- (1.) The matter in challenge before the writ petition is an attempted recovery from an ex-Army employee, who was visited with punishment of compulsory retirement for unauthorized absence on leave without sanction. The order of compulsory retirement was challenged unsuccessfully by the petitioner before this Court and before the Hon'ble Supreme Court. The issue in controversy revolves around the treatment of his period of stay in the accommodation provided to him beyond the period of compulsory retirement and how the leave period were to be treated.
(2.) The impugned proceedings (Annexure P7) was with reference to his continuance in possession of the accommodation from 01.05.1986 to 08.12.1986. The amount collected from the petitioner was at two differential rates, namely, Rs.550/- from 30.11.1985 to 01.05.1986 and Rs.1,650/- from 01.05.1986 to 08.12.1986. The contention of the petitioner was that he had been prosecuting the proceedings before the High Court and before the Hon'ble Supreme Court and the possession could not have been treated as unlawful and be liable for any penalty. The counsel states that the employer would be entitled only to recovery of the market rent and there is no provision for penalty. In my view, the contention is well-founded for the petitioner to recover damages in respect of public premises in unauthorized occupation which is provided through Section 7 contemplates assessment of damages on account of use and occupation, but does not contemplate the imposition of any penalty. The term 'use' and 'occupation' must be understood only as what rent it could fetch in the open market. If rent of Rs.550/- was to be taken as the market rent even for the subsequent period from 01.05.1986 to 08.12.1986 that is, for a period of 7 months, the amount could have been only Rs.3,850/- and not Rs.11,450/- as assessed. I reject the contention of the State, even while rejecting the contention of the petitioner that his possession could not be termed to be unlawful during the time when he was prosecuting the case before Courts challenging the order of compulsory retirement, I will hold that the quantum assessed in the impugned order (P7) as regards the damages payable on account of rent and penal charges are liable to be scaled down to Rs.7,150/-.
(3.) As regards the other contention relating to the recovery of half pay leave encashment without pay, the justification is that the recoveries are done in the manner contemplated under Rule 25 of the Central Civil Services Rules of 1972. The learned counsel for the petitioner contends that the recoveries are not in consonance with Rule 25. The learned counsel also refers me to Rule 19 that deals with grant of leave on medical certificate as a matter of course. I am not prepared to examine this situation since, although the petitioner produced proof of fitness, leave was not sanctioned and this act of availing of leave without sanction, was itself treated as misconduct to inflict the punishment of compulsory retirement. The only issue would be whether Rule 25 would allow for the recoveries in the manner sought for. The said Rule reads as follows: 25. Absence after expiry of leave.- (1) Unless the authority competent to grant leave extends the leave, a Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half-pay leave, to the extent such leave is due, the period in excess of such leave due being treated as extraordinary leave. (2) Willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.;