Central Administrative Tribunal - Jabalpur
Shri G.P.Ghore vs Union Of India on 4 March, 2014
(Reserved)
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
CIRCUIT SITTING : BILASPUR
Original Application No.268 of 1998
Jabalpur, this Tuesday, the 04th day of March, 2014
Honble Mr. Justice Dhirendra Mishra, Judicial Member
Honble Mr. G.P.Singhal, Administrative Member
1. Shri G.P.Ghore, S/o Late Shri Brijlal Ghore, aged about 52 years,
Income Tax Officer, Ward-I, Bhilai, R/o Qr. No.7/A, Street-46,
Sector-10, Bhilai, District Durg (M.P.)
2. Shri P.S.Rao, S/o Late Shri Sitaramayya, aged about 48 years,
Income Tax Officer, Ward-2, Bhilai, R/o Qr. No.5/A, Street-45,
Sector-10, Bhilai, District Durg (M.P.)
3. Shri G.N.Singh, S/o Shri I.J.Singh, aged about 35 years,
Income Tax Officer, Ward-3, Bhilai, R/o Qr. No.8/A, Street-40,
Sector-5, Bhilai, District Durg (M.P.)
4. Shri V.Ramteke, S/o Shri B.Ramteke, aged about 52 years,
Income Tax Officer, ITO (TDS), Bhilai, Qr. No.2/A, Street-1,
Sector No.-8, Bhilai, District Durg (M.P.)
5. Shri T.A.Rajakrishnan, S/o Late Shri T.P.Addappan, aged about 49 years,
Income Tax Officer, Ward-Dhamtari, R/o Qr. No.6/C, Street-66,
Sector No.-9, Bhilai, District Durg (M.P.)
6. Shri D.H.Samre, S/o Shri Hariram Samre, aged about 57 years,
Income Tax Officer, Raipur, R/o Qr. No.5/A, Street-5,
Sector No.-9, Bhilai, District Durg (M.P.)
7. Shri L.L.Choubey, S/o Late Shri Jagannath Prasad Choubey,
Aged about 45 years, Income Tax Officer, Bhopal, R/o Qr. No.1/B,
Street-24, Sector-8, Bhilai, District Durg (M.P.)
8. Shri R.S.Choudhary (Charmkar), S/o Late Shri G.R.Choudhary,
Aged about 50 years, Income Tax Inspector, O/o the Assistant Commissioner
Of Income Tax, Circle Bhilai, R/o Qr. No.2/C, Street-3,
Sector-8, Bhilai, District Durg (M.P.)
9. Shri D.R.Nayak, S/o Shri Dewar Ram Nayak, aged about 41 years,
Income Tax Inspector, O/o the Assistant Commissioner of Income Tax,
Circle Bhilai, R/o Qr. No.1/A, Street-44,
Sector-10, Bhilai, District Durg (M.P.)
10. Shri U.S.S. Nair, S/o Late Shri C.Raman Nair, aged about 52 years,
Inspector of Income Tax, Raipur, Qr. No.10/A, Street-9,
Sector-10, Bhilai, District Durg (M.P.)
11. Shri V.K.Sharma, S/o Shri D.P.Choubey, aged about 51 years,
Income Tax Inspector, Raipur, R/o Qr. No.9/B, Street-41,
Sector-10, Bhilai, District Durg (M.P.)
12. Shri J.D.Sahu, S/o Late Shri P.R.Sahu, aged about 49 years,
Income Tax Inspector, Raipur, R/o Qr. No.4/D, Street-35,
Sector-8, Bhilai, District Durg (M.P.)
13. Shri S.M.Sharma, S/o Late Shri U.N.Sharma, aged about 51 years,
Office Supdt. O/o The Assistant Commissioner of Income Tax,
Circle Bhilai, R/o Qr. No.3/C, North Park Avenue
Sector -8, Bhilai, District Durg (M.P.)
14. Smt. K.R.Daryani, w/o Shri R.Daryani, aged about 46 years,
Head Clerk (Assistant) O/o The Income Tax Officer (TDS), Bhilai,
R/o Qr. No.1/B, Street-40, Sector-10, Bhilai, District Durg (M.P.)
15. Smt. S.M.Joshi, W/o Shri M.J.Joshi, aged about 54 years,
Head Clerk (Assistant), O/o The Assistant Commissioner of Income Tax,
Circle Bhilai, R/o Qr. No.10/D, Street-SPA,
Sector-5, Bhilai, District Durg (M.P.)
16. Shri D.K.Maru, S/o Shri J.V.Maru, aged about 47 years,
Head Clerk (Assistant), O/o The Assistant Commissioner of Income Tax,
Circle Bilaspur, R/o Qr. No.12/B, Street-29, Sector-7,
Bhilai, District Durg (M.P.).
17. Shri Rajendran Nair, S/o Shri K.Vasudevan Nair, aged about 38 years,
Stenographer, O/o The Assistant Commissioner of Income Tax,
Circle Bhilai, R/o Qr. No.6/E, Street-66,
Sector-6, Bhilai, District Durg (M.P.)
18. Smt. Shashi G.Krishna, W/o Shri R.Gopal Krishna, aged about 32 years,
U.D.C., o/o The Assistant Commissioner of Income Tax, Circle Bhilai,
R/o Qr. No.2/D, Street-15, Sector-8, Bhilai, District Durg (M.P.)
19. Shri A.K.Tiwari, S/o Shri D.P.Sharma, aged about 51 years,
U.D.C., o/o The Assistant Commissioner of Income Tax, Circle Bhilai,
R/o Qr. No.3/B, Street-14, Sector-8, Bhilai, District Durg (M.P.)
20. Mohd. Kayyu, son of Shri Abdul Samad, aged about 46 years,
L.D.C., O/o The Assistant Commissioner of Income Tax, Circle Bhilai,
R/o Qr. No.1/C, Street-36, Sector-8, Bhilai, District Durg (M.P.)
21. Shri S.Rajeswara Rao, s/o Late Shri I.Indu, aged about 38 years,
Stenographer, O/o the Assistant Commissioner of Income Tax,
Circle Bhilai, R/o Qr. No.10/A, Street No.-32,
Sector- S-1, Bhilai, District Durg (M.P.) - Applicant
(By Advocate Shri S. Rajeshwara Rao)
V e r s u s
1. Union of India, through the Secretary, Department of Revenue,
Ministry of Finance, North Block, New Delhi.
2. The Central Board of Direct Taxes, through Chairman,
Ministry of Finance (Department of Revenue), North Block, New Delhi.
3. The Principal Chief Controller of Accounts,
Central Board of Direct Taxes, IXth Floor, Lok Nayak Bhawan,
Khan Market, New Delhi 110003.
4. Additional Commissioner of Income Tax, Range-1,
Central Revenue Building, Civil Lines, Raipur-492001 (M.P.)
5. Assistant Commissioner of Income Tax, Circle Bhilai,
Aaykar Bhawan, Civic Centre, Bhilai 490006,
District Durg (M.P.) -Respondents
(By Advocate Shri Anand Dadariya)
(Date of reserving the order: 07.01.2014)
ORDER
By G.P.Singhal, AM.-
The applicants have preferred this Original Application, seeking direction to the respondents to continue payment of House Rent Allowance (in short HRA) to them, which was stopped w.e.f. December, 1997.
2. The brief facts of the case are that all the applicants, who are employees of Income Tax Department, were residing in the quarters allotted to them by the Bhilai Steel Plant (in short BSP), while being posted at Bhilai. They were being paid HRA regularly, till December, 1997 when it was stopped in view of circular dated 5/8.09.1997 (Annexure A-1), issued by the Principal Chief Controller of Accounts of the Central Board of Direct Taxes (in short CBDT). It was mentioned in the circular that those Central Government Officers/Officials of Income Tax Department, who are occupying residential accommodation provided by the Central Govt./State Govt./Autonomous Bodies/Public Sector undertakings/Municipalities/Port Trusts/Nationalized Banks/LIC etc., are not entitled to draw any HRA as per Rule 5 (C) of the HRA and CCA Rules (FR & SR Pt.V). The stand of the applicants in this regard is that the quarters have been allotted by the BSP directly to them on their own, and they are paying rent like any other party to BSP. Thus, they cannot be deprived of HRA.
3. The Original Application was earlier decided vide the order dated 30.06.2003, wherein it was held that the applicants are entitled to get HRA, and any recovery made from them, should be refunded. The respondents challenged this Order before the Honble High Court of Chhattisgarh by filing Writ Petition No.1403/2005. The Honble High Court has disposed of this petition vide the order dated 6.9.2013 with the following observations:
6. The case of the Department was that:-
(i) The Department had given accommodation to all its staff by taking up the matter with the BSP;
(ii) The accommodation have allotted as per general terms and condition;
(iii) The license fee for the Respondents is same as the license fee for government accommodation; and
(iv) The accommodation to the Respondents is on behalf of the Department and not in their individual capacity.
7. In order to support its case, the Department had filed following documents:-
i. General terms and conditions for allotment of quarters. ii. Letter dated 20/11/1997 by Deputy Town Administrator (BSP) saying that allotment is in the name of the Department. iii. Chart showing that license fee has been charged at a comparable rates. iv. Instructions issued by the CBDT; and v. Allotment letter in the name of Income Tax Department.
8. The Tribunal has allowed the OA of the Respondents without considering the case of the Respondents or to the documents filed by it.
9. In view of the above, the writ petition is allowed. The order of the Tribunal dated 30th of June, 2013 is quashed. The matter is remanded back to the Tribunal to re-decide the question after considering the case as well as the documents filed by the Department, in accordance with law.
Therefore, the matter has been placed before us.
4. The learned counsel for the applicants argued that the Terms and Conditions for allotment of quarter keep on changing. He has filed an allotment letter of the year 2012, which shows the Terms & Conditions to be quite different from those of 1998. It is clearly mentioned in the letter dated 20.2.1996 (Annexure A-4) of Assistant Commissioner of Income Tax, Bhopal that, there is no agreement with the BSP authorities by any authority of the department, and BSP is being treated as a private party from which employee has obtained a quarter. The rent fixed by the BSP authorities is @ 8% of the capital cost of the quarter, whereas for BSP employees the same stands at 5% of the capital cost of the quarter. The Terms and Conditions of allotment of BSP houses were duly considered by the Tribunal in its order dated 30.6.2003.
5. The learned counsel for the applicants further submitted that the allotment letters were issued directly in the name of the applicants and not in the name of Income Tax Department. The instructions subsequently issued by CBDT, have also been duly considered in the order dated 30.6.2003 ibid.
6. The learned counsel for the respondents argued that it is specifically mentioned in the Terms and Conditions of the allotment order that, all allotment wherever agreed to, will be in the name of the Head of the Department concerned (Govt./PSU/Pvt.). It is further mentioned therein that the department will arrange the payment of monthly bills on account of rent/electricity and other charges by 10th of each month. Further, it is provided that, in case an employee of the Department concerned vacates quarter and the new incumbent is seeking the Companys accommodation, the allotment in favour of employee is required to be made by the Estate Deptt. only based on the recommendations of the Head of the Department. This mechanism is also clear from the letter dated 20.11.1997 of Deputy Town Administrator (Annexure II), which mentions that, If in any allotment order, the name of the occupant (i.e. employee of Income Tax Deptt.) is mentioned, in this case, then it is for the purpose of tracking sure that the rent and other charges accrue to BSP expeditiously. The letter makes it clear that it is primary responsibility of department concerned to pay rent and other charges, payable to BSP.
7. In regard to the comparable rates of license fee and the rate charged by the BSP, the learned counsel for the respondents submitted that it will be evident from the comparative chart at Annexure-III that for similar size of accommodation, the rent charged by BSP was little lesser than the license fee charged by the government. Since HRA is a compensatory allowance, the employees are not supposed to earn profit by this mechanism.
8. In regard to instructions issued by the CBDT, the learned counsel for the respondents submitted that the CBDT issued clear instructions in this matter on 2.1.1998 (Annexure-V). There is no reference to these instructions in the order dated 30.06.2003 ibid. It is mentioned in these instructions that, in such cases reimbursement of the amount of rent paid by the officials in excess of 10% of the basic pay or the amount of HRA admissible to them, which ever is less, shall be payable. Since the applicants were paying much less than 10% of their basic pay, they were not entitled to get any reimbursement or HRA as per the provisions of this circular.
9. The respondents have also filed copies of some allotment letters (Annexure-VI), which show that allotment has been done in the name of department in theses cases.
10. Thus, it is clear that all the applicants, who were staying in the accommodation allotted to them by the BSP, got it on account of an arrangement of BSP with the Income Tax deptt. Even in the cases where allotment orders were directly in the name of employees, it has been clarified by the letter dated 20.11.1997 of Deputy Town Administrator, BSP that the names have been mentioned only to track the payment of rent and other dues. The comparative chart showing the license fees and rent paid by the applicants to BSP shows that the rent paid by them were almost equal to the license fees charged for similar type of accommodation. The instructions issued by CBDT vide their letter dated 2.1.1998 make it very clear that in such cases the employees are only entitled for reimbursement of rent paid by them in excess of 10% of the basic pay or the amount of HRA admissible to them, whichever is less. As against this all the applicants were paying much less than the 10% of their basic pay, and were thus not entitled to get HRA.
11. Meanwhile, the applicants had filed MA No.480/2010, praying for payment of HRA to them in compliance of the order dated 30.06.2003 ibid along with penal interest and suitable compensation. Since, on reconsideration of the matter, on remand of the case by the Honble High Court of C.G., the order dated 30.06.2003 ibid is being reversed, MA No.480/2010 becomes infructuous, and is accordingly dismissed.
12. In view of the aforesaid, the applicants are not entitled to get payment of HRA and the prayer made by them in this regard, in the present OA, cannot be granted. Thus, the OA is dismissed. No order on costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member am 7 OA 268/1998 Page 7 of 7