Central Administrative Tribunal - Mumbai
Dr. Vrinda V. Khole vs The Indian Council Of on 28 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI ORIGINAL APPLICATION NO.: 311 of 2010 Dated this Thursday, the 28th day of October, 2010 CORAM: Hon'ble Shri Jog Singh, Member (J). Dr. Vrinda V. Khole, R/at 1202, Dosti Lotus, Dosti Acres Compound, S.M. Road, Wadala (E), Mumbai 400 037. ... Applicant (By Advocate Shri S. V. Marne) VERSUS 1. The Indian Council of Medical Research, V Ramalinga Swami Bhawan, Ansari Nagar, P.O. Box No. 4911, New Delhi. 2. The Director, National Institute Research in Reproductive Health, Indian Council of Medical Research, J.M. Street, Parel, Mumbai 400 012. ... Respondents. (By Advocate Smt. H.P. Shah) O R D E R (ORAL) Per : Shri Jog Singh, Member (J)
In the present O.A., the applicant, works as Scientists with the respondents, i.e., National Institute for Research in Reproductive Health, Ministry of Indian Council of Medical Research, which is an autonomous body organization under the Government of India. The said autonomous body is brought within the jurisdiction of this Tribunal by a notification issued under Section 14(2) of the Administrative Tribunal's Act, 1985.
2. The dispute raised by the applicant in the present O.A. pertains to stoppage of House Rent Allowance by the respondents w.e.f. September, 2004 when her husband, Dr. V.B. Khole, was appointed as Vice Chancellor of Mumbai University. The application is also directed against the recovery of an amount of H.R.A. already paid to the applicant.
3. The learned counsel for the applicant states that the issue is no more res integra and has already been decided by this Tribunal by its order dated 26.10.1994 in O.A. No. 822/91. That case was pertaining to an employee of the Department of Rural Development, Ministry of Agriculture, Government of India. Her husband was employed as Registrar of Mumbai University only. After analyzing the law on the subject, this Tribunal held that the expression 'University' cannot be included and read into the provisions of Section 5 (C)(iii) of Conditions for drawal of House Rent Allowance. The said rule has been reproduced in the O.A. as well as in the above said judgment of this Tribunal dated 26.10.1994.
4. Respondents have filed their reply and have denied the claim of the applicant. In para 4.11 of the reply, the respondents contend that since there are now more than one judgment of the Hon'ble High Courts clarifying the Rule 5(c)(iii) and the University is also included under the said rule, the judgments cited by the applicant of this Tribunal have to be seen in view in the context of latest law of the Hon'ble Supreme Court and High Court.
5. Heard the learned Counsel for the parties and perused the pleadings along with documents annexed therewith.
6. The Tribunal has gone through the judgment dated 26.10.1994 in O.A. No. 822/1991 [Smt. Sharda Gajanan Rajarshi Vs. Union of India & Others] relied upon by the learned counsel for applicant in support of his case. It is evident that after analysing the rule position and judgment of Hon'ble Supreme Court in the case of State of Bombay & Others Vs. The Hospital Mazdoor Sabha & Others [AIR 1960 SC 610] the Tribunal categorically held that the applicant therein was entitled to HRA. Paragraphs 6 to 11 of the said earlier judgment of the Tribunal are relevant and are reproduced herein below :
6. The question, therefore, is whether the expression semi-Government Organization is restricted only to the categories such as Municipality or Port Trust and would not cover a University. Learned Counsel for the Respondents urged that since no words or restriction are used in clause (iii) and Municipality and Port Trust mentioned as illustrative of the semi-Government organizations, it would not be open to us to restrict the operation of the words used only to Municipality or Port Trust which come under 'Local Authority' as defined in Clause 3 (31) of the General Clauses Acts. The Comptroller and Auditor General of India, 1991 (3) A.I.S.L.J. p. 320, where it was held that Central Machine Tool Institute which has been funded by the Government would be a semi-Govt. Organization. The Tribunal observed:-
We cannot agree with the submission that to become a semi-Government organization atleast 50 percent of funding should have been by Government. The word semi of course has the meaning half in quantity or value. But, has also the meaning:- 'to come extent', 'partly'. The expression 'semi-Government' means having some Government functions and powers (vide Wabstar's Third New International Dictionary, Volume 3). The discussion there was only for the purpose of determining whether CMTI was a semi-Government organization and the question whether the words used in Clause (iii) of Section 5 were restrictive did not come up for consideration in that cases. We are clear that the principle of construction enunciated by noscitur a sociis would apply in the present case. In the State of Bombay & Ors. Vs. The Hospital Mazdoor Sabha & Ors. AIR 1960 SC 610, it was observed:-
noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the above rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. In para 9 of the report it is observed that:-
This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colours from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in Words and Phrases.
Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maximum Ejusdem Ganeris. In fact the latter maxim is only an illustration or specific application of the broader maxim noscitur a sociis.
7. The Learned Counsel for the Respondents Shri Bhatkar urged that it would not be permissible to construe the expression 'semi-Government organization' differently from what has been stated in Clause (ii) while mentioning 'semi-Government organization'. There they are followed by the words such Municipality, Port Trust, Nationalised Banks, Life Insurance Corporation of India, etc. This submission, however over looks the different categories to which the three sub-clauses relate. The first sub-clause relates to one who shares Government accommodation allotted rent-free to another Government servant. The second to the person who resides in accommodation allotted to his/her parents/son/daughter by the Central Government etc. while the third to wife/husband who has been allotted accommodation by the Central, Government, etc. Since different provisions have been made in respect of different categories and the organizations with which the persons are working have been named, it would be entirely in appropriate to give the same meaning to semi-Government organization in clauses (ii) & (iii) when that expression is followed by mentioning institutions of different character. The change in language appears to us to be deliberate. At the most it may be said that by including Nationalized Banks, Life Insurance Corporation of India, etc the scope of provisions of clause (ii) has been increased and in the event the doctrine of noscitur a sociis will not apply as pointed out in Hospital Mazdoor Sabha case. The words have to be construed as restricting the category to which the persons concerned belong and the category which would be covered shall have to be analogous to and shall take colour from the words. Municipality and Port Trust. As we have pointed out above they are the authorities which pertake the character of the local authorities which are defined in clause (iii) of the General Clauses Acts.
8. We, are therefore, clear that the Respondents in themselves of following the provisions of Section 5 (iii) of the Act could not have expanded the scope of the provision for restricting the right to House Rent Allowance where the husband or wife belong to an organization such as Bombay University.
9. The Learned Counsel for the Respondents referred to Enclosure to letter Ex. - to the reply, that this letter dated 16.04.1991 sent by the Under Secretary, Ministry of Finance of the subject of payment of House Rent Allowance to a Government Servant whose spouse is allotted accommodation by a University. The letter says that:-
As per para 5 (a)(iii) of the Ministry's OM dated 27.11.1965, as amended from time to time, a Govt. Servant is not entitled to House Rent Allowance if his/her spouse has been allotted accommodation at the same station by the Central Government, State Government, an autonomous Public undertaking or semi organizations. A university is a semi Govt. organization and as such in the present case House Rent Allowance will not be admissible to the Govt. servant whose husband has been allotted rent free accommodation by Bombay University. The Communication sent by the Under Secretary to the Ministry of Finance would not widen the scope of the provision. The letter dated 16.04.1991 does not purport to be an amendment to the provision but only purported to be a reply to the Applicant's representation and it cannot have the effect of amending the general rules and orders which had been issued by the President, of which Rule 5 on which reliance is placed forms a part. The letter cannot have a effect of amending the provisions which bear upon the rights of the Govt. servant to receive HRA and this letter cannot lend any assistance to the Respondents.
10. In the result, we find that the Respondents were not entitled to deprive the Applicant of the benefit of House Rent Allowance on the ground that her husband was in occupation, as registrar of Bombay University, of the residential quarter provided rent free by the university.
11. We, therefore (a) quash the letter dated 22.07.1991 and 25.10.1991, (b) the Respondents are restrained from enforcing the threats of recovery of Rs. 23,850/- and Rs. 1800/- (being the alleged over payment of House Rent Allowance to the Applicant from May, 1980 to October, 1989 and March, 1991 to June, 1991) as mentioned in the order dated 25.10.1991. (c) The Respondents are directed to pay the amount of House Rent Allowance admissible to the Applicant for the period between November, 1989 and February 1991 and also from July 1991 onwards at the rate of Rs. 450/- per month, and (d) all other amounts which would be admissible to the Applicant for the entire period for which the amounts have been withheld at the rate which may I fore from time to time. The Applicant would be entitled to refund of the amounts of the House Rent Allowance withheld with interest at the rate of 10% p.a. since the amount of gratuity payable to the Applicant also had been withheld by the Respondents, we direct the Respondents to pay the Applicant the entire amount of gratuity which has been withheld together with interest as prescribed by Rule 68 of the pension Rules. All these payments shall be made within three months from the date of communication of this order to the Respondents. No order as to costs.
7. There is no denial on behalf of the respondents as to the implementation of said judgment by the University of Mumbai itself in respect of the Registrar of Mumbai University, who was allowed a rent free accommodation by the Mumbai University in that case. His wife, who was admittedly working in the Government of India, Ministry of Rural Development, was declared entitled to H.R.A. despite having been residing with the respondents in the accommodation allotted by the Mumbai University. Since that judgment has already been implemented, the respondents cannot now change their stand and deny the same benefit to the wife (present applicant) of the Vice-Chancellor of Mumbai University.
8. Turning to the contention of the respondents in their reply dated 14.06.2010 taken in paragraph 4.11 thereof to the effect that the University is also included under Rule 5 (C)(iii) of the Conditions for Drawal of H.R.A. as mentioned in Swamy's Compilation of FRSR Part-V at page 18 onwards. In this connection, the respondents have not pointed out any observation made in the two judgments relied upon by them wherein it is stated that University is also included in the said rule. The said two judgments are that of Hon'ble High Court of Gujarat at Ahmedabad in the case of Ninaben J. Andhariya Vs. State of Gujarat [Special Civil Application No. 9998 of 2001 and that of High Court of Delhi in the case of Rajni Devi Vs. Union of India & Others [WP (C) No. 7132/2008 decided on 18.08.2009].
9. In the case of Rajni Devi (supra) decided by the Hon'ble High Court of Delhi, the issue pertains to an inadvertent payment of HRA to the petitioner therein, who was working as Hostel Warden in the National Bal Bhawan since October, 1996. She was staying in the official Government accommodation allotted to her husband. Since both, the husband and wife, were working in the Government of India, the action of the respondents in seeking to withdraw the HRA amount was held justified by the Hon'ble High Court. In paragraph 7 of that judgment, the Hon'ble High Court of Delhi has categorically stated that the issue is regarding entitlement of the petitioner to HRA and that entitlement was denied to the petitioner by the Hon'ble High Court as both, the husband and wife, were working under Government of India and, therefore, they were not entitled to HRA. This judgment no where mentions that Mumbai University is also included in the definition of said Rule 5 (C)(iii).
10. Turning to the reliance placed by the respondents on the judgment of Hon'ble Gujarat High Court in the case of Ninaben J. Andhariya (supra), we note that similar issue was decided by the Gujarat High Court. The Hon'ble High Court has categorically held that where both husband and wife are Government servant and are occupying government accommodation allotted to one of them, there is no question to grant HRA to non-allottee spouse. In this background, the petitioner was held not entitled to HRA. The petitioner in that case was working as female Nurse and her husband was working as Male Nurse. The wife was allotted rent free accommodation (quarter) by the Government. Thus, the facts of both these cases are entirely different and the issue pertaining to Mumbai University has not been dealt with in any of them. Moreover, the judgment of this Tribunal dated 26.10.1994 in O.A. 822/1991 has been duly complied with by the respondents by extending the benefit of HRA to the wife of former Registrar. There is no reason why the present applicant should be discriminated in the matter of grant of HRA.
11. In view of the above discussion of law and fact, the present O.A. is allowed in terms of prayer contained in paragraphs 8(a) and (b). Respondents to comply with the directions within a period of three months from the date of receipt of a copy of this order. No order as to costs.
(JOG SINGH) MEMBER (J) os*