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S.K. Somasundaram v/s The Assistant Director of Land Survey Records, Virudhunagar & Others

    W.P.(MD)No.8476 of 2007 & M.P.(MD)No.1 of 2006

    Decided On, 14 July 2011

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE VINOD K. SHARMA

    For the Petitioner: C. Selvaraj, Advocate. For the Respondents: D. Muruganandam, Addl. Government Pleader.



Judgment Text

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for records relating to the impugned order passed in G.O.(D)No.259-Revenue (Survey 4(1) Department, dated 08.07.2007 of the 3rd respondent in connection with his letter Nos.19922 Land Survey/4(1)s-2001-9, dated 21.02.20005 and letter No.5825/D.C.D.2/2006-1, dated 31.01.2007 and quash the same and consequently direct the 3rd respondent to dispose of all the retirement benefits including pension.)

1. The petitioner has invoked the extraordinary jurisdiction of this court, with a prayer, for issuance of a writ, in the nature of certiorari, for quashing the impugned order, dated 08.05.2007, vide which, the petitioner has been imposed a punishment of 'recovery' of Rs.500/- [Rupees five hundred only] per month, out of his pension.

2. The petitioner, while working as 'Assistant' in the Land Survey Department in Virudhunagar, was allotted house No.C/64, Kumarasamy Raja Nagar Housing Board Quarters, on 24.02.1985. On promotion to the post of Superintendent, the petitioner was transferred to Salem on 07.01.1991 and thereafter, to Sivagangai, where he worked from 19.03.1991 to 28.02.1993. He was again transferred back to Virudhunagar on 1.03.1993 and finally retired from service at Virudhunagar.

3. The case of the petitioner is, that on being transferred, he made a request to the Housing Board for allotment of quarters in the occupation of the petitioner to his wife, who was working in the same Department.

4. The petitioner was informed, that the request for allotment be made by his wife. Accordingly, a request was sent by the wife of the petitioner for allotment of the house. In-spite of the request made for allotting the house No.C/64 to the petitioner's wife, the respondents allotted some other house, but the petitioner and wife did not shift to the allotted house.

5. The petitioner was accordingly issued a notice, to show cause as to why penal rent be not charged for unauthorized occupation of the Government accommodation.

6. The petitioner challenged the action of the respondents in not allotting the house to his wife, by way of O.A.No.272 of 1996, before the learned Tamil Nadu Administrative Tribunal at Chennai.

7. The application was allowed by the learned Tamil Nadu Administrative Tribunal. The operative part of the order reads as under:-

'5. From this, it is clear that only penal rent is directed to be recovered. It is already stated that the wife was also a Government Servant in the same office, continued to occupy the quarters. An application has also been made for allotment of quarters in her name, it has been made for allotment of quarters in her name. It has also been accepted. But why a different quarters has allotted is not known. That part it tantamount to the unreasonable conduct on the apart of the 2nd respondent. When husband and wife are employed in the same office and when the husband is alloted a quarters and if the wife, who is also a Government servant eligible for allotment of a quarters, continues to occupy the same, on the transfer of her husband, what is wrong in allotting the quarters in the name of th wife. That apart, when there was already intimation given, no reply has been sent for the same as to whether the 2nd respondent accepted the request of the petitioner to allot the quarters in the name of his wife.

6. That part, before the orders was passed, no notice was given to the petitioner. In the circumstances, I am of the view that there is no justification for ordering the recovery penal rent. Hence the O.A. is allowed and the impugned order, dated 7.3.1995 and 10.11.1995 are set aside.'

8. After the order passed by the learned Tamil Nadu Administrative Tribunal, attained finality. The Department, instead of implementing the order passed by the learned Tamil Nadu Administrative Tribunal, issued a charge memo to the petitioner on the following allegations:-

(i) unauthorized occupation;

(ii) preparing a wrong chart showing the deposit of penal rent; and

(iii) the conduct showing that the petitioner was unbecoming of a Government servant.

9. The petitioner participated in the enquiry. The enquiry officer found petitioner guilty of all the charges.

10. The competent authority, by accepting the report of the enquiry officer, imposed punishment of recovery of Rs.500/- [Rupees five hundred only] per month out of the pension of the petitioner, without specifies the period.

11. The learned counsel for the petitioner challenged the impugned order, firstly on the ground that Departmental proceedings as well the impugned order, cannot be sustained in law, for want of jurisdiction to open a concluded matter which has attained finality, as the order of the learned Administrative Tribunal has attained finality.

12. It is the contention of the learned counsel for the petitioner that after the order was passed by the learned Tamil Nadu Administrative Tribunal, setting aside the order, imposing penal rent for unauthorized occupation, there was no occasion for the respondents to have initiate enquiry, by treating him to be an unauthorized occupant.

13. Secondly, that holding of enquiry and the impugned order is not only arbitrary and violative of Article 14 of the Constitution of India, but also contemptuous as it violates judicial order, passed by the learned Tamil Nadu Administrative Tribunal.

14. Thirdly, that the impugned order cannot be sustained in law, as it is the out come of non-application of the mind, as without determining the amount due, a sum of Rs.500/- [Rupees five hundred only] per month has been ordered to be recovered from the pension of the petitioner, without fixing the time limit.

15. There is force in the contentions of the learned counsel for the petitioner. The order of recovery, with determining the amount and fixing time limit, has been made with ulterior motive, because in view of the judgment of the learned Tamil Nadu Administrative Tribunal, it was not open to the respondents to claim penal interest, from the petitioner, and in the absence of, penal interest, there could be no occasion for recovery of any amount.

16. The learned Additional Government Pleader appearing for the State, contended that admittedly, the petitioner was guilty of unauthorized occupation of the Government accommodation, as on transfer, he had no right to occupy it, merely on the ground that the quarters could be allotted to his wife, therefore, no error can be found, in the impugned order.

17. It is also the contention of the learned Additional Government Pleader that in this case, the conduct of the petitioner was unbecoming of a public servant, as in order to over-reach the Department, he made a false entries for showing the deposit penal rent, whereas no deposit was made.

18. On consideration I find force in the contention raised by the learned counsel for the petitioner.

19. In view of the order passed by the learned Tamil Nadu Administrative Tribunal, which has attained finality, it was not open to the respondents to claim penal interest and treat the petitioner to be the unauthorized occupant, as and the action of the respondents in allotting different house to the wife of the petitioner was not approved by the learned Tribunal.

20. The learned counsel for the petitioner is also right that the proceedings initiated were not only mala-fide, but also hit by principles of estoppal, as it was not open to the respondent to re-open the concluded matter, which stood determined before the learned Tamil Nadu Administrative Tribunal, and not challenged in higher court.

21. The learned counsel for the petitioner is also right that the impugned order is suffers from vice of non-application of mind, as no amount has been fixed, which is to be recovered. There is no jurisdiction with the respondents, to order recovery from the pension without determining fixed amount due.

22. The contention of the learned counsel for the State cannot be accepted. The petitioner could not be treate

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d to be an unauthorized occupant, in view of the judicial order of the learned Tamil Nadu Administrative Tribunal, nor any penal rent could be charged. 23. As already observed above, the order of recovery of Rs.500/- [Rupees five hundred only] per month from the pension of the petitioner is totally arbitrary, in view of the orders of the learned Tamil Nadu Administrative Tribunal, Chennai. The conduct of the petitioner was as such, which would attract to the penal action against him, especially when the allotment of different quarter was made to the wife of the petitioner, which shows that she was entitled to allotment. The allotment different house therefore was only mischief to harass the petitioner, the action of the respondents therefore was not bona-fide. 24. For the reasons stated, the writ petition is allowed, impugned order is quashed. Connected Miscellaneous Petition is closed. No costs.
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