Judgment:
1. The dispute raised in this O.A. is whether the respondents are entitled to realise the "damages" for unauthorised occupation of quarter beyond the admissible period after retirement by the applicant from his Dearness Relief on Pension.
2. The applicant was working in the office of India Audit & Accounts Department as Senior Auditor, Calcutta. He retired from service on superannuation w.e.f. 31.5.88 and after his retirement he has been granted all his retiral benefits including pension and he has been receiving the same regularly.
3. While he was in service, he was allotted a Govt. accommodation viz.
Flat No. 161, Block-AF, Type-Ill, Salt Lake City, Calcutta. After his retirement, he was allowed to retain the said quarter for the admissible period. According to the applicant, he retained the said quarter even thereafter and vacated the same on 31.8.89. However, this contention of the applicant is disputed by the respondents and according to them, he vacated the said quarter on 14.10.93. Sometime in October, 2000, the applicant was intimated that since he had unauthorisedly occupied the Govt. accommodation upto 14.10.93 after his retirement, he was liable to pay "damages" and the same was to be recovered from his Dearness Relief on Pension. The applicant made a representation to the CAG contesting the said claim of the respondent authorities and thereafter made another representation to the Hon'ble Prime Minister. In response thereto, he was given a reply by the Office of the Directorate of Estate, New Delhi vide Annexurer-A dated 23.10.2000, in which it was mentioned that the allotment of his flat was cancelled with effect from 30.9.88. However, he did not vacate the quarter in question even after the concessional period and overstayed in the said quarter upto 14.10.93, whereafter he was evicted therefrom in a proceeding under the (Eviction of Unauthorised Occupants) Act and he was therefore liable to pay "damages" at the rates fixed by the Government from time to time for the period of overstay in the said quarter. Accordingly the Estate Manager was constrained to advice the Pension Disbursing Authority to make recovery of the damages amounting to Rs. 76,126/- from the Dearness Relief on Pension of the applicant.
4. Being aggrieved, the applicant has filed this application with a prayer for cancellation of the aforesaid order.
5. According to the applicant, he vacated the quarter on 31.8.89. In other words, he admitted that he overstayed in the quarter for about 15 months and he paid licence fee for some months. His contention is that after about 12 years of his retirement from service, the respondents cannot deduct any damages from his Dearness Relief on Pension as the claim is time barred. He has also contended that if any damages are payable by him towards unauthorised occupation of the quarter, the authorities may resort to the proceeding under the P.P. Act after giving him due notice as required under the Law.
6. Respondent No. 2 i.e. the Pay & Accounts Officer (A), Pension, has filed a reply, but respondent No. 3 i.e. the Director of Estates has not filed a separate reply, although it is under his order that the aforesaid deduction has been effected.
7. By an order dated 8.5.2001, this Tribunal stayed further recovery of any amount from the dearness relief of the applicant's pension.
8. Respondent No. 2 in his reply has not very such disputed the facts mentioned by the applicant in his application. It is stated that the applicant overstayed in the Govt. quarters and by an order dated 7.2.99 issued by the Estate Manager, it was advised to recover Rs. 76,126/- from the dearness relief on the pension of the applicant on account of outstanding licence fee and damages. The matter was taken up with the applicant's office concerned. It is also stated that under Rule 72 (6) of the CCS (Pension) Rules, such recovery is admissible. It is further stated that it is the Estate Manager who is responsible to determine the licence fee or damages and that the respondent No. 2 is not authorised to determine the Govt. dues in this regard, but he is duty bound to recover the amount on the advice of the Estate Manager under the provisions of 72 (6) of CCS (Pension) Rules.
9. We have heard the learned Counsel for the parties and have gone through the documents placed on record. As pointed out, respondent No.3 has not filed any reply, although he is the main respondent in this case and a reply on his behalf is very much essential to adjudicate the case properly. In any event, we have considered the matter on the basis of materials available on record.
10. It is not disputed that while the applicant was in service, he was allotted a Govt. quarter at Salt Lake. He retired from service w.e.f 31.5.88 and after his retirement he was also allowed to retain the said quarter for four months as per rules and thereafter the allotment was cancelled w.e.f. 30.9.88. It is not also disputed by the applicant that he overstayed in the said quarter for about 15 months and vacated the quarter on 31.8.89 as will appear from the representation of the applicant at Annexure-A4. According to him, he vacated the quarter on 31.8.89. However, no vacation slip or certificate has been produced. On the other hand, as it appears from various correspondences annexed to the O.A., that the applicant was physically evicted from the said quarter on 14.10.93 by following the procedure prescribed under the P.P. Act. In view of his unauthorised occupation of the quarters from 1.10.88 to 14.10.93, the authorities decided to recover damages from him. However, since the applicant had already retired from service and all his retiral dues including DCRG had been paid to him, it was decided to realise the Govt. dues amounting to Rs. 76,126/- towards damages from the dearness relief of the applicant's pension and on the advice of the Estate Manager, the respondent No. 2 stopped payment of dearness relief to the applicant w.e.f. March 2001 at the rate of Rs. 1474/- per month.
11. The learned Counsel for the applicant contended that 12 years after the retirement of the applicant, such action of the respondents is highly illegal and unlawful. Moreover, according to him, it is also barred by limitation. He argued that if any damages are payable by the applicant to the Government towards unauthorised occupation of the quarter, the authorities could very well have started proceedings under the P.P. Act. According to him, even under the P.P. Act, such proceedings cannot be initiated as it is also barred by limitation under the said Act. He has also contended that no notice was ever issued to the applicant before starting such recovery. His further contention is that no recovery of Government dues can be made from the dearness relief on pension. He has cited some decisions of the Tribunal in support of his contentions.
12. The learned Counsel for the respondents, on the other hand, contended that Govt. dues can be recovered under the provisions of Pension Rules. He referred to Sub-rule (6) of Rule 72 of the Pension Rules and contended that it is within the power of the Government to recover Govt. dues from the dearness relief of a Pension for unauthorised occupation of Govt. quarters.
13. The learned Counsel for the applicant, on the other hand, has referred to rule 73 of Pension Rules, which relates to adjustment of Govt. dues other than dues pertaining to Govt. accommodation. Hence, it is not applicable in this case.
14. The main challenge of the applicant is against the deduction of damage for unauthorised occupation of Govt. quarter after the admissible period of his retirement from the relief on his pension.
Although various contentions have been advanced by the learned Counsel for both the parties and some decisions have been cited at the Bar, we need not on these in detail, in view of the decision of the Full Bench of this Tribunal in the Calcutta Bench itself in O.A. No. 514 of 1995 and the connected MA No. 149 of 96 Kalipada Roy v. UOI and Ors., to which one of us (the present author) was a party.
15. In that O.A. & MA the facts were that the applicant retired from Govt. service on attaining the age of superannuation on 31.8.93, but did not vacate the Govt. quarter even after the admissible period and his allotment was cancelled. Even then he did not vacate the quarter and, therefore, the Estate Manager issued direction that he was liable to pay damages at market rate of Rs. 1429/- per month, which was sought to the recovered from the dearness relief on his pension. This decision was challenged by the applicant before this Tribunal through the aforesaid O.A. A Division Bench consisting of Hon'ble Mr. Justice A.K.Chatterjee the then Vice-Chairman and Hon'ble Mr. M.S. Mukerjee, the then Administrative Member heard the matter. But there was difference of opinion between them. While the Hon'ble Vice-Chairman held that no such deduction could be made from the dearness relief on pension, the Hon'ble Administrative Member observed that in view of amendment in the definition of "pension" as provided in Rule 3 (o) of CCS (Pension) Rules, 1972, excluding "dearness relief from the purview of "Pension", such deduction was permissible under Rule 72(6) of Pension Rules.
However, it was noticed that similar issue was also pending for decision before another Full Bench at Mumbai Bench in O.A. No. 519/94 and O.A. No. 689/94, Sriniwas B. Kulkarni v. UOI and Ors.
For resolving the difference of opinion, as aforesaid, the matter was referred to a Third Member and eventually, the author of the present order was appointed by the Hon'ble Chairman to act as the Third Member.
16. After hearing both parties and by following the decision of the Full Bench at Mumbai Bench in the aforesaid case rendered on 27.6.97, it was held that recovery of penal rent/damages from dearness relief on pension was admissible. Having held so, the O.A. was ordered to be placed before a Division Bench for final decision based on this decision of the Full Bench vide order dt. 18.1.2000.
17. During the course of hearing of the present O.A., no contrary decision has been brought to our notice overruling the aforesaid decision of the Full Bench by any higher Court and, therefore, the said Full Bench decision still governs the field. On the contrary, in the case of Union of India v. Sisir Kumar Deb, 1999 SCC (L &. S) 781, (arising out of a Calcutta Bench decision) the Hon'ble Apex Court held that Government dues can be realised from any amount payable to the respondent (employee). In that case also, the Railway Administration sought to realise dues on account of unauthorised occupation of Railway quarters from the dearness relief on pension of the employee respondent. Although, the learned Counsel for the applicant has contended that such recovery from dearness relief after 12 years of the retirement of the applicant is barred by limitation, he has not been able to show us any rule in this regard. In fact, we do not find any provision in the CCS (Pension) Rule prescribing any limitation period in the matter of such recovery.
18. In view of this position, we are bound to follow the Full Bench decisions referred to above. Accordingly, we find no illegality in the action of the respondents in realising damages for unauthorised occupation of the Government quarter beyond the permissible limit after retirement from the dearness relief on pension of the applicant.
19. For the reasons stated above, we are unable to grant any relief to the applicant, as prayed for in this O.A.20. The applicant has also questioned the authority of the Estate Manager in ordering such recovery without following the PP Act. The learned Counsel for the applicant has contended that the Estate Manager or Estate Officer is the creature of PP Act and that he has to act as per the provisions of the Act only. He further contended that after retirement of an employee, the Estate Manager or Estate Officer cannot take resort to the Service Rules (in this case CCS (Pension) Rules) to realise penal rent or damages for unauthorised occupation. Our attention is drawn to the OM dated 4.5.83 issued by the Directorate of Estate appearing below Rule 57 of CCS (Pension) Rules at page 152 of Swamy's Pension Compilation, 2000 Edition, wherein in para 2 it is provided that "after permissible period of retention, i.e. from the date of cancellation, the occupant is to be dealt with by the Directorate of Estates as if it were a private party. The Departments concerned are no longer required to correspond with the Directorate of Estates about that individual for the period beyond the cancellation of allotment." It is contended that since the applicant had retired from service in 1998 and the allotment of the Govt. quarter was also cancelled, the Estate Manager has no authority to direct the Pension Disbursing Authority to realise the damages from the dearness relief on pension without following the procedure laid down in PP Act, which is a self-contained and independent Statute.
21. However, we need not go into this question in view of the decision of the Hon'ble Apex Court in the case of UOI and Ors. v. Rasila Ram and Ors., JT 2000 (10) SC 588, wherein it has been held that the Tribunal has no jurisdiction to adjucate any matter relating to the decision taken by the Estate Officer/Manager under the PP Act. If the applicant has any grievance in this regard, he is free to move the appropriate forum to challenge the decision of the Estate Manager/according to law.
22. Subject to the observation made above, the O.A. stands dismissed.
The interim order stands vacated. There will be no order as to costs.