Allowed

Dr Dinesh Chandra Joshi v. Distt Judge Haridwar and Ors.

Uttarakhand HC28 Jul 2017WPMS/46/2007

Case brief

AI extract

What is this about?

The High Court held that orders imposing penal rent and damages were passed without hearing the petitioner who was incapacitated by an accident. The orders were quashed as ex parte and the matter was remanded to the Prescribed Authority to decide on merits under Section 7 of the Public Premises Act.

What did the court decide?

The impugned ex parte orders imposing penal rent and damages were quashed. The matter was remanded to the Prescribed Authority to decide afresh on merits under Section 7 of the Act.

Dr Dinesh Chandra Joshi Vs Distt Judge… — Pension and Retirement Benefits | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 46 of 2007

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Dr. Dinesh Chandra Joshi

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...….……Petitioner

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Versus

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District Judge and Ors. ………. Respondents

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Present: Mr. Piyush Garg, Advocate for the petitioner. Mr. Pankaj Purohit, Deputy Advocate General along with Mr. Tarun Lakhera, Brief Holder for the State.

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Hon’ble Sharad Kumar Sharma, J. (Oral)

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The case of the petitioner is that he is an MBBS Doctor and joined the Govt. Hospital at Roorkee, Uttarakhand on 29.05.1998. On account of the administrative arrangements, he was transferred to District Tehri on 20.07.2002 from District Haridwar.

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The case of the respondents is that despite of transfer on 20.07.2002. Though petitioner joined the transferred place on 30.12.2002 but he continued to retain the official accommodation granted to him at Roorkee, during his posting at the said place. For imposing the penal rent due to retention of official accommodation and also for initiating the proceedings under Section 4 of the Public Premises Act, on the ground that the accommodation which the petitioner has occupied was a Govt. accommodation, and given to him in lieu of services rendered by him at a particular station, hence he ought to have vacated the Govt. accommodation, which he has not done, despite of the expiry of statutory period for retaining official accommodation.

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Thus the notice dated 17.05.2004, was issued by the respondents, invoking Section 4 of the Public Premises Act which was served on 18.05.2004. In response to the notice, petitioner submitted the reply wherein apart from agitating various grounds, the he contended that the notice was illegal as the same has been issued despite of the fact that he has joined the transferred place, where he was not provided an official accommodation at Tehri. Besides this after his joining at Tehri, he has not been paid with the house rent allowance. The reply given by the petitioner on 26.05.2004 was not taken in its true sprit as it ought to have been.

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It is also the case of the petitioner that thereafter he has vacated the accommodation on 28.05.2004 and had handed over the same to the respondents. After having submitted the reply to the notice dated 18.05.2004, he was expecting that he would be called upon to be heard because he was likely to be levied with the rent and damages for the period he retain the accommodation from 20.07.2002 till 28.05.2004, which would be having a civil consequence on his income. Despite the reply having been submitted, on the day when issue was taken before the Prescribed Authority, Advocates have proceeded on strike on 15.06.2004 and the work was suspended. Despite of the aforesaid, the Prescribed Authority proceeded to decide the matter on its merit and upheld the notice, directing the petitioner to remit the amount as claimed by the notice dated 18.05.2004.

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As the orders imposing the penal rent and the damages was excessive and contrary to the modalities provided

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under the Act for its calculations, petitioner filed recall application dated 02.08.2004 before the court below which was rejected. The said application of the petitioner seeking recall was rejected by the order dated 16.11.2005 by the Prescribed Authority.

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The petitioner preferred the appeal and the same was too dismissed yet again on 24.11.2006 in the absence of the petitioner. The contention of the learned counsel for the petitioner that the inability for the petitioner to appear before the court, where the appellate proceedings were going on was that because of the fact that prior to the date fixed, petitioner suffered an accident which has rendered him incapacitated and restricted his mobility and hence he could not appear before the court below.

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This fact that the order dated 16.11.2005 and 24.11.2006 happens to be without participation in the proceedings by the petitioner, which is also the fact that if the aforesaid order is permitted to be sustained, the said order will have a civil consequence on the petitioner as he would be liable to pay the rent /damages for the period from 20.07.2002 till 20.05.2004 which obviously will have a bearing on his pocket and will amount to be an order passed without hearing. Exclusively on this ground that petitioner was not heard by the prescribed authority, as well as, by the appellate authority, this Court without scrutinizing or recording any finding on the propriety or the manner in which the petitioner had been diligent in participating in the proceedings before the court below, this

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Court feels that it is in the interest of justice, since the petitioner had been imposed on the financial liability, if at all if it is justified, he ought to have been provided an opportunity of hearing failing otherwise it will be have a civil consequence, and amount to condoning without being heard.

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Thus only from this limited view point that since the order has been ex parte, the same is quashed and the writ petition is allowed. The matter is remitted back to the Prescribed Authority to decide the controversy pertaining to the damages only in accordance with Section 7 of the Act as expeditiously as possible exclusively on merits, without being influenced in any manner whatsoever by any observations made above. Writ petition is allowed. Impugned orders are quashed and the matter is remanded back to prescribed authority to decide afresh on merits. It is expected that petitioner will be diligent in participating in the proceedings.

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(Sharad Kumar Sharma, J.) 28.07.2017

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Mahinder/

Dr Dinesh Chandra Joshi v. Distt Judge Haridwar and Ors.

Case brief

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Dr Dinesh Chandra Joshi v. Distt Judge Haridwar and Ors.

Case brief

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