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IN THE HIGH COURT OF JUDICUATURE AT MUMBAI
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 291 of 2009
Union of India, through the )
Chief Controller of Accounts, )
Principal Accounts Office, )
Ministry of Industry, 517-D, )
Udyog Bhavan, )
New Delhi-110 011 ig )
2.The Senior Accounts Officer, )
Pay and Accounts Office, Small Scale )
Industries, Kurla-Andheri Road, )
Sakinaka, Mumbai-400 072. )
3.The Estate Manager, Third Floor, )
Old CGO Building Annexe, 101, M.K.Road)
Mumbai-400 020. )..PETITIONERS
Versus
Sarjerao Vithal Patil )
Compulsorily Retired Senior Account, )
Residing at Post Turchi, Taluka Tasgaon, )
District Sangli. )..RESPONDENT
Mr. Y.S. Bhate, for the Petitioners.
Mr. Sandeep V. Marne, for the Respondent.
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CORAM : FERDINO I. REBELLO &
J.H. BHATIA, JJ.
DATED : 25tTH JANUARY, 2010
ORAL JUDGMENT (PER FERDINO I. REBELLO, J.):
Rule. Heard forthwith.
2. The respondent was in the employment of the
petitioners. It was the case of the petitioners that
Respondent
was in unauthorised occupation and
consequently would have to pay compensation in terms of
the various Notifications issued by the petitioners. An
order accordingly came to be passed. Aggrieved by that
order the Respondent preferred O.A., O.A. No.62 of 2007
before the Central Administrative Tribunal, which by the
impugned order dated 31st January, 2008 allowed the
O.A., with the direction to the petitioners to charge
only double license fee from the date of four months
after his retirement and till he vacates the quarters in
question. There was a further direction to petitioners
to release the remaining pension and pensionary benefits
which they have withheld wrongly within a period of two
months with interest at the rate of 9% per annum.
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3. The petitioners aggrieved by the said order have
approached this Court. On behalf of the petitioners
learned Counsel submits that the impugned order suffers
from an error of law apparent on the face of the record
in as much as it was not open to the Tribunal to have
interfered with the compensation considering that the
Respondent was and continued to be in unauthorised
occupation of the premises and considering Office
Memorandum of 31st March, 1992 and Office Memorandum of
30th November, 1995 and 23rd July, 2002.
claimed by the petitioners were in terms of the said
The amounts as
office memorandums.
4. On the other hand on behalf of the respondent
learned Counsel placing reliance on the judgment of the
Supreme Court in Union of India & Anr. vs. Wing Commander
R.R. Hingorani (Retd.) (1987) 1 SCC 551 contends that in
so far as pension and commuted pension is concerned it
was not open to the petitioners to withhold or make
deduction in respect of the compensation from the
pension amount. To that extent the order of the
petitioners or of the Estate Officer was clearly without
jurisdiction. It is also pointed out that it cannot be
said that the order of the Tribunal based on the finding
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that the petitioners had not taken any steps for eviction
of the respondent and considering his failing eye sight
of the Respondent, it cannot be said to be illegal or
disclosing an error of law apparent on the face of the
record.
5. To answer the question we may only refer to a few
dates. The respondent was appointed as an Upper Division
Clerk (UDC) some time on 6th May, 1996. A show cause
notice came to be issued to the respondent on 13 th May,
came
1994 on the ground of unauthorised absence. An order for
eviction to be passed on 10th June, 1994. The
respondent aggrieved preferred an Appeal before the
Appellate Authority under the provisions of the Public
Premises Eviction Act, hereinafter referred to as the
Act. By an order of 24th March, 1995 the impugned order
of 10th June, 1994 was set aside. The Appellate
Authority was, however, pleased to grant liberty to the
petitioners to issue fresh notice under Section 4(2) of
the Act. A fresh order of eviction came to be passed on
31st October, 1995. That was also subject matter of
another Appeal before the Appellate Authority, which once
again by order dated 6th March, 1996 set aside the order
with a direction to issue fresh show cause notice on the
ground of sub-letting as that was fresh ground sought to
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be raised by the petitioner No.1. A charge sheet came to
be served on the respondent No.1 on 13th September, 1996.
Pursuant to the charge sheet and the enquiry held it was
held that the petitioner was guilty of the charges
established, punishment by way of penalty of removal from
service was passed on the respondent by order dated 15th
October, 1997. The respondent No.1 preferred an Appeal
against that punishment. The Disciplinary Authority was
pleased to reduced the penalty to one of compulsory
retirement by order of 5th June, 1998.
6.
It is subsequent to this order that by order dated
20th October, 2003 that the petitioner No.2 held that the
respondent s allotment was deemed to be cancelled on 17th
December, 1992 and that the respondent was liable to pay
damages with effect from 4th December, 1998 at the rate
prescribed. The respondent vacated the premises on 19th
July, 2004. The period of four months of allotment
expired on 17th December, 1992 It is against this order
the O.A. was filed, pursuant to which the impugned order
came to be passed.
7. The question that we have to answer is as to what is
the date from which the penal damages could have been
awarded considering that the punishment of removal from
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service was reduced to one of compulsory retirement on
5th June, 1998. In terms of the Rules an employee is
entitled to retain the premises for a further grace
period of four months. In our opinion,therefore, once
the orders of eviction were set aside as also the order
of compulsory retirement it was not within the
jurisdiction of petitioner No.2 to have demanded damages
with effect from 17th December, 1992. The damages at
the highest could have been claimed at the rate as
notified with effect from 5th October, 1998 to the date
of eviction i.e. 19th July, 2004. To that extent, in our
opinion, the learned Tribunal totally misdirected itself
in law in passing the impugned order.
8. Therefore, the order to that extent is set aside
and modified whereby the respondent will have to pay
damages in terms of Government Notification dated 31swt
March, 1992 read with Government Notification dated 30th
November, 1992 and Government Notification dated 23rd
July, 2002 from 5th October, 1998 to 19th Jul, 2004. The
petitioners are, therefore, directed to pass fresh orders
in the above terms which will be binding on the
respondent No.1 and no challenge will be available to
respondent in respect of the said calculation except to
the extent of any arithmetical error.
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9. The next issue would be regarding the deduction from
pension. In our opinion, considering the judgment of the
Supreme Court in the case of Wing Commander R.R.
Hingorani (supra) it will not be open to the petitioners
to deduct anything from the pension or from the commuted
pension. For that purpose we may gainfully refer to the
observation of the Hon ble Supreme Court in the said
Judgment. Placing reliance on Section 11 of the Pensions
Act, 1871 the learned Supreme Court held that Section 11
protects fromig attachment, seizure
pension or money due or to become due on account of any
or sequestration
such pension. Further the Court observed that even in
respect of commuted pension it is not open considering
Section 11 for any attachment. In other words in so far
as pension is concerned it will not be open to the
petitioners to make deduction from the pension benefits.
Our attention is invited to the order passed on 18th
January, 2010 whereby order has been passed directing
the payment of arrears of pension.
10. We, however, make it clear that in so far as
gratuity amounts are concerned, if any amounts are still
lying with the office of the petitioners it will be open
to the petitioners to recover the balance from whatever
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gratuity amount is due and payable. If that amount is
not sufficient towards repayment of the compensation it
will be open to the petitioners to take such steps in
law to recover the balance amount.
11. Rule to that extent made absolute. IN the
circumstances of the case there shall be no order as to
costs.
(J.H. BHATIA,J.) (FERDINO I. REBELLO,J.)
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