Union Of India And Ors. vs Ms. Surjeet Sangwan
2009 Latest Caselaw 4179 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No. 5240-42/2006

%                         Date of Decision: 15.10.2009

UNION OF INDIA AND ORS.                                        .... Petitioner

                         Through R.V. Sinha, Advocate.

                                   Versus

Ms. SURJEET SANGWAN                                        .... Respondent

                         Through: MS. Ruchika Mittal, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                   Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                      No
3.     Whether the judgment should be reported in                  No
       the Digest?


ANIL KUMAR, J. (Oral)

*

1. The petitioners have impugned the order dated 23.09.2005

passed in O.A. No. 1558/2005 titled as Ms. Surjeet Singh Sangwan Vs.

Union of India and Others quashing the letters dated 06.11.2003 and

05.03.2004 issued by the Assistant Inspector General, Estates,

addressed to Principal, Kendriya Vidyalaya, SPG Complex, Dwarka with

copies to the respondent and directing recovery of Rs. 76,421/- from

the respondent. The Tribunal also directed the petitioner to charge only

twice the license fee and not the damages/rent.

2. The respondent was a primary teacher in Kendriya Vidyalaya,

SPG Complex, Sector 8, Dwarka and was allotted House No. 83, Type

„C‟, SPG Complex, New Delhi. She was relieved by order dated

17.04.2003. On respondent being relieved from the said school she

became liable to surrender the accommodation provided to her in the

SPG Complex, Dwarka. However, in view of the marriage of her

daughter, she sought permission from the AIG (Estate), SPG Complex,

Dwarka to retain the government accommodation from 09.09.2003 up

to 01.10.2003 on humanitarian grounds. The request of the respondent

was forwarded to Principal, Kendriya Vidyalaya/petitioner no. 3.

According to the respondent, she vacated the accommodation in the

SPG Complex on 05.10.2003 and handed over the key to the Principal

on that day itself.

3. The respondent received a letter dated 06.11.2003 from AIG

Estate, SPG Complex respondent no. 2 regarding recovery of license fee

and water charges. It was alleged that she had been retaining the

accommodation un-authorizedly from 17.04.2003. It appears that the

SPG addressed a communication dated 15.01.2004 to Kendriya

Vidyalaya regarding recovery of damages from the respondent and in

pursuance thereof, on 21.01.2004 Kendriya Vidyalaya, SPG Complex,

Dwarka addressed a communication to the Principal, Kendriya

Vidyalaya, Sector 15, Dwarka. The AIG Estate directed the Principal,

Kendriya Vidyalaya to recover a sum of Rs. 76,421/- from the

respondent. Another letter dated 05.03.2004 was also issued seeking

recovery of damages/licence fee of Rs. 76,421/- at the rate of Rs.

8,148/- per month w.e.f. 17.04.2003 to 26.01.2004 besides water

charges for the said period at the rate of Rs. 40 per month.

4. The respondent challenged the recoveries proposed to be made

from her by filing a writ petition being WP(C) No. 10795/2005. The

petitioners objected to the maintainability of the writ petition on the

ground that a notification has been published whereby the disputes of

the employees of Kendriya Vidyalaya Sanghthan could be raised before

the Central Administrative Tribunal only. In view of the objections

raised by the petitioners, the respondent withdrew the petition with

liberty to approach the Central Administrative Tribunal by order dated

18.07.2005. Pursuant to the said liberty, the respondent filed O.A. No.

1558/2005 titled Ms. Surjeet Sangwan Vs. Union of India and Others

praying, inter alia, to quash the orders dated 06.11.2003 and

05.03.2004 seeking to recover damages from the respondent.

5. The petition filed by the respondent has been allowed by order

dated 23.09.2005 holding that:

(i) No proceedings were initiated by the petitioners under Section 7 of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971;

(ii) Without any notice to the respondent (as the notices issued by the petitioner no. 2 were addressed to the petitioner no. 3) the demand had been raised;

(iii) The petitioners continued to deduct H.R.A.

for the period when the respondent was in possession of the said accommodation which had been vacated by the respondent on 05.10.2003 (as the key had been handed over by the respondent to the Principal, Kendriya Vidyalaya Sanghthan, SPG Complex, Dwarka), and;

(iv) There were no deficiencies in the acts of the respondent in carrying out any formalities, and;

Therefore, the demand raised by orders dated 06.11.2003 and

05.03.2004 was not sustainable and consequently, the orders dated

06.11.2003 and 05.03.2004 were set aside. The learned Tribunal

further held that the petitioner could charge only twice the license fee

from the respondent and not the damages/rent.

6. The petitioners have challenged the order of the Tribunal

primarily on the ground that the Tribunal did not have jurisdiction as

the dispute raised by the respondent was not a service matter as

contemplated under Section 3 (q) of the Administrative Tribunals Act,

1985. The petitioners have also relied on Smt. Babli & Anr. Vs.

Government of NCT & Ors (2002) 95 DLT 144 (DB) and Union of

India Vs. Dr. Jagdish Saran (2005) 123 DLT 626 in support of their

contention that the dispute raised by the petitioner regarding payment

of the damages claimed by the petitioners is not a service matter and

could not be adjudicated by the Tribunal in exercise of its jurisdiction.

7. Learned counsel for the petitioner has contended that the

jurisdiction of the Tribunal is barred under Section 15 of the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971 and the

accommodation allotted to the respondent was not under any terms and

conditions of the service of the respondent.

8. In Jagdish Saran (Supra) a Division Bench of this Court had

held that disputes in respect of Government residential accommodation

cannot become the subject-matter of petitions before the Administrative

Tribunal unless the right to allotment or claim pertaining thereto is

shown to be a condition of service. In this case the government

employee was an out of turn allottee and damages were ordered to be

recovered from the said government employee. In the petition filed

before the Administrative Tribunal, it was held that the allotment to the

employee was covered under the order issued earlier and therefore,

Union of India was directed to refund the amount already recovered

from the employee as damages. A Division Bench of this Court relying

on Babli (supra) had held that allotment could not be construed and

regarded as a matter relating to "condition of service" and therefore as

the service matter as defined under Section 3 (q) of the Administrative

Tribunals Act, 1985 which contemplates only matters relating to

"Condition of Service" between government and its employees.

9. Relying on Union of India Vs. Rasila Ram & Ors. (2001) 10 SCC

623 the court had further held that the expression "any other matter

whatsoever" in Section 3 (q) (v) of the Administrative Tribunal Act,1985

would not confer jurisdiction on to the Tribunal to go into the legality of

the order passed by the competent authority under the provisions of the

Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The

Supreme Court also held that the matters relating to eviction of

unauthorized occupants from the Government quarters do not come

within the purview and jurisdiction of Administrative Tribunal and the

expression `any other matter whatsoever' occurring in section 3(q)(v) of

the Act does not confer jurisdiction on Tribunal to go into legality of

order passed by the competent authority.

10. It cannot be disputed that the letters seeking recovery were

issued by the AIG (Estate) i.e. petitioner no. 2 to the petitioner no. 3 viz.

Kendriya Vidyalaya demanding recovery of arrears of license fee and

water charges and damages. It also cannot be disputed in the present

facts and circumstances that the petitioners have not initiated any

proceedings under Section 7 of the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 and no notice had been given to the

respondent. Non compliance of the requirement of the said Act will not

confer jurisdiction on the Administrative Tribunal under Section 3 (q) of

the Administrative Tribunal Act. The AIG, Estate who is the author of

the two communications dated 06.11.2003 and 05.03.2004 is not the

employer of the respondent. The real dispute is between the respondent

on the one hand and the AIG, Estate on the other hand. The Kendriya

Vidyalaya Sanghathan (KVS) has not, of its own, raised any demand

against the respondent. Merely because the KVS may have effected or

threatened to effect recovery from the dues / salary of the respondent of

the amount demanded by the AIG (Estate), it does not mean that a

dispute has arisen which could be classified as a dispute relating to the

"conditions of service" of the respondent, as the allotment of the quarter

is not covered by conditions of service of the respondent.

11. The Tribunal while passing the order dated 23rd September, 2005

impugned before this Court, had also noticed that the respondent

vacated the accommodation in dispute and keys were handed over to

the Principal of petitioner no. 3 on 05.10.2003 and the house was got

checked and nothing was found missing or damaged which pleas were

also raised by the respondent in her representation dated 14.03.2005 in

order to deny his liability for the demand raised by the petitioners.

However, these pleas of the respondents are to be considered in

appropriate proceedings to be initiated by the petitioners seeking

recovery of the amount as claimed from the respondent. If the amount

is to be recovered by the petitioners under Section 7 of the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971, the pleas and

contentions refuting the claims of the petitioners could not be

determined and adjudicated by the Tribunal as a service matter. Even

the plea of the respondent that her HRAs was continued to be deducted

for the period for which the claim is raised by the petitioner, will be a

plea to deny the liability. However, the same is not to be considered nor

will confer jurisdiction on the Tribunal, it not being a service matter.

12. While allowing the original application of the respondent, the

Tribunal has also laid emphasis on the fact that two letters of allotment

were issued, one by Kendriya Vidyalaya Sanghthan signed by its

Principal and other issued by SPG. Even if one of the letter had been

issued by Kendriya Vidyalaya Sanghthan, it has not been established or

contended that the accommodation was allotted to the respondent by

petitioner no. 2 as a condition of her service with petitioner no. 3. If the

accommodation has been allotted by petitioner no. 2, SPG to the

respondent, the same cannot be said to be under the terms and

conditions of employment of respondent with respondent no. 3. The

Tribunal has relied on a decision of another Bench of the Tribunal in

O.A. No. 1414/01 Udbhash Mukherjee Vs. Commissiner of K.V.S. &

Ors. where recoveries of damages from an employee was set aside.

However, an observation was made that the order of the Tribunal will

not preclude the employer to take up appropriate proceedings against

the employee in accordance with the provisions of Public Premises

(Eviction of Unauthorized Occupants) Act, 1971. If the allotment of

accommodation is a condition of service the Tribunal may have

jurisdiction under Section 3 (q) of the Administrative Tribunal Act.

However in the case of the respondent it is apparent that the Tribunal

did not have jurisdiction, as the demand by petitioner no. 2 could not

be construed as pertaining to the service conditions of the respondent.

13. Earlier no one had appeared on behalf of the respondent. After we

have practically concluded the matter and dictated our order

substantially, at this juncture learned counsel for the respondent

sought an adjournment. Therefore the matter was adjourned for some

time and the counsel was given time to argue the matter after lunch.

Learned counsel, after lunch, has contended that the arguing counsel is

not available and is busy in the bar election. This cannot be the ground

for adjourning the matter as no one had appeared on behalf of the

respondent when the matter was taken up and the matter was argued

for substantial time. Thereafter time had been again given but the

arguing counsel has not appeared to argue the matter on behalf of the

respondent. The appearance on behalf of the respondent had been put

only during the dictation of the order.

14. In the circumstances, it is inevitable to infer that the demand

raised by the respondent no.2 from the respondent no.3 to recover the

amount of damages/rent cannot be construed as `service matter' as

contemplated under Administrative Tribunals Act, 1965. Thus the

Tribunal did not have jurisdiction to adjudicate about the demand

raised by the petitioner no.2 on petitioner no.3 to recover the amount of

damages/rent and could not decide that the respondent is liable to pay

only twice the license fee and not the damages/rent. With the result the

petition is allowed and the impugned order dated 23.09.2005 is set

aside and it is that the Tribunal did not have jurisdiction under Section

3 (q) of the Administrative Tribunal Act, 1985.

15. This however, has not been disputed that no proceedings had

been initiated by the petitioners under the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971 for recovery of any amount from

the respondent. Without giving a reasonable opportunity to the

respondent, the amounts as claimed by the petitioners, therefore,

cannot be recovered. This Court also cannot be oblivious to the fact that

a writ petition was filed by the respondent contending that the

petitioners cannot recover any amount from her by raising various

grounds including that no reasonable opportunity has been given to her

before demanding the damages from her though she had handed over

the possession on 5th October, 2003. The writ petition was opposed by

the petitioners as not being maintainable. At that stage it was

contended that the jurisdiction shall be that of the Central

Administrative Tribunal, pursuant to which the writ petition was

withdrawn by the respondent with liberty to file appropriate

proceedings, and the aforesaid original application was preferred by the

respondent.

16. This court in the present petition filed by the petitioners is also

exercising its jurisdiction under Article 226 of the Constitution of India.

Keeping in view the admitted facts, that for claiming the amount by

letter dated 06.11.2003 and 05.03.2004, neither any opportunity was

given to the respondent nor any proceedings have been initiated by the

petitioners under the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971, the petitioners are directed not to enforce the

alleged demand contained in the communications dated 6.11.2003 and

5.3.2004 without taking appropriate proceedings under the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971 and by giving

reasonable opportunity to the respondent.

17. For the forgoing reasons the order dated 23rd September, 2005

passed in O.A no. 1558 of 2005 titled Ms. Surjeet Sangwan Vs UOI &

Ors. is set aside. However, the petitioners are directed not to recover

any amount from the respondent pursuant to letters dated 06.11.2003

and 05.03.2004 without taking appropriate proceedings under the

Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and

without giving reasonable opportunity to the respondent

18. With these directions the writ petition is disposed off. Parties

are however left to bear their respective costs.

ANIL KUMAR, J.

OCTOBER 15th, 2009                                     VIPIN SANGHI, J.
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