Central Administrative Tribunal - Delhi
Smt. Kiran Bala vs The India Tourism Development ... on 11 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 1341/2009
New Delhi, this the 11th day of December, 2009
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
Smt. Kiran Bala
W/o Shri Ram Kishan
R/o MS-20A, First Floor, Gali No.9
Road No.3, Hari Nagar,
New Delhi-110 064. ..Applicant
By Advocate: Shri Madan Lal.
Versus
1. The India Tourism Development Corporation Ltd.,
Through its Chairman-cum-Managing Director,
Having its Regd. Office at : SCOPE COMPLEX,
CORE 8-7, LODHI ROAD, New Delhi-110 003.
2. The Director of Estates (Allotment Wing),
Directorate of Estates,
Nirman Bhawan,
New Delhi.
3. Union of India through its Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi Respondents
By Advocate: Shri Saran Suri, Counsel for respondent No.1.
Shri Rajinder Nischal, Counsel for respondent No.2 &3.
O R D E R
Recovery of HRA from 17.6.1997 to 31.8.2003 is the issue raised in this case.
2. It is submitted by the applicant that she was appointed as a Clerk/Typist on 19.4.1982 and is presently working as Assistant in Hotel Janpath, India Tourism Development Corporation (hereinafter referred to as ITDC). She was married to Ram Kishan, a Government employee. Residential accommodation allotted to his father by the Directorate of Estates was regularized in his name on 17.6.1987 after foregoing payment of House Rent Allowance (hereinafter referred to as HRA) for 3 years preceding the date of his fathers retirement. Since no house was allotted to the applicant, she started living with her husband in Government accommodation. She gave intimation to her office with a direction to treat it as her residential address for all intents and purposes of official records and for payment of pay and allowances. In spite of it respondent No.1 continued to pay the HRA to the applicant.
3. On 8.8.2003 applicant was served with a charge sheet for minor penalty alleging violation of Rule 3.1 (1 & ii) and Rule 4 (iv, xi, xxi & xxxvii) of the ITDC Conduct, Discipline and Appeal Rules, 2002 by falsely alleging that the applicant failed to intimate to the Respondent No.1 that she was sharing Government residential accommodation allotted to her husband as a result of it, she was paid HRA, which she was not entitled to get in law.
4. She denied the charges as such enquiry was held against the applicant. The Inquiry Officer gave his report by observing as follows:-
The applicant submitted her residential address of Govt. residential accommodation since the date of her appointment on 19.4.1982 and no declaration/certificate has been obtained from Smt. Kiran Bala for payment of HRA as required under Central Government Rules and notification issued by ITDC Exh.MD-9a, so no ulterior motive of the applicant as alleged by the respondent No.1 was conclusively proved. It does not amount to misconduct.
However, it was held that even though applicant was not entitled to get the HRA, excess payment was made to her, therefore, competent authority may consider recovery of excess payment after issuance of notice (page 47).
5. In view of above, show cause notice dated 1.11.2006 was issued to the applicant calling upon her to explain why recovery of excess amount should not be ordered for recovering the loss with simple interest. She gave a detailed reply but without considering her contentions, disciplinary authority passed an order on 15.3.2007 ordering recovery of HRA for the period from 17.6.1987 to 31.8.2003 drawn unauthorisedly by the applicant (page 25).
6. Being aggrieved, applicant filed an appeal but that was rejected on 15.5.2007. These orders have been challenged by the applicant on the ground that ITDC has formulated its own rules, regulations and service conditions for allotment of residential accommodation to its employees and HRA for non-allottees of residential accommodation. Since HRA was allowed by way of settlement, no recovery could have been ordered. In any case if Central Government rules are applied to the applicant then the house allotted to her husband should have been regularized in her name after her husband had retired on 20.7.2005. She had applied for it, however, Director of Establishment returned the application on the ground that ITDC is not recognized under the rules for allotment of Government residential accommodation. The house was surrendered and applicant shifted to private house on 10.4.2006.
7. It is submitted by the counsel for the applicant that if for recovery of HRA, respondents are relying on Central Government rules then she should have been allowed to get the Government house allotted to her husband regularized in her name under the other Central Government rules. Respondents cannot be allowed to pick and choose the rules otherwise the action of respondent would be violative of Articles 14 and 16 of the Constitution.
8. Counsel for the applicant relied on a judgment in the case of S.G. Rajarshi Vs. U.O.I. & Others reported in 1994 (4) SLR 156.
9. Respondents have opposed this OA. Directorate of Estates have explained that as a consequence of the compulsory retirement of Shri Ram Kishan from Government service on 20.7.2005, the allotment of the premises had been cancelled w.e.f. 20.11.2005 after allowing concessional period of four months as admissible under the Allotment Rules. In between his wife Smt. Kiran Bala applied for regularization of allotment of Type-III quarter on the ground of retirement of her husband as per her entitlement. The request of Mrs. Kiran Bala for regularization of allotment of Type-III quarter was rejected as the office of Mrs. Kiran Bala is ineligible office for allotment/regularization of allotment of Government accommodation. Shri Ram Kishan had vacated the quarter on 10.4.2006. Accordingly, quarter No.69/4B, Sector-II, DIZ Area have been allotted to one Shir Daya Arora who is the allottee of said quarter now.
10. As far as ITDC is concerned, they have stated recovery of Rs.1,73,828/- was ordered against wrongful drawl of HRA, which applicant was not entitled to for the period from 17.6.1987 to 31.8.2003 as applicant during that period was residing with her husband who was allotted a Govt. accommodation on 17.6.1987. They have, however, stated that after applicants husband vacated the Government accommodation on 10.4.2006, applicant was allowed the HRA. They have submitted that applicants comparison with Central Government employees is untenable in law because she is not a Central Government employee. Respondent No.1 is an independent undertaking and is not under the administrative control of Ministry of Tourism. Respondent No.1 does not provide any residential accommodation to the officials of the rank of applicant.
11. They have explained that as back as on 17.9.1966 the Board of Directors had decided that corresponding Central Government Rules would be applicable to the employees of respondents No.1 till the time their own rules are framed. Till date, respondent No.1 has not framed its own service rules. They are still following the Government Rules in respect of payment of HRA. They have further stated that even as per the settlement arrived at between respondent No.1s wage review committee and the representatives of the Unions, it was specifically agreed that payment of HRA to the employees of respondent No.1 should be at par with Central Government employees, therefore, naturally applicant would be governed by the same rules which apply to Central Government employees.
12. As per para 5 ( C) (iii) conditions of drawal of House Rent Allowance applicable to employees of respondent No.2 (Part-V HRA and CCA Swamys Compilation of FRSR) (at page 128-130 ) it is clear that employees of respondent No.1 shall not be entitled to HRA if such employees wife, or husband has been allotted Government accommodation at the same station by Central Government, State Government and Autonomous Body, Public Undertaking or Semi Government Organization etc., therefore, she was not entitled to get HRA for the above said period, therefore, recovery has rightly been ordered.
13. They have thus prayed that the OA may be dismissed. Counsel for the respondents relied on Gurvinder Kang & Others Vs. Director of Education and Others reported in 2000 (53) DRJ 332 and Rajni Devi Vs. U.O.I. (Writ Petition Civil No.7132/2008) decided on 18.8.2009.
14. I have heard all the counsel and perused the pleadings as well as judgments relied upon. The question before me is whether an employee of ITDC can be denied HRA in view of settlement arrived at between ITDC and whether excess amount could be recovered from the employee of ITDC on the ground that she was sharing accommodation allotted to her husband by the Central Government without regularizing the said accommodation in her name after the retirement of her husband.
15. Since the whole case of the applicant was based on the settlement, it would be necessary to see what was the scope of settlement. Perusal of page 94 shows that ITDC had constituted a wage review committee in 1977 to recommend revision in the then existing emolument structure of the non-officer employees in ITDC. The committee observed that the emolument structure of the non-officer employees of the non-hotel and non-catering units (hereinafter referred to as Non-HCE) are based on the emoluments pattern for similar employees in Central Government so no general decision is called for except some changes and improvement in the welfare benefits. It was further clarified that in case the emolument structure of Central Government employees is revised, the question of revision of Non-HCE employees will be considered meaning thereby that parity was maintained with Central Government employees. It was in this backdrop that it was agreed that the non officer employees may be granted HRA as they are drawing the pay scale, DA and CCA on Central Government pattern.
16. Perusal of above would show that even this settlement was arrived at on the pattern of Central Government emoluments structure. The Board of Directors had already adopted the Central Government rules in its Resolution dated 16.9.1966, therefore, naturally the non officers of ITDC would be bound by the same rules as applicable to the Central Government employees. There is nothing in this settlement which is contrary to the rules. The emoluments have to be read with reference to the rules.
17. At this juncture, it would be relevant to refer to para 5 ( c) (iii) of Swamys Compilation of HRA and CCA Rules which reads as under:-
CONDITIONS FOR DRAWAL OF HOUSE RENT ALLOWANCE
5. (c) A Government servant shall not be entitled to House Rent Allowance, if
(i) he shares Government accommodation allotted rent-free to another Government servant; or
(ii) he/she resides in accommodation allotted to his/her parents/son/daughter by the Central Government, State Government, an Autonomous Public Undertaking or semi-Government Organisation such as a Municipality, Port Trust, Nationalized Banks, Life Insurance Corporation of India, etc.
(iii) his wife/her husband has been allotted accommodation at the same station by the Central Government, State Government, an Autonomous Public Undertaking or semi-Government Organisation such as Municipality, Port Trust, etc., whether he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her.
18. Applicability of these rules cannot be disputed by the applicant since Board of Directors had already adopted Central Government rules. All that is contended by the counsel for the applicant is, that if these rules are applied to the applicant then she should also be granted the benefit of regularization of Government house after her husband had retired under Rule 317-B of F.R.S.R. otherwise it would be violative of Articles 14 and 16 of the Constitution.
19. This argument is not at all tenable in law because drawal of HRA and regularization of Government Houses are governed by different set of rules. As far as regularization of Government accommodation is concerned, Directorate of Estates has categorically stated that ITDC is an ineligible office. Perusal of allotment of Government Residences (General Pool in Delhi) Rules, 1963 would show that allotment of residences is available to officers employed in the eligible offices who are required to reside on duty in Delhi with the Government of India or the Delhi Administration under the administrative control of the Director of Estates.
20. Eligible office has been defined in clause ( e) of Rule 317 B-1 (2) as follows:-
Eligible office means a Central Government office, the staff of which has been declared by the Central Government as eligible for accommodation under these rules.
There is nothing on record to show that staff of ITDC have been declared by the Central Government to be eligible for accommodation. Counsel for the applicant could not demonstrate that ITDC is also included for allotment/regularization of Government house. It is thus clear that applicant has no right in law to insist that the Government quarter allotted to her husband, who was a Government employee, should be regularized in her name. She has no right to get the Government accommodation regularized in her name as ITDC is not covered under the Allotment of Government Residences Rules 1963. In view of above the comparison drawn by the applicant is totally misconceived. This argument is, therefore, rejected.
21. I have already noted above that in the settlement it was only observed that emoluments are at par with Central Government. The HRA CCA Rules further clarify in what circumstances, HRA would not be admissible, therefore, there is no contradiction in the settlement and HRA CCA Rules. Both have to be read harmoniously. Since Central Government Rules were already adopted by ITDC, therefore, applicant would be governed by Rule 5 ( c) (iii) thereof as quoted above.
22. It is an admitted fact that applicant had drawn HRA for the period from 17.6.1987 to 31.8.2003 even though her husband was allotted Government accommodation by the Central Government which was shared by her, therefore, as per Rule 5 ( c) (iii) of HRA CCA Rules, as she was not entitled to draw HRA during this period. It is thus a clear case where applicant was paid HRA even though she was not entitled to get it in law.
23. The next question is whether recovery was valid in these circumstances or not. This need not detain me for long as the same issue has already been decided by the Honble High Court of Delhi in the case of Rajni Devi Vs. U.O.I. & Others delivered on August, 18, 2009. In this case also, HRA inadvertently paid to the petitioner therein was sought to be recovered pursuant to the objection raised by the Audit which was challenged. In this case also the petitioners husband had been allotted Government accommodation, yet HRA was drawn. Contention of the counsel was that petitioner had not concealed the facts. However, Honble Court observed, the question is not whether there was any deliberate concealment but whether the petitioner was entitled to drawn HRA. Since she was not entitled and had been paid the HRA inadvertently, it was held she had no right to retain the same. Order of recovery was upheld.
24. According to me, the facts of the present case are squarely covered by the above judgment. I would be failing in my duty if I do not refer to the judgment relied upon by the counsel for the applicant in the case of S.G. Rajarshi Vs. U.O.I reported in 1994 (4) SLR 156. Perusal of this judgment shows the facts are different inasmuch as, the issue involved in that case was, whether University would be covered under Section 5 ( c)(iii) as a semi-Government institution, thereby making the condition of Section 5 ( c) (iii) of the conditions for drawl of House Rent Allowance under Central Government policy applicable in the case of the applicant.
25. We have already held that in the instant case that Board of Directors had already adopted the Central Govt. rules so applicability of HRA CCA rules is not the issue at all, therefore, that case is distinguishable and would not apply in the given facts of the case.
26. No other argument was advanced by the counsel for the applicant.
27. In view of above discussion, I find no merit in the case. The OA is accordingly dismissed. No costs.
(MRS. MEERA CHHIBBER) MEMBER(J) Rakesh