ORDER
Bharati Ray, Member (J)
1. This application has been filed by the applicant for a declaration that the order No. CP/555/QB/28/NV dated 13.01.2006 passed by the 3rd respondent as illegal and without jurisdiction and the same may be set aside and for a further direction to the respondents to refund the amounts already recovered.
2. It is the case of the applicant that he was appointed as YKC at Kazipet. In the year 1991 he was transferred to Bellampally and worked as Box-boy where he was allotted quarter No. 71/3 w.e.f. 2.7.1993. The applicant was transferred to Kazipet on promotion and posted to the category of shed pointsman in grade Rs. 2650-4000 (RPS) in DLS/KZJ. The applicant was relieved from Bellampally by an order dated 3.7.2000. It is the contention of the applicant that at the time of his transfer he had vacated the quarter and handed over keys to the then Crew Controller and also signed the relevant documents to handover the same to the concerned authorities. The said crew controller said that he would take care of the documents and give it to the allotting authority and IOW. Believing the statements of crew controller, the applicant handed over the keys and other papers to him.
3. Applicant joined at DLS/KZJ and resided at his own house situated in Kadipikonda, which is near to his working place. Although the applicant vacated his quarter allotted in Bellampally the rent for the quarter he occupied at Bellampally was deducted. Hence the applicant approached the said crew controller at Bellampally who had given the vacation order dated 8.9.2000. When the applicant produced the vacation order to the DLS/KZJ the respondents stopped deducting the rent and granted HRA from September,2000. Since then HRA was being paid regularly to the applicant.
4. When the matter stood thus, in July 2004, the respondents deducted Rs. 1000/- from the pay of the applicant. On enquiry he came to know that respondents are recovering damage rent for the quarter on the ground that he had not vacated the quarter No. 71/3 at Bellampally. The applicant was not given any notice before such recovery of damage rent. It is only when the applicant approached the respondents to know the reason the proceedings were handed over to him. From the said proceedings he understood that the applicant has neither vacated the quarter nor obtained any permission for retention of the quarter from the competent authority and hence damage rent of Rs. 74,613/- was to be recovered.
5. The applicant submits that he is illiterate and cannot read and write English. It is also mentioned that there is no quarter bearing the number 9/47 and he came to know that in the crew controller’s order dated 8.9.2000, the quarter number was mentioned as 9/47. It is, therefore, the contention of the applicant that since he had already handed over the keys to the crew controller who had given the order dated 8.9.2000 and on production of the said order dated 8.9.2000 the respondents stopped deducting the rent and started payment of HRA, the applicant, who cannot read and write English, had no scope to doubt the action of the said crew controller who had taken the key and told that he will take care and in fact he himself passed the order dated 8.9.2000. It is also the contention of the applicant that since then he handed over the key to the crew controller, he never stayed in the said quarter. Therefore, the question of unauthorised occupation of the quarter does not arise.
6. The applicant earlier approached this Tribunal in OA 770/2005 which disposed of on 21.09.2005 with a direction to the respondents to dispose of the representation of the applicant pending before them. While passing the order the Tribunal has stayed recovery of damage rent. Respondents thereafter disposed of the representation of the applicant dated 20.12.2004 and the same was communicated to the applicant vide letter dated 13.1.2006. Questioning the said order dated 13.1.2006 passed by the 3rd respondent the applicant has approached this Tribunal seeking for the aforesaid relief.
7. Respondents have contested the application by filing a counter reply. I have gone through the facts of the case and material papers placed before me. A perusal of the order impugned in this OA dated 13.1.2006 would show that it is an admitted position that applicant Sri K. Saraiah while working as YKC/BPA was transferred to KZJ on promotion as Shed Pointsman/KZJ. He was in occupation of Rly. Qrs. No. 71/3 RB-I at BPA. It is the case of the respondents that he had not applied for permission for retention of railway quarter No. 71/3 RB-I at BPA on his transfer to KZJ station and occupied the same. Therefore, as per the advise of the Accounts Inspection held in November, 2003 damage rent amounting to Rs. 74,613/- had to be recovered for unauthorised occupation of railway quarter at BPA. It is also mentioned in the impugned order that the vacation memo dated 08.09.2000 submitted by the applicant the quarter number is not tallying with the quarter in his actual occupation. In fact, the quarter number mentioned in the vacation memo produced by the applicant is 9/47 whereas the applicant was allotted with quarter No. 71/3 at BPA. It is also seen from the impugned order that the applicant was given personal hearing on 29.11.2005 by the 3rd respondent and based on the available record and information ascertained by the concerned official it was concluded as under:
1. Sri K. Saraiah is still in occupation of quarter No. 71/3 RB-I at BPA;
2. Sri K. Saraiah has not followed the rules related to vacation of Qrs. in that he has not obtained the permission from the competent authority i.e. SE/Elec. and SE/Works;
3. The vacation memo dated 08.09.2000 issued by CCC/BPA shows different quarter number and does not tally with the quarter number which was actually occupied by Sri K. Saraiah.
8. In view of the above conclusion, it was held that applicant Sri K. Saraiah has been in occupation of quarter No. 71/3 RB-I at BPA and the amount of Rs. 1000/- per month was recovered from his salary towards damage rent and the same is in order as advised by the audit. The assessed damage rent as advised by audit is Rs. 74,613/-
9. I have gone through the records produced by the learned Counsel for the respondents. Learned Counsel for the respondents argued strenuously that the applicant who was allotted quarter No. 71/3 which is not in dispute, on his transfer, did not vacate the said quarter and kept the said quarter locked and did not seek permission from the respondents to occupy the quarter beyond the permissible limit. The said occupation of the quarter became unauthorised occupation. When a person on his transfer elsewhere continues to occupy the quarter allotted to him beyond the permissible period, he becomes automatically unauthorised occupant and has to pay damage rent. No separate notice need be issued for cancellation of the allotment. In this context he has relied upon the Full Bench decision of the Tribunal in the case of Ram Poojan v. Union of India and Ors. (1996) 34 ATC 434 (FB).
10. On going through the counter reply filed by the respondents I find that the contention of the applicant that on his production of the order of the crew controller dated 8.9.2000 in support of his contentions that he had vacated the quarter and handed over the key, the respondent stopped deducting rent and granted HRA to the applicant, has not been denied by the respondents. Learned Counsel for the respondents submits that respondents have acted upon the said order erroneously and granted him HRA. In para (d) of the counter reply filed by the respondents it is categorically stated that applicant has locked his quarter with his own lock and mere handing over the key to the crew controller will not amount to due vacation of quarters, until the vacant quarter is locked by the Section Engineer/works and the vacation memo is signed by him and Section Engineer/Electrical. The applicant did not hand over the vacant quarter to the proper authorities. Therefore, the applicant did not vacate the quarter on his transfer and therefore he is liable to pay damage rent. That being the position, it is not in dispute that the applicant was not staying in that quarter and locked the quarter with his own lock. From the above facts and circumstances it appears that the applicant on his transfer from Bellampalli to Kazipet, with bonafide intention to vacate the quarter, approached the crew controller posted there. The said crew controller misguided the applicant by keeping the key with him and telling him that he will take care and when the applicant thereafter found that respondents were still continuing to deduct the house rent he approached the crew controller who gave him the order dated 8.9.2000 where the quarter number was mentioned as 9/47. The applicant, being illiterate, does not know English properly. In good faith he thought that the order is a proper one and therefore he produced the same to the concerned authority to stop deduction of rent and since then respondents on the basis of the said order, stopped deducting rent and granted HRA. That being so, applicant had no reason to doubt the validity of the order dated 8.9.2000 of the crew controller and he was confident that he had fulfilled all the formalities in regard to the vacation of the quarter. It is not the case of the respondents that they have taken any action against the applicant for occupation of the quarter No. 71/3 after his transfer and joining the other station under rule.
11. I find from the record that there was an enquiry conducted to see the exact position and in the report of the enquiry conducted, I find that different quarter number is mentioned in different places. There was no satisfactory reply for the said act on the part of the respondents. It, therefore, appears that the respondents many times committed mistake. Firstly, the Crew Controller misguided the applicant by taking the key and advising him that he will take care of the quarter and subsequently giving vacation order dated 8.9.2000 by mentioning different quarter No. as 9/47 when there is no such quarter existed bearing the No. 9/47. The second mistake was committed by the authority concerned who stopped deducting HRA from the salary of the applicant on the basis of the order of the Crew Controller dated 8.9.2000 produced by the applicant. In the enquiry report also different quarter number is mentioned in different places. The very act of the respondents in stopping deduction of the HRA on production of the order of the crew controller dated 8.9.2000 by the applicant, left no scope to doubt the applicant that he had failed to fulfill the formalities in handing over the quarter allotted to him. It is no one’s case that after his transfer from Bellampally, he was residing in the said quarter or allowed any one to stay there. In fact, in the verification, the applicant has stated that he is staying at Kazipet, Warangal which has not been denied by the respondents in their counter reply. The respondents, had at no point of time taken any action against the applicant after the enquiry report was submitted. It is not the case of the respondents that they have taken action against the person who had misguided the applicant by issuing the said order dated 8.9.2000 or the person who has stopped recovering HRA from the salary of the applicant on the basis of the order dated 8.9.2000.
12. In view of the above, I find no reason to say that applicant, who cannot read or write English, can be held responsible and can be said to be in unauthorised occupation of the said quarter. Therefore, respondents are not justified in recovering the said amount from the applicant. I, therefore, quash and set aside the order impugned in this OA and direct the respondents to refund the amount already recovered from the applicant within a period of one month from the date of communication of this order. The respondents are at liberty to fix the responsibility on the persons who are actually responsible for committing the mistake as discussed above and realise the amount recovered from the applicant duly following the principle of natural justice.
13. In result, OA is allowed to the extent indicated above with no order as to costs.