Dhan Singh vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 699 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. In this writ petition the petitioner, who was an employee of the Railway Protection Force, has, inter alia, challenged the action on the part of the respondents of imposing penal rent/damages in respect of the period from 09.03.1992 to 01.07.1994. The petitioner is also aggrieved by the fact that the amount representing the penal rent/damages amounting to Rs 102592.85 has been withheld by the respondents from the amount of gratuity payable to the petitioner after his superannuation.

2. The facts are that the petitioner was transferred to Delhi on 05.05.1985 and was allotted a class III quarter being 40-CD, Bara More Sarai, Railway Colony, Delhi. This is the premises in question in the present petition. The petitioner was subsequently transferred to Ghaziabad on 09.03.1992.

3. Despite transfer to Ghaziabad, the petitioner retained the premises in question on the ground that no accommodation was given to him in Ghaziabad. It is, however, the respondent's contention that the petitioner had allotted the accommodation which was available to him in Ghaziabad to somebody else and thereafter pleaded that there was no accommodation available to him in Ghaziabad. In this petition, I need not go into that question. The only thing that is relevant is that the petitioner was transferred to Ghaziabad on 09.03.1992 and he retained the accommodation in question. On 15.04.1992, a notice was issued by the respondents to the petitioner for vacating the premises in question on the ground that he had been transferred to Ghaziabad. The petitioner made a representation and he also cited the Circular dated 28.12.1983 issued by the respondents which indicated that Ghaziabad itself fell within the Zone of Delhi and that accommodation was to be provided to him under pool 'D' which was in Delhi. It is his case that his retention of the premises in question was not illegal or unauthorised. The learned counsel for the petitioner further submitted that no alternative accommodation was given nor was his allotment of the premises in question cancelled. In fact, the same premises had not even been allotted to anybody else.

4. On 01.07.1994, the petitioner was transferred back to Delhi and the respondents reallotted the premises in question to the petitioner w.e.f. 01.07.1994. This position continued till the petitioner was transferred to Bombay on 24.10.1997 where he retired in December 1997.

5. Therefore, in this petition we are faced with four periods of the petitioner's employment. The first period is from May 1985 to 09.03.1992 when the petitioner was transferred to Delhi and was allotted the premises in question. There is no dispute with regard to this period. The second period is from 09.03.1992 to 01.07.1994 when the petitioner was transferred to Ghaziabad and he was employed at Ghaziabad. During this period, the petitioner, although being transferred to Ghaziabad, retained the premises in question in Delhi. The entire dispute in the present petition is with regard to this period and the respondents are of the view that during this period as per the rules they were entitled to charge penal rent in respect of the retention of the premises in question. The amount of the penal rent has been indicated as Rs 10,592.85. The third period is when the petitioner was transferred back to Delhi, i.e., from 01.07.1994 to 24.10.1997. Since the premises in question was reallotted to him w.e.f. 01.07.1994, there is no dispute with regard to this period also. Thereafter, the petitioner went to Bombay on 24.10.1997 and retired in December 1997. The fourth period commences from 24.10.1997 covering the period when the petitioner was in Bombay and the period after his superannuation/till date. Regarding this period, i.e., w.e.f. 24.10.1997, a show cause notice dated 27.06.2003 has been issued to the petitioner and the same has been shown to me and it is clear that it relates to this period beginning 24.10.1997. Insofar as this period is concerned, the question will be adjudicated by the Estate Officer in proceedings pursuant to the said notice of 27.06.2003.

6. Thus, it is clear that in this petition we are concerned only with the period 09.03.1992 to 01.07.1994. It is also an admitted position that the petitioner has retired and is no longer entitled to retain the premises in question. However, despite this admission and clear position, the petitioner till date is retaining the premises in question which he has no authority to do. The learned counsel for the petitioner, however, submits that he has been retaining the possession of the premises by virtue of an interim order dated 29.05.1998 passed in CM 6474/1998 in this writ petition whereunder the petitioner was allowed to retain the possession of the premises in question and was liable to pay only nominal rent as an interim arrangement. However, from the order sheet, it is apparent that this interim order was vacated by another order dated 08.04.2003 and, as such, there is no question of the petitioner continuing in possession of the premises in question.

7. Learned counsel appearing for the petitioner has placed reliance on the Supreme Court decision in the case of Gorakhpur University & Ors. v Dr. Shitla Prasad Nagendra & Ors., reported in 2001 (5) Scale, 87. In particular he has placed reliance on the following observation in paragrah 5:-

"This court has been repeatedly emphasizing the position that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Withholding of quarters allotted, while in service, even after retirement without vacating the same has been viewed to be not a valid ground to withhold the disbursement of the terminal benefits. Such is the position with reference to amounts due towards Provident Fund, which is rendered immune from attachment and deduction or adjustment as against any other dues from the employee."

8. In view of the aforesaid observation, the learned counsel for the petitioner states and submits that payment of terminal benefits which includes gratuity cannot be withheld on the ground of non-vacation of premises allotted during service. I am unable to agree with the contention of the learned counsel for the petitioner. As a general proposition, there can be no dispute with the aforesaid observation of the Supreme Court. Withholding simplicitor of terminal benefits has been frowned upon. The position is different in respect of withholding for the purposes of adjusting dues. Moreover, the aforesaid observations themselves indicate the consequence of delay in settlement and disbursement. It is indicated that such delay should be viewed seriously and should be dealt with severely by imposing penalty in the form of payment of interest. It is, therefore, clear that in case the petitioner succeeds, then he would be entitled to the imposition of the penalty in the form of payment of interest for the withholding of the amounts that were due to the petitioner. The aforesaid observation does not debar or prohibit withholding under all circumstances. The observation of the Supreme Court in Gorakhpur University's case (supra) may not apply to a case where penal rent/damages was due from an ex-employee. In such a case, the amounts could be adjusted against the terminal benefits, including gratuity. In fact, learned counsel for the respondents has placed before this Court two decisions of the Supreme Court itself in the case of Union of India & Ors. v. Shiv Charan, reported in 1991 Supp (2) SCC 386 and Wazir Chand v. Union of India & Ors., reported in JT 2000 (Suppl. 1) SC 515 where the Supreme Court has permitted and, in fact, allowed the withholding and adjustment of dues and damages against terminal benefits, such as gratuity. In the decision in Shiv Charan's case (supra), it is indicated that rent for the period overstayed may be deducted from the payment to be made as indicated in the said decision. In Wazir Chand's case (supra), it is clearly held as under:-

"The appellant having unauthorisedly occupied the Government quarter, was liable to pay the penal rent in accordance with Rules, and therefore, there is no illegality in those dues being adjusted against the death-cum-retirement dues of the appellant. We, therefore, see no illegality in the impugned order which requires our interference. The appeals stand dismissed."

9. It is, therefore, clear that the observations made by the Supreme Court in the case of Gorakhpur University (supra) would have to be tempered with the observation made by the Supreme Court in the aforesaid two decisions. The view that emerges is that withholding of terminal benefits simplicitor cannot be done. However, if the same are withheld for the purposes of adjustments towards retention and his overstaying or penal rent for unauthorised occupation for the premises in question, the same is permitted as indicated by the aforesaid two decisions of the Supreme Court. In view of this position, the respondents are entitled to retain and withhold the aforesaid amount towards penal rent for the period in question, i.e., 09.03.1992 to 01.07.1994. It is also indicated by the learned counsel for the respondents that since a show cause notice has been issued for the other period, i.e., 24.10.1997, they would also issue a show cause notice for the period in question in this petition, i.e., 09.03.1992 to 01.07.1994. However, it is made clear that these show cause notices would be limited to the question of charging of penal rent/damages. There is no question of occupation or retention of the property and, insofar as eviction is concerned, admittedly, the petitioner is now an unauthorised occupant. It is also made clear that insofar as the period in question in the writ petition, i.e., 09.03.1992 to 01.07.1994 is concerned, the petitioner may raise the question of his being in authorised occupation when the show cause notice is issued in regard to this period. Learned counsel for the petitioner, after taking instructions from the petitioner who is present in the Court has stated that he will vacate the premises within 30 days from today.

10. With these directions, the writ petition is disposed of. There shall be no orders as to costs.