KAPILDAO OJHA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a railway servants second appeal arising out of a suit for declaration in a service matter. The appellant was a fireman posted at Sonepur. His post was comprised in essential staff. The rules lay down that essential staff are entitled to rent-free quarters, subject to the proviso that, if no quarters be available at the place of posting of such staff, the railway administration is under no liability to provide the same. While posted at Sonepur. he received an order on 19th Sept. 1966, transferring him to Garhara. In Garhara there were no railway quarters available for him. According to the appellant, his wife was in a state of advanced pregnancy and his daughter's marriage had also been settled and the prospective in-laws of his daughter were reluctant to perform marriage at Garhara, because of greater distance involved though they were willing to have if performed at Sonepur. In these circumstances, he represented for cancellation of his transfer and in the alternative for permission to retain the quarters at Sonepur. He also represented thai his own house had fallen down in the floods and he had nowhere to move to, if he was not allowed to retain his quarters at Sonepur. None of his requests was, however granted. It appears from para 1733 of the Indian Railway Establishment Manual that an employee is allowed two month's time to retain the quarters after his transfer. That period had already expired, but he had not vacated the quarters. On 19th Jan, 1967, an order was served on him directing him to vacate the quarters immediately, failing which disciplinary action would be taken against him. Despite service upon him of this order, he failed to vacate the quarters. There upon he was suspended on 18th Feb,, 1967 and a charge-sheet dated 13/16th Mar. 1967 was served on him charging him with disobedience of the order dated 19th Jan. 1967. After inquiry, a show cause notice was issued to him against the proposed penalty of removal. Thereafter, an order of removal was passed on 26th Mar. 1969, vide Ext. 17. The appellant filed an appeal which was dismissed on 28th Mar. 1969, vide Ext. A-10. Thereafter, he filed a review application Vide Ext. 20 pleading for mercy and reiterating his earlier plea, that the circumstances in which he had failed to comply with the orders of his superiors were extenuating. This review petition in which he pleaded for mercy and for reinstatement in service, was allowed, in part, on 28th Mar. 1970, vide Ext. A 11. He was ordered to be reinstated, but the minor penalty of withholding two increments was imposed on him. It was further ordered, that. for the period of suspension and the period from his dismissal, up to his reinstatement he would not be entitled to any salary, but he would be treated as on extraordinary leave without pay. Thereupon, he brought the present suit, withiri three years, of this last order. The trial Court decreed the suit, but the lower appellate Court allowed the railway administration's appeal. Aggrieved thereby, the appellant has come to this Court.

(2.) Although a number of points were raised in the suit, learned counsel for the appellant has confined his arguments to three points. The other points which have been decided against him have not been sought to be reagitated. These three points are as follows:

(3.) In support of his first contention, learned counsel has invited my attention to paras 1730, 1731, 1732 and 1733 of the Indian Railway Establishment Manual. Para 1733 lays down that after permanent transfer, a railway servant may stay on in his quarters for two months, after which, he would be liable to pay enhanced rent as laid down in para 1727. Para 1730, first sub-para, lays down that if a railway servant overstays in his quarters, beyond the period prescribed by para 1728 (which applies to cases of suspension etc.) he would be liable to pay enhanced rent. Para 1731 lays down that in cases of unauthorised occupation without proper and initial allotment the authorities should not realise any rent at all. Second sub- para of para 1731 provides for disciplinary action to be taken in cases of unauthorised occupation. On the basis of these provisions in the rules it has been contended that as the rules provide for realisation of enhanced rent, disciplinary proceedings are not contemplated in case of overstaying where initial occupation was based on proper allotment. In support of his contention he has also relied on B. R. Venkappayya V/s. State of Mysore, 1972 LabIC 451) (Mys) and Rabindra Nath Bose V/s. General Manager, Eastern Rly., 1976 LabIC 208) (Cal). The first decision is of the Mysore High Court and the second is that of Calcutta High Court. The Mysore decision is based on some local rules of Mysore State, which were held to be exhaustive on the subject. The Calcutta decision was no doubt based on the Railway Establishment Manual Rules. In that case although the initial occupation was itself unauthorised, and not based on any proper allotment, yet the servant was held to have become a tenant because the railway administration had accepted rent from him. Accordingly, it was held that under para 1730 only enhanced rent could be charged, but disciplinary proceedings could not be taken under second sub-para of para 1731. The decision, however, does not take into account the definition of "unauthorised occupation" contained in the Public Premises (Eviction of Unauthorised Occupants) Act of 1958 or of 1971, which replaced the former. That definition comprises equally an initial occupation without a proper allotment order and continuance of occupation after the authority for occupation has ceased. There is no distinction between these two types of unauthorised occupation. Moreover, the general law of landlord and tenant does not apply to occupation of public premises which are governed by the said special law. The paragraphs of the Indian Railway Establishment Manual referred to above are not in proper sequence, and statutory rules and administrative instructions are all mixed up. The provision, that no rent should be accepted in the case where initial occupation is in itself without proper allotment is apparently made by way of abundant caution. so that no rights may be claimed on the basis of acceptance of rent. This does not imply, that in other cases the occupation would become authorised merely because of acceptance of enhanced or so-called penal rent. With due respect, I also find no legal justification for the view that because enhanced rent is payable for unauthorised occupation beyond the permissible period, therefore, disciplinary proceedings cannot be taken for disobedience of specific orders directing a railway servant to vacate the premises. The two provisions should be construed as without prejudice to each other, and it is, in my opinion, open to the authorities to have recourse to one or the other or both.