Partly allowed

Sri. D.K. Krishna Raju v. General Manager

Karnataka HC5 Feb 2021WP/34309/2016

Case brief

AI extract

What is this about?

A railway employee challenged notices for recovery of damages and declaration as unauthorized tenant after returning to Bangalore quarters. The High Court quashed the notices due to failure to consider prior representation but allowed recovery for a specific period.

What did the court decide?

Communication/Memorandum dated 1.7.2015 and 20.5.2016 quashed. Respondents entitled to recover damages for period 15.5.2014 to 12.12.2014; amounts already recovered to be refunded.

Sri. D.K. Krishna Raju Vs General Manager — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.34309 OF 2016 (GM-RES)

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BETWEEN:

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SRI D.K.KRISHNA RAJU S/O.KRISHNAIAH AGED ABOUT 47 YEARS WORKING AS CONSTABLE RAILWAY PROTECTION FORCE YESHWANTHPUR RAILWAY STATION BENGALURU 560 022 AND RESIDING AT QUARTERS NO.251/B, M.G.COLONY, MAGADI ROAD, OKALIPURAM BENGALURU – 560 023

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... PETITIONER

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(BY SRI SUBRAMANYA BHAT M , ADVOCATE)

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AND:

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GENERAL MANAGER SOUTH WESTREN RAILWAY HUBBALLI – 580 020

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THE DIVISIONAL RAILWAY MANAGER SOUTH WESTREN RAILWAY BENGALURU DIVISION BENGALURU- 560 023

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THE DIVISIONAL SECURITY COMMISSIONER RAILWAY PROTECTION FORCE SOUTH WESTREN RAILWAY BENGALURU CITY -01

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... RESPONDENTS

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(BY SRI ABHINAY Y.T, ADVOCATE FOR R1 & R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE IMOUGNED ORDER DATED AND GRANT THE FOLLOWING RELIEFS QUASH THE MEMORANDUM DATED 01.07.2015 VIDE ANNEXURE-F AND COMMUNUICATION/MEMORANDUM DATED 20.05.2016 VIDE ANNEXURE-J ISSUED BY THE R-3 AS THE SAME ARE ILLEGAL, UNJUST, ARBITRARY CAPRICIOUS AND IN OTHER VIOLATION OF ARTICLES 14,16 AND 21 OF THE CONSTITUTION OF INDIA AND ALSO CONTRARY TO RULES OF PRINCIPLES OF NATURAL JUSTICES AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner, in this writ petition, has challenged the notice issued at Annexure-F dated 1.7.2015 and the notice dated 20.5.2016 for recovery of rents as per Annexure J.

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The brief facts of the case are as under:

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Petitioner was appointed on 1.12.98 as a Constable, Railway Protection Force and was posted to work in Yeshwanthpur Railway Station. Initially, the petitioner was allotted Type I quarters at Bangalore City and the rent was fixed at Rs.32/- p.m. and thereafter, the petitioner was permitted to change the quarters to Type II. Thereafter, petitioner was transferred from Yeshwanthpur Railway station to Railway Protection Force, Mysore Division. Petitioner reported at Mysore Railway Station, Mysore by leaving behind his wife and children at Bangalore in the official quarters which was allotted to him.

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Since the petitioner was transferred to Mysore, he made representation on 8.4.2014 to the third respondent with a request to permit him to retain quarters as his children were going to school and also on the ground that his wife was undergoing certain medical treatment.

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Thereafter, respondent No.3 passed an Office order dated 12.12.2014 transferring the petitioner to Yeshwanthpur, Bangalore Division. After the petitioner came back to Bangalore Division since his family was residing in the earlier allotted quarters he continued to stay in the same quarters along with his family.

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This being the state of affairs, respondent No.3 issued Memorandum dated 01.07.2015, as per AnnexureF, stating therein that petitioner would be eligible for quarters only for two months from 15.03.2014 to 14.05.2014 and since he has not vacated the quarter pursuant to his transfer, respondent No.3 sought to levy

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damages for occupying the quarters in a sum of Rs.6,072/per month from 15.05.2014. It was also stated in the said Memorandum issued by respondent No.3 that the petitioner was intimated to vacate the railway quarters failing which eviction proceedings would be initiated against him. Respondent No.3 had also started deducting the damages from the monthly salary of petitioner from July 2015 at the rate of Rs,6,072/- per month and the said damage was recovered till the date of interim order passed by this Court.

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After receiving the memorandum dated 01.07.2015 vide Annexure-F, petitioner made a request for retention of railway quarters earlier allotted to him by way of Annexure-H, on the ground that he has been transferred back to Yeshawanthapur and requested to allot the same and continued to reside in the quarters. Thereafter, respondent No.3 got issued a communication dated 20.05.2016 directing the petitioner to vacate the quarters immediately as the same is treated as unauthorized from

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15.04.2015 vide Annexure-J. Being aggrieved by the communication issued by the respondent No.3 dated 01.07.2015 at Annexure-F and 20.05.2016 as per Annexure-J, petitioner has filed this present writ petition.

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After service of notice respondents entered appearance and have filed a detailed statement of objections along with documents, including two circular dated 22.09.1999 as per Annexure-R1 and another circular dated 01.06.2001 as per Annexure-R-2.

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I have heard learned counsel for petitioner Sri Subramanya Bhat.H and Mr. Abhinay. Y.T., learned counsel for respondents.

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It is contended by the learned counsel for petitioner that it is not in dispute that the petitioner is an employee with the respondent –Railways and continues to be so. In the normal course the petitioner has been transferred initially from Yeshwanthapura, Bangalore to Mysore and from Mysore back to Yeshwanthapura. During

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the period of transfer from Yeshwanthapura to Mysore, the petitioner had left behind his family, ie., wife and children in the official quarters allotted to him at Bangalore. On his transfer to Mysore, he made a representation on 08.04.2014 vide Annexure-C seeking for a permission to stay in the official quarters for a period of one year, on the ground of education of his children and medical condition of his wife.

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Learned counsel for petitioner further contends that pursuant to the application being made seeking for permission there was no reply from the respondent and he was under the impression that the same was accepted and considered by the respondents. Learned counsel further contends that that in view of the fact that he has been transferred back to Yeshwanthapur on 12.12.2014, he continued to occupy the very same quarters after coming back from Mysore and hence he contends that in view of the fact that the petitioner has continued in service and has occupied the same quarters after being transferred

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back to Yeshwanthapur, the question of petitioner being in unauthorized occupation would not arise.

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Learned counsel for petitioner further contends that respondents have not considered the representation made by the petitioner and have imposed recovery of damages of Rs.6,072/- per month from the salary of the petitioner from 15.05.2014. According to him, the said decision and communication is violative of principles of natural justice as the petitioner continued to be in service and employed with the respondents. Learned counsel further contends that the communication at Annexure-H was issued mechanically without giving proper reasons by the respondents. Therefore, the petitioner contends that the communication dated 20.05.2004 vide Annexure-J treating the petitioner as unauthorized occupant from 15.07.2014 is liable to be quashed. On these grounds, Learned counsel for the petitioner seeks indulgence of this Court to set aside the communications passed at Annexures-H & J.

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Per contra, learned counsel for respondents has vehemently contended that though the petitioner is employed with the respondents when there is a transfer of the employee from one place to another as per the Rules prescribed and the circular issued by the respondent dated 22.09.1999 as per Annexure-R1, the petitioner has to vacate the official quarters. As per Annexure-R2 dated 01.06.2001, ‘a railway employee on transfer from one station to another which necessitates change of residence, may be permitted to retain the railway accommodation at the former station of posting for a period of two months on payment of normal rent or single flat rate of license fee. If any request is made by the employee on educational or sickness account, the period of retention of railway accommodation may be extended for a further period of six months on payment of special licence fee, ie., double the flat rate of licence fee / rent. Further extension beyond the aforesaid period may be granted on educational

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ground only, to cover the academic sessions in which he / she was transferred on payment of special licence fee.’

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Learned counsel further contends that there after beyond the permitted / permissible limits, however, no further extension will be allowed on any ground whatsoever. Therefore, no request or representation on any reason shall be entertained. For all occupations beyond the permitted period, immediate action would be taken to cancel the allotment, declare the occupation as unauthorized and initiate eviction proceedings, charging damage rent for the over stay.

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Learned counsel for respondents further contends that as per Annexure-R1 there is specific Rules placed for retention of railway quarter on transfer, deputation, retirement, etc. It is strictly stated that retention of railway quarters on transfer and beyond the permitted / permissible limits is an unauthorized occupation and damage amount would be recovered from the employee. Learned counsel further contends that in

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view of the transfer of the petitioner from Yeshwanthapura to Mysore, the eligibility of the petitioner to retain the official quarters from 15.07.2014. Thereafter, since the petitioner has not produced any material as per the Rules provided under Annexures-R1 and R2, he is not entitled to retain the quarters for his family and accordingly has retained the quarters unauthorized from 15.05.2014.

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Learned counsel further contends that the petitioner has not challenged or questioned the circular issued vide Annexure-R1 and R2 which prescribes Rules which is in existence even till date. Learned counsel further contends that that when the person is transferred from one station to another, the particular quarters provided in particular station would be vacated and he has to occupy the one thereafter allotted to him. In the case on hand, the person has not vacated the official quarters within the permissible time limit prescribed in the circular. Therefore, in view of the fact that the petitioner has not vacated the premises despite issuance of Annexure-H date

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01.07.2015 and hence the petitioner is liable to pay the rent as per existent rules stated in Annexure-R1 and R-3. Hence, he seeks to dismiss the present writ petition.

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Having heard the learned counsel for petitioner and respondents the point that arises for consideration before this Court is :

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“Whether Annexure- H and J issued by Respondent is sustainable?”

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It is not in dispute that the petitioner is an

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employee under respondent No.3 working as Police Constable and during the course of his service, he was been transferred from Yeshwanthapura to Mysore and thereafter from Mysore to Yeshwanthapura. During this period of transfer of 9 months petitioner has retained his official quarter for his family. It is not in dispute that petitioner had made initial application requesting to retain the quarters for his family ie., wife and children as per Annexure-C dated 08.04.2014. As per the Rules

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petitioner could continue to retain the quarters for a period of two months from 15.03.2014 till 14.05.2014 on normal rent and thereafter he ought to have vacated the premises. Since the petitioner has not vacated the premises, respondents issued a notice dated 01.07.2015 notifying the petitioner that his occupation in the premises later than 15.07.2014 would be treated as unauthorized occupation and damages would be recovered. Further, the respondents started recovering the damage at the rate of Rs.6,072/- per month from the petitioner as monthly rent.

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It is not in dispute that petitioner was transferred from Mysore to Yeshwanthapur on 12.12.2014. During this period the petitioner approached this Court on 20.06.2014 by filing the present writ petition and on 22.06.2014 interim order came to be passed by virtue of which he continued to stay in the allotted quarters. Therefore, it is noticed that for the period between 15.03.2014 to 14.05.2014 petitioner was any way eligible to continue in the occupation of quarters and thereafter

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since no permission was effectively granted by the respondents petitioner was liable to pay the damages or rent as per the Rules prescribed in Annexure-R1 & R2 till the period of his transfer back to Yeshwanthapur from Mysore, ie., on 12.12.2014.

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In the present case it is necessary to note that though petitioner made an application on 08.04.2014 with a request to retain the premises for a period of one year on the ground of education of his children and medical reason of his wife, the same was not answered by the respondents. In view of the same in the interest of justice and equity and an facts and circumstances of the present case and on the submissions of the learned counsel for petitioner that he had already filed an application before the respondents for regularization of the occupation in the premises, the respondents would be entitled to recover the damage sent for the period from 15.05.2014 till 12.12.2014. Petitioner has been transferred back to Yeshwanthpur on 12.12.2014 and he continue to occupy

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the same quarters , respondent No.3 was duty bound to consider the representation of the petitioner dated 08.04.2014. Having not considered the same respondent-3 could not have issued memorandum vide Annexure-f dated 01.07.2015 and Annexure-J dated 20.05.2016 for deducting damage sent. There is some force in the contentions of learned Counsel for Petitioner. Therefore, in view of the above Annexure-F issued on 01.07.2015and Annexure-J dated 20.05.2016 is liable to be quashed. Accordingly, I proceed to pass the following order:

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ORDER

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(1) The writ petition is partly allowed.

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(2) Communication / Memorandum at Annexure-F and J dated 01.07.2015 and 20.05.2016, stands quashed.

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(3) However respondents shall be entitled to recover damage sent for the period 15.05.2014 to 12/12/2014.

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(4) Any amount recovered from the petitioner

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pursuant to 12.12.2014 by the respondents shall be refunded to the petitioner.

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Sd/JUDGE

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nm VK

Sri. D.K. Krishna Raju v. General Manager

Case brief

What is this about?

What did the court decide?

Sri. D.K. Krishna Raju v. General Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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