Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 652 (ORI)

GAGAN KUMAR BEHERA v. UNION OF INDIA (UOI)

2010-09-16

B.K.PATEL

body2010
JUDGMENT : B.K. Patel, J. - Petitioner was working as Inspector (Ministerial) in different Units of the Central Industrial Security Force (C.I.S.F.). During his posting with C.I.S.P. Unit, RSP Rourkela the Petitioner had been provided with rent free family accommodation. While posting the Petitioner out from Rourkela w.e.f. 1.7.1994, he was permitted to retain accommodation till 30.4.1996. Petitioner was posted at C.I.S.F. Units at Kolkatta, Patna and OTHPP Obra till, pursuant to order under Annexure-1 passed in a Departmental Proceeding awarding the Petitioner with the penalty of compulsory retirement from service with full pensionary benefits admissible under CCS (Pension) Rules, 1972, he was retired from service w.e.f. 29.7.2001. In the said proceeding, Petitioner was found guilty of all the six charges out of which charge No. 3 related to unauthorized occupation of and non-payment of penal rent and electricity charges for the accommodation at Rourkela. Finding of the Disciplinary Authority with regard to charge No. 3 reads: With regard to Article of charge No. 3, the charged member was permitted to retain the Government accommodation at RSP Rourkela up to 30.4.1996 in spite of directions issued in this regard, he failed to vacate the quarter, besides he also failed to pay the rent raised by CISF Unit RSP Rourkela. In his defence the charged member stated that due to treatment of his wife he was permitted to retain the family accommodation up to 1.5.1996 and due to frequent transfer, illness of his wife and education of his children, he retained the quarter at CISF Unit RSP Rourkela. With regard to non-payment of dues towards Govt, accommodation, he has taken pleas of non-receipt of salary due to OSL etc. I am of the view that non-payment of dues on the pretext of non-receipt of salary, is false to cover up his misdeeds as he has never represented/requested regarding his inability to pay the dues, nor seek permission from the competent authority to retain the quarter at RSP Rourkela. Hence, his pleas are not maintainable in the absence of proof. His pleas that he has expended a huge amount towards treatment of his wife is neither based on record nor is having anything to do with the charge. Accordingly, I hold him guilty of the Article of charge No. 3. 2. Hence, his pleas are not maintainable in the absence of proof. His pleas that he has expended a huge amount towards treatment of his wife is neither based on record nor is having anything to do with the charge. Accordingly, I hold him guilty of the Article of charge No. 3. 2. In the order at Annexure-1, while imposing punishment of compulsory retirement to the Petitioner it was also observed: With regard to non-payment of rent towards non-vacation of Government accommodation at CISF Unit RSP Rourkela, it is further ordered that Insp./Min. G.K. Behera should produce a no dues certificate from the DIG, CISF Unit RSP Rourkela regarding settlement of rent towards occupation of Government accommodation in CISF Unit RSP Rourkela, failing which his dues towards department should not be released/paid to him. After his retirement also the Petitioner occupied and sought permission to retain the quarter. However, by order dated 9/11 August, 2003 under Annexure-4 the Petitioner was directed to vacate the quarter and deposit the dues/pending penal rent of Rs. 1,43,391.25 by 16.8.2003 positively under the threat of eviction. The Petitioner finally vacated the quarter on 25.11.2003. 3. Petitioner's case is that consequent upon order relating to withholding of Petitioner's dues for non-payment of rent and direction to deposit dues/pending penal rent amounting to Rs. 1,43,391.25 under Annexure-4, his gratuity amount has been illegally withheld by the opposite parties. 4. It was contended by the learned Counsel for the Petitioner that Petitioner was not heard in the matter of payment of arrear rent or penal rent. It was argued that Rules 71 and 72 of the CCS (Pension) Rules, 1972 do not authorize the opposite parties adjustment of dues payable by an employee against retirement gratuity. Relying upon the decision of Hon'ble Supreme Court in Gorakhpur University and Others Vs. Dr. Shitla Prasad Nagendra and Others, it was strenuously contended by the learned Counsel for the Petitioner that withholding of the disbursement of retirement benefits including gratuity of an employee on the ground that he has withheld the quarter allotted to him while in service even after retirement is illegal and without jurisdiction. 5. Counter-affidavit has been filed by the opposite parties resisting Petitioner's claim as without basis. It was submitted on behalf of the opposite parties that some quarters have been allotted for occupation of C.I.S.F. personnel by the Rourkela Steel Plant. 5. Counter-affidavit has been filed by the opposite parties resisting Petitioner's claim as without basis. It was submitted on behalf of the opposite parties that some quarters have been allotted for occupation of C.I.S.F. personnel by the Rourkela Steel Plant. The Petitioner had been allotted one of such rent free family accommodations. On humanitarian ground Petitioner was permitted to retain the accommodation even after his transfer up to 30.4.1996. Petitioner had been provided with rent free accommodation while he was posted at C.I.S.F. Unit, Obra. It was contended by the learned Assistant Solicitor General appearing for the opposite parties that despite several instructions to vacate the quarter, Petitioner unauthorizedly continued to occupy the same till after his retirement. Specific charge was made against the Petitioner in the departmental proceeding on the allegation of failure to vacate quarter in spite of instructions and thereby violating lawful order of his superior officers and commission of gross indiscipline and misconduct. The Petitioner participated in the departmental proceeding and he was found guilty of the charge. He was allowed to continue with the occupation of the house on payment of penal rent. Rule 71 of the CCS (Pension) Rules provides for recovery and adjustment of Government dues including dues pertaining to Government accommodation including arrear of licence fees. Placing reliance on the decision in Wazir Chand Vs. Union of India (UOI) and Others, it was contended that in view of the provisions under Rule 71 of the CCS (Pension) Rules dues payable by the Petitioner are liable to be adjusted against retirement dues. 6. Considering the facts and circumstances of the case, Petitioner has no scope to assail the order of the disciplinary authority passed under Annexure-4. Petitioner participated in the proceeding. He does not appear to have challenged the order in appeal or revision. Specific finding has been arrived at by the disciplinary authority on the basis of materials on record that the Petitioner failed to pay rent towards occupation of the quarter in spite of instructions without any justification. 7. There is no blanket prohibition against adjustment of dues payable by an employee against retirement benefits payable to him. Decision in Wazir Chand v. Union of India (supra) relied upon by the learned Counsel for the opposite parties related to retirement of a Railway servant. 7. There is no blanket prohibition against adjustment of dues payable by an employee against retirement benefits payable to him. Decision in Wazir Chand v. Union of India (supra) relied upon by the learned Counsel for the opposite parties related to retirement of a Railway servant. Upon reference to the facts and circumstances of the case as well as relevant Rules, it was held by the Hon'ble Supreme Court that the Appellant having unauthorized by occupied government quarter was liable to pay penal rent in accordance with the Rules and, therefore, there is no illegality in those dues being adjusted against death-cum-retirement dues of the Appellant. Decision in Gorakhpur University and Ors. v. Dr. Shitia Prasad Nagendra and Ors. (supra) was rendered upon reference to the decision in Wazir Chand v. Union of India (supra). It was held in Gorakhpur University and Ors. v. Dr. Shitia Prasad Nagendra and Ors. (supra): xxx 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. In the context of this, mere reliance on behalf of the Appellant upon yet another decision of a different Division Bench of the very High Court rendered without taking note of any of the earlier decisions of this Court but merely proceeding to decide the issue upon equitable considerations of balancing conflicting claims of respective parties before it does not improve the case of the Appellant any further. Reliance placed for the Appellant-University on the decision reported in Wazir Chand v. Union of India (supra) does not also sound well on the facts and circumstances of this case. Reliance placed for the Appellant-University on the decision reported in Wazir Chand v. Union of India (supra) does not also sound well on the facts and circumstances of this case. It is not clear from the facts relating to the said decision as to whether the person concerned was allowed to remain in occupation on receipt of the normal rent as in the present case. As noticed earlier, the case of the contesting Respondent in this case is that the University authorities regularly accepted the rent at normal rates every month from the petition till the quarters was vacated and that in spite of request made for the allotment of the said quarters in favour of son of the Respondent, who is in the service of the University, no decision seems to have been taken and communicated though it is now claimed in the Court proceedings that he is not entitled to this type of accommodation, xxx. 8. Learned Assistant Solicitor General produced in Court the letter dated 13.11.1995 issued to the Petitioner by the Calcutta Port Trust unit of C.I.S.F. intimating that penal rent would be charged for accommodation of the quarter during the period subsequent to 30.4.1996. The letter reads: Office of the Commandant Central Industrial Security Force (Ministry of Home Affairs) Unit: Calcutta Port Trust, New Traffic Building, 40, CGR Road, Calcutta-43. Dated : 13 Nov, 95 No. C-11014/OU/Ret/95-10601 To No. 734480024, Insp/Min G.K. Behera, 'BN' Office. Sub: Retention of Family Accommodation; REG. You have been permitted to retain Family accommodation at CISF Unit RSP Rourkela upto 30.4.1996 as per their letter No. C-11019/6/RSP/ADM.V/95-7836 dated 14.10.1995 on payment of Rent/Electricity charges as under: (a) Rent free for 02 months. (b) Electricity charges @ Rs. 121/- per month. 2. It has further been intimated that no further extension will be granted. Please vacate the said Family accommodation by due date otherwise penal rent @ Rs. 1050/- per month will be charged against you. Asstt. Commandant/Adm. for Commandant/CISF. 9. The Petitioner cannot claim occupation of quarter in question after his transfer from Rourkela. Quarters in Rourkela have been provided by the Rourkela Steel Plant to CISF for occupation of CISF personnel. Petitioner has not challenged the order of his compulsory retirement before the appropriate forum. 1050/- per month will be charged against you. Asstt. Commandant/Adm. for Commandant/CISF. 9. The Petitioner cannot claim occupation of quarter in question after his transfer from Rourkela. Quarters in Rourkela have been provided by the Rourkela Steel Plant to CISF for occupation of CISF personnel. Petitioner has not challenged the order of his compulsory retirement before the appropriate forum. It is evident from Annexure-4 that demand for arrear rent has been raised for the period from the month of May, 1996 i.e. long after his transfer from Rourkela in the year 1994. While allowing the Petitioner to occupy quarter even after his transfer, Petitioner was made aware of his liability to pay rent at the penal rate. 10. It is also not disputed that the Petitioner is governed under Rule 71 of the CCS. (Pension) Rules which provides: Recovery and adjustment of Government dues.- (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement. (2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the retirement gratuity becoming payable. (3) The expression 'Government dues' includes;- (a) dues pertaining to Government accommodation including arrears of licence fees, if any; (b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961(43 of 1961). In view of the provisions under Rule 71 of the CCS (Pension) Rules, there appears no illegality in adjustment of Government dues including penal rent and electricity charges towards occupation of quarter in question by the Petitioner till he retired on 29.7.2001. However, any dues payable by the Petitioner subsequent to the date of retirement cannot be adjusted from the retirement dues payable to the Petitioner. To that extent, order in Annexure-4 is without jurisdiction. 11. Accordingly, it is directed that gratuity payable to the Petitioner be paid forthwith after adjustment of Government dues payable by the Petitioner till the date of his retirement. Opposite parties are at liberty to recover the balance Government dues by resorting to appropriate proceeding. The writ application is accordingly disposed of.