Central Administrative Tribunal - Bangalore
Rakesh Kumar Dubey vs Department Of Telecommunication on 15 December, 2023
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OA.No.170/122/2023/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00122/2023
DATED THIS THE 15TH DAY OF DECEMBER, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Rakesh Kumar Dubey
S/o Late Dr. K. N. Dubey
Aged about 60 years,
Addl. Director General Telecom,
Department of Telecommunications,
(Earlier Designation: Sr. Deputy Director General)
Karnataka LSA,
Bengaluru- 560041. ..Applicant.
(By Advocate Shri Chandan S. Malapur)
Vs.
1.Union of India, through its Secretary(T),
Department of Telecommunications,
Sanchar Bhawan, 20, Ashoka Road,
New Delhi - 110001.
2. Union of India through its Secretary,
Department of Expenditure,
Ministry of Finance,
North Block, New Delhi- 110001.
3. DDO O/o Additional Director General Telecom,
First Floor, Sanchar Complex,
WMS Compound, 47th Cross, 9th Main,
5th Block, Jayanagar, Bangalore- 560041.
4. Controller of Communication Accounts
Karnataka Circle,
Department of Telecommunications,
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OA.No.170/122/2023/CAT/Bangalore Bench
Amenity Block, Palace Road,
Bengaluru- 560001.
5. Union of India, through its Secretary (HUA),
Ministry of Housing and Urban Affairs,
Maulana Azad Road, Nirman Bhawan,
New Delhi, Delhi- 110011.
6. Union of India, through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi- 110001.
7. Union of India, through its Secretary,
Department of Personnel and Training,
North Block, New Delhi-110001. ....Respondents.
(Shri Gajendra Vasu, Sr. Panel Counsel for Respondents)
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash the impugned order bearing No.5-16(03)/2018-PAT dated 16.02.2023, (Annexure A-14) passed by the respondent No.1, vide which an order has been made for recovery of the payment made due to excess payment of HRA to the applicant.
b) Any other order or direction, which this Tribunal deems fit to grant under the facts and circumstances of the case.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
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a) The applicant was working as Additional DG Telecom, Department of Telecommunications, Karnataka LSA. He is due to superannuate on 30.04.2023.
b) The applicant was posted to J&K LSA, as DDG (S), Jammu from 24.05.2017 to 27.09.2019. In this period, the applicant looked after the charge of Sr. DDG J&K LSA from January 2018 onwards and was drawing House Rent Allowance (hereinafter referred to as 'HRA') at prescribed rates.
c) After an Internal Audit inspection, carried out by the J&K Term Cell for the year 2014-15, as well as in the month of April and June 2018, it was advised by the office of CCA, J&K that recovery of HRA be made from the officers permitted to retain the Government accommodation at old station and drawing HRA at Jammu. For this the following HRA rule was cited:
"A Government Servant who, on transfer, has been permitted to retain Government accommodation at the old station on payment of normal rent or penal rent etc., will not be entitled for house rent allowance at the new station for the period beyond eight months from the date of his transfer."
d) In response to the proposed recovery of HRA as per the advice of CCA, J&K, the Dir (Admin), o/o. Sr. DDG, LSA J&K sent a communication dated 07.12.2018, observing that the interpretation of the relevant government orders by CCA, J&K regarding admissibility of HRA to 4 OA.No.170/122/2023/CAT/Bangalore Bench the DoT officers posted at Jammu who have opted to retain government accommodation at old station of posting appears flawed. The following reasons were cited in this letter:
i. The Government of India Urban Affairs & Employment, Director of Estates vide its Official Memorandum dated 15.9.1998 had taken a decision that Posting to Jammu and Kashmir may be treated at par with that of posting to North East Region.
ii. The respondent No.5 vide its Office Memorandum dated 10.04.2018 bearing F.No.12035/4/2015-Poll.II, clearly disclosed the fact that - 'It has now been decided to further extend the concessional retention of General Pool Residential Accommodation at the last place of posting by Central Government Civilian Employees (including CAPF employees), Officers of All India Services on their posting to a Non-family stations for a further period of three years i.e. upto 30.06.2021'. iii. The Office Memorandum dated 01.08.2018 bearing F.No.12035/4/2015-Poll.II, issued by the respondent No.5, makes it amply clear that the State of Jammu & Kashmir were included as a 'Non-Family station.' iv. An Office Memorandum dated 21.02.2019 was issued by the respondent No.2 and requested to furnish comments for declaring Jammu as 'Non-Family Station' for the purpose of 5 OA.No.170/122/2023/CAT/Bangalore Bench retention of government accommodation at the last place of posting. The respondent No.5 sent their reply vide OM No.12035/4/2015- Poll.II dated 22.04.2019 wherein, it was suggested that continuation of the facility of retention of GPRA on posting to the state of Jammu and Kashmir was essential in view of the prevailing security and law and order situation in the State. The decision was taken by Department of Estates after due deliberations and the State of Jammu and Kashmir was mentioned in the Directorate's O.M. dated 1.8.2018 as 'Non-family station' for the purpose of retention. v. The respondent No.6, Deputy Secretary to the Govt. of India, issued an Office Memorandum bearing No. 13012/41/12012- K.VI dated 14.06.2018, wherein it was affirmed that the retention of GPRA is essential in view of the prevailing security and Law & Order situation in the state, such GPRA was extended to officers of State of Jammu and Kashmir as well. Then the respondent No.2 issued an Office Memorandum dated 06.05.2019 bearing No. 28/2/2018-E.II(B), at para 6, reproduced below;
"MoHUA vide its O.M dated 22/04/2019 (copy enclosed) has stated that Department of Jammu & Kashmir Affairs, MHA suggested that continuation of the facility of retention of GPRA on posting to the State of Jammu & Kashmir was essential in view of the prevailing security and law and order 6 OA.No.170/122/2023/CAT/Bangalore Bench situation in the State. No separate comments were received in Directorate of Estates on Situation of Jammu alone."
e) On 26.05.2022, the DoT, J & K, issued a letter bearing No.2-3/2021- JKL.Admin/13 and requested the DDO, O/o Advisor, LSA Karnataka to recover the amount of Rs.6,74,224/- as excess HRA payment from the applicant. The applicant sent a representation dated 30.05.2022 to the office of Respondent No.1 (to the concerned office i.e., DDG (Establishment), Department of Telecommunication), New Delhi, requesting to withdraw the letter dated 26.05.2022.
f) The respondent No.1, Senior Dy. Director General sent a letter No.5- 16(03)/2018-Part(1) dated 14.06.2022 addressed to Department of Expenditure (Respondent No.2) seeking clarification on the issue of payment of HRA to officers who are posted in Jammu and who were allowed to retain Government Accommodation at old station as per the policy in vogue.
g) A letter bearing No.2-3/2021-JKL.Admin/41 dated 4.11.2022 was sent by the Department of Telecommunications, Jammu (J & K) to the DDO, LSA Karnataka Bengaluru regarding recovery of Rs.6,74,224/- due to excess payment of HRA to the applicant.
h) The respondent No.1, ADG(PAT), Ministry of Communications, Department of Telecommunication (PAT Sections), passed the impugned order dated 16.02.2023 wherein it was directed that recovery 7 OA.No.170/122/2023/CAT/Bangalore Bench of excess HRA paid to the applicant may be made in accordance with the rules.
i) The applicant has been aggrieved by this order of recovery which has been issued without notice to the applicant, in violation of the principles of natural justice.
j) The Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs Rafiq Masih (White Washer) etc. in CA No.11527 of 2014 (arising out of SLP No.11684 of 2012), has observed that 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. The Hon'ble Supreme Court summarized 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 8 OA.No.170/122/2023/CAT/Bangalore Bench 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 outweigh the equitable balance of the employer's right to recover.
k) The applicant is due to retire on 30.4.2023. The applicant comes under the zone of consideration for relief as per Rafiq Masih (supra).
3. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant was posted to Jammu as DDG(S), w.e.f 24.05.2017 to 27.09.2019. The applicant took charge of head of J&K LSA from January 2018 onwards. House Rent Allowance was drawn at double rates for the said period, whereas he had retained Government Accommodation at Old Station of duty beyond permissible limits of 8 months from the date of transfer. Hence, an advisory was given by Internal Audit team in the year 2018. Audit objection was raised in year 2020 and ordered for recovery of irregular drawl of HRA while in occupancy of quarters beyond the permissible period. An amount of Rs 6,74,224/- was ordered for recovery. The officer was working as Head of Unit and hence, was aware of the Audit objection and the fact that 9 OA.No.170/122/2023/CAT/Bangalore Bench additional HRA in case of Jammu station is not admissible, was very well in his knowledge.
b) The officer himself being the unit head of J&K LSA sent the case to DoT HQ in December 2018. On receipt of letter dated 07.12.2018 (Annexure-A1) from J&K LSA, DoT sought clarification from Department of Expenditure (DoE), being nodal ministry on the matter. Further, P&T Audit team vide audit para no. 4 of Part-II(B) in its audit report for the period from 03.01.2020 to 09.01.2020 had raised an objection regarding irregular payment of Rs. 6,74,224/- to the officer and asked J&K LSA for recovery of the same. The case was communicated by O/o Advisor, LSA, J&K, Jammu vide its letter dated 04.11.2022 to the DDO, 0/o Advisor, LSA, Karnataka Circle for effecting the recovery. (Annexure-A13).
c) The applicant vide letter 30.05.2022, represented against recovery of the amount and requested that recovery may not be effected till clarification was received from DoE. A clarification on the subject matter was received from Department of Expenditure (DoE) in January 2023. DoE clarified that as per the extant instructions issued vide O.M No 28/1/2017-E.II(B) dated 19.07.2017 of DOE (Annexure R1), Additional HRA is admissible only in N-E Region, Andaman & Nicobar Islands, Lakshadweep Islands and Ladakh. Further, the benefit is also extended to 10 districts of Kashmir Valley under special concessions. Accordingly, there is no provision to grant Additional HRA to the Central Government Employees posted at Jammu. 10
OA.No.170/122/2023/CAT/Bangalore Bench
d) The officer on his transfer to Jammu, had continued to retain the Government accommodation at his previous place of posting beyond the period of 8 months. As such no HRA was payable to him after January-2018. But the officer was paid HRA from February-2018 to September-2019.
e) DoPT vide OM no. 18/26/2011-Estt. (Pay-1) dated 06.02.2014 (Annexure-R2), provides that in all cases where the excess payments on account of wrong pay fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc. come to notice, immediate corrective action must be taken. Therefore, letter dated 16.02.2023 was issued by DoT.
f) The contention of the applicant that the recovery order has been issued without show cause notice is not correct as he was looking after the charge of Sr. DDG, J&K LSA from January 2018 onwards and was well aware of the payment in excess of entitlements since 2018 and also about the possibility of recovery in case of negative response from DoE. When recovery order dated 04.11.2022 was issued by Jammu LSA to Karnataka LSA, the officer had, vide letter dated 30.05.2022, requested that recovery may not be effected till clarification received from DoE.
4. Heard learned counsels for the parties and perused the pleadings made by them.
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5. In the present case, the applicant had retained the Government accommodation at his old station of duty while being posted to Jammu as DDG w.e.f. 24.5.2017 to 27.9.2019.
6. As is obvious from various communications issued by Ministry of Housing and Urban Affairs, Directorate of Estates, dated 22.4.2019, facility of retention of GPRA on posting to the State of Jammu and Kashmir was essential in view of the prevailing security and law and order situation in J&K State, as conveyed by the Department of Jammu and Kashmir Affairs, MHA vide its order dated 14.6.2018. Subsequently, a decision was taken by Directorate of estates after due deliberations and the State of Jammu and Kashmir was mentioned in the Directorate's OM dated 01.8.2018 as 'Non family station' for the purpose of retention of GPRA.
7. It has also been clarified by the OM issued by Directorate of Estates dated 01.8.2018 that the concessional retention of GPRA at the last place of posting by Civilian employees had been extended up to 30.6.2021 on payment of normal rate of licence fee and it has been clarified that the term 'Non Family station' includes, North Eastern Region, Sikkim, Andaman & Nicobar Islands and Lakshadweep, and the State of Jammu & Kashmir.
8. It is, therefore, quite clear from the various OMs issued by the Ministry of Home Affairs, Department of Jammu and Kashmir Affairs, and the OMs issued by the Ministry of Housing, that there was a facility of retention of GPRA by Central Government employees and officers of All India Services on their posting to the state of Jammu and Kashmir. These orders were in 12 OA.No.170/122/2023/CAT/Bangalore Bench force at the time when the applicant was posted to Jammu in the State of Jammu and Kashmir w.e.f. 24.5.2017 to 27.9.2019.
9. While granting facility of retention of accommodation at the last place of posting, retention was allowed for the State of Jammu & Kashmir without any distinction made between areas falling in Kashmir Valley and Jammu region. There is, therefore, no doubt that the applicant is duly covered by the OMs and was entitled for retention of accommodation at his last place of posting, during the period of his posting in Jammu region, which was a part of the erstwhile State of Jammu & Kashmir at that time.
10. The Department of Expenditure, Ministry of Finance, OM dated 21.2.2019 relates to grant of HRA/additional HRA to the Central Government civilian employees, on posting/transfer to some specified places. The provisions in this OM are as follows:
"North-Eastern Region/A&N Islands etc.:- Since 1983, there are separate orders to grant incentives to the Central Government employees posted in North-Eastern Region, Andaman and Nicobar Islands and Lakshadweep Islands. Additional HRA is one such incentive. The employees who were in occupation of hired or own accommodation at the last station of posting before transfer to North- Eastern States are allowed to draw HRA admissible to them at that station (i.e. last station of posting) if their families continue to stay at that station. In addition, such employees are also allowed to draw HRA at the rates admissible at the new place of posting in NE region, 13 OA.No.170/122/2023/CAT/Bangalore Bench Andaman and Nicobar Islands and Lakshadweep Islands, in case they live in hired accommodation. The above benefits have also been extended to Ladakh."
11. A careful perusal of the above provisions, indicates that the additional HRA referred to by the Department of Expenditure, relates to cases where an employee is allowed to draw HRA admissible to him at his previous station of posting, along with an additional HRA on his posting in NE Region, A&N Islands, Lakshadweep and Ladakh.
12. In the present case, the applicant was not drawing any HRA at his previous place of posting. He was allowed to retain Government accommodation at his last station posting prior to his posting to Jammu. He was entitled to retain this Government accommodation only on payment of due licence fee for that accommodation. Hence, payment of HRA to the applicant during the posting at Jammu cannot be treated as grant of an additional HRA to him.
13. The Chandigarh Bench of this Tribunal in a similar case in OA Nos:
060/688/2018 and OA No: 060/780/2018, vide a common order dated 23.05.2019, had allowed the OAs and had quashed the recovery made by the respondents in that case of the HRA drawn by the applicants in that case, while they were posted at Jammu and had retained government accommodation at their old station of posting. The Tribunal, while quashing the recovery orders, had also observed as under: 14
OA.No.170/122/2023/CAT/Bangalore Bench " 15. One thing is also very interesting to note that the applicants have retained accommodation on their last place of posting and have paid Licence Fee. They have not drawn any HRA. Thus, to claim that they have drawn additional HRA does not appear to be convincing. In any case, as observed above, it would be in the fitness of things to issue composite guidelines to avoid any confusion in future."
14. The Respondents after his posting to Jammu were required to provide him a suitable Government accommodation at his place of posting in Jammu or allow him to stay in a private rented accommodation at Jammu, for which he would be entitled to claim HRA as applicable to him for his stay at Jammu under rules. This case is completely different from the case of an employee posted in NE region, who is allowed to claim an additional HRA for his posting to NE Region, besides claiming HRA on account of his family staying at his previous place of posting, in occupation of hired or own accommodation.
15. Keeping the above in view, the stand of the Respondents denying him HRA for his period of posting at Jammu, cannot be countenanced. He is entitled to the HRA due to him, on his posting to Jammu, since he has not claimed any HRA for his previous place of posting. This is certainly not a case of an Additional HRA being claimed by the applicant. The facility of an Additional HRA in case of the family staying in hired/own accommodation at the previous place of posting has admittedly been provided as a special case only to people posted in North-Eastern region, Andaman & Nicobar Islands and Lakshadweep Islands. However, this is not a case of an 15 OA.No.170/122/2023/CAT/Bangalore Bench Additional HRA, but only a case of HRA for which he is certainly entitled, in case no Govt. accommodation has been provided to the applicant at Jammu.
16. Keeping the above points in view, the recovery of HRA made by the respondents is based on an erroneous interpretation of the existing rules. The applicant in the present case is entitled to claim HRA for his period of posting in Jammu, which cannot be treated as an Additional HRA.
17. The OA is, accordingly allowed, with the following directions:
a) The impugned order dated 16.02.2023 (Annexure A-14) is set-aside. If any recovery has been made pursuant to Annexure A-14, the respondents shall repay the said amount to the applicant in an expedite manner, within a period of eight weeks from the date of receipt of a certified copy of this order, failing which, the said unpaid amount shall also carry the GPF rate of interest for the period of delay in repayment, beyond this period of eight weeks.
b) There shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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