Central Administrative Tribunal - Delhi
Shri Krishan Chander Saini vs Delhi Co-Operative Housing Finance ... on 9 March, 2010
Central Administrative Tribunal Principal Bench TA No.1122 of 2009 MA No.1667 of 2009 New Delhi this the - 9th day of March, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Krishan Chander Saini Accounts Officer Grade I Delhi Co-operative Housing Finance Corporation LTd, New Delhi 3/6, Siri Ford Industrial Area, August Kranti Marg, New Delhi-49 and residing at Flat No.T-2, NDMC Flats, Sarojini Sadan, Sarojini Nagar, New Delhi-23. Applicant. (By Advocate : Shri M.K. Bhardwaj with Mrs. P.M. Bhardwaj) -Versus- 1. Delhi Co-operative Housing Finance Corporation Ltd., Through their Managing Director DCHFC Ltd., 3/6, Siri Fort Industrial Area, August Kranti Marg, New Delhi-49. 2. General Manager, Delhi Co-operative Housing Finance Corporation Ltd., 3/6, Siri Fort Industrial Area, August Kranti Marg, New Delhi-49. 3. Chairman, Board of Directors, Delhi Co-operative Housing Finance Corporation Ltd., 3/6, Siri Fort Industrial Area, August Kranti Marg, New Delhi-49. Respondents (By Advocate : Shri Sunil Sabharwal) O R D E R Shri Mr. Shanker Raju, Member (J):
As the Delhi Co-operative Housing Finance Corporation Ltd. (hereinafter referred to as DCHFC) has been notified under Section 14 (2) of the Administrative Tribunals Act, 1985, this Tribunal has jurisdiction to deal with the service grievances of the employees of DCHFC. As such the objection of jurisdiction raised by the respondents counsel is overruled at the outset.
2. The applicant, an Accounts Officer Grade I by virtue of this TA has sought quashing of orders dated 7.5.2004, 8.7.2004 and 26.7.2004 by which HRA granted to the applicant since 1998 has been sought to be recovered by way of an amount of 1,91,210/-. Also sought allotment of a suitable accommodation of Type V to the applicant or HRA in lieu thereof.
3. The applicant working as Accounts Officer Grade I with the respondents had been sharing the accommodation with his wife in type II category was in the pay scale of Rs.10,000-15200 as his HRA was stopped, he requested the respondents for reexamination of the case for grant of HRA which was examined in detail and was accordingly allowed to him after the advice of the Legal Advisor w.e.f. 16.09.1998. However, an office memorandum dated 7.5.2004 was issued whereby a recovery was ordered against the applicant and his HRA was stopped from May, 2004.
4. Learned counsel for the applicant contended that Managing Director as per By-law 54 is competent to take a decision regarding pay and allowances which need not be approved by the Board. It is also stated that as there was no fraud or misrepresentation committed by the applicant, recovery of HRA from him is barred by the decision of the Apex Court in H.P. Reddy and others vs. N.T.R.D. and others, JT 2002 (2) SC 483, and Shyam Babu Verma and others vs. Union of India and others, (1994) 2 SCC 521.
5. Learned counsel would further contend that having taken a final decision suo moto an office memorandum dated 7.5.2004 whereby a decision has been taken to stop the HRA would not be applicable, as it has to be applied prospectively. Once the applicant had been allowed the benefit of HRA from 1998 to 2004, the same is not recoverable from him. Learned counsel lastly contended that whereas the Chief Managing Director and Managing Director are allowed accommodation by the respondents, the applicant is also entitled to be allotted an accommodation of the suitable type or else respondents may be directed to pay him HRA.
6. An order passed on 9.8.2004 by the High Court of Delhi stayed the recovery of HRA which is still continuing.
7. On the other hand, learned counsel for the respondents apart from raising the preliminary objection of jurisdiction which we have already overruled, stated that there is no methodology to allot accommodation to any staff of the respondents and since as per HRA rules which are adopted by them, the applicant is sharing the official accommodation allotted to his wife who is also a Government servant, is not entitled to HRA. As such, the decision taken by the Managing Director in 1998 to allow the HRA from 1998 to 2004 is without jurisdiction, as the same has not been approved by the Board of Directors.
8. We have carefully considered the rival contentions of the parties and perused the pleadings on records. Insofar as authority of the respondents is concerned, being a concession if no officer/staff of the respondents is allotted accommodation then the top two positions incumbents who have come on deputation from the Government are occupying Government accommodation by virtue of their status in the parent cadre despite absorption will not demonstrate that the applicant has a right to be allotted Government accommodation. This prayer is misconceived.
9. Insofar as recovery is concerned, recently the Apex Court in Registrar Co-operative Societies, Haryana and others vs. Israil Khan and others, (2010) 1 SCC 440, ruled as under:-
7. There is no `principle' that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled:
"(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous."
8. In Col (Retd.) B.J. Akkara v. Govt of India [2006 (11) SCC 709] this Court explained the reason for extending such concession thus:
"28. Such relief, restraining recovery back of excess payment is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he received for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
(emphasis supplied)
9. What is important is recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment.
10. In the above view of the matter, as the Government rules were applied to the DCHFC on 7.5.2004, the same would have no retrospective operation, yet once the HRA was discontinued, the applicant had neither misrepresented nor committed any fraud or collusion, the decision taken by the Managing Director within its competence and did not require any approval from the Board of Directors as per By-law 54. As such grant of HRA to the applicant which was earlier found to be apt in law has become erroneous by a subsequent event, the applicant not being at fault cannot be put to hardship. As such, recovery ordered against the applicant cannot be countenance in law.
11. Resultantly, for the forgoing reasons, TA is partly allowed. Respondents are restrained from recovery any payment from the applicant on account of HRA to him. The claim for grant of HRA now cannot be countenanced in view of the position of rules and law on the subject. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.