By Shailendra Pandey, Member (A): This is the third round of litigation.

2. In this OA, the applicant has challenged the order dated 28.07.2009, asking him to vacate the Railway Quarter and to handover the vacant possession of the same, and order dated 20.07.2010, for payment of the balance amount of Rs.1296260/- (after adjusting the DCRG) plus Electric Charges, and also the inaction of the respondents in releasing his retirement benefits/the decision to recover the damage rent w.e.f. 09.02.2004 from his retirement benefits. He has sought the following reliefs: to quash the impugned order dated 28.07.2009 and pass further order directing the respondents to close the sub-letting case of the applicant of the year 2004, treating that there was no sub-letting or unauthorized construction in the quarter and pass an order directing the respondents to release the retirement benefits of the applicant immediately with interest. To quash the impugned order dated 26.4.2004 and show cause notice dated 20.4.2004.

3. The brief facts of the case are that the applicant had been allotted Type-III quarter No.T-28B, Naya Bazar Railway Colony, Delhi in 1986. On the basis of a complaint, a surprise check was conducted on 09.02.2004. The raiding party that went to his house on 09.02.2004, did not find the applicant or his wife at the house and found only his brother-in-law who had reportedly come to visit them and forcibly (allegedly) took his signatures. On this basis, a Show Cause Notice dated 20.02.2004 was issued to the applicant stating therein that he had un-authorizedly constructed a room in the premises of the railway quarter and had sublet the same to Shri Suresh for commercial purposes as scooter stand. Therefore, he was called upon to remove the construction/Additions & Alterations, otherwise his quarter will be cancelled. Thereafter, by order dated 26.04.2004, the allotment of the quarter was cancelled and recovery of damages was also ordered from his salary w.e.f. 09.02.2004. Being aggrieved, the applicant gave a representation dated 30.04.2004 stating therein that Shri Suresh is not a tenant but his brother-in-law and had come to visit them. Moreover, he had not done any un-authorized construction. Nobody from U.R.M.U. was associated in the raiding party, as a result of which, the report given by the raiding party cannot be relied upon. After considering his representation, the office of Deputy General Manager (G) and Chairperson HQHC referred the matter to General Manager (P) with the following observations (Annexure A-4):-  The recovery of damages rent + other charges of type-III Rly. Quarter No.T-28-B at Delhi Sadar from the salary of above named employee may be pended till further orders from this office. However, recovery of Norman rent + other charges of this quarter besides non-payment HRA will continue from his salary. Sd/- 25.10.2004 ( Pramila H. Bhargava ) Dy. General Manager (G) Chairperson, HQHC (Delhi Area) Copy to :-

1. CE/P&D, Northern Railway, Baroda House, New Delhi in reference to their letter No.290-W/17/) (Sub-letting), (W.Qrs.) dated 30/06/1988. In this case, Union has represented that once representative of Union was not associated with the joint check conducted at the residence of Sh. Radhey shyam while concluding site check for subletting. It may please be clarified whether joint check will be complete in absence of one representative or otherwise.

4. It is stated by the applicant that thereafter neither was any final decision taken in the matter nor was his representation decided. He retired as Chief Office Supdt. on 31.05.2008 but the respondents have not released his gratuity till date.

5. Earlier, the applicant had filed OA No.2045/2009 challenging the orders dated 20.02.2004 and also order dated 26.04.2004, and during the pendency of the OA, the respondents had issued a fresh notice dated 25.07.2009, calling upon the applicant to vacate the railway quarter in question. The OA was dismissed as withdrawn vide order dated 20.04.2010 with liberty to challenge the order dated 25.07.2009. Thereafter, another OA-1468/2010 was filed by the applicant, which was allowed by a Single Bench of this Tribunal to the extent indicated below: Heard the learned counsel for the applicant and perused the papers carefully. It seems that the matter can be disposed of at this stage by directing the respondents to calculate the quantum of retirement benefit due to him along with whatever interest due because of the efflux of time till today. The respondents can deduct the damages due to the government from him and pay the balance within two weeks time from the date of receipt of a coy of this order. They are also directed to look into the matter afresh in the light of the apparent order passed by the competent authority on 25.10.2004. They shall consider this matter afresh since one day stay of his brother-in-law cannot constitute sub-letting. The shall also consider this and pass a speaking order within a period of three months from the date of receipt of a copy of this order. In case the authority finds that damage rent is not correct it shall be refunded to him within next two weeks. However, the applicant is at liberty to challenge the order to be passed by the respondents, if he is aggrieved. The applicant is directed to send a copy of this order along with the copy of this O.A and its annexures to the respondents. While passing orders the respondents are directed to take into consideration this O.A as well as this order and pass a speaking order thereof.

6. In compliance thereof, the respondents considered the case of the applicant and passed a speaking order dated 20.07.2010. The operative part of the said order is extracted below: As per record the total amount of Death cum Retirement Gratuity due to be paid to you is Rs.427812/- whereas the total outstanding amount toward damage rent of the above house is Rs.1724071.96 as per details mentioned above + Electric charges extra to be advised by SSE/Power/Delhi. You are therefore, advised to remit the balance amount of Rs.1296260/- + Electric charges to be advised by SSE/Power/Delhi immediately.

7. Aggrieved by the above order, the applicant has filed the present OA seeking the above reliefs on the following grounds:

a) that the action of the respondents in recovering such a huge amount of Rs.1724071.96 as damage rent is illegal and arbitrary and the same is liable to be quashed, as the respondents have not considered all the aspects mentioned in his representations dated 30.04.2004 (Annexure A6), in which interalia he had mentioned that his brother-in-law was not a tenant and had his residence/working place in Loni (UP) for which he had submitted a certificate dated 07.10.2004.

b) that the respondents have concluded that the quarter in question had been sublet only on the basis of one visit to the quarter, that too in his absence, which is wrong. Further, that as per the instructions issued by the Headquarter, Northern Railway, in the Committee as well as the inspection team, one representative of both the Unions should be there, but in the present case representatives of both the Unions were not present and, therefore, the check itself was not valid and action taken on the basis of such a check is illegal.

c) that as per Railway Services (Pension) Rules, 1993, retirement benefits of a Railway Servant cannot be withheld due to unauthorized occupation of a quarter or for charging any damage rent.

d) that after retirement, as the applicant had made a representation for retention of his quarter and there was no rejection given to the applicant, this would be tantamount to the competent authority granting the permission and, therefore, it cannot be said that there is unauthorized occupation of the quarter. Moreover, this Tribunal had granted interim relief in respect of vacation of the railway quarter in favour of the applicant.

e) that as per Rule 15 (IV)(4)(b), the recovery, if any, in respect of the retired railway servant is required to be assessed and adjusted within a period of three months from the date of retirement but the impugned order dated 28.7.2009 was issued after more than 13 months which is not permissible and, therefore, the recovery is illegal.

f) that the Honble Supreme Court in number of cases [See: Union of India & Others v. Madan Mohan Prasad, 2003(1) ATJ (SC) 246] has held that damage rent cannot be recovered from retirement benefits of a Government servant.

8. The respondents have filed their reply and have opposed the OA and have stated that a surprise site check on 09.02.2004 of the said Railway Quarter, which was allotted to the applicant for residential purposes only, by a Site Checking Team Committee nominated by the competent authority as per the prescribed rules revealed that the applicant had sublet the said quarter to one Sh. Suresh and had also unauthorizedly constructed one Godown, one room and two small stores. A show cause notice dated 26.6.2004 was, therefore, issued to the applicant to remove the unauthorized constructions made by him otherwise eviction proceedings, disciplinary action and recovery of damage rent would be initiated against him, but the applicant did not pay any heed to the said show cause notice dated 26.06.2004, and failed to carry out the instructions given to him, as a result of which the allotment of said quarter was cancelled w.e.f. 09.02.2004 as per the Railway Boards instructions dated 30.06.1988. 8.1. It is further pointed out that Sh. Suresh s/o Sh. Ram Chander (brother-in-law of the applicant) has signed on the site check report, and written in his own hand writing that 30 bags of turmeric were lying in the room which clearly substantiates that the house had been sublet. 8.2. It is also stated that the Full Bench of this Tribunal in Ram Poojan v. Union of India and Anotehr, (1996) 34 ATC 434 (FB), had held that it would be open to the Railway Authorities to recover penal/damage rent by deducting the same from the salary of the Railway servant and it would not be necessary to take resort to proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and it was further held that resort to proceedings under the said Act is only an alternative procedure which does not debar recovery as per the provisions of Railway Boards circulars. Therefore, in view of the above position, the respondents state that the OA be dismissed.

9. We have heard the learned counsel for both sides and have been through the pleadings on record. 10.1 The respondents have levied penal rent on the applicant for the period of the alleged unauthorized occupation from 09.02.2004 to 30.11.2009. It is noticed that in compliance of this Tribunals directions passed in OA No.1468/2010, the case of the applicant was reviewed and the following order (dated 20.07.2010) was passed by the respondents: 3. Vide your representation dt. 30/04/04 received in office on 05/05/2004 you have admitted the fact of unauthorized construction under the pretext that it was existing prior to your occupation of this house. It is also on record that Sh. Suresh s/o Sh. Ram Chander (your brother-in-law as per your representation) has signed on the site check report and written in his own hand writing that 30 bags of turmeric were lying in the store which clearly substantiate that house was subletted to Sh. Suresh s/o Sh. Ram Chander which was being used for commercial purpose. Your allegation that your brother in law Sh. Suresh was forced to sign the documents shown to him by the checking party is merely an after thought. The record also revealed that the General Secretary., Uttar Railway Majdoor Union also approached the administration for taking action against you for subletting the house. Working president of the URMU also mentioned that how does it matter if the representative of URMU could not associate specially when it has been established beyond doubt that the said quarter was subletted to outsider by him who had made unauthorized construction also in Qr. No.T-28/A illegally. He also mentioned that URMU never supported or encourage persons indulged in illegal activities. Further General Secretary/NFIR vide his letter dated 24.01.09 also represented to review the case of subletting against you. However, to provide natural justice your case was re-examined and recovery of damage rent + other charges was pended vide order dated 25.10.2004 till further order and complete record and facts relevant to the case were put up to competent authority i.e. General Manager, Northern Rly. who after giving due consideration found that you have not vacated the quarter even after laps of more than one year after your retirement on 31.05.2008 and passed the orders to evict him and take action as per rules. 10.2. It is seen from the above that whereas the case was put up to the General Manager, who after due consideration, passed the orders to evict the applicant and take action as per rules, it has not been clarified why the respondents took no action to send a reply to the query raised by the Chairperson, HQHC vide endorsement of her order dated 25.10.2004 to the CE (P&D). 10.3. Further, in Madan Mohan Prasads case (supra), the Honble Apex Court had dealt with the issue of non-vacation of railway quarter after retirement and withholding of DCRG and leave encashment, it was held as under: 2. The learned counsel for the appellants relied upon the decisions of this Court in Union of India v. Sisir Kumar Deb [1991 (1) SCC L & S 781], Director of Technical Education v. K. Sita Devi [1991 Supp (2) 386] and Wazir Chand v. Union of India &0rs. [JT 2000 (SuppI 1) SC515] In none of these decisions, the actual import or the effect to the relevant rules regarding payment of DCRG had been considered In that view of the matter, these decisions cannot be of much help to the appellants The relevant rule applicable so far as the respondent is concerned is rule 323 which is available in the manual of Railway Pension Rules, 1950 It is made clear therein that claim against the railway servant may be on account of three circumstances, "(A) losses (including short collection in freight charges shortage in stores) caused to the government as a result of negligence of fraud on the part of the railway servant while he was in service, (b) other government dues such as overpayment on account of pay and allowances, or admitted and obvious dues such as house rent, post office, life insurance premia, outstanding advance etc; (C) non-government dues."

3. It cannot be said that the case put forth on behalf of the appellants can be brought in any one of these categories. The claim made on behalf of the appellants is not only to collect normal house rent but also penal damages, in addition. That is not within the scope of rule 323 at all. What is contemplated therein is 'admitted' and 'obvious' dues. The payment resulting in penal damages is neither 'admitted' nor 'obvious' dues apart from the fact that determination has to be made in such a matter. It is also permissible under relevant rules to waive the same in appropriate cases. In that view of the matter, it cannot be said that such due is either 'admitted' or 'obvious'. Hence, we do not think that the view taken by the tribunal calls for any interference. However, it is made clear that while the appellants have to disburse the DCRG to the respondent the normal house rent, inclusive of electricity and water charges, which are 'admitted' or 'obvious' dues can be deducted out of the same, if still due. From the above, it is clear that in the case in this OA too, penal damages cannot be considered to be admitted or obvious dues, Thus, the same cannot be recovered from the retirement dues of the applicant. However, normal house rent as per rules, inclusive of electricity and water charges, would constitute `admitted dues. 10.4. After the case was ordered to be listed `for being spoken to on 16.08.2011. On 01.09.2011, the respondents counsel was asked to clarify as to what action was taken by the respondents in the case on the said query mentioned in Para 3 (vide endorsement dated 25.10.2004 to the CE (P&D). He was also given one weeks time to produce the file in which the case of the applicant had been dealt with, as also to examine the case of the applicant with reference to the law laid down in the Judgement of the Honble Apex Court in Union of India & Others v. Madan Mohan Prasad (Civil Appeal Nos.4832-4833 of 1999, decided on 28.02.2002) (the Full Bench decision referred to by the learned counsel for the respondents in support of levy of penal rent was issued in the year1996). On 15.09.2011, the learned counsel for the respondents sought further time on the ground that the respondents had not located the case file. Finally, when the matter came up for hearing on 29.09.2011, although the respondents counsel opposed the OA, he could not place any case or case law to support the action of recovery of penal rent from the retirement dues keeping in view the Judgement of the Honble Supreme Court in Madan Mohan Prasad case (supra), nor was any record produced. Therefore, we have no other option but to draw an adverse inference against the respondents in the matter, viz., that no action was taken on the query of the Chairman, HQHC dated 25.10.2004. Not having taken any action in the matter (based on this query of Chairperson, HQHC, Delhi Area) from October, 2004 till the applicants retirement in 2010, it would be somewhat unfair to levy damage rent after the applicants retirement. If the respondents had wanted to recover penal rent as per rules, they could have taken action in the matter in 2005 itself along with stronger action to evict him from the quarter at that point of time.

11. The applicants counsel, on instructions from his client, agreed that for the extra period of retention of the railway quarter, the applicant would be willing to pay rent as follows: for the first four months at the normal rent, and for the rest of the period double the normal rent but that no damage rent should be levied.

12. In view of the above facts and circumstances and keeping in view the legal position, and also in view of the omissions on the part of the concerned authorities in the respondents office too, i.e., no action taken on the Chairman, HQHCs order dated 25.10.2004 as well as no timely concrete action for vacation prior to retirement of the applicant, we feel it would be appropriate to give a quietus to this case by directing the respondents to charge from the applicant normal rent for the period of occupation upto his retirement on 31.05.2008 normal rent for the first four months after retirement and for the rest of the period after retirement double the normal rent for (the period of over stayal), and release the retirement benefits of the applicant (as due under rules) after adjusting the above rent amounts, This may be done within a period of two months from the date of receipt of a copy of this order.

13. The OA is disposed of in terms of the above directions. No costs. (Shailendra Pandey) (M.L.Chauhan) Member (A) Member (J) /nsnrsp/