherwise have remained vacant causing loss to the Railway revenue. The Area Housing Committee in its meeting held on 03.11.2014 also recommended the case.

Meanwhile, the Applicant continued to reside in the accommodation as the case for regularising the same was being processed and had also been recommended by the Area Housing Committee. The regular rent for the quarter was being deducted and HRA also, rightly was not paid to the Applicant. However, at the time of his voluntary retirement, the whole amount of Gratuity was withheld and later Rs. 1,29,700 was deducted as penal rent for retention of the Railway quarter.

The Respondents have said that no letter of permission for retaining the Railway quarter was issued to the Applicant by the Operating Department. The penal rent has therefore been calculated for the period of unauthorised retention of Government quarter as per rules.

It is seen that no show cause notice was ever issued to the Applicant before the decision of deducting the penal rent from Gratuity was taken nor any disciplinary case was ever initiated against the applicant for unauthorised retention of the Government quarter. Also, no quarter was ever allotted to the applicant at Tilhar, his new place of posting. Further, it was not the case that the quarter at Shahjahanpur was required to be allotted to someone else as the Station Suptd has himself written that the quarters would otherwise have remained vacant. The applicant was always given to understand that his case for retention of accommodation was being processed positively. If not at Shahjahanpur, Railways would have allotted accommodation to the Applicant at Tilhar which was not done. But, instead of taking accommodation at Tilhar, the new place of posting, the applicant retained the accommodation at the old place of posting. Regular license fee and HRA was also deducted. The applicant had all along been asking for extension and the case was being processed accordingly. There has been no loss of revenue to the Railways esp as the quarter would otherwise have remained vacant.

The case is also covered by OA/330/01765/2015 dt 13.04.2017 decided by this Tribunal where also recovery of penal rent was made from the gratuity for unauthorised retention of Government quarter.

Keeping in view the above discussion, the OA has merit and is allowed. The Respondents are directed to refund the amount of Rs.1,29,700/- which has been deducted as penal rent from the Gratuity along with interest of 8% per annum, within a period of three months from the date of receipt of certified copy of order.

No order as to costs.