Mahesh Chandra Tripathi, J.@mdashHeard Shri Ashore Khare, Senior Advocate assisted by Shri Siddharth Khare for the petitioner; Shri Pankaj Rai, learned Additional Chief Standing Counsel for respondent No. 1 and Shri P.K. Tripathi for respondent Nos. 2 to 4. By means of present writ petition, the petitioner has prayed for quashing the order dated 8.9.2014 passed by the Executive Engineer, Electricity Civil Maintenance Division-II, Panki Thermal Power Station, Panki, Kanpur Nagar. He has further prayed for a direction to the respondents to forthwith disburse the amount of gratuity, provident fund and travelling amount since 1.2.2006 to him.
2. Brief facts giving rise to the present writ petition are that the petitioner was initially appointed as Supervisor in temporary capacity in the month of April, 1970 and on the said post he became permanent on 4.4.1973. Thereafter, he was promoted as Junior Engineer in the year 1978. Finally the petitioner retired from service on 31.1.2006 as Junior Engineer (Operation) at Panki Thermal Power Station Panki, Kanpur Nagar. During his service the petitioner was allotted residential quarter No. 9A-01 Type-Ill at Panki Thermal Power Station, Panki, Kanpur. It has been stated in the writ petition that consequent upon his retirement the petitioner had handed over possession of the said premises. A copy of the inventory of the electrical items duly counter signed by the Junior Engineer (Electrical) dated 31.1.2006 alongwith no dues certificate have also been brought on record collectively as Annexure-1 to the writ petition. It has also been categorically averred in the writ petition that after handing over possession of the said premises the petitioner has started residing at District Ghaziabad alongwith his son. Immediately after his retirement the petitioner approached to the respondent Corporation for release of his retiral benefits on the ground that no dues certificate had already been given to the petitioner. Therefore, there was no reason for not paying the retiral dues. Finally he made representations on 23.10.2013, 30.10.2013 and 18.11.2013. In this back ground the petitioner was compelled to approach this Court by means of Writ A No. 65445 of 2013, which was finally disposed of vide order dated 15.4.2014 directing the respondents to decide the claim of the petitioner. Inspite of the categorical direction of this Court to the Executive Engineer, Electricity Civil Maintenance Division-II, Panki Thermal Power Station to redress the grievance of the petitioner, no heed had been paid in this regard and finally the petitioner was compelled to approach this Court by means of Contempt Petition No. 4554 of 2014. In the said contempt proceeding notices were issued on 13.8.2014. Immediately after receiving the said notice the respondents proceeded into the matter and rejected the claim vide an order dated 8.9.2014 on the ground that firstly the petitioner is liable to deposit Rs. 3,46,256/- as penal rent for house, which was occupied by him subsequent to his retirement.
3. Shri Ashok Khare, Senior Advocate submits that the department could not stop the payment of gratuity and the reasons assigned for non-payment cannot be sustained on the ground that once the petitioner had vacated the house in the year 2006 and is residing alongwith his son at Ghaziabad, then there was no occasion for realising the penal interest. He further submits that both are the different proceedings. If there was any departmental enquiry or any proceeding pending consideration against the petitioner, only in that situation, the retiral dues could be stopped. Once the department has not initiated any proceedings, then there was no occasion for the department to withhold the gratuity and other retiral dues of the petitioner.
4. Shri Ashok Khare has also placed his reliance on the judgment and order dated 22.5.2006 passed in Writ Petition No. 32051 of 2001 (Rajendra Singh v. State of UP and others) in which this Court has categorically held that the penal interest towards the rent can only be realised as per Rule 18-A(5) of the Financial Hand Book Volume II, Part II to IV, which clearly states that the maximum amount, which can be recovered towards the rent beyond occupation of the normal period, is three times of standard rent. He further made his submission that it is settled law that the Government Order or direction cannot supersede the statutory rules and, therefore, the Government Order dated 24.12.1988 cannot override upon the proviso to Rule 18-A(5) of the Financial Hand Book Volume II, Part II to IV.
5. Shri Ashok Khare submits that in the present matter, in most arbitrary manner as per their own regulation they have fixed penal interest at ten times. Therefore, the same cannot be sustained as it is in violation to the provisions of Rule 18-A(5) of the Financial Hand Book.
6. Shri Ashok Khare has also relied upon a judgment of Hon''ble Apex Court in
"6. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10.1.2006 granted liberty to initiate the fresh inquiry in accordance with the Regulations. The appellant who was reinstated in service on 26.4.2006 and fresh disciplinary proceeding was initiated on 7.7.2006 and while that was pending, the appellant attained the age of superannuation and retired on 31.3.2009. There is no provision in the Uttar Pradesh Co-operative Employees Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor there is any provision stating that in case misconduct is established a deduction could be made from his retiral benefits. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena''s case (supra) and it was laid down as follows:
"5. Learned Senior Counsel for the respondents also relied upon Clause (3)(c) of Regulation-44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus:
"When the employee who has been dismissed, removed or suspended is reinstated, the Board shall con(sic)r and make a specific order:
(i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and
(ii) Whether or not the said period shall be treated as a period on duty."
6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.
7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95 there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
7. In the subsequent decision of this Court in U.P. Coop. Federation case (supra) on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management.
8. While dealing with the above case, the earlier decision in Bhagirathi Jena''s case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.
9. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.
10. The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and upto the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him.
11. The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein. No costs."
7. Shri P.K. Tripathi, learned counsel for the respondent Corporation, on the other hand, submits that the petitioner retired on 31.1.2006 and he continued to retain the possession of the official residence till 31.5.2013. Therefore, the department had every right to realise the penal interest as per the relevant Board Order No. 777 dated 19.5.1989 and the Board Order No. 2490 dated 17.7.1991. He further makes his submission that the petitioner was in illegal occupancy of the official accommodation, and used electricity. Therefore, he was liable to pay the electricity dues also. In these circumstances, the consolidated bill, which was signed on 12.11.2014, amounting to Rs. 5,64,461/- (Rs. 3,46,256/- towards house penal rent and Rs. 2,18,205/- towards electricity bill), is sustainable.
8. Shri P.K. Tripathi has also placed his reliance to Board Order No. 291 dated 6.3.2010, in which it is provided that after retirement initially the person is liable to pay flat rate rent for a month and thereafter for further three months twice the flat rate rent, and thereafter he would be treated under unauthorised occupation and thereafter he is liable to pay ten times flat rate rent. Accordingly, the calculation has been made by the department. Therefore, the same is in consonance to the Board Order No. 291 dated 6.3.2010. Therefore, the order impugned is justified and is liable to be sustained.
9. Shri P.K. Tripathi has relied upon a judgment of Hon''ble Supreme Court in
10. Heard rival submissions and perused the records.
11. It is apparent on the face of record that on one hand the petitioner is claiming that he had vacated the accommodation in the year 2006 immediately after attaining the age of superannuation, and on the other hand, the department is realising the penal interest for rent since the years 2006 to 2013. The facts are highly disputed and the same cannot be adjudicated in the writ jurisdiction. This is admitted situation that the gratuity amount and some other retiral dues have not been paid to the petitioner but no where it has been brought on record by the respondent Corporation that any notice had ever been served upon the petitioner for vacating the official residence. It is surprising to note that if a person being a Junior Engineer attained the age of superannuation in the year 2006, and continued in illegal possession of the official residence till the year 2013, then under what circumstances the department had not asked its retired employee to vacate the official residence. Whereas the department itself maintains all the service records even the house allotment records. Mostly it has been seen that even prior to the retirement some other departmental official or colleagues keep eying the future vacancy of official accommodation. No averments as such has been made to suggest that any at any point of time, whether any notice had been sent to the petitioner regarding illegal occupancy of the official residence or even an application has ever been moved by any employee of the department for allotment of the said premises. This is not the case where the petitioner was forcefully or illegally occupying the house even inspite of the notice. Once the department has not brought anything in this regard, then it may be presumed by this Court that the petitioner had vacated the house.
12. But anyhow, Shri Ashok Khare, Senior Advocate submits that if the responsibility had to be fixed by the department then ten times of the flat rate rent is not justified as per proviso to Rule 18-A(5) of the Financial Hand Book Vol. II Part II to IV, which clearly provides that the maximum three times of standard rent may be realised from the person, who is unauthorisedly occupying the official residence. This is also admitted situation that the department has not paid the gratuity amount within reasonable time.
13. Therefore, in the aforesaid facts and circumstances just to keep the equity in favour of the petitioner, who is a retired employee, this Court proposed that the department can realise the maximum three times of the standard rent beyond the occupation of the normal period because this Court is not in a position to adjudicate this factual controversy whether the petitioner was actually occupying the official residence upto the year 2013, but keeping the factual aspect of the matter that once the petitioner himself had represented first time in the year 2013 for payment of gratuity and other retiral benefits, then inference may also be drawn against him that he had not vacated the accommodation and deliberately kept silent for substantial time for not receiving the gratuity amount.
14. In the case of
15. In the case of
"From the discussion three things emerge : (1) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch....."
16. The ratio laid down in these cases had been subsequently followed by the Apex Court in series of its decisions including the case of
17. Hon''ble Apex Court in the case of State of Punjab and another v. Iqbal Singh (Supra) has further held that since the cut of the pension and the gratuity adversely affects the retired employee as such order cannot be passed without giving reasonable opportunity of making his defence.
18. In view of the above, the order impugned cannot be sustained and is accordingly set aside.
19. However, in the interest of justice the petitioner would be liable to pay three times standard rent beyond the occupation (from the years 2006 to 2013) and is liable to pay the electricity dues of Rs. 2,18,205/- but at the same time the department is also liable to pay the entire gratuity amount alongwith 12% interest per annum to the petitioner. The final calculation may be made within six weeks from the date of production of certified copy of this order. Accordingly, the writ petition is allowed.
