Central Administrative Tribunal - Delhi
Rojalia Tirkey vs Comm. Of Police on 28 January, 2026
1
O.A. No. 2362/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2362/2019
Reserved on: 06.01.2026
Pronounced on: 28.01.2026
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
ROJALIA TIRKEY (ASI), Delhi Police
AGED ABOUT 59 YEARS,
W/O SH. S.D. PRADHAN,
R/O HOUSE NO. 31, KHASRA NO. 33/6,
STREET NO. 4-5, NEAR SANTOSHI MATA MANDIR BLOCK,
RANAJI ENCLAVE, NAJAFGARH,
NEW DELHI-110043.
Group 'C'
..APPLICANT
(BY ADVOCATE: MR.GAUTAM DAS)
VERSUS
1. COMMISSIONER OF POLICE, DELHI
POLICE HEADQUARTERS,
ITO, NEW DELHI.
2. APPELLATE AUTHORITY,
ADDITIONAL COMMISSIONER OF POLICE,
OPERATIONS & MODERNIZATION,
POLICE HEADQUARTERS,
ITO, NEW DELHI.
...RESPONDENTS
(BY ADVOCATE: MR. B.L. WANCHOO)
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O.A. No. 2362/2019
ORDER
Hon'ble Mr. B. Anand, Member (A):
By way of filing of this Original Application (O.A.) under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following relief(s):
"(i) Call for the records from the Office of the Respondents herein and examine the same;
(ii) To set aside the office order No. 18464-18504/HAP/P-
II/PCR dated 03.08.2018 passed by Ld. Addl. Dy. Commissioner of Police (Ops) Police Control Room, Delhi / The Disciplinary Authority and the final order bearing No. 258-59/P.Sec./Addl. C.P./Ops. &Modn. dated 08.03.2019 passed by the Appellate Authority in the Appeal submitted by the Applicant, against the above said order dated 03.08.2018;
(iii) Direct the respondents to refund the amount illegally recovered from the Applicant till now and quash the award of punishment of permanent forfeiture of 05 (five) years of approved service;
(iv) Pass any further order(s), direction(s) as may be deemed just and proper to meet the ends of justice."
2. Pursuant to notice, the respondents have filed reply and have disputed and contested the claim of the applicant. The applicant has filed rejoinder and reiterated his claim and the grounds pleaded in support thereof.
3. Brief facts, as stated by the applicant, are that the applicant working as W/ASI was married to one Shri S.D. Pradhan in the year 2000. On 21.12.2001, she informed her seniors as well as the SHO, PS Hari Nagar that since her husband has been harassing her, she started living separately. On 9.05.2016, a letter dated 9.05.2016 from the Deputy Superintendent (Medical), Central Jail Hospital, Tihar was received by the respondents asking to furnish the details of 2026.02.03 ANJALI 10:50:48 +05'30' 3 O.A. No. 2362/2019 pay and allowances including HRA drawn by the applicant as her husband Shri Pradhan had submitted Home Town LTC claim for the block year 2014-2017 for self and his family members including the applicant herein. On 31.05.2016, an explanation was called from the applicant alleging that while residing in Government Quarter allotted to her husband Shri Pradhan, working as Nursing Orderly in Central Jail Hospital, Tihar, she had been illegally drawing House Rent Allowance (HRA) from Delhi Police whereas she should have stopped drawing HRA from the date of allotment of Government Quarter to her husband. On 27/28.06.2016, the applicant submitted explanation that she was not residing with her husband but was residing with her sister at Sagarpur in a rented accommodation since 2001 and was paying rent for that. It is stated that without considering her explanation, the respondents got conducted a vigilance inquiry and based on the inquiry report, the allegation against her stood proved. The applicant, however, did not admit the allegations and contended that she is prepared to face departmental proceedings. Accordingly, the Inquiry Officer (IO) framed the charges. The IO completed the departmental proceedings concluding that the charge levelled against the applicant is proved. A copy of the findings was served on the applicant through her supervisory officer on 19.06.2018 with the direction to submit representation within 15 days. The applicant submitted her representation against the findings of IO on 6.07.2018 stating that she was not residing with her husband but was residing with her sister and was paying rent for that and regarding this, she had already informed to her seniors in the department. On 27.07.2018, the Additional DCP/PCR Delhi, 2026.02.03 ANJALI 10:50:48 +05'30' 4 O.A. No. 2362/2019 after going through the findings of the IO, statement of PWs and other material/records brought on the DE file, called the applicant and heard in O.R. Finally the Addl. DCP/PCR, on 3.08.2018, passed the order awarding the punishment of forfeiture of five years approved service permanently on the applicant, entailing proportionate reduction in her pay after confirming the date of allotment of government quarter to her husband Shri Pradhan and date of HRA drawn by the applicant. Aggrieved by the order passed by the Addl. DCP/PCR, the applicant filed appeal dated 6.09.2018. The same was dismissed by the Additional Commissioner of Police vide order dated 8.03.2019.
4. During the course of arguments, learned counsel for the applicant submitted that impugned actions of the respondents are arbitrary, harsh and violative of Articles 14 and 16 of the Constitution of India. He stated that despite clear declaration that she has been living separately and had informed the department long ago by her letter dated 21.12.2001, a vigilance enquiry and subsequently a departmental enquiry was initiated, culminating in the impugned punishment orders. The learned counsel argued that the applicant repeatedly informed to her seniors and the SHO, PS, Hari Nagar declaring her separation and harassment by her husband that she has been living separately with her sister right from 21.12.2001. She also consistently filed rent receipts each year for HRA and income tax purposes showing her Sagarpur address and this fact was never disputed by the department. The learned counsel also argued that the departmental inquiry was procedurally defective because the applicant was permitted to cross-examine only 2 out of 7 2026.02.03 ANJALI 10:50:48 +05'30' 5 O.A. No. 2362/2019 prosecution witnesses. Such selective enquiry violates the principles of fair enquiry and is contrary to Rule 16 (iii) of Delhi Police (Punishment & Appeal) Rules, 1980 which mandates full opportunity of defense.
5. As regards recovery, the learned counsel for the applicant placed reliance on the judgment of the Hon'ble Apex Court in State of Punjab & ors. Vs. Rafiq Masih (White Washer) & ors., 2015 (4) SCC 334. For better appreciation, Paragraph 18 of the said judgment is reproduced below:
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:-
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far 2026.02.03 ANJALI 10:50:48 +05'30' 6 O.A. No. 2362/2019 outweigh the equitable balance of the employer's right to recover."
6. In counter, the respondents stated that the applicant in her representation against the findings of the IO mainly pleaded that:
i) during cross examination of PW-1, HC Manoj Kumar stated that he had not collected any proof of Rojalia Tirkey residing in the govt. quarter with her husband;
ii) merely the name in the DGHS card does not prove that she was physically residing in the govt. accommodation allotted in the name of her husband as she had informed her seniors vide letter dated 21.12.2001 about harassment and living separately;
iii) vide letter dated 21.12.2001 she had informed SHO, PS, Hari Nagar alleging therein that her husband harasses her and she is residing separately from him. She had also informed her seniors that she is residing with her sister and pays rent to her;
iv) no claims/facilities provided to a govt. employee were availed by her for herself and for her family during her entire career;
v) her HRA receipts submitted every year for claiming income tax exemption are with the department, which clearly show her address of residence;
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vi) her sister has also proved that the applicant has been living with her since long and that she had never lived with her husband in a govt. accommodation; and
vii) the jail authority has not conducted proper inquiry in the matter.
The respondents, however, found all the above pleas taken by the applicant to be untenable.
7. The respondents further pleaded that the applicant failed to produce any legal document like decree of divorce etc. to strengthen her claim of separate residence. They stated that on perusal of record/material available on file, the appellate authority found that the applicant along with her family was residing in government quarter allotted to her husband Shri S.D. Pradhan, who was working as Nursing Orderly in Central Jail Hospital, Tihar but was also drawing HRA from Delhi Police by concealing the facts. Whereas from the date of residing/allocation of government quarter she should have stopped to draw the HRA but she failed to do so. As per rule 5(C)(iii) of HRA Rules, a government servant is not entitled to draw HRA if his wife/her husband has been allocated accommodation at the same Station by the Central Govt./ State Govt. etc. whether he/she resides in the accommodation or he/she resides separately in accommodation rented by him/her. The misconduct of the applicant came to notice only when a letter bearing No. F.5/RMO/CJH/2016/1012 dated 09.05.2016 from Deputy Superintendent (Medical) Central Jail Hospital, Tihar, New Delhi was received vide which it was asked to furnish the details of 2026.02.03 ANJALI 10:50:48 +05'30' 8 O.A. No. 2362/2019 pay and allowances including HRA etc. drawn by the W/ASI as her husband Shri S.D. Pradhan has claimed LTC (Home Town) 2016 for the block year 2014-2017 for self and his family members including his wife W/ASI Rojalia Tirkey, No. 2644/W (now 5669/PCR). During O.R, the applicant pleaded that she was residing separately from her husband since long as she was being harassed by her husband. The plea advanced by the applicant was found untenable because she failed to produce any legal documents like decree of divorce etc. to strengthen her claim of separation from her husband. The misconduct of the applicant has clearly proved that she knowingly concealed the facts from the department to take undue advantage for wrongful monetary gain. Apart from that, being in govt. service, the applicant has violated rule 5(C)(iii) HRA Rules according to which, a Govt. servant shall not be entitled to HRA if his wife/her husband has been allotted accommodation at the same station by the Central Govt./State Govt. etc. whether he/she resides in the accommodation or he/she resides separately in accommodation rented by him/her. The appellate authority found no reason to interfere with the order of the disciplinary authority and rejected the appeal of the applicant on merits vide order No. 258-59/P.Sec./Addl. C.P./Ops. &Modn., dated 8.03.2019.
8. In their counter, the respondents also stated that the orders passed by the disciplinary authority and the appellate authority are legal and in accordance with relevant rules and also in compliance of principles of natural justice. They stated that the applicant has mischievously caused monetary loss to the government exchequer by not disclosing real facts about the allotment of government 2026.02.03 ANJALI 10:50:48 +05'30' 9 O.A. No. 2362/2019 accommodation to her husband. They further stated that the applicant W/ASI has intentionally and with ulterior motives has kept the department in dark for wrongful monetary gain. The disciplinary authority, therefore, considered that it was a fit case where stringent action was required for recovery of pecuniary loss caused to the department completely owing to grave misconduct of the applicant. Therefore, keeping in view the overall facts and circumstances of the case and in consonance with the findings of the IO, the disciplinary authority has awarded the punishment of forfeiture of five years approved service permanently to the applicant entailing proportionate reduction in her pay with recovery amount with interest at bank rate drawn by the applicant in the form of HRA for common period after confirming the date of allotment of government accommodation to her husband Shri Pradhan and date of HRA drawn by the applicant.
9. In reply to the ground taken by the applicant that she has never been asked to submit "No accommodation certificate" for claiming HRA, the respondents have stated that the applicant is trying to put her responsibility on shoulders of others. She was well aware that her husband was in occupation of government accommodation and she has not obtained any legal orders of separation from her husband. They reiterated that the applicant has misrepresented the department to satisfy her monetary lust and caused huge financial loss to the government exchequer. She, therefore, deserved punishment according to her misconduct. 2026.02.03 ANJALI 10:50:48 +05'30' 10 O.A. No. 2362/2019
10. Reliance was further placed upon the judgment of the Hon'ble Apex Court in Thomas Daniel Vs. State of Kerala & ors., 2022 SCC Online SC 536, wherein the Court extended equitable relief by holding that recovery of excess payment, when made without any fault, misrepresentation or fraud on the part of the employee, and where such recovery would cause undue hardship, is impermissible in law.
11. Reliance was also placed upon the judgment of the Hon'ble Patna High Court in Pramod Kumar Sinha Vs. Union of India & ors., CWJC No.11407/2024 wherein, after considering Rafiq Masih (supra), it was held that 'no recovery can be effected from a Class
- III employee who has not committed any fraud or misrepresentation'. The Hon'ble High Court further clarified that even the existence of an undertaking by such an employee cannot override the protection available under Rafiq Masih (supra) to Class- III and Class-IV employees.
12. Rebutting the arguments of the learned counsel for the applicant, the learned counsel for the respondents argued that the applicant failed to produce any documentary proof of having the marriage been dissolved by way of decree of a competent Court. He further argued that the applicant cannot claim protection for the recovery of the HRA in terms of the judgment of the Hon'ble Apex Court in Rafiq Masih (supra) as she has been knowingly claiming HRA by misrepresenting the facts.
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13. We have heard the learned counsel for the parties and with their assistance have carefully gone through the pleadings available on records.
14. We find from the records that the applicant, as early as 21.12.2001, had informed her seniors as well as the SHO, P.S. Hari Nagar, that due to harassment experienced by her at the hands of her husband, she had started living separately. Therefore, it cannot be said that the factum of the applicant living separately was not within the knowledge of the department. She had also been submitting rental receipts every year to the respondents for claiming Income Tax exemptions, which goes in her favour and shows that she had not acted in a surreptitious manner, and keeping her department in the dark.
15. We are conscious of the fact that, as a Tribunal and a quasi- judicial body, apart from examining the validity and applicability of the service rules and the judgments rendered by the Constitutional Courts in service matters, we are also required to adopt a broader perspective concerning Government employees. In the instant case, the applicant is a woman, and when she was being harassed by her husband, she had no option other than to live separately, although without obtaining a legal separation order from the Family Court. In many cases, parties may not approach the Family Court for legal divorce in the fond hope that their marriage may still work.
16. The trigger for the action taken by the respondents in initiating disciplinary proceedings against the applicant was a letter dated 2026.02.03 ANJALI 10:50:48 +05'30' 12 O.A. No. 2362/2019 09.05.2016 written by the Deputy Superintendent (Medical), Central Jail Hospital, Tihar, New Delhi, wherein the respondents were asked to furnish details of the pay and allowances, including HRA, drawn by the applicant, as her husband had claimed LTC (Home Town) 2016 for the block year 2014-2017 for himself and his family members, including his wife (the applicant). Under such circumstances, one would have expected the respondents to also array the husband of the applicant as a witness in the disciplinary proceedings against the applicant and make a detailed enquiry to ascertain why he had sought such an LTC claim when he knew that his wife was living separately, and thereby conclusively determine the truth or otherwise of the applicant's claim of living separately.
17. The judgments relied upon by the applicant, particularly Rafiq Masih (supra) and Thomas Daniel (supra), clearly support her contention that the present case is squarely covered by the said decisions. In particular, paragraph 18 of the judgment in Rafiq Masih (supra), referred to in Para 5 of this order, is fully applicable to the facts of the present case, as the applicant has not misrepresented any fact so as to obtain any undue benefit from the respondents.On the contrary, she had candidly informed the respondents about the factum of her living separately from her husband vide her letter dated 12.01.2001, and she also belongs to Group-C service and the respondents have sought to effect recovery when she was due to retire within one year.
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18. In view of the peculiar facts and circumstances of the case, and for the reasons recorded hereinabove, the present O.A. is allowed with the following directions:
(i) The impugned orders dated 03.08.2018 and 08.03.2019 are hereby quashed and set aside;
(ii) The respondents are directed to refund the amount recovered from the applicant pursuant to the impugned orders and to restore the forfeited five (05) years of approved service, and further to issue a fresh PPO to the applicant within a period of three months from the date of receipt of a copy of this order. The applicant shall be entitled to all consequential benefits arising therefrom;
(iii) However, considering the fact that the applicant has already retired from service and that the incident relates to her living separately during the period from 21.01.2001 onwards till the date of her retirement in 2020, the respondents are not granted liberty to reopen the matter.
20. However, in the facts and circumstances of the case, there shall be no order as to costs.
(B. Anand) (R.N. Singh)
Member (A) (Member (J)
/anjali/
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