S. Rajendran v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 03..4..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 14031 of 2004andW.P.M.P. No. 16540 of 20041.Union of IndiaRep. by the ChairmanRailway BoardRaj Bhavan, New Delhi2.The General ManagerIntegral Coach FactoryChennai - 383.The Chief Personnel OfficerIntegral Coach FactoryChennai - 38.. Petitionersvs.1.S. Rajendran2.The RegistrarCentral Administrative TribunalChennai – 104... RespondentsPetition under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorari calling for the records onthe file of the Tribunal pertaining to the order dated 06.02.2004passed in O.A. No. 667 of 2003 and quash the same. For Petitioner : Mr. V. Radhakrishnan,SC.For Respondent 1 : Mr. K.M. RameshR-2: Tribunal https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by K. CHANDRU, J.)Heard the arguments of Mr. V. Radhakrishnan, learned StandingCounsel representing the petitioners and Mr.K.M.Ramesh, learnedcounsel appearing for the first respondent and perused therecords.2.Challenging the order of the Central AdministrativeTribunal [for short, 'CAT'] dated 06.02.2004 passed in O.A. No.667 of 2003, the Union of India represented by the Chairman,Railway Board and two other officers of the Integral Coach Factoryhave filed the present writ petition.3.The first respondent joined the second respondentIntegral Coach Factory (ICF) in the year 1983 and after completionof the training, he was posted as Chargeman A in 1984 andthereafter, promoted as a Deputy Shop Superintendent in April1986. He was further promoted as a Senior Section Engineer inMarch 1993 and as Assistant Works Manager in September 2002. Hewas allotted Staff quarters (Type IV) bearing Door No. 223/3 NorthColony. Subsequently, he was given a change of quarters at 138/1West Colony in the year 1994. The rent for the staff quarters wasrecovered from the pay of the first respondent. The firstrespondent applied for leave for six months from 01.6.1998 andsubsequently, it was extended for one more year every six months.Totally, the first respondent availed 16 months of leave, whichwas also sanctioned by the second petitioner. 4.During September 1999, he applied for vacating the staffquarters. The second petitioner permitted the applicant tovacate the quarters in terms of paragraph 6.1 of the RailwayBoard's letter dated 15.01.1990. It was stated by the secondpetitioner that since the first respondent did not seek permissionfor retention of quarters during the leave period, in the firstinstance upto 120 days, thereafter, for the remaining leaveperiod, his retention of quarters was unauthorised and, therefore,damage rate of rent was to be recovered from him, which worked outto Rs.7244.16 per month. 5.According to the first respondent, the allotment orderdid not contain the said stipulation and that whenever he hadasked for extention of leave, he should seek for its retention,was not intimated to him. The first respondent preferred an https://hcservices.ecourts.gov.in/hcservices/ appeal dated 08.10.1999 to the Senior Personnel Officer (thirdpetitioner). But, however, the second petitioner, by a letterdated 16.11.1999, informed the first respondent that he was liableto pay Rs.87,171/- and hence, Rs.5000/- per month will be deductedfrom his salary from November 1999 onwards. The first respondentsubmitted that since his appeal was not disposed of, he should notbe made to pay the amount pending the appeal. Notwithstandinghis submissions, amounts were deducted from his salary fromNovember 1999 onwards. Upto July 2003, a sum of Rs.57,000/- wasdeducted from his salary and he was also informed that the RailwayBoard had rejected his request for waiver. The first respondentapproached the Central Administrative Tribunal (CAT) with O.A. No.667 of 2003 challenging the order of recovery. 6.A reply statement was filed by the petitioners inOctober 2003 to which the first respondent filed a rejoinder dated03.01.2004. 7.The CAT, by its order dated 06.02.2004, allowed theOriginal Application and quashed the impugned order dated30.9.2002. It also directed the petitioners to levy only thenormal rent and the excess amount was directed to be refunded. Itis against this order, the writ petition was filed by thepetitioners and an interim stay from demanding the refund of thebalance amount was granted by this Court.8.Mr. V. Radhakrishnan, learned Senior Counsel appearingfor the Railways, submitted that the finding of the CAT holdingthat the Railway Board circular has no statutory force and,therefore, is not binding, is erroneous. He submitted that theRailway Board Circular, even in the absence of any statutoryrule, is binding on the parties. He also submitted that the veryallotment of quarters itself is not a statutory condition ofservice and it is contractual. The allotment of a quarters andthe rent levied was on the basis of leave and Licence. Hedoubted even the jurisdiction of the CAT in dealing with such anissue as it cannot be held to be a service grievance of aGovernment servant, in which case alone the CAT can deal with suchan issue. 9.It is seen from paragraph 6 of the consolidated circularissued by the Ministry of Railways gives guidelines regardingretention of quarters. As per that circular, the occupation ofthe Railway quarters may be permitted while on leave for a periodnot exceeding 120 days on payment of normal rent, provided theauthority sanctioning the leave certifies that the employeeconcerned is likely to be posted back to the old station on expiry https://hcservices.ecourts.gov.in/hcservices/ of leave. Even in case of transfer for certain period, they areeligible to retain the quarters on the basis of the old rent.10.In the light of the above provision, Mr.V.Radhakrishnanargued that when the rule position is clear, there is nodiscretion left for the CAT to interfere in a case of this nature.He also relied upon the judgment of the Supreme Court inSecretary, ONGC Ltd. v. V.U. Warrier [(2005) 5 SCC 245] and moreparticularly, referred to the following passages found inparagraphs 26 and 28:- Para 26:"The matter can be considered from another anglealso. It is well settled that the jurisdiction ofthe High Court under Article 226 of theConstitution is equitable and discretionary. Thepower under that article can be exercised by theHigh Court “to reach injustice wherever it isfound”. More than fifty years before, in VeerappaPillai v. Raman & Raman Ltd., the Constitution Benchof this Court speaking through ChandrasekharaAiyar, J., observed (at SCR p. 594) that the writsreferred to in Article 226 of the Constitution areobviously intended to enable the High Court toissue them “in grave cases where the subordinatetribunals or bodies or officers act wholly withoutjurisdiction, or in excess of it, or in violationof the principles of natural justice, or refuse toexercise a jurisdiction vested in them, or there isan error apparent on the face of the record, andsuch act, omission, error, or excess has resultedin manifest injustice”."(emphasis supplied)Para 28:"As already adverted to by us hereinabove, thefacts of the present case did not deserveinterference by the High Court in exercise ofequitable jurisdiction under Article 226 of theConstitution. The respondent-petitioner before theHigh Court was a responsible officer holding thepost of Additional Director (Finance and Accounts).He was, thus, “gold collar” employee of theCommission. In the capacity of employee of theCommission, he was allotted residential quarters.He reached the age of superannuation and retiredafter office hours of 28-2-1990. He was, therefore,required to vacate the quarters allotted to him bythe Commission. The Commission, as per its policy,granted four months’ time to vacate. He, however, https://hcservices.ecourts.gov.in/hcservices/ failed to do so. His prayer for continuing tooccupy the quarters was duly considered andrejected on relevant and germane grounds. Theresidential accommodation constructed by him bytaking loan at the concessional rate from theCommission was leased to the Commission, but thepossession of that quarters was restored to himtaking into account the fact that he had retiredand now he will have to vacate the quartersallotted to him by the Commission. In spite ofthat, he continued to occupy the quarters ignoringthe warning by the Commission that if he would notvacate latest by 30-6-1990, penal rent would becharged from him. In our judgment, considering allthese facts, the High Court was wholly unjustifiedin exercising extraordinary and equitablejurisdiction in favour of the petitioner —respondent herein — and on that ground also, theorder passed by the High Court deserves to be setaside."In the light of the above observations, he pleaded for settinbgaside the order of the CAT.11.However, Mr. K.M. Ramesh, learned counsel for the firstrespondent, submitted that the ONGC case (Cited supra) relied onby the Senior Counsel appearing for the Railways has noapplication to the facts of this case. The consolidated circulardated 15.01.1990 was not made of part of the allotment condition.Alternatively, he submitted that the circular is of a generalnature and will not apply to ICF. The ICF staff do not go out ontransfer except on deputation. In any event, he submitted thatparagraph 6 of the circular permits retention of quarters for 120days and, therefore, for charging penal rent even for that periodwas illegal.12.The question that the retention of quarters for 120 dayswill be permitted only when the leave sanctioning authoritycertifies that the employee is likely to be posted in the oldstation, will not arise in the case of the first respondent sincehis leave was thrice extended by the same authority and the firstrespondent cannot be penalised for non-grant of such certificate.But the contention that the circular will have no application ordoes not form part of the allotment order has to be rejectedbecause the consolidated circular was also marked to the secondpetitioner ICF and the employee must be deemed to be aware of thesame. Even if the first respondent did not get a certificate https://hcservices.ecourts.gov.in/hcservices/ that he will be posted back in the ICF after the expiry of leave,he is eligible to have the quarters retained for a period of 120days as per paragraph 6 of the consolidated circular.Therefore, the CAT was wrong in holding that it was an executiveorder which has no force of law to bind the parties. On theother hand, that is the only circular which deals with the rightsof parties vis-a-vi the retention of quarters. If that positionis accepted, then whether charging of penal rent during the leaveperiod is permissible or not, is the only question to be decidedherein.13.In the present case, the retention of quarters upto 120days is permitted provided the leave sanctioning authoritycertifies that the employee concerned is likely to be posted backin the same station after the expiry of leave. In case of anemployee of ICF, that question may be academic because normally,there is no transfer out of ICF except by way of deputation.Even otherwise, it is for the leave sanctioning authority to grantsuch a certificate without the employee seeking for any suchcertificate. Therefore, the first respondent cannot be chargedany penal rent for retaining the quarters for the first 120 days.14.In the light of the above legal and factual position andalso on grounds of equity, this Court is of the view that thepetitioner ICF cannot deduct any more amount beyond Rs.57,000/-which they have already deducted from the salary of the firstrespondent. It is also declared that the first respondent neednot pay the balance amount of Rs.37,171/- being the penal rent onthe premises that his initial retention of quarters was lawful andjusitifed. Therefore, the order of the CAT impugned in the writpetition is modified accordingly. The petitioners are herebyrestrained from deducting the balance of Rs. 37,171/- from thefirst respondent. 15.The writ petition is disposed of accordingly. However,there will be no order as to costs. Connected MiscellaneousPetition is closed.gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe RegistrarCentral Administrative TribunalChennai – 1041 cc to Mr.V.Radhakrishnan, Advocate, SR.193811 cc to Mr.K.M.Ramesh, Advocate, SR.18858jp (co)dv/13.6. W.P. No. 14031 of 2004