Central Administrative Tribunal - Allahabad
Vivek Singh Tomar vs Secretary Ministry Of Defence on 22 December, 2023
O.A./192/2020
(Reserved on 15.12.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Pronounced on 22nd day of December, 2023
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No.330/192/2020
1. Vivek Singh Tomar, age 31 years, son of Late Ranveer Singh, Tomar,
Office of CQA(PP) DGQA Stores Complex, Ashok Path Cantt, Kanpur - 04.
2. A.K. Kanaujia, aged about years, son of M.L.Kanaujia, Office of
CQA(PP) DGQA Stores Complex, Ashok Path Cantt, Kanpur - 04.
3. Ramnath, son of Late Phool Chandra, Office of CQA(PP) DGQA
Stores Complex, Ashok Path Cantt, Kanpur - 04.
4. M.P.Singh, son of Suraj Bhan Singh, Office of CQA(PP) DGQA Stores
Complex, Ashok Path Cantt, Kanpur - 04.
5. Anil Kumar Gupta, son of Late R.L.Gupta, Office of CQA(PP) DGQA
Stores Complex, Ashok Path Cantt, Kanpur - 04.
6. Shiv Prasad, Son of Late Bhirkhari Lal, Office of CQA(PP) DGQA
Stores Complex, Ashok Path Cantt, Kanpur - 04.
7. Shobhnath Yadav, son of Late Lallan Singh, Office of CQA(PP)
DGQA Stores Complex, Ashok Path Cantt, Kanpur - 04.
8. Meena Verma, Widow of Om Prakash Verma, Office of CQA(PP)
DGQA Stores Complex, Ashok Path Cantt, Kanpur - 04.
9. Raj Kumar, son of Late Chote Lal, Office of CQA(PP) DGQA Stores
Complex, Ashok Path Cantt, Kanpur - 04.
. . .Applicants
By Advocate : Shri H P Dubey
Shri Vipul Dubey
VERSUS
1. Union of India, through its Secretary, Ministry of Defence, South Block,
New Delhi.
2. Director General of Quality Assurance, Department of Defence
Production, Government of India, Ministry of Defence, Room No. 308A,
D-1 Wings, Sena Bhawan, New Delhi.
Page 1 of 10
O.A./192/2020
3. Additional Director General of Quality Assurance (Stores), Department of
Defence Production, Government of India, Ministry of Defence, D.H.W.,
Post Office, New Delhi - 110011.
4. Controller, Controllerate of Quality Assurance, (Petroleum Product)
DGQA (Stores) Complex Ashok Path Cantt, Kanpur - 208004.
5. Offg. Senior Administrative Officer, Controllerate of Quality Assurance,
(Petroleum Product) DGQA (Stores) Complex Ashok Path Cantt, Kanpur
- 208004.
. . .Respondents
By Advocate : Shri Vinod Mishra
ORDER
( By Hon'ble Dr. Sanjiv Kumar, Member(Administrative) This Original Application is filed under section 19 of the Central Administrative Tribunal Act, 1985 claiming relief to set aside the order Part-I No. AD/10 dated 31.02.2020 and to issue direction restraining the respondents from taking coercive action and recovery of HRA from the applicants w.e.f. 07.03.2004 in pursuance of the orders dated 31.01.2020 and to give direction to the respondents to grant all consequential benefits to the applicants ignoring the order dated 31.01.2020. Prayer has also been made to issue any other order which this Tribunal may deem fit and proper and also award cost.
2. The facts of the case of the applicants are that the applicants are employed in the Office of the Controlletrate of Quality Assurance (General Stores) Kanpur which is one of the units of Union of India, Ministry of Defence under the office of DGQA. They are covered by the Rules for Allotment of Residential Accommodation to Civilians serving in Directorate General of Quality Assurance Establishments at station other than Delhi and New Delhi Area - 1995. The rule has been framed for providing the facilitites of residence to the respective Defence Civilian. Subsequently on 13.06.2005 the respondents issued a circular bearing no. 81397/DGQA/ADM/RMD (CW) dated 13.06.2005 on the issue of "No accommodation" certificate and as a pre-requisite for drawal of HRA was examined in consultation with Ministry of Defence Page 2 of 10 O.A./192/2020 and Directorate of Estate, Ministry of Urban Development and it was decided till the procedure for regulation of grant of "No accommodation" certificate is finalized (NAC). The HRA shall be paid to all employees who are not in possession of Government accommodation till further orders. All the applicants were never in possession of any Government accommodation and in terms of the said order dated 13.06.2005 without furnishing no accommodation certificate were granted HRA from the date of their appointment till 31.10.2019 and after 31.10.2019 with NAC by the respondent authorities. As the applicants have neither played fraud not mis-representation not any fault on their part to either obtain the benefit of HRA from the respondents without NAC. Hence, vide impugned order dated 31.01.2020 vide which the respondents have come to conclusion that as per the direction of DGQA erroneously granted non-entitled HRA is required to be recovered with effect from 07.03.2004 to be recovered in two phases. In phase I: Recovery of HRA granted without the NAC after issue of DG, DGQA's initial letter dated 03 May, 2018 and in Phase II:- Recovery of HRA granted without the NAC for the period between 07.03.2004 to 03.05.2018.
3. Learned counsel for the applicants states that the applicants had used HRA for obtaining housing for their families in private accommodation. Hence, the said recovery order is illegitimate and that their case is covered by the Hon'ble Supreme Court order in the case of State of Punjab and others. Vs. Rafiq Masih in CA No. 11527 of 2014 arising out of SLP (11684 of 2012) wherein the Hon'ble Court on 18.12.2014 decided a bunch of cases in which the monetary benefits have been given to the employees in excess due to unintentional mistakes committed by the concerned competent authority in determining the emoluments payable and the employees were not guilty of furnishing incorrect information, mis-representation, fraud which had laid the concerned authority to commit the mistake of making the higher payments. The employees were as innocent as their employer in their Page 3 of 10 O.A./192/2020 wrongful determination of payable emoluments. So they must get relief as claimed as per the Hon'ble Supreme Court Order.
4. On notice, counsel for the respondents filed their counter affidavit wherein they agree to the basic fact of the case and they emphasized that Directorate General of Quality Assurance (DGQA) Quarter Allotment Rules were notified through SRO-1E dated 02.02.1996 which governs allotment of residential accommodation to civilian personnel serving in DGQA Establishment. These rules were subsequently amended vide SRO 31 dated 27.02.2004 by adding:-
"11.a" Those occupying of refusing Government Accommodation not eligible for House Rent Allowance (HRA). The grant of HRA shall be subject to the following conditions:-
1. To those civilians serving in DGQA who are eligible for Govt. accommodation the allowances will be admissible only if they have applied for such accommodation inaccordance with the prescribed procedure but have not been provided with it, in places where due to availability of surplus Govt.
accommodation, special orders are issued by the DGQA HQ from time to time making it obligatory for employees concerned to obtain and furnish "no accommodation" certificate in respect of Government residential accommodation at their place of posting.
2. Civiliance serving in DGQA posted in localities where there is a present no residential accommodation in the General Pool owned or requisitioned by DGQA for allotment to them, need not apply for Government residential accommodation in order to become eligible for House Rent Allowance. But where DGQA quarters are available for the staff specified categories the procedure for applying for accommodation will be regulated under the rules for allotment of Residential Accommodation to civilians serving in DGQA Estts at stations other than Delhi and Delhi,"
Page 4 of 10O.A./192/2020 So, "Para 11(a) of SRO 31" clearly states that HRA will only be admissible on production of No Accommodation Certificate (NAC). The same was invoked vide letter No. A/81397/DGQA/ADM/RMD/CW dated 20.08.2004. However, the implementation of SRO 31 dated 27.02.2004 was held in abeyance in consultation with MOD vide DGQA letter No. A/81397/DGQA/Adm/RMD/CW dated 13.06.2005 which was subsequently reviewed by MOD in consultation with others communicated vide letter dated 06.10.2008 and all the DGQA Estts. Were instructed to strictly comply with the provisions of SRO 31 dated 27.02.2004 for granting HRA in accordance with SRO letter dated 06.10.2008. Hence, the accommodation if existed the allotment committee of the respective Establishment wherever the employee is employed, was posted, shall either allot govt. accommodation as per their entitlement or grant "No Accommodation Certificate" for claiming House Rent Allowance from the Government. On investigation it has been found that erroneously HRA were granted to the applicants in violation of the said provision. Hence, the recoveries were ordered and as the recovery was from the year 2004, so, the applicants were given reasonable installments and the recoveries had to be in two phases as specified in the impugned order.
5. They further argued that the Hon'ble Apex Court order in case of State of Punjab vs. Rafiq Masih of 2014 pertaining to monetary benefits given to employees in excess of their entitlement due to unintentional mistakes committed by the competent authorities in determining the emolument payable to them and the employees were not guilty of furnishing any incorrect information/ misrepresentation/fraud which had led to the concerned competent authorities to commit the mistake of making the higher payment to employees. However, in the instant case the employees did not inform the Pay Disbursing Authority of their status with respect to application for Govt. accommodation at their posting station i.e. whether or not applied or whether NAC pending or received or rejected etc. Thus, they have misled/concealed the material information and therefore, HRA was granted to them without Page 5 of 10 O.A./192/2020 NAC, which was not in order. Hence, their action of recovery is justified.
6. Rejoinder affidavit has been filed by the applicants where they reiterate their stand as in the OA and they request to allow this Original Application.
7. The case came up for final hearing on 15.12.2023. Shri Vipul Dubey, counsel for the applicant and Shri Vinod Mishra, counsel for the respondents were present and heard.
8. I have carefully gone through the entire record and considered the rival contentions advanced by the counsels for the parties.
9. From the record, it is evident that the authorities vide their impugned order dated 31.01.2020 have passed recovery in two phases. In first :- Recovery of HRA granted without the NAC after issue of DG, DGQA's initial letter dated 03 May, 2018 was to be there where month wise recovery has been scheduled and in Phase II:- Recovery of HRA granted without the NAC for the period before the issue of DGQA letter dated 03.05.2018 i.e. the period between 07.03.2004 to 03.05.2018 has been given.
10. Further, from the record it is evident that vide their letter dated 13.06.2005, the authorities had ordered in the following manner:-
No. 81397/DGQA/ADM/RMD(CW) 13 June 2005
MINISTRY OF DEFENCE
DGQA/ADM/RMD (CW)
PAYMENT OF HRA TO CIVILIAN EMPLOYEES OF DGQA
1. In continuation to this office letter no.
81397/DGQA/ADM/RMD/ CW dated 20 August 2004, the issue of "No accommodation" certificate as a pre-requisite for drawal of HRA has been examined in consultation with Ministry of Defence and Directorate of Estate, Ministry of Urban Development.
2. It has been decided that till the procedure for regulation of grant of "No accommodation" certificate is finalized. HRA shall be paid to all employees who are not in possession of Government Page 6 of 10 O.A./192/2020 accommodation till further orders. Those denied HRA in the intervening period from issue of order till date of this clarification shall also be paid HRA denied on the ground of not submitting "No accommodation" certificate.
3. The relevant provision of allotment Rule promulgated in SRO 1E, SRO 31 and letter No. 81397/DGQA/ADM/RMD (CW) dated 20 Aug 2004 shall be held in abeyance till further orders on this subject.
Simple perusal of this clearly shows that the authorities themselves decided that till the procedure of regulation for grant of No accommodation certificate is finalized; HRA shall be paid to all employees who have not been in possession of govt. accommodation tll further orders. So, it is clear that by this order, as the procedure for grant of No Accommodation certificate was yet to be finalized the authority had themselves voluntarily decided that HRA shall be paid to the employees who are not in a possession of government accommodation without any NAC. The authorities have also placed another order dated 06.10.2008 which reads following:-
MINISTRY OF DEFENCE DGQA/ADM/RMD (CW) PAYMENT OF HRA TO CIVILIAN EMPLOYEES OF DGQA
1. Further to this office note of even number dated 13 June 2005.
2. Above quoted note withholding implementation of SRO 31 and relevant provision of grant of HRA without 'NAC' is hereby cancelled.
All establishments under your administrative control may be informed accordingly for compliance.
3. Ministry of Defence and LA (Defence) have been consulted. Grant of HRA will be made in accordance with SRO 31.
Simple reading of the order shows that earlier order of 13.06.2005 where grant of HRA without NAC was possible, was cancelled and all establishments under the administrative control of respondents were Page 7 of 10 O.A./192/2020 directed and informed for compliance. But, why this order was not implemented and complied by Pay Disbursing Officers is not understandable. Although in their counter reply, para 34, the respondents could claim on the applicants that the applicants were to inform the Pay Disbursing Authority of their status with respect to application for Govt. accommodation at their posting station i.e. whether or not applied or whether NAC pending or received or rejected etc. They conclude that the applicants have misled/concealed the material information but it is hard to believe as the applicants themselves were not the Pay Disbursing Officer and who were directed by the authorities' order dated 06.10.2008 no. A/81397/DGQA/Adm/RMD/(CW) to be complied by SRO 31 and regular provision where NAC was essential for such employees who were not given government accommodation to draw HRA. Why the Pay Disbursing Authorities did not scrutinize this and what action the authorities have taken against their Pay Disbursing Officers before putting all blame on the junior officials. And in no organization Pay Disbursing officers would generally allow such lapses without any scrutiny while disbursing any pay or emolument. The applicants have vehemently denied the paragraph 35 in rejoinder and reiterate that it was the duty of the Pay Disbursing Officer to implement the SRO and as it has not been insisted and implemented, they cannot be held accountable for the authorities' lapses. As the respondents have failed to substantiate their contentions that the applicants are guilty of furnishing any incorrect information/misrepresentation/fraud which had led to the concerned competent authority to commit mistake of making higher payments to the employees.
11. Furthermore upto 06.10.2008 all such irregular drawal of HRA without any NAC Production was covered by the respondents' order dated 13.05.2005 as discussed above, ordering any recovery for the said period is highly irregular and whimsical. And period subsequent to 06.10.2008 the Pay Disbursing Authorities were responsible for mistake in not implementing SRO 31 in spirit, and hence holding applicants being responsible for the same at this juncture retrospectively may not be justified. Hence, I have no doubt that the Hon'bel Apex Court Page 8 of 10 O.A./192/2020 judgment in the case of State of Punjab vs. Rafiq Masih and others (2015) 4 SCC 334 is very much relevant in the case wherein the Hon'ble Supreme Court had clearly mentioned following:-
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, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:-
(i) Recovery from the employees belonging to Class III and Class service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years,s 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 outweigh the equitable balance of the employer's right to recover."
12. The applicants have further cited the case of Thomas Daniel vs. State of Kerala & others of the Hon'ble Supreme Court in Civil Appeal No. 7115 of 2010 dated 02.05.2022 wherein the court relied on the judgment of Rafiq Masih and other catena of judgments and granted relief.
13. From the facts of the instant case, it is clear that House Rent Allowance has been paid in violation of the Rule which require that the applicants should have given "No Accommodation" certificate and the fact is not controverted that none of the applicants were given any government accommodation and that they used HRA for obtaining private housing for themselves. So, it is not the case of double payments although the payments were irregular in nature as it was without the production of NAC, but as the housing is a fundamental requirement for Page 9 of 10 O.A./192/2020 survival and well-being and service condition provided for proper housing and HRA is an important service condition, service for efficiency and integrity in work, and as the applicants have utilized the amounts given as HRA for procuring private housing for themselves. Hence, post facto recovery order retrospectively for their own mistakes and laxity and tardy implementation of their policies and circulars on housing by their own Pay Disbursing Authorities, as is evident from the issuance of the order dated 13.06.2005 where no accommodation certificate procedure dispensed with and even after the same was nullified by their own order dated 26.10.2008, cannot be justified. The Pay Disbursing Authorities did not enforce the said order till date 2018. Hence, I have no doubt in my mind that this case is covered by the Hon'ble Supreme Court order in the case of State of Punjab vs. Rafiq Masih (supra) and the authorities were not correct in passing the impugned order and going ahead with recovery; without giving notice and without hearing the applicant and without applying their minds, and without considering and appreciating the role of Pay Disbursing Authorities.
14. Considering the above mentioned facts and circumstances, I pass the following orders:-
This Original Application is allowed and as far as the applicants are concerned, order Part-I No. AD/10 dated 31.02.2020 is set aside and the respondents are restrained from taking any coercive action of recovery of past HRA which already have been paid and utilized by the applicants. The Authorities may implement their policy prospectively.
15. All associated M.As. also stand disposed of accordingly. No costs.
(Dr. Sanjiv Kumar) Member-A /Priyadarshana/ Page 10 of 10