Tejram S/O Namdeorao Kuhite vs The Chairman Cum Managing ...
2021 Latest Caselaw 4827 Bom

  Judgment                                   1                        W.P.No.777.2021.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                           WRIT PETITION NO. 777 OF 2021


          Shri Tejram S/o Namdeorao Kuhite,
          Quarter No.VII/6/3, KTPS, Koradi,
          Nagpur.

                                                                  .... PETITIONER

                                       // VERSUS //

  1)      The Chairman cum Managing Director,
          Maharashtra State Power Generation
          Company Limited, 6th Floor, Prakash
          Garh, Bandra (East), Mumbai - 400051.

  2)      The Chief Engineer,
          Maharashtra State Power Generation
          Company Limited, Koradi - 441111.

  3)      The Chief Engineer,
          Maharashtra State Power Generation
          Company Limited, Parli - 431520.
                                               .... RESPONDENTS
  ______________________________________________________________
       Ms. Radhika Bajaj, Advocate for the petitioner.
       Shri A. D. Mohgaonkar, Advocate for the respondent No.2.
  ______________________________________________________________

                           CORAM : SUNIL B. SHUKRE AND
                                   AVINASH G. GHAROTE, JJ.

DATED : 17.03.2021.

ORAL JUDGMENT : (Per Sunil B. Shukre, J.)

1. Hearing is conducted through Video Conferencing and all

the learned Advocates agreed that the audio and visual quality was

proper.

Judgment 2 W.P.No.777.2021.odt

2. Heard. Rule. Rule made returnable forthwith. Heard finally

by consent of the learned counsel appearing for the parties.

3. The petitioner is a Junior Engineer who was transferred by

an order passed on 31.05.2018 from Thermal Power Station, Koradi to

Thermal Power Station, Parli. The petitioner was relieved from his duty

on 13.07.2018. At that time, the petitioner was occupying a quarter

allotted to him by the Thermal Power Station, Koradi and according to

applicable norms, the petitioner was supposed to vacate the quarter at

the time of his getting relieved from Thermal Power Station, Koradi.

The petitioner, however did not vacate the quarter as he was hopeful

that his application dated 02.06.2018 requesting his retention at

Thermal Power Station, Koradi would be allowed. This application was

indeed allowed subsequently by an order passed on 23.08.2018.

Before that, the petitioner had made an application on 06.08.2018

making a request for retention of his quarter. The ground taken by the

petitioner was that in August 2018, the son of the petitioner had taken

admission in 10th standard of St. Anns English Medium School,

Dahegaon, Khaperkheda Road, Nagpur. The petitioner relied upon the

Circular dated 20.01.2011 which prescribed that an employee of the

Power Station can be allowed to retain the quarter allotted to him at

original place of working on transfer beyond initial four months on the

grounds stated therein. It was the case of the petitioner that he was

covered by ground Nos.1 and 2 mentioned in the circular.

Judgment 3 W.P.No.777.2021.odt

4. It appears to us that the application of the petitioner dated

06.08.2018 remained pending and nothing was communicated about

acceptance or rejection of the application to the petitioner. The

petitioner, therefore, moved another application on 03.10.2019

informing the Authorities that his son by that time had taken

admission in 11th standard and his daughter was also studying in final

year of B.E. Graduate course. He accordingly made a request for

granting permission to him to retain the quarter for a period of one

year. This application, it appears, was also not decided by the

respondents.

5. The respondents, however, sent a communication to the

petitioner which was of the date of 24.10.2019. By this

communication, the petitioner was informed that as he had neither

vacated the quarter nor submitted any permission to retain the quarter,

the Power Station Authorities had taken a decision to recover the

quarter rent as per the rates mentioned in the communication, till

vacation of the quarter. The rate mentioned was of Rs.81/- for the two

months from 14.07.2018 to 13.09.2018 and then the higher rates were

mentioned for further periods in a graded manner. The market rent

was sought to be levied for the period of 14.11.2018 till vacation of the

quarter. Another reminder regarding payment of normal rent, standard

rent, penal rent and market rent was issued to the petitioner on

08.01.2020. Finally, on 25.06.2020, the petitioner was served with an

Judgment 4 W.P.No.777.2021.odt

ultimatum to pay the rent at the said rates failing which the same

would be recovered from his monthly salary. Being aggrieved by

inaction as well as arbitrary action of the respondents, the petitioner is

before this Court for redressal of his grievance.

6. Ms. Radhika Bajaj, learned counsel for the petitioner

submits that both the applications dated 06.08.2018 and 03.10.2019

were not decided in any manner by the respondents and even though

the case of the petitioner was squarely covered by the Circular dated

20.01.2011, the standard, penal and market rent has been illegally

directed to be recovered from the petitioner's salary. She also submits

that similarly situated employee, one Gajanan Ilame, who was posted

at Thermal Power Station, Chandrapur was granted benefit of the

Circular dated 20.01.2011 and was allowed to retain his quarter for a

period of two years. But, the petitioner who was an employee of

Thermal Power Station, Koradi has been denied the same benefit. She

also submits that Gajanan Ilame has been allowed to retain the quarter

by relying upon the Circular dated 20.01.2011, but, the Authorities at

Thermal Power Station, Koradi had turned blind to the guidelines

stated in this very circular, even though the case of the petitioner is just

as similar as that of Shri Gajanan Ilame.

7. Shri A. D. Mohgaonkar, learned counsel for the respondent

No.2 vehemently opposed the petition and submits that whole blame

Judgment 5 W.P.No.777.2021.odt

lay with the petitioner. He submits that it is doubtful if the petitioner

had genuinely made an application dated 06.08.2018 as, on that date,

the petitioner was found to be working at Thermal Power Station, Parli

and not at Thermal Power Station, Koradi and therefore, it is not

possible for any person to have personally filed such an application at

Koradi. He also submits that this application was addressed to a wrong

department and therefore, there was no question of consideration of

this application, although it's receipt by the respondents is doubtful.

He further submits that the application dated 03.10.2019 was

impliedly rejected by the communication issued to the petitioner on

24.10.2019, whereby the petitioner was called upon to pay the higher

rent as per the slabs mentioned in this communication. He also submits

that the petitioner had failed to submit any proof regarding his son

taking education in the 10th standard in July-August 2018 and

therefore, the application of the petitioner could not have been

allowed in any case. He submits that the petitioner being an employee

of the Power Station, was supposed to exhibit a minimum standard of

discipline which required the petitioner to be diligent not only in

performance of his duty but also in making request to the Authorities

for gaining some advantage of personal nature. He submits that as the

petitioner failed to submit any proof regarding studying in 10 th

standard of his son, the petitioner does not deserve any indulgence by

this Court. He also submits that the petitioner has been occupying this

Judgment 6 W.P.No.777.2021.odt

quarter since the year 1999 and if this petition is to be allowed, it

would send a wrong message to the other employees that even if they

do not exhibit the minimum standard of discipline, nothing would

happen to them.

8. On going through to the averments made in the petition,

reply filed by the respondents and various documents filed by both

sides, we are of the view that there is no substance in the argument of

learned counsel for the respondents and there is great merit in the

submissions of the learned counsel for the petitioner.

9. In our view, the defence taken by the respondents holds no

water as there is no specific denial of the receipt of the application

dated 06.08.2018 and there is no reference made in any manner about

the second application dated 03.10.2019 in the communication dated

08.01.2020. On the contrary, it appears to us that the communication

dated 08.01.2020, has been issued in ignorance of pendecy of the

application dated 03.10.2019. The reason being that this

communication makes an observation in the words "But it is observed

that till date he has neither vacated the quarter nor submitted the

permission to retain the quarter", and does not mention that the

petitioner has not made any application for retention, which facts

support our such conclusion. There is one more aspect, which confirms

our view. It is stated that the petitioner has not submitted the

Judgment 7 W.P.No.777.2021.odt

permission to retain the quarter and this fact, in our view indicates an

acknowledgment of the fact that there is no rejection of the request of

the petitioner regarding retention of the quarter.

10. In the subsequent communication dated 25.06.2020,

which is sort of ultimatum for payment of higher rent failing which the

same would be recovered from the monthly salary of the petitioner,

there is a reference to the application of the petitioner dated

03.10.2019. But again, this ultimatum does not speak out in any

manner that the application dated 03.10.2019 has been rejected by the

Authorities. So, what emerges now is that the application dated

03.10.2019 has not been decided in any manner by the respondents. In

addition to this, the application dated 06.08.2018, having not been

specifically denied to have been received by the respondents, also

appears to be pending with the respondents. So, both these

applications in respect of their having been received by the

respondents, have not been decided by the respondents. Instead of

deciding these applications, the respondents have straight away

imposed higher rates of rent upon the petitioner and also directed

recovery of the higher rent from his salary. The respondents who are

the Superior Authorities of the petitioner themselves have not followed

the requirement of effective administration, one of which is to not keep

pending any application or representation received by them beyond a

reasonable period and therefore, they can not legitimately expect an

Judgment 8 W.P.No.777.2021.odt

employee like the petitioner to be more disciplined than themselves.

Their contention that on 06.08.2018, the petitioner being present at

Parli could not have personally submitted the application at Koradi is

also without substance. There is nothing on record which shows that

the petitioner was personally present at Koradi and it cannot be said

that no application can be sent to the respondents through another

person.

11. Another defence of the respondents about non submission

of proof regarding studying of son of the petitioner in 10 th standard is

also not acceptable for the reason that the petitioner and the

respondents being part of the same organization and being not acting

as adversaries to each other are expected to act and perform their

respective duties in a manner which would achieve the twin objects of

efficiency in administration and welfare of the employees. To achieve

the twin objects, a certain degree of camaraderie is required where

there is a feeling of co-operation and trust among the superiors and the

inferiors in the bureaucratic set up of the organization which goes a

long way in development of the organization. So, if it was the case of

the respondents that the petitioner had not submitted the proof of his

son studying in 10th standard, keeping themselves aligned to the spirit

of co-operation and confidence among of the members of the

Thermal Power Station, the respondents ought to have called upon the

petitioner to submit the requisite proof, which they did not. This

Judgment 9 W.P.No.777.2021.odt

inaction or if we may say indifference, in our opinion has resulted in

some misunderstanding on the part of the respondents which led to

the penal action against the petitioner. Consistent with the spirit in

which the administration of any organization should be run, a

decision, whatever it may have been, rejection or acceptance on the

said two applications of the petitioner, was necessary and that decision

never came up to the surface. That being so, now the merits of these

two applications would have to be considered by us. Normally we

would have left it to the discretion of the respondents but, in this case

we would not do it in exercise of our extraordinary power under

Article 226 of the Constitution of India. The reasons are obvious. Lot of

time has gone by and now then to let in if the matter is to be

remanded to the respondents, it is likely that another round of

litigation, if the decision is in the negative, would get triggered. Then,

there is also an issue of arbitrariness and discriminatory treatment

given to the petitioner based on his contention that his case is covered

by office Circular dated 20.01.2011.

12. In the circumstances, we now proceed to deal with the

question as to whether the case of the petitioner is covered by the

office Circular dated 20.01.2011 or not. We have seen the certificate

filed on record by the petitioner which is at page No.45. It shows that

in the academic year from June 2018 till May 2019, the petitioner's

son Tanmay Tejram Kuhite was studying in 10 th standard run by St.

Judgment 10 W.P.No.777.2021.odt

Anns English Medium School, Dahegaon, Khaperkheda Road, Nagpur.

Although this certificate, as stated by learned counsel for the

respondents, does not appear to have been submitted by the petitioner

at the time of making of his both the applications, there is nothing in

law which would prevent us, on the backdrop of facts peculiar to this

case, from considering this certificate produced before us at this

juncture. As stated earlier, the respondents ought to have called upon

the petitioner at the relevant time to produce the proof of his son

studying in 10th standard. But, the respondents did not do so. The

respondents also did not reject those applications and then suddenly,

the respondents decided to recover higher rent from the petitioner on

the ground that the petitioner did not vacate the quarter on time and

also did not produce before the Authorities any permission for

retention of the quarter. So, we would consider this certificate. It has

not been shown to be false or forged. Relying as such on it, we find

that it supports the ground taken by the petitioner in his said

applications. This ground is covered by circumstances mentioned in

paragraph Nos.1 and 2 of the Circular dated 20.01.2011. For the sake

of convenience, their relevant portions are reproduced as under :-

"1) To allow an employee on transfer to retain company's quarter at original place of working beyond period of 4 months if his/her children are studying in 10th or 12th standard till the completion of 10th or 12th exams of their children of that academic year.

Judgment 11 W.P.No.777.2021.odt

Further the employee shall have to vacate the company's quarter.......

2) If the transfer of employee is I the mid-term of academic year, retention shall be allowed upto end of the academic year ."

13. It would be clear from the above referred circumstances

mentioned in the office Circular that the case of the petitioner is

indeed covered by them. Similar was the situation of one Gajanan

Ilame, an employee of Thermal Power Station, Chandrapur, who was

granted benefit of retention of quarter based on these very grounds

and the benefit so granted to him was not in any violation of any law.

That is also not the case of the respondents. There is thus substance in

the submission of the petitioner that he has been meted out

discriminatory and arbitrary treatment in the present case. This

petition, therefore, deserves to be allowed.

14. In the result, we allow the petition. The petition is allowed

in terms of prayer clause (a) of the petition. We also direct the

respondent No.1 to refund the amount which may have been so far

deducted from the salary of the petitioner, but without any interest.

Rule is made absolute accordingly.

             (AVINASH G. GHAROTE, J.)                 (SUNIL B. SHUKRE J.)


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