Calcutta High Court (Appellete Side)

Kharagpore & Ors vs Sri Dipankar Chakraborty on 11 May, 2023

                     IN THE HIGH COURT AT CALCUTTA
                                Civil Appellate Jurisdiction
                                   APPELLATE SIDE



Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee


                                        FA 53 of 2023
                                       FAT 511 of 2019

                          The Estate Officer, South Eastern Railway,
                                     Kharagpore & Ors.
                                           versus
                                Sri Dipankar Chakraborty



For the Appellants          :       Mr. Atarup Banerjee



For the Respondent          :       Mr. Nilendra Narayan Ray.



Hearing is concluded on     :       3rd April, 2023.



Judgment On                 :       11th May, 2023.



Partha Sarathi Chatterjee, J.

1. Legality and propriety of the judgment and decree dated 17th

November, 2017 passed by the learned Civil Judge, Senior Division, 8th

Court, Alipore, South 24 Parganas in Money suit no. 232 of 2009 have been

called in question in the present appeal.

2. By the judgment and decree impugned, the learned Court below

decreed the suit declaring the plaintiff/respondent (in short, respondent) to

be entitled to get Rs.3,10,912/- along with interest @ 8% p.a. accrued

thereon from the date of the suit till date of realization thereof from the

defendants/appellants (in short, the appellants).

3. Shorn of unnecessary details, facts spelt out in the plaint are as

follows :

i) Respondent, joined as Junior Assistant Accounts in the office of

the Senior Divisional Accounts Officer of South Eastern Railway

on 2.5.1988, who was subsequently transferred to the post of

Section Officer (Accounts) of Accounts Department (Settlement

Section) at the Headquarter at Garden Reach, Kolkata;

ii) One Pabitra Kumar Halder (in short, Pabitra), Assistant

Efficiency Officer of South Eastern Railway (in short, S.E. Rly.)

was allotted one flat being no. 13B of Unit no. 1 at Garden

Reach (hereinafter referred to as the said quarter) in 1981 and

Pabitra became seriously ill and remained under prolong

treatment and respondent upon sympathetic grounds had to

stay occasionally in the said quarter along with Pabitra

particularly to look after him;

iii) From a letter dated 28.3.1996, respondent came to know that

the railway authority by passing an order dated 20.8.1995

declared the respondent to be an unauthorised occupant of the

said quarter and proceeded to recover monthly damages @

Rs.34/- per sq. meter of plinth area of the said quarter

admeasuring about 120 sq. mts. w.e.f. September, 1994;

iv) Estate Officer, South Eastern Rly., Kharagpore, appellant no. 1

herein initiated a proceeding vide. Case no. E/16/2002/GRC

and by an order vide. no. 1 dated 6.8.2002 directed the

respondent to pay a sum of Rs.3,10,912/- as damages and

appellant no. 1 further directed that aforesaid sum of money

would be recovered from monthly salary of the respondent in

60(sixty) equal monthly instalments;

v) Respondent assailed the said order dated 6.8.2002 in one P.P.

Appeal vide. no. 01 of 2002 being an appeal under Section 9 of

Public Premises (Eviction of Unauthorised Occupants) Act, 1971

(in short, Act of 1971) before the learned District Judge, Alipore

and during pendency of that appeal, appellants started

deducting the aforesaid amount, as assessed as damage, from

the salary of the respondent @ Rs.5000/- per month;

vi) By an order dated 6.8.2005, learned District Judge stayed the

operation of order dated 6.8.2002 and order dated 6.8.2005 was

duly communicated to the appellants but they did not stop

deducting the aforesaid amount being Rs.5000/- from the

monthly salary of the respondent till December, 2017. The said

appeal was transferred to the Court of learned Additional

District Judge, 1st Court, Alipore for disposal;

vii) By an order dated 25.4.2006 passed by learned Additional

District Judge, 1st Court, Alipore, order passed by the Estate

Officer dated 6.8.2002 in case no. E/16/2002/ ERC was set

aside;

viii) Order dated 25.4.2006 was communicated to the appellants

and by a letter dated 19.5.2006, respondent requested the

appellants to refund the amount being Rs.3,10,912/-, which

was deducted from the salary of the respondent from November

2002 to till December, 2007, with interest @ 18% p.a. but no

amount was refunded and hence, by giving one notice u/s. 80

CPC on 20.3.2009, respondent instituted the suit.

4. Record reveals that defendant no. 2 contested the suit and used

written statement. Crux of the defendant's case, as would be explicit from

the written statement and the documents annexed thereto, was as follows:

i) Pabitra made a complaint on 29.3.1995 to Sr.

DGM/S.E.Rly./GRC contending therein that he was subjected

to mental agony and torture by the respondent while staying in

his quarter and said complaint was referred to P.T. Jehmson,

one Sub-inspector, RPF to hold enquiry, who upon enquiry

found substance in such allegation and reported that

respondent was forcibly and unauthorisedly occupying the

quarter. Consequently, one eviction case vide. E/8/95/GRC

was initiated against the respondent and order of eviction was

passed on 18.4.1996 and vacant possession of the quarter was

recovered from the respondent on 25.4.1999;

ii) Respondent illegally occupied the flat allotted to Pabitra from

September, 1994 to 24.8.1999. As per the service rule governing

the respondent, no non-gazetted staff like the respondent (other

than relative) can occupy the quarter allotted to Pabitra, a

Gazetted Officer;

iii) Consequently, initially, Railway authority discontinued payment

of his House Rent Allowance (HRA) from March, 1996 holding

that HRA paid to respondent from September, 1994 till

February, 1996 amounting Rs.6733/- as overpayment and

damage rent was of Rs.60,729/- was levied;

iv) Respondent filed a series of cases. He took the dispute to

Central Administration Tribunal by filing one original

application vide. O.A. no. 1296 of 1997 which was decided

against the respondent. Respondent filed one review application

vide. R.A. 23/1998 which was also rejected;

v) Aggrieved thereby, respondent impugned the order of the

learned Tribunal before the Hon'ble High Court at Calcutta by

taking out an application vide. W.P.C.T. no. 55 of 2000;

vi) WPCT no. 55 of 2000 was disposed of on 27.7.2001 by giving

necessary guidelines to the appellants to deal with the matter

and in obedience to the order dated 27.7.2001, matter was

referred to Estate Officer concerned, who initiated a proceeding

under Sub-section (2) of Section 7 of the Act of 1971, which was

registered as Case no. E/16/2002/GRC and by an order dated

6.8.2002, respondent was directed to pay damages to the tune

of Rs.3,10,912/- which was directed to be recovered from his

monthly salary in 60(sixty) equal monthly instalments;

vii) In the meantime, respondent filed another original application

being O.A. no. 146 of 2003 seeking direction upon the

appellants to release the unpaid amount of HRA amounting to

Rs.52,371/- withheld from the salary of the respondent from

March, 1996 to 24th August, 1999 and balance amount of

damage rent to the tune of Rs.9,519/- with interest @ 18% per

annum which was disposed of directing the parties thereto to

seek proper remedies as per law. Assailing the order passed in

O.A. no. 146 of 2003, another writ petition vide. WPCT no. 384

of 2006 was filed by the respondent which has been disposed of;

viii) It was claimed that as per the guidelines of the Hon'ble High

Court given in WPCT no. 55 of 2002, Rs.3,10,912/- was

deducted from the salary of the respondent and it was further

claimed that suit was bad for non-joinder of necessary party

being FA & CAO (Admn-Bills).

5. Upon pleadings of the respective parties, the learned Court framed

as many as five issues and in corroboration of the facts depicted in the

plaint, plaintiff/respondent examined himself as PW-1 and tendered the

documents which were admitted in evidence as Ext.1 to 4 whereas to refute

the claim of the plaintiff, defendants/appellants adduced oral testimony of

one Smt. Tanuja Thakur and one copy of the order passed in WPCT no. 55

of 2000 was produced and marked as 'X' for identification.

6. Learned Court below decreed the suit and directed the appellants to

refund the amount being Rs.3,10,912/- along with interest @ 8% p.a.

accrued thereon from the date of suit till the date of realization thereof.

7. Aggrieved thereby, the appellants have impugned the judgment and

decree in the present appeal contending, inter alia, the learned Court did not

consider that the respondent illegally occupied the quarter allotted to

Pabitra and learned Court below omitted to consider the complaint of

Pabitra, enquiry report on such complaint and other orders passed in the

matter and learned Court below did not consider that Estate officer passed

the order directing the respondent to pay Rs.3,10,912/- as per the order

passed in WPCT no. 55 of 2002.

8. Mr. Atarup Banerjee, learned advocate representing the appellants

submits that the respondent illegally occupied the quarter allotted to Pabitra

and Pabitra made a complaint to the effect that he was subjected to torture

and on enquiry, such complaint was found to have substance and he

contends that as per the service rules governing the respondent, no non-

gazetted employee can occupy the quarter allotted to gazetted officer but in

the case at hand, respondent being one non-gazetted employee had illegally

occupied the quarter allotted to Pabitra, who happened to be a gazetted

officer and hence, Estate officer correctly directed the respondent to pay the

damages to the extent of Rs.3,10,912/-.

9. According to Mr. Banerjee, Estate officer concerned passed the

order directing the respondent to pay Rs.3,10,912/- in accordance with the

order passed by the Hon'ble Court in WPCT no. 55 of 2002. He contends

that judgment and decree, which was passed ex parte, cannot be sustained

and hence, those are required to be set aside.

10. Mr. Ray, learned advocate for the respondent submits that

respondent did not occupy the quarter forcibly. Pabitra fell ill and on

humanitarian and sympathetic grounds, on being requested by Pabitra only

to give support to Pabitra, who was suffering schizophrenia, respondent

used to stay with Pabitra. He argues that appellants at one time withheld

HRA of the respondent and then directed him to pay damages rent of

Rs.60,729/- and then using the order of the Hon'ble High Court at Calcutta

passed in WPCT no. 55 of 2002 as shield, deducted huge amount being

Rs.3,10,912/- from the salary of the respondent illegally. He submits that

judgment and decree have been passed assigning reason and hence, there is

no scope to interfere with the same.

11. Answering our query, Mr. Ray, submitted that all the amounts

deducted from the HRA and as damages excepting the amount being

Rs.3,10,912/- have been refunded to the respondent.

12. We have been informed that the appellants filed an application

under Order 9 Rule 13 of the Code, which was registered as Misc. case no.

19 of 2009. The same was dismissed and even the Writ petition being WPCT

no. 384 of 3006 which was filed challenging the order passed in O.A. no.

146 of 2003 has also been disposed of and as on date, no case except the

present lis is pending in between the parties hereto.

13. Indisputably, order passed in P.P. Appeal vide. no. 01 of 2002 on

25.4.2006 has attained finality. By an order dated 25.4.2006, learned

Additional District Judge, 1st Court, Alipore set aside the order dated

6.8.2002 passed by the Estate Officer, S.E. Rly, Kharagpur in Case no.

E/16/2002/GRC. Appellants did not take any step to assail the order

25.4.2006 before any other forum. Appellants have given effect to the order

dated 6.8.2002 passed by the Estate Officer and deducted the amount being

Rs.3,10,912/- from the salary of the respondent but fact remains as on

date, there is no order to lent support to deduction of the amount from the

salary of the respondent.

14. Appellants took the plea in the written statement used in Money

Suit no. 232 of 2009 that the Estate Officer directed deduction of the

amount in obedience to the order passed in WPCT 55 of 2002.

15. A co-ordinate bench of this Court while disposing of WPCT no. 55

of 2002, in which act of withholding of HRA and recovery of damage by an

letter dated 31.10.1997 were assailed, observed that S.R. 317-B-20 'cannot

be of any help for the respondent authority to empower itself to pass any

order for recovery of damages for unauthorised occupation of any flat' and in

the said writ petition, it was further observed that 'when Railway servant

shares Government accommodation allotted to another Railway employee, he

cannot be prevented from enjoying house rent allowance as it has been clearly

indicated in the second proviso of Rule 1706 of the Indian Railway

Establishment Code Volume II and at the same time provision of Rule 1711

which starts with the caption "recovery of rent" has no application in the

present case'.

16. Admittedly it was ordered therein that observation recorded in the

order passed in WPCT 55 of 2002 shall not prevent the respondent authority

from taking appropriate action for recovery of damages but in that order,

respondent has not been declared as 'unauthorised occupant'. Such

'appropriate action for recovery of damages' is subject to determination of the

respondent as 'unauthorised occupant'.

17. Section 2(g) of Act of 1971 has defined the expression

'unauthorised occupation' which is as follows:

Section 2(g) : "unauthorised occupation", in relation to any public

premises, means the occupation by any person of the public premises

without authority for such occupation, and includes the continuance in

occupation by any person of the public premises after the authority

(whether by way of grant or any other mode of transfer) under which he

was allowed to occupy the premises has expired or has been

determined for any reason whatsoever.

18. From the complaint of Pabitra, which was drawn to our attention,

it would be explicit that Pabitra himself shared the quarter with respondent

meaning thereby, Pabitra voluntarily allowed the respondent to stay in the

quarter and then, according to Pabitra, he was subjected to torture.

19. The appellants, on one hand, have deducted HRA from Pabitra for

his occupation of the quarter and on the other hand, the appellants have

deducted damages for unauthorised occupation of a certain portion of same

quarter from the respondent. Financially, appellants sought to enjoy double

benefits from the same quarter which is not expected from a model

employer.

20. Hence, in view of the discussion made hereinabove, particularly,

since the order dated 6.8.2002 has been set aside in P.P. Appeal no. 01 of