S.G.Deshmukh, - (1.) THE applicant has claimed the following relief in the present O.A. (a) This Hon'ble Tribunal may be pleased to call for the records of the case and after going through the same, be pleased to declare that the applicant is entitled to interest @ 12% p.a. On the Provident Fund amounting to Rs. 2,58,359 from 1.6.1993 to August 2003. and be pleased to order and direct the respondents to forthwith pay the same to applicant. (b) THE Hon'ble Tribunal may further be pleased to declare that the applicant is also entitled to interest @ 12% p.a. on the commuted value of pension, amounting to Rs. 67,907 from 1.6.1993 till its actual date of payment in August 2003, and be pleased to order and direct the respondents to forthwith pay the same to the applicant. (c) THE Hon'ble Tribunal may further be pleased to declare that the applicant is also entitled to interest @ 12% p.a, on the arrears of regular pension due to the applicant from June 1993 to August 2003 and be pleased to order and direct the respondents to calculate and forthwith pay the same to the applicant. (d) This Hon'ble Tribunal may further be pleased to order and direct the respondents to pay salary for May 1993 to the applicant along with 12% interest thereupon from 1.6.1993 till its actual payment. (e) This Hon'ble Tribunal may further be pleased to hold and declare that the respondents are not entitled to adjust DCRG amount of Rs. 65,340 towards the damages (rent) for alleged unauthorized occupation of the Railway quarter and be pleased to order the respondents to refund the same with interest @ 12% p.a. thereupon from 1.6.1993 till its actual payment. (f) This Hon'ble Tribunal may further be pleased to order and direct the respondents to pay Leave Encashment for 177 days with interest @ 12% p.a. from 1.6.1993 till its actual payment. (g) THE Hon'ble Tribunal may be pleased to declare that the respondents are not entitled to withhold/deduct Dearness Relief from the regular Pension of the applicant and be pleased to order and direct the respondents to refund the total amount of Dearness Relief so far deducted / withheld from the pension of the applicant with interest @ 12% thereon from the date it become due till its actual payment to the applicant. (h) This Hon'ble Tribunal may further be pleased to order and direct the respondents to issue Post Retirement Complimentary passes to the applicant from 2003 onwards. (i) Cost of Original application be provided for. (j) Any other and further order as this Hon'ble Tribunal may deem fit, proper and necessary in the circumstances of the case.
(2.) The applicant's case is that he retired from the Railway service on 31.5.1993 on superannuation. He was allotted Railway quarter No. RB-III/129/12, Wendon Avenue at Matunga (W), Mumbai. During his service the applicant had filed O.A. 969/2002 for release of his retirement dues. The O.A. was disposed of by order dated 20.10.2003 with liberty to file fresh O.A. for the remaining grievances. It is contended that the applicant was not paid his retirement dues and salary for May 1993. He is paid Provident Fund in August 2003 during the pendency of earlier O.A. The arrears of pension from June 1993 onwards was paid in August 2003. DCRG, Insurance and Leave Encashment for 177 days were not paid. He was not given Post Retirement Passes, Service Certificate, Medical Card. It is contended that he was informed by letter dated 27.8.2002 that his Provident Fund dues were only Rs. 42,359. Accordingly to the applicant this amount was not correct. In August 2003 the correct amount of the Provident Fund dues of Rs. 2,58,359 was deposited by the respondents in applicant's Bank account. However they have not paid interest for delayed payment and the applicant is claiming 12% interest on Provident Fund from 1.6.1993 to August 2003. Commutation of Pension of Rs. 67,907 which was due to the applicant immediately after his retirement was paid to him in August 2003. The applicant has submitted the prescribed forms and documents at the time of retirement in the year 1993. He is entitled to the interest at 12% p.a. on commutation amount from 1.6.1993 till the amount is paid. The amount of DCRG of Rs. 65,340 has not been paid to the applicant because of retention of the quarter by him. The respondents have charged the damage rent arbitrarily for the alleged unauthorized occupation of the quarter from 1.6.1993 to 30.7.2002 by which date the applicant was forced to vacate the quarter under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. It is contended that proceedings under Section 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 has not been taken and as such no damage rent can be charged from the applicant. The applicant was not given any notice as required under Section 7 of the said Act. The DCRG amount cannot be adjusted against damage rent. It is also contended that the respondents are not paying the Dearness Relief to the applicant on the ground that applicant had unauthorizedly occupied the Railway Quarter. He is only getting the pension without Dearness Relief. It is contended that according to the respondents the amount of Rs. 3,97,302 is due from the applicant on account of damage rent and the respondents have advised the Branch Manager, State Bank of India, Wadala Branch, Mumbai under their letter dated 19.11,2002 to recover the amount of Dearness Relief payable to the applicant. The Bank is not paying Dearness Relief to the applicant because of the aforesaid instructions given to them by the respondents.. This was done without notice to the applicant and without proceedings being taken under Section 7 of the Public Premises (Eviction of Unauthorized Occupants) Act 1971. The applicant had filed all the necessary forms for the payment of pension etc., well in advance, before his retirement. The respondents were raising unnecessary and irrelevant pleas with a view not to pay the retirement dues to the applicant. He was not paid salary of May 1993 which is still due. 3: The respondents resisted the claim of the applicant by filing their counter affidavit, it is contended that as per the extent procedure, the settlement papers and pension booklet (A and B) were handed over to the applicant 3 months in advance to complete all formalities in time to disburse his settlement on last working day i.e. on 31.5.1993. The applicant failed to submit the duly filled and signed settlement papers and pension booklets along with self and family photographs till 4.5.1993. Hence applicant's settlement dues were not paid on last working day i.e. on 31.5.1993, It is contended that on verification of service record of retiring employees, SEE PR noticed some discrepancy in the declaration dated 28.9.1990 and 15.10.1992 accordingly SEE PR advised the applicant to produce death certificate of 1st wife and marriage certificate of 2nd wife in support of his claim to avoid delay in making settlement dues. The applicant had submitted incomplete settlement papers without the photograph of Baby Sneeha. Welfare Inspector of Parel workshop was deputed to verify the family particulars of applicant, since the verification was not done before Competent Authority. The Welfare Inspector visited applicant's residence on 18.6.1993 to verify his family particulars. During the visit of 'Welfare Inspector neither the applicant nor his family member did co-operate with the Welfare Inspector to verify the family particulars of applicant. They did not open the door after making knocking nor did they co-operate with the Welfare Inspector. The applicant had submitted application on 31.5.1993 for retention of Railway Quarter for a period of 4 months on the ground that he had not secured private accommodation and again the applicant made application dated 25.9.93 for retention of Railway Quarter for further 4 months. Thereafter he had not made any correspondence to the respondents in connection with his settlement dues. On 18.12.2000 the incumbent of SEE PR (Shri K.C. Sanjappa) made correspondence with the applicant and requested him to visit the office of the SEE PR personally with relevant documents to finalize his settlement dues. The complaint regarding non-payment of settlement dues to the applicant received by the Cabinet Secretary, Public Grievances, New Delhi was forwarded to the Chairman Railway Board and the same was received by respondent No. 3. The Divisional Personnel Officer CSTM advised the applicant to vacate the said Railway Quarter vide letter dated 22.1.2002 in his own interest within 7 days. Thereafter the matter was referred to the Estate Officer for eviction proceedings against the applicant under Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The Estate Officer intimated eviction proceedings bearing case No. 7/2002 against the applicant. The delay in finalizing of his settlement dues was due to late submission of documents and non-co-operation with Railway Administration in verifying his family particulars. The case was finalized on 30.7.2002 by CWMPR and thereafter his settlement dues were paid to the applicant. It is contended that the applicant is not entitled to any DCRG since he has not vacated the Railway Quarter. The DCRG amount of Rs. 65,340 was adjusted towards the damage rent and balance amount is recovered from D.A. Relief of applicant in terms of Rules 16(4)and 16(6) of Railway Service Pension Rule, 1993 respectively. The GIS of Rs. 4282 was paid in August 2002. Leave salary of Rs. 32,947 for 156 days was paid on 5.4.2003. He is not entitled for any Post Retirement Pass as he had not vacated the Railway Quarter since January 1994 to 30.9.2002, He has not submitted photograph of individual family members for issuing medical card. It is contended that Provident Fund was erroneously taken due to 5 digit value on Computer and the same was rectified and the correct amount of Rs; 2,58,359 was deposited in applicant's Bank account. The applicant himself failed to claim his settlement dues from May 1993 to July 2002. The applicant has been charged with damage rent of Rs. 3,97,302 as per the extent rules and Railway Board's letter for unauthorized occupation of quarters for the period from 1.2.1994 to 30.9.2002. It is contended that the applicant was allowed to retain the quarter, on normal rent and double the rent. However the damage rent was calculated and the DCRG amount of Rs. 65,340 has been adjusted towards the damage rent and the Competent Authority decided to recover from the Dearness Relief accordingly the Branch Manager, State Bank of India has been advised to stop applicant's D.A. relief with effect from 1.6.1993 and deposit to Railway Revenue till further order. There is no provision to retain the Railway Quarter beyond 8 months. 4. Heard Mr. G.S. Walia Counsel for the applicant and Mr. V.S. Masurkar Counsel for the respondents. 5. Mr. Walia submitted that non-payment of Provident Fund dues from 1.6.1993 was bad and arbitrary he is entitled to interest at the rate of 12% with effect from 1.6.1993 till the same is paid. The applicant is also entitled for interest on arrears of pension. 6. The learned Counsel further submitted that the respondents are not entitled to adjust the amount of DCRG against damage rent. The DCRG has nothing to do with the unauthorized occupation of Railway quarter. He also submitted that the respondents have not taken any proceedings under Section 7 of B.P. Act, 1971. They have not given any notice . for charging damage rent therefore charging damage rent is illegal. The respondents cannot adjust the Dearness Relief towards the damage rent. 7. The learned Counsel for the applicant relied on the judgment in Writ Petition 3120/ 02 in the case of N.C. Sharma v. Union of India and Ors. decided on 10.2.2004. Union of India and Ors. v. Madan Mohan Prasad 2002(2) SC SLJ 217. V.U. Warrier v. ONGC and Anr. 2003(3) Mh.L.J. 168, R, Kapur v. Director of Inspection (Painting and Publication) Income Tax and Anr. 1995 SCC (L and S) 13. Samir Kr. Mukherjee v. Union of India and Ors. 2003(3) ATJ 26. Kartar Singh and Ors. v. Union of India and Ors. judgment dated 30.12.2003 in O.A. 588/2003 up held by the High Court order dated 1.4.2004 in Writ Petition No. 2975/2004. SLP 23697/2004 was dismissed by the Hon'ble Apex Court on 14.3.2005. 8. On the other hand Mr. V.S. Masurkar submitted that Section 7 of the P.P. Act is only alternative procedure which does not bar recovery of damage rent as per the provisions of Railway Board Circular. The learned Counsel further submitted that action taken by the respondents in recovering the penal rent is as per the provisions of Railway Board's circular is within the frame work of the law. The delay in finalizing of the settlement dues was due to late submission of documents and non-cooperation with Railway Administration in verifying his family particulars. The learned relied on Full Bench judgment in Ram Poojan v. Union of India and Anr. (1996)34ATC434(FB) : 1996(3)SLJ92(CAT-All). Smt. M.P. Kannal v. Union of India and Ors. 1997(1) SLJ 40. He has also relied on Union of India v. K. Balakrishna Nambiar 1998 SCC (LandS) 719. 9. The applicant retired from Railway service on 31.5.1993 attaining the age of superannuation. CIS amount of Rs. 4282 is paid to the applicant in August 2002. Leave encashment amount of Rs. 32,947 for 156 days is paid on 5.2.2002. Commutation Pension was paid to him on 30.7.2002. Provident Fund amount of Rs. 2,58,359 is paid to the applicant in August 2003. It is also on the record that the applicant was allowed to retain the quarter from 6/93 to January 1994 on normal rent and double rent. The applicant has been charged with the damage rent of Rs. 3,97,305 for unauthorised occupation of quarter from 1.2.1994 to 30.9.2002. It is contended by the respondents that damage rent was calculated from February 1994 till vacation of the quarter and the Competent Authority recovered the damage rent from Dearness Relief and accordingly the Manager, State Bank of India was advised to stop Dearness Relief from 1.6.1991 and deposit to Railway revenue till further orders. It is also on record that Estate Officer had initiated the eviction process and the applicant was evicted from 30.9.2002. 10. In Ram Poojan's case the Full Bench has held that: The Railway servant on transfer, retirement or otherwise, if does not vacate the Railway quarter even after the permissible period, it is not necessary to issue any specific order cancelling the allotment of accommodation. Further retention of the accommodation by the Railway servant would be unauthorized and penal rent can be levied. Residential Accommodation- Penal/Damage rent/Recention of accommodation beyond the permissible period - Allotment of quarter stands automatically cancelled - Penal rent can be levied according to the rates prescribed from time to time in the Railway Board's circular. Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Penal Rent - It is open to the Railway Administration to recover penal/damage rent by deducting the same from the salary of the Railway servant - Not necessary to take resort to proceedings under P.P. Act. Indian Railway Establishment Manal, Para 1711 - Recovery of Rent Railway Board's circular are the general or special orders permitted to be issued under Para 1711 of I.R.E.M. - there is no inconsistency between the provisions of the Railway Board's circular and the provisions of Para 1711. Indian Railway Establishment Manual, Para 1711 - Recovery of Rent Provisions under Railway Board's letter regarding recovery of rent for unathorized retention of quarter - These letters supplement the provisions of Para 1711 of I.R.E.M. and in no manner supplant them. Penal Rent - Residential Accommodation - Applicant transferred from Allahabad to Mirzapur - Not provided the accommodation at Mirzapur - Retained the accommodation which was provided at Allahabad - Charge of penal rent for unauthorized retention after the permissible period, justified. 11. In New Delhi Municipal Committee v. Kalu Ram and Anr. AIR 1976 SC 1637. The Hon'ble Supreme Court has held that: Section 7 of P.P. Act only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim debt otherwise time barred. 12. The provisions of the P.P. Act do not take away any right or power available under the law for recovery of arrears of rent including damage rent. It is within the power of the Union Government to frame the rules under Article 309 of the Constitution for service matters which will also include rules of recovery of rent including damage rent from the employee. This power under Article 309 of the Constitution would not therefore be taken away by the provisions of Section 7 of the P.P. Act. It is also stated that Section 15 of the P.P. Act does not restrict the power of the Government to frame the rules under Article 309 of the Constitution for recovery of rent including damage rent. It is also observed by the Full Bench that P.P. Act is only an alternative procedure which does not bar the recovery as per the Railway Board circular. In view of the decision of Rampoojan 's case the provision under Section 7 of the P.P. Act is alternative procedure which does not bar recovery according to the Railway Board Circular. 13. In Union of India and Anr. v. Wing Commander R.R. Hingorani 1987 ATC (Vol. 2) 939 : 1987(3) SLJ 154 (SC). It has been observed by the Apex Court in Para 7 as under: ...It is plain upon the term of SR-317-B-25 that the liability to pay damages equal to the market rent beyond the concessional period is an absolute liability and not a contingent one. Both the learned Single Judge as well as the Division Bench were clearly in error in subjecting liability of a Government Officer to pay market rent for the period of unauthorised occupation to the fulfilment of the condition that the Director of Estate should serve him with a notice that in the event of his continuing in unauthorised occupation he would be liable to pay market rent. 14. Madan Mohan Prasad's case cited by the applicant, the Apex Court has held that: Non-vacation of Railway quarter after retirement cannot be a ground to with hold DCRG and the leave encashment. It is also held that penal rent/damages does not fall under the term 'admitted' or 'obvious' dues within the meaning of Rule 323. Tribunal rightly allowed the claim of respondent for payment of DCRG and leave encashment with interest. However the amount towards normal rent, electricity and water charges which are admitted and obvious dues can be deducted by the authorities, if still due. 15. In K. Balakrishna Nambiar's case (supra) 3 Judges Bench of the Apex Court has held that: DCRG withheld for unauthorized retention of Government accommodation after retirement - In such circumstances, interest on the withheld amount of gratuity, held, not payable in respect of the period of such unauthorized occupation and for another month after vacation. 16. In Dr. Uma Agarwal v. State of U.P. and Anr. 1999 SCC(L and S) 742 : 1999(3) SU 212 (SC), it has been held by the Apex Court that: If rules instructions which prescribe time-schedule for settling of retirement dues are allowed strictly, much of litigation can be avoided and retired Government servants would not feel harassed Pension is not a bounty but right of a Government servant. Government is obliged to follow rules. Delay in settling retrial benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too, there is prescribed procedure. This indeed is unfortunate, In cases where a retired Government servant claims interest for delayed payment, the Court can certainly keep in mind time schedule prescribed in the rules/instructions, apart from other relevant factors applicable to the case. 17. As per the ratio in Madan Mohan's case the DCRG cannot be with held merely because the claim for damages for unauthorized occupation is pending against the applicant but amount towards normal rent, electricity and water charges which are admitted and obvious dues can be deducted. As per the ratio in Balakrishna Nambir's case the applicant is not entitled for interest on DCRG amount which was with held for unauthorized occupation of the quarter. As per Rampoojan 's case Full Bench held that no specific order canceling the allotment on expiry of permissible period of retention of the quarter on retirement is necessary. Retition of accommodation of the Railway servant would be unauthorized and penal/damage rent can be levied according to the rules prescribed from time to time. As per Hingorani, case (supra) and Railway Board Circular- no notice is required to be given before recovery of damage rent. 18. The applicant is entitled to interest on Provident Fund amount of Rs. 2,58,359from 1.6.1993 to August 2003 on prevailing rate. The contention of delay on the part of the applicant in submitting the papers is just lame excuse on the part of the respondents. 19. The respondents ought to have got verified the service records during his service period. It is also apparent that the respondents finalized most of the settlement dues only after filing O.A. 969/2002. It is a clear case of departmental delay which is not excusable. The respondents brought on record the letter date 4.5.1993 to show that their representative had gone to the residence of the applicant for verification, that cannot be the excuse of lethargy of the department in as much as the rules and instructions require that these actions to be taken long before retirement. The Exercise which was to be completed long before retirement was in fact started after retirement. It is also apparent that from 1993 onwards till 2000 the respondents did not take any action for processing the pension papers. Even the respondents did not mention that when they got duly completed papers from the applicant for settlement dues. The applicant has mentioned that he has not filled up any new forms. The settlement dues have been paid on old forms only. Thus the delay in finalization of settlement dues is attributable to the respondents and it is not on account of late submission of papers. This is a fit case for awarding interest on delayed payment. 20. There is no dispute that the pension and gratuity become valuable rights and property in the hands of employees on their retirement and the payment of pension and gratuity cannot be withheld even after the employee khas remained in unauthorized occupation of employees accommodation and become liable to pay damages under the allotment Rules for over stay. 21. The Dearness Relief on pension has been defined in Railway Servants (Pension) Rules, 1993 which are also statutory rules framed under the provisions of Article 309 of Constitution. Rule 75 Sub-para (21) reads as under: 21 Dearness relief on pension or family pension (i) relief may be granted to the pensioner in the form of dearness relief at such rates and conditions as the Government may specify from time to time. (ii) If a pensioner is reemployed under Central or State Government in India or abroad, including permanent absorption in such corporation, company, body or bank he shall not be eligible to draw dearness relief on pension or family pension during the period of such re-employment. (iii) a Railway employee who gets permanently absorbed in terms of Clause (a) Rule 54 and opts for lump sum payment in lieu of prorata monthly pension in terms of Clause (a) Rule 54 shall not be eligible for dearness relief. In Chapter-I on Section 19 pension has been defined as under: Pension includes gratuity except when the term pension is used in contradistinction to gratuity but does not include dearness relief'. 22. The Provisions concerning adjustment pertaining to Railway accommodation have been made in Rule 16. Sub-rule (6) of Rule 16 reads as under: (6) The recovery of licence fee for the occupation of the Government accommodation beyond the permissible period of four months after the date of retirement if allotted shall be the responsibility of the Directorate of Estates. Any amount becoming due on account of licence fee for retention of Government accommodation beyond four months after retirement and remaining unpaid licence fee may be recovered by the Directorate of Estates through the concerned Accounts Officer from the dearness relief without the consent of the pensioner. In such cases no clearness relief should be disbursed until full recovery of such dues have been made. Note: For the purpose of this rule, the licence fee shall also include any other charges payable by the allottee for any damage or loss cause by him to the accommodation or its fittings. 23. It is apparent from the above that definition of pension exclude Dearness Relief. In Smt. M.P. Kanal's case (supra) recovery is held permissible from Dearness Relief as it does not fall under the definition of pension. The order of the Competent Authority directing the Manager, State Bank of India to stop Dearness Relief and deposit to Railway Revenue cannot be said to be illegal. 24. As per ratio in Madan Mohan 's case DCRG cannot be withheld for unauthorized occupation of quarter and for recovery of penal rent. However the amount towards normal rent, electricity, water charges which come under admitted and obvious dues can be deducted by the respondents. As per ratio in K. Balakrishnan 's case the respondents to pay DCRG amount after deducting normal rent with interest at the rate of 10% p.a. from 1.11.2002 as he is evicted on 30.9.2002 till actual payment is made. 25. The respondents are to pay the interest at the rate of 10% p.a. on arrears of pension, Commutation of Pension, leave encashment, CGEIS amount from two months after the date of retirement till the same is actually paid. The respondents are to pay interest on GPF amount on the prevailing rate till the same is actually paid. 26. The applicant has also requested for directing the respondents to issue post retirement complementary pass from 2003 onwards. The applicant has been evicted from the quarter on 30.9.2002. He will be entitled to post retirement complementary pass from 2003 onwards. 27. The above exercise is to be carried out within 3 months from the date of receipt of copy of this order. Accordingly the O.A. is partly allowed.;