| SooperKanoon Citation | sooperkanoon.com/56004 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Jul-29-2008 |
| Judge | M Chhibber |
| Appellant | Shri K.L. Ahuja (Retd. Technical |
| Respondent | Director General, Council for |
2. He has further sought 18% interest on delayed payment of gratuity and leave encashment.
3. It is stated by the applicant that he was allotted Quarter No. 9C/1, NPL Colony, New Delhi while working as Technical Officer 'C'. He retired on 31.1.2001 and was allowed to retain the said quarter up to 31.5.2001. As his wife was very sick, he sought further extension vide letters dated 24.5.2001, 4.11.2003 and 29.4.2004 but no reply was given. They asked him to vacate and filed OA No. 3046/2002 seeking direction to the applicant herein to vacate the premises and for recovery of dues. The said OA was dismissed on 21.10.2003 (page 37) for want of jurisdiction.
4. Grievance of applicant is that respondents have deducted penal licence fee from his retrial dues without following due process as mentioned in the Public Premises (Eviction of Unauthorised Occupants), Act.
5. Counsel for the applicant submitted penal rent could have been deducted from applicant, only if, he was declared as unauthorized occupant and after giving him notice under Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act. Moreover, applicant had handed over Quarter in October, 2006 and already paid the licence fee, yet an amount of Rs. 27400 /- on account of penal rent @ Rs. 4300/- p.m. from 1.6.2001 to 31.3.2006 and an amount of Rs. 47,122/- on account of revised penal fee @ Rs. 6774/- p.m. from 1.4.2006 to 31.10.2006 has been deducted from his gratuity which is absolutely illegal.R. Kapur v. Director of Inspection (Painting and Publication) Income Tax and Anr. and Gorakhpur University and Ors. v. Dr. Shitla Prasad Nagendra and Ors. . For theDr. Uma Aggarwal v. State of U.P., Vijay L. Mehrotra v. State of U.P. He thus prayed that the amount recovered from his gratuity should be refunded back to him.
7. Respondents on the other hand have stated applicant has not come to the court with clean hands. They have stated disciplinary proceedings against the applicant were pending on the date of superannuation, i.e., 31.1.2001 as per the NPL's OM dated 23.12.2000, due to which the gratuity and leave encashment could not have been released till the conclusion of the inquiry. Moreover his gratuity and leave encashment was withheld as per the rules. Applicant has suppressed these material facts from the Hon'ble Court, therefore, OA is liable to be dismissed on this ground alone.
8. Respondents could have initiated disciplinary proceedings against applicant in terms of Rule 13 (ii) of CSIR (Residence Allotment) Rules, 1997 for his illegally retaining the possession of the council accommodation allotted by the respondents. However, he has been let off only by deducting the penal licence fee, therefore, applicant is not entitled for any indulgence from this Hon'ble Tribunal. The OA may be dismissed.
9. On merits, respondents have explained CSIR is not governed by the Public Premises (Eviction of Unauthorised Occupants) Act since it is not covered under the Notification of the said Act. The employees of CSIR are governed by the CSIR (Residence Allotment) Rules, 1997, therefore, the present OA is liable to be dismissed. Penal licence fee has been recovered as per the said rules as he retained the accommodation unauthorisedly.
10. Applicant was granted permission only up to 31.5.2001. Immediately thereafter, applicant was directed to vacate the quarter vide letter dated 20.6.2001 followed by reminders dated 28.12.2001 and 15.3.2002 informing him that if he does not vacate, action would be taken as per rules. In spite of it he did not vacate the quarter so applicant cannot have any grievance now.
11. They have stated CSIR is an autonomous body registered under the Societies Registration Act, 1860 and NPL is one of the constituents of CSIR. Since respondents are having their own allotment rules called 'CSIR (Resident Allotment) Rules, 1997, therefore, dispute relating to the allotment is to be governed by the said rules. Public Premises Act is not applicable in this case. They have further explained that the retirement benefits of the applicant were withheld in accordance with the CCS (Pension) Rules and Rule No. 19 of the CSIR (Residence Allotment) Rules, 1997 both.
12. I have heard both the counsel and perused the pleadings. Admittedly applicant was employed with National Physical Laboratory (hereinafter referred to as NPL) at the time when Quarter No. 9C/1 N.P.L. Colony, New Delhi was allotted to him which is one of the constituents of Council for Scientific and Industrial Research. Admittedly, CSIR is an autonomous body registered under the Societies Registration Act, 1860 having their own rules known as CSIR (Residence Allotment) Rules, 1997 approved by the Governing Body.
13. In the rules it is clearly mentioned that these rules may be called the CSIR Residence Allotment Rules 1997. They shall come into force form the date of notification and supersede the allotment rules hitherto in force. The circulars/orders issued on the subject earlier shall stand superseded or modified to the extent they are inconsistent with these allotment rules. These rules shall apply to the employees of the Laboratories/Institutes under the Council of Scientific & Industrial Research and the CSIR Headquarters.
14. In Rule 2 Head of the Lab./Institute has been defined as Director of the Laboratory/Institute or in his absence an officer authorized by the Director to exercise the powers under these rules. Whenever the post of Director is vacant, the officer authorized by CSIR Headquarters shall be deemed to be the Head of the Laboratory/Institute.
Laboratory/Institute/CSIR Headquarters or group of Laboratories/Institutes and/or CSIR Headquarters.
16. Rule 11 specifically deals with period for which allotment subsists and the concessional period for further retention. It reads as under: Period for which allotment subsists and the concessional period for further retention An allotment shall be effective from the date it is accepted by the employee and shall continue to be in force until: cancelled by the Head of the Laboratory/Institute or deemed cancellation under any provision of these rules; 11.2 A residence allotted to an employee may be allowed to be retained on the occurrence of any of the events mentioned below for the specified against each from the date of such occurrence subject to the condition that the residence is required for the bona fide use of the employee or the members of his family:S. No. Events Permissible period of Retentiona.
Resignation, dismissal or 1 month removal from service or 17. As per Rule 12, Head of Laboratory may allow retention of council residence for a period not exceeding 6 months beyond the permissible concessional period. However, in case of retirement the maximum limit is 4 months only.
18. Rule 13 further makes it clear that where allotment is cancelled or is deemed to have been cancelled, the allottee shall render himself liable for payment of penal licence fee and damages etc. Rate of penal licence fee is also mentioned in these rules.
19. In Rule 19 it is further clarified that each employee shall give an undertaking at the time of allotment of residence that he shall vacate the residence on cancellation or deemed cancellation of allotment, failing which he shall be liable to pay penal licence fee and that the Council shall have authority to withhold his gratuity and leave encashment etc. Provided that gratuity and leave encashment etc. may be released on furnishing of back guarantee by the employee for an equivalent amount. Bank guarantee shall be discharged after vacant possession of the residence is surrendered to the Council and all the dues relating to the residence have been settled, filing which the bank guarantee shall be invoked.
20. From above rules, it is clear that maximum period for which applicant could have been allowed to retain the house was 4 months.
Admittedly, applicant was allowed to retain the house only up to 31.5.2001, i.e., 4 months after retirement. Immediately thereafter, applicant was served with letter dated 20.6.2001 calling upon him to vacate the house failing which action as per allotment rules will be taken. He was also informed that permission granted up to 31.5.2001 has already expired.
21. It is thus clear that though applicant had applied for further retention, it was not allowed. On the contrary he was directed to vacate the Quarter by informing him the consequences also. Another letter dated 28.12.2001 was again sent to the applicant on same lines.
It is also relevant to note that both these letters were sent by the Estate Officer. Applicant had received these letters because he has himself annexed these letters and has not even disputed the averments made by respondent because he has not even filed any rejoinder. The applicant was thus fully aware of the consequences of retaining the quarter unauthorisedly beyond permissible date viz. that he would be liable to pay the penal licence fee. It is also made clear in the rules itself that his gratuity or leave encashment could be withheld. In these circumstances if respondents withheld his gratuity as applicant continued to retain the quarter unauthorisedly, applicant cannot have any valid grievance specially when disciplinary proceedings were also pending against him on the date when he retired. Perusal of the records produced by respondents show that a charge-sheet was issued to the applicant on 23.12.2000 on the following allegations: 1. that while the estimate for the extension work at semiconductor laboratory was being prepared under his guidance he committed misconduct by allowing the estimate to be kept below Rs. 5,00,000/- (Five lakhs) with mala fide intention of circumventing the Authority of the Management Council and subsequently after the initiation of work drew undue benefits from the resulting increase in costs owing to unauthorized deviations.
2. that the charged officer committed misconduct by firstly sanctioning the original faulty estimate and subsequently justifying the deviation in the work, whereby he misled the authorities with the ulterior motive of extending undue benefits to the contractor.
3. that Shri K.L. Ahuja committed misconduct as he had neither reported to his seniors the flaws in the estimate which led to wrongful execution of excess quantities of the work, nor did he report the excess quantity of work that were executed in excess of the sanctioned estimate owing to the conspiracy between him and other engineers concerned with the work, that some of the amount of money ear marked for the development of the work of ceramic shed site would be made available to fill the short gap in the estimate.
22. Thus on the date when applicant retired on 31.1.2001 this disciplinary case was still pending against him, therefore, in any case his retrial dues could not have been released in view of Rule 69 of CCS (Pension) Rules. It is, therefore, wrong to suggest that his retrial dues were withheld only because of unauthorized retention of quarter.
In fact it would be wrong to hold that applicant has not approached this Court with clean hands inasmuch as the fact that disciplinary case pending against him on the date of retirement has been suppressed by the applicant. This OA could have been dismissed on this ground alone.
However, since I have heard both the counsel I would like to deal the contentions of the applicant as well.
23. Counsel for the applicant relied on Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to state the procedure laid there under should have been followed. However, since applicant is governed by CSIR (Residence Allotment) Rules, 1997, he cannot place reliance on Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Rule 13 of CSIR (Residence and Allotment) Rules, 1997 makes it abundantly clear that if any person retains the house after deemed cancellation, he renders himself liable for penal licence fee, therefore, when applicant retained the quarter beyond 31.5.2001, he was liable to pay the penal license fee as per the rules which govern him.
24. Counsel for the applicant placed reliance on the judgment in the case of R. Kapur v. Director of Inspection . However, this case is not at all relevant in the present facts because appellant in the said case was governed by Public Premises (Eviction of Unauthorised Occupants) Act, whereas applicant is governed by CSIR (Residence Allotment) Rules, 1997. Moreover, facts of that case are also different. In R. Kapur's case damages were already reduced to Rs. 176/- from Rs. 1070/- per month by the District Judge in 1984 yet neither the amount recovered in excess was refunded nor his gratuity was released. It was in those circumstances that interest @ 18% was directed to be paid by Hon'ble Supreme Court because there was unjustified culpable delay on the part of respondents.
25. Per contra in the instant case, on the date when applicant retired, disciplinary proceedings were pending against him, therefore, his gratuity and leave encashment could not have been released due to said reason. Moreover, applicant is governed by CSIR Residence Allotment Rules and as per these rules also, his gratuity and leave encashment could have been withheld. Admittedly, applicant vacated the house only in October, 2006 and revised settlement account was issued on 22.11.2006, i.e., within one month, whereby the penal licence fee was deducted and rest of the dues were paid to the applicant. The rate of penal license fee is also given in the rules, therefore, it cannot be stated that respondents had withheld the gratuity without any justification or there was any culpable delay on the part of respondents in this case. It is not even disputed by the applicant, that disciplinary proceedings were pending against him, therefore, the facts of present case is different from R. Kapur's case. In these circumstances R. Kapur's judgment cannot advance the case of applicant.
Applicant's case would have to be tested, on the given facts in his case. Since his gratuity was withheld as per rules, we do not find any illegality in the actions of the respondents.
26. At this juncture it would be relevant to refer to the judgment of Hon'ble Supreme Court in Union of India v. Sisir Kumar Deb reported in 1999 SCC (L&S) 781. In this case respondent had retired from service but he failed to vacate the quarter allotted by the Railway Administration. In spite of direction given by the Tribunal to vacate the quarter since respondent had not vacated, Railway Administration deducted the amount due from the pensionary benefits of the respondent.
This action was challenged by the employee in OA No. 599/1992. While deciding the OA, department was precluded from recovering the amount from the employee and direction was given to the Railways to refund the amount already recovered. When the matter was carried to Hon'ble Supreme Court by the Railway Authorities, Hon'ble Supreme Court held as follows: We find it difficult to comprehend the rationale for the view taken by the Judicial Member. Instead of ensuring delivery of possession from a person who, in violation of the Tribunal's order, was continuing to occupy the quarter and who could not have been said to have approached the Tribunal with clean hands, the Tribunal has virtually rewarded him, in that, he can now continue to remain in occupation of the quarter indefinitely and also not pay the charges for the same. The order passed by the Tribunal quashed and set aside. Liberty was given to the Railway Administration to take possession of the quarter from the respondent, if necessary, even by use of force, if he does not deliver the possession within 15 days and they shall also be free to recover its due from the pensionary benefits of respondent and if the same falls short, the difference in accordance with law.
From above, it is clear that an employee could not be allowed to continue in the quarter indefinitely, that too without making the payment as stipulated under the rules.
27. In the instant case we have already quoted the rules in extenso which give power to the respondents to recover the penal licence fee from the gratuity and leave encashment of the applicant. In these circumstances the action of the respondents cannot be said to be illegal or arbitrary by any stretch of imagination.
28. Reference may be made to the case of another employee of CSIR viz.
Shri K.N. Bahuguna who also had not vacated the quarter and had continued to retain the quarter without paying the penal licence fee.
In that case, this Tribunal allowed the CSIR to adjust the penal licence fee from the gratuity and pensionary amount admissible to the employee by observing that the employee was liable to pay penal licence fee for unauthorized retention of premises in question. It was further held if any dues from the employee still remained recoverable, it will be open to the authorities to recover the same in accordance with law.
The said judgment of the Tribunal was challenged by Shri K.N. Bahuguna before the Hon'ble High Court of Delhi by filing Writ Petition (C) No.597/1988. After discussing the rival contentions, Hon'ble High Court observed that the petitioner had stayed on the premises for the period of more than three years after his entitlement to stay on the said premises was over, therefore, he was an unauthorized occupant of the said official premises depriving the other entitled officials to use the same. In the said case also, it was noted that though he had sought extensions but admittedly it was not granted to him. It was thus held that the petitioner in the said case was trying to legitimate his illegal occupation of the premises by taking refuge to the process of law which could not be permitted. In such circumstances Hon'ble High Court of Delhi had observed that no case is made out for interference and Writ Petition was dismissed. In other words the direction given by the Tribunal to recover the penal licence fee from the gratuity of the employee was upheld by the Hon'ble High Court of Delhi. Same is the position in the present case because here also the applicant was employed in NPL, one of the constituents of CSIR and had overstayed in the quarter after permissible period in spite of repeated letters to vacate the quarter failing which action would be taken against him as per the rules.
29. Since applicant continued to retain the quarter unauthorisedly and respondents have deducted the penal licence fee from gratuity and leave encashment of applicant, he cannot have any valid grievance.
30. Counsel for the applicant had relied on Shekhar Ghosh v. U.O.I.reported in 2007 (1) SCC (L&S) 247. However, that case is also different. That was a case where appellant was repatriated to a lower post without giving him show cause notice even though order had civil consequences. It was in those circumstances that Hon'ble Supreme Court held post decisional hearing is not sufficient as authority had already made up his mind whereas in the instant case respondents have acted in accordance with rules, therefore, this judgment can also not advance applicant's case.Gorakhpur University and Ors. v. Dr. Shitla Prasad Nagendra and Ors. . However, even this case is distinguishable as no decision was taken by the authority to allot the accommodation to his son. Moreover, university had passed resolution to waive penal rent from all teachers whereas in the instant case respondents had in writing called upon the applicant to vacate the quarter informing him failing which action would be taken as per rules so even this judgment does not advance the case of applicant.
32. Apart from all this, it is relevant to note that rules provide for an appeal also. If applicant was aggrieved by the action of Head of Laboratory under Rule 13, applicant could have filed appeal to the DG, CSIR within 21 days under Rule 27. This remedy seems to have been not availed by the applicant as no appeal is annexed with the OA.33. Applicant's only argument was that recovery could have been made after following due process as mentioned in Public Premises (Eviction of Unauthorised Occupants) Act but the said argument is not sustainable in law as CSIR is governed by its own self contained rules and have their own estate officer. Since respondents have acted as per those rules, no case is made out by the applicant for interference.