Uma Shanker Mishra vs The General Manager, Chief Security Commissioner/R.P.F. and Divisional Security Commissioner, R.P.F.

B.S. Chauhan, J.—This writ petition has been filed for quashing the orders "dated 14th August, 1990 and 15.04.1992 for making the recovery of penal rent in respect of Quarter No. 92-B, Type-III, Delhi Railway Colony, Gorakhpur.

The facts and circumstances giving rise to this case are that the petitioner was posted as Divisional Public Prosecutor, R.P.F., North Eastern Railway, Varanasi Division. During his posting at Gorakhpur, he was allotted the aforesaid Quarter vide order dated 22.01.1983. The petitioner was transferred from Gorakhpur to Varanasi vide order dated 08.09.1988. He joined the services at Varanasi but he did not vacate the said Quarter at Gorakhpur. Petitioner after serving five years, was transferred back to Gorakhpur 28.05.1993. However, as the petitioner did not vacate the accommodation at Gorakhpur, during the period he was posted at Varanasi, penal rent is being recovered. During the pendency of the writ petition, the petitioner stood retired on 31.07.1996, however, his gratuity has been withheld. Hence this petition.

Shri I.R. Singh, learned counsel for the petitioner has submitted that the question of withholding the gratuity does not arise in such a case as the petitioner was not allotted any residential accommodation at Varanasi after being transferred from Gorakhpur and as he had again been transferred to Gorakhpur on 28.05.1993 and continued to reside in the same accommodation, the orders impugned are liable to be quashed. More so, the petitioner had already retired on 31.07.1996, therefore, withholding the gratuity that too to a sum of Rs. 1,35,8507- has caused great injustice to him. Petition deserves to be allowed.

On the other hand, Shri Lalji Sinha, learned counsel for the respondents has vehemently opposed the writ petition contending that after being transferred from Gorakhpur to Varanasi, the petitioner had withdrawn the House Rent allowance at the rate of Rs. 450/- per month throughout the year 1989 and unauthorized occupied the accommodation at Gorakhpur. He had been served a notice in writing that the penal rent shall be charged and had been asked several times to vacate the same but petitioner did not pay any heed. It is not a case where this Court should exercise its discretionary equitable jurisdiction. Therefore, no interference is called for and the petition is liable to be dismissed.

We have considered the rival submissions made by learned counsel for the parties and perused the record.

The issue involved herein is as to whether the gratuity or other retiral benefits of an employee can be withheld, or deduction can be made from the same in case of unauthorised occupation of residential accommodation by the employee after transfer or retirement?

The issue involved herein is no more res integra. The Courts have considered the issue time and again.

In State of Kerala and Others Vs. M. Padmanabhan Nair, ; R. Kapur Vs. Director of Inspection (Painting and Publication) Income Tax and Another, ; and Gorakhpur University and Others Vs. Dr. Shitla Prasad Nagendra and Others, , the Hon''ble Supreme Court had taken the view that the pension or other retiral benefit cannot be withheld or adjusted or appropriated for the satisfaction of any other dues outstanding against the retired employee.

In Jarnail Singh Vs. The Secretary, Ministry of Home Affairs and others, wherein interpreting the provisions of the Central Civil Services (Pension) Rules, 1972, it was held that definition of "pension" included gratuity under Rule 3. Rule 9 conferred on the President right to withhold or withdraw pension in certain circumstances. The order was passed against the employee withholding pension and the entire amount of death-cum-retirement gratuity otherwise admissible to him. The direction was given on serious irregularities found to have been committed by him. The Apex Court held that the power to withhold gratuity was conferred on the President under the relevant rules and hence, such action could not be said to be illegal. According to the Court, there could be adjustment of government dues against the amount of death-cum-retirement gratuity payable to government servant.

In Wazir Chand Vs. Union of India (UOI) and Others, , the Apex Court held that unauthorised occupancy of the government quarters by an employee amounts to misconduct, therefore, the employee who retains the residential accommodation, is liable to pay the penal rent in accordance with the rules, and there can be no illegality in those dues being adjusted against the death-cum-retiral dues of the employee.

In Secretary, O.N.G.C. Ltd. and Another Vs. V.U. Warrier, the facts involved had been similar to the case in hand. The employee was allotted a Quarter and after retirement, he did not vacate the same and continued to reside. His request for further retention was rejected with a notice that he was liable to pay the penal rent. The amount of penal rent was deducted from the gratuity payable to the said employee. The employee challenged the same on the ground that such deduction was not permissible from the gratuity. The Hon''ble Apex Court repelled the said submission of the employee and held that the said deduction can be made from the gratuity payable to the said employee.

While deciding the said case, the Hon''ble Supreme Court has taken into consideration its earlier judgments and held that if rules so permit, such adjustment is permissible. More so, the Court must examine the facts of each case and in case it is found that the employee was at fault and there is no unreasonableness or arbitrariness on the part of the employer, the Court should not interfere as the writ is a discretionary relief.

The question of paying the penal rent by the employee was also considered by the Hon''ble Supreme Court in Grid Corporation of Orissa v. Rasananda Das AIR 2003 SCW 5390, holding that an employee is bound to pay the rent/penal rent in accordance with the Rules applicable for overstaying in the accommodation after transfer/retirement. Thus, the petitioner cannot take the plea that he is not bound to pay the penal rent.

Writ jurisdiction is discretionary. Writ is not issued merely because it is lawful to do so. The purpose of the writ Court is not only to protect a person from being subjected for violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the relief equitable and discretionary, the Court has to balance competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. Court should not exercise such powers unless substantial injustice has ensued or is likely to ensue. Petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner. (Vide Veerappa Pillai Vs. Raman and Raman Ltd. and Others, Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, ; Champalal Binani Vs. The Commissioner of Income Tax, West Bengal and Others, Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, ; Chimajirao Kanhojirao Shirke and Another Vs. Oriental Fire and General Insurance Co. Ltd., Shama Prashant Raje Vs. Ganpatrao and Others, ; Life Insurance Corporation of India and Others Vs. Smt. Asha Goel and Another, Roshan Deen Vs. Preeti Lal, ; S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. and Others, and Chandra Singh Vs. State of Rajasthan and Another,

In view of the above, law can be summarised on this issue that there is no prohibition of adjusting or deducting the penal rent from the retiral dues, including gratuity, if the rule so permits, and the employee has unauthorisedly occupied the accommodation, however, there should not be arbitrariness or unreasonableness on the part of the employer. In case there is an acquiescence of the employer tactitly and in case there has been precedent taken by the employer asking the employee to vacate the accommodation or a notice that he would be liable to pay the penal rent, even if the rule does not permit such deduction, adjustment or recovery, the writ Court can refuse granting any indulgence whatsoever, for the reason that writ should be issued only where injustice is ensued, otherwise not. Mere may be a case where the employee after transfer or retirement has requested the employer for permission to retain the accommodation and when granting such a permission, the rent Is being accepted, employee cannot be held responsible for such a misconduct. No rule of universal application can be formulated. The Court is required to examine the facts of each case and consider the same in the light of the statutory rules applicable therein.

The case in hand is required to be examined in the light of, the aforesaid settled legal proposition.

It is evident from the records, particularly the counter affidavit to the amendment application filed on behalf of respondents No. 1 to 3, that after the petitioner was transferred from Gorakhpur to Varanasi on 08.09.1988, he continued to draw the House Rent Allowance from January, 1989 to December, 1989 at the rate of Rs. 550/- per month, though he had unauthorizedly occupied the railway Quarter at Gorakhpur. He had been, asked vide letter dated 14.08.1990 to vacate the said premises failing which necessary action would be initiated against him. Petitioner replied the same vide letter dated 15,01.1991 that no penal rent/damages could be charged from him as the allotment of the said Quarter stood in his favour. After being re-transferred from Varanasi to Gorakhpur, the petitioner did not apply for allotment of the said Quarter and continued to enjoy the possession.

The ratio of law laid down by the Hon''ble Apex Court in the aforesaid judgment, i.e. Secretary, ONGC Ltd. (supra) is fully attracted in the facts of the present case.

No Statutory Rule, Executive Instructions, Government Orders or Circular has been placed before us showing that the petitioner could retain the accommodation in Gorakhpur after being transferred to Varanasi in spite of the fact that the respondents had given him the notice to vacate the same and intimated that the penal rent shall be chargeable from him. The petitioner did not consider it proper to vacate the same. The plea raised by the learned counsel for the petitioner that for making recovery of the penal rent, gratuity cannot be withheld is not tenable in view of the judgment of the Hon''ble" Supreme Court, referred to hereinabove.

As the petitioner did not vacate the accommodation in spite of notice and had drawn the HRA for complete 12 months, even after being transferred from Gorakhpur to Varanasi, he is not entitled to seek any equitable and discretionary relief. Petition does not represent the special features, warranting any interference in limited scope of judicial review.

The Petition is devoid of any merit and is accordingly dismissed.