Central Administrative Tribunal - Delhi
Brij Mohan Mittal vs M/O Steel on 2 December, 2023
1
OA No. 1869/2020
Item No.90/C-4
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1869/2020
Reserved on : 07.11.2023
Pronounced on : 02.12.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Brij Mohan Mittal
Manager (SSP)
Aged 60 years
S/o Shri (late) Rameshwar Dass Mittal
2404, Sector-16
Faridabad-121002 (Haryana).
.. Applicant
(Applicant in person)
Versus
Steel Authority of India Ltd.
(through its Chairman)
Steel Authority of India Ltd.
Ispat Bhawan, Lodhi Road
New Delhi-110003.
...Respondent
(By Advocate: Mr. Dhananjai Rana)
ORDER
Dr. Anand S. Khati, Member (A) The present O.A. has been filed by the applicant challenging the impugned order dated 07.11.2020 passed by the respondent - Steel Authority of India (SAIL), whereby while disposing of his retention applications for the years 2018-19, 2019-20 and 2020-21, the respondent-SAIL granted medical facility for his wife for the 2 OA No. 1869/2020 Item No.90/C-4 period 05.11.2020 to 19.04.2021. According to him, the respondent granted permission for retention of HRA for two years, i.e. 2016-17 and 2017-18, but for rest of the period from 2018 to 2021, they have granted permission for medical facility intermittently, but denied HRA. Hence, he filed the present O.A. seeking the following relief(s):
"a) To quash and set aside the impugned order dated 7-11-2020 and allow HRA & Medical facility for continuous period i.e. from date 20-4-2016 to 19-4-2021, as allowed for first 2 years (Copy of order annexed at A-2 & A-3).
b) Direct Respondent to pay HRA for remaining period during dates 20-4-2016 to 19-4-2021.
c) Direct respondent to pay for Medical facility i.e. equal to Basic Pay of applicant, remaining period, during dates 20-4-2016 to 19-4-2021.
d) Also allow 18% compounded interest, for the period from the date of entitlement to till realization, on the said amount to applicant
e) To allow the OA with cost and damages.
f) Pass any other order(s) which this Hon'ble Tribunal deem fit and proper in the facts and circumstances of the case & in the interest of the justice."
2. The brief facts as narrated by the applicant, who appeared in person, are that he was working under the respondent SAIL since 1991 and discharged his duties and responsibilities to the best of his competency and even highlighted the corrupt activities in the company. Due to which his senior officers got biased and even threatened him for filing of court cases and highlighting corrupt activities. Vide transfer order dated 11.04.2016, he was transferred from Delhi to Burnpur. As per the retention facilities applicable to 3 OA No. 1869/2020 Item No.90/C-4 transferred employees, he applied for retention of HRA and medical facilities for his spouse, viz. Smt. Uma Mittal, for 2016-17, 2017-18, 2018-19, 2019-20 and 2020-21 in time. However, the respondents granted permission for retention of HRA for two years, i.e. 2016-17 and 2017-18, but for rest of the period from 2018-2021, they have granted permission for medical facility intermittently, the last one being from 05.11.2020 to 19.04.2021 vide the impugned order dated 07.11.2020.
3. It is further submitted by the applicant that in November 2018, he applied for referral letter for knee replacement of his wife, but the respondent delayed the same for one reason or the other. Left with no option, he purchased medical insurance Policy from an outside company, i.e. United India Insurance Co. Ltd., which paid the bill of Rs.1,97,808/- along with medicines etc. for the same. After her discharge from the hospital on 17.12.2018, the respondent granted medical facilities for the period from 26.11.2018 to 25.11.2019, but not paid the same. Though applicant was already permitted for all facilities upto 19.04.2018, on a direction from the respondent through phone and mail dated 23.10.2019 to apply for medical facility from 07.10.2017 to 25.11.2018, he applied for HRA and medical facilities vide application dated 31.10.2019, but the same has not been disposed of till date.
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4. It is contended by the applicant that the respondent cannot separate HRA from medical facility and his wife can only take treatment from Delhi NCR as per the approval, when she is residing at Delhi NCR, hence, she is entitled for HRA facility at Delhi and also as per the terms of appointment. He further contended that vide impugned order dated 07.11.2020, the respondent concealed the fact that he had applied for HRA & medical facility vide retention applications dated 18.04.2018, 26.11.2018, 07.12.2018, 02.04.2019, 06.02.2020 etc. and not for medical facility only. Further, the facility start date mentioned as 05.11.2020 is baseless because retention start date is 20th April every year.
5. It is further submitted by the applicant that on his transfer to Salem, vide applications dated 24.08.2020 and 07.10.2020, he applied for package of HRA and medical facility w.e.f. 30.06.2020 and 30.06.2021, respectively. Hence, the impugned order is not issued pursuant to the aforesaid applications and the aforesaid applications are still pending. Moreover, though permission was granted for retention of HRA for 2016-17 and 2017-18, he was not paid HRA for the period from April, 2016 to January, 2017 and May, 2017. He was paid HRA upto June, 2019 and, thereafter, from September, 2019 onwards, the respondent started recovery of HRA @ Rs.23,314/- p.m. Thus, the impugned order has been passed 5 OA No. 1869/2020 Item No.90/C-4 contrary to their own decisions, without application of mind and in violation of principles of natural justice and is liable to be quashed.
6. Per contra, the respondent-SAIL has filed a counter affidavit opposing the O.A. The learned counsel for the respondent raised a preliminary objection that the O.A. is not maintainable being barred by limitation as the applicant has sought to assail the previous orders of retention that are time barred under the garb of challenge to the order dated 07.11.2020, whereby the retention of medical facilities in respect of his wife are allowed. Taking strength from the averments made in the counter affidavit, he submitted that as per the Retention Policy, retention of facilities is permitted for education of dependent children, employment of spouse, medical cases of dependents and non-availability of quarters as per entitlement at new location and the Company reserves the right to ask employee to vacate the retained accommodation by giving one month's advance intimation, if it is found at any stage that the ground for retention does not exist. The retention may be allowed initially for a period of one year and subsequent retention may be allowed after review on year to year basis and, in any case, will not be allowed beyond the maximum permissible period of 5 years or the date of superannuation of the employee, whichever is earlier. 6 OA No. 1869/2020 Item No.90/C-4
7. Learned counsel for the respondent also submitted that Plants/Units of SAIL are having their own quarters at their townships which are provided to employees working in these Plants/Units. As per the policy of the Company, HRA is to be paid only if the quarters are not available as per the eligibility and the employee alongwith the dependent family members are required to stay in the accommodation provided by Company, as far as possible. As per the Retention Policy, in case the Company accommodation is not allotted at a new place of posting, on request of the concerned employee, he can be sanctioned HRA upto one year which is extendable for another two years, however, retention of HRA beyond three years is to be allowed only in exceptional circumstances, like dependent children are in their final years of school/college or spouse is employed. Medical facilities are provided to the dependents of the employee at their place of posting. He further submitted that retention of facilities including HRA on transfer cannot be claimed as a matter of right. The same is allowed on case to case basis after taking into account the reason for retention and genuineness of the case.
8. The learned counsel for the respondent averred that the applicant joined SAIL on 08.10.1991 and he was lastly posted as Manager at Salem Steel Plant (SSP) and none of the exceptional circumstances exists in his case. Now he has already been released 7 OA No. 1869/2020 Item No.90/C-4 from the services of the respondent-SAIL w.e.f. 30.06.2021 on attaining the age of superannuation vide Office Order No.44/2021 dated 30.06.2021. Further, the applicant could have availed Company's quarter at SSP (Salem) at IISCO Steel Plant (ISP), Burnpur also, as Company's quarters are available at both the stations. As per policy of the Company, an employee has to stay in Company's quarter/accommodation and if Company fails to provide quarter/accommodation as per his entitlement, then he can arrange for his own accommodation and only then HRA will be admissible/payable to him.
9. He further averred that based on his applications, the applicant was allowed retention of facilities for his dependents at Delhi NCR as per the details given below:
HRA: 20.04.2016 to 19.04.2017, 20.04.2017 to 06.10.2017 Medical facilities: 20.04.2016 to 19.04.2017, 20.04.2017 to 06.10.2017, 26.11.2018 to 25.11.2019 and 05.11.2020 to 19.04.2021.
It is further pointed out that maximum period permissible under the rules for retention of facilities on transfer is 5 years and in the case of the applicant, the period of 5 years got over on 19.04.2021, i.e. from 20.04.2016 to 19.04.2021 and, therefore, he was allowed retention of medical facility for his wife till 19.04.2021. He also added that HRA is payable @ 30% of basic pay at Delhi whereas the same is payable @ 20% of basic pay at ISP and SSP; and since the 8 OA No. 1869/2020 Item No.90/C-4 applicant is aware that he would not get HRA at SSP, he opted to retain HRA which is payable at higher rate at Delhi. Further, on perusal of his application, it would reveal that he was availing retention of facilities for his wife only since 20.04.2017 and his wife was not employed at Delhi NCR, and as such, he could have easily been relocated to ISP or now to SSP, where she could avail medical facility as are available to other employees of SSP for their dependent family members. The applicant is claiming HRA for keeping his wife at Delhi NCR, which is not a tenable ground to allow him retention of HRA. In view of the aforesaid, he was not allowed retention of HRA and was allowed only medical facility for his wife at Delhi NCR in terms of clause 8.2 of Retention Rules dated 14.02.2019 which allows an employee to avail medical facility for his dependents either at new location or at previous location irrespective of the fact that he is availing retention or not. The contention of the applicant that the respondent cannot separate HRA from medical facility, is wrong because both are disjoint and can be separated as per the rules. Further, the applicant was allowed retention of HRA till 06.10.2017, but he continued to draw HRA beyond the said period. Thus, an amount of Rs.23,314/- on monthly basis was recovered towards the excess amount of HRA paid to him. Hence, there is no illegality in the order passed by the respondents and the O.A. is liable to be dismissed.
9OA No. 1869/2020 Item No.90/C-4
10. In response to the preliminary objection raised by the respondent, the applicant submitted that he had engaged his counsel in March, 2020 but due to lockdown during Covid-19, he could not file the O.A. in time. He reiterated his claim and vehemently argued that as per the policy of the respondent, there are two options for transferred employees, either he can choose HRA by way of Retention Policy at previous place of posting or HRA/Company quarter at the transferred location. He had opted HRA at previous place of posting, i.e. Delhi as per the retention facility, so option of HRA/Company quarter facility at transferred location was closed in the year 2016 itself. Therefore, the argument of the respondent's counsel is irrelevant and misleading. He was never allotted any quarter at transferred location till 30.06.2021 despite repeated requests, except only for a few period in 2016, when expert hostel room at ISP Burnpur was allowed at market rate on payment/recovery through salary as per retention policy. No HRA for the period 01.04.2016 to January 2017 and May 2017 has been paid till date, in spite of the fact that retention permission was granted by the respondent. Further, he was paid HRA till June, 2019 intermittently and deducted a sum of Rs.23,314/- p.m. from his salary for September, 2019, without issuing any notice to him. He neither applied for retention of medical facility in his application nor for the period from 05.11.2020 to 19.04.2021, as mentioned in the impugned order dated 07.11.2020. He further argued that para 8.2 10 OA No. 1869/2020 Item No.90/C-4 provides additional medical facility to dependents of those employees who are not availing Retention facility. However, HRA facility cannot be denied to those availing medical facility in case of employees availing Retention facility and Circular dated 14.02.2019 cannot be made applicable to those who are already availing retention w.e.f. 20.04.2016. Further, he was availing Retention facility and opted for HRA at previous location for his wife on medical grounds and not due to higher HRA rates at Delhi and had also applied for Company's quarter for himself at ISP and SSP both, however, the same was never allotted to him despite repeated requests.
11. We have heard both the parties and perused the pleadings and material available on record.
12. After considering the submissions made by both the sides and going through the pleadings on record, the short issue arisen for our consideration is whether the claim of the applicant for retention of HRA beyond two years is tenable as per the rules/instructions or not.
13. The applicant has challenged the order dated 07.11.2020 passed by the respondent-SAIL, which for ready reference reads as under:
"No.PER/ESS/A000427 7th November, 2020 11 OA No. 1869/2020 Item No.90/C-4 Shri Brij Mohan Mittal, Manager (WS, CM & EM) Salem Steel Plant, Salem, Tamil Nadu-636013 Through: AGM(Personnel), Salem Steel Plant Dear Sir, This has reference to your application for retention of medical facility for your dependent of Delhi.
Your request for retention of medical facility at Delhi has been agreed to for the following dependent from 05.11.2020 to 19.04.2021.
Sl.No. Name of Dependent Relation
1. Mrs. Uma Mittal Wife
This issues with the approval of the Competent Authority.
Yours sincerely,
-sd/-
(Kavita Gupta) Sr. Manager (Pers.) Distribution:
1. CGM (P&A), Salem Steel Plant.
2. GM (Finance), C.O.
3. Joint Director (M&HS), C.O.
4. AGM (Pers.), Salem Steel Plant.
5. Manager (Finance), C.O.
6. Office Copy"
From the above, it is clear that by the aforesaid order, the applicant was permitted for retention of medical facility for his spouse at the previous place of posting, i.e. Delhi, for the period from 05.11.2020 to 19.04.2021, but not for HRA. Though earlier he was permitted for retention of HRA for two years w.e.f. 20.04.2016 and 20.04.2017 but subsequent thereto, he was permitted for retention of medical facility intermittently but not for retention of HRA. However, the applicant did not challenge the same.
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14. We have also gone through the Rules for Retention of Facilities on Transfer dated 27.08.2013 of the respondent-SAIL, which provides that in case the Company accommodation is not allotted at a new place of posting, on request of the concerned employee, he can be sanctioned HRA upto one year which is extendable for another two years, however, retention of HRA beyond three years is to be allowed only in exceptional circumstances, like dependent children are in their final years of school/college or spouse is employed. The same is allowed on case to case basis after taking into account the reason for retention and genuineness of the case, with the approval of concerned CEO/Director on the recommendation of HoP of current location. Clause 6 of the said Rules reads as under:
"6. Period of Retention Retention of Company accommodation in case of transfer shall normally be allowed for a period of one year, which may be extended by another two years with the approval of competent authority. However, in exception circumstances, retention of accommodation beyond three years, for another period of two years may be granted with the approval of Chief Executive Officer / Director concerned on the recommendation of Heads of Personnel (HoP). The total period of retention shall not be more than 5 years."
15. In the instant case, the applicant was permitted to avail retention of HRA after his transfer for two consecutive years, i.e. w.e.f. 20.04.2016 and 20.04.2017 on medical ground of his wife vide orders dated 30.01.2017 and 23.09.2017, respectively and, thereafter, there was no permission for retention of HRA by the 13 OA No. 1869/2020 Item No.90/C-4 Competent Authority. Moreover, the medical facility to the dependent/his wife was provided to him as per the relevant rules, which are not linked to HRA, in terms of clause 8.2 of Circular dated 14.02.2019 which allows an employee to avail medical facility for his dependents either at new location or at previous location irrespective of the fact that he is availing retention or not, and the same cannot be taken as a ground by him.
16. In so far as the applicant's grievance regarding recovery of Rs.23,314/- p.m. from his salary is concerned, the same was recovered towards the excess amount of HRA paid to him. It is the contention of the applicant that no notice was given to him by the respondent before effecting recovery of the said HRA from his salary. However, the applicant is unable to show any rule or instruction of respondent authority stipulating that even if the permission for retention of HRA at previous place of posting is not granted by the competent authority, HRA is payable to such an employee. As the applicant has not been able establish his right to get HRA under any rule or instructions of the SAIL and it is found that no right of the applicant has been infringed by way of recovering the HRA wrongly paid to him, application of principles of natural justice is not attracted to his case. This view is based on the legal maxims: ubi jus ibi remedium and injuria sine damno - the former stands for "where there is a right, there is a remedy" and the latter stands for "a legal wrong that causes no actual damage or 14 OA No. 1869/2020 Item No.90/C-4 injury to anyone". Further, the outcome of the case for recovery of the HRA wrongly paid to the applicant could not have been different, had notice been issued to him before effecting the said recovery. In this view of the matter, there is no infirmity in the decision taken by the respondent authority in recovering the amount of HRA wrongly paid to the applicant.
17. In the light of the above discussions, the claim of the applicant is not tenable. The O.A. being devoid of any merit, is accordingly dismissed. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/