Central Administrative Tribunal - Delhi
Shri Mahesh Kumar Gupta vs General Manager on 3 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.3833 of 2012 New Delhi, this the 3rd day of July, 2014 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Shri Mahesh Kumar Gupta, s/o Shri Tara Chand Gupta, 11E, Vatika Apartment, Mayapuri, New Delhi 110064 Applicant (By Advocate: Shri V.V.Manoharan) Vs. 1. General Manager, East Central Railway, Hazipur 844101 2. Union of India, Through Secretary, Railway Board, Ministry of Railways, Rafi Marg, New Delhi .. Respondents (By Advocate: Shri P.K.Yadav) .. ORDER
In this Original Application, the applicant has prayed for the following relief:
(i) That the Applicant should be paid HRA of the previous place of posting (New Delhi) from 23.03.2009 till the posting in Hazipur Zone. The rent deducted from the salary of the Applicant and sent to IRCON be refunded.
That the Applicant should be paid an interest @18% per annum for the period of delay in making payment of HRA.
AND Any other relief which the Honble Court may deem fit in the circumstances of the case.
2. Brief facts: The applicant is an officer of IRES. While working as General Manager (Administration) in IRCON International Ltd., New Delhi, on deputation basis with effect from 4.4.2005, he was allotted residential accommodation by IRCON International Ltd. at Asiad Village, Khel Gaon Marg, New Delhi. On completion of 3 years deputation period on 3.4.2008, he was repatriated to his parent Department and was directed to report to the Secretary, Railway Board, New Delhi, on 5.5.2008. The applicant, vide his letter dated 3.4.2008 (Annexure A/4), requested the Managing Director, IRCON International Ltd., to permit him to retain the said residential accommodation till March 2009 on payment of normal rent for two months and for the remaining period on the terms and conditions as applicable. IRCON International Ltd., vide its letter dated 7.4.2008 (Annexure A/5), approved retention of the residential accommodation by the applicant for 2 months w.e.f. 04.04.2008 to 03.06.2008 on payment of normal rent at the rate of Rs.500/- per month, with the stipulation that he was liable to vacate the accommodation by the specified date. IRCON International Ltd., vide its letter dated 27.6.2008 (Annexure A/6), requested the applicant to vacate the said residential accommodation. As the applicant did not vacate the said residential accommodation, IRCON International Ltd., vide its letter dated 8.8.2008 (Annexure A/7), intimated him that he was liable to pay damage rent @Rs.1000/- per day for the period of unauthorized occupation with effect from 04.06.2008. Instead of vacating the said residential accommodation, the applicant, vide his letter dated 30.7.2008 (Annexure A/8), requested the Chairman, IRCON International Ltd., to permit him to retain the said residential accommodation till the end of the scholastic year(2008-2009). The applicant vacated the said residential accommodation on 22.3.2009 (Annexure A/9) and shifted his family to a rented accommodation. IRCON International Ltd., vide letter dated 1.4.2009 (Annexure A/10), approved the retention of the said residential accommodation by the applicant up to 22.3.2009, with the stipulation that for the period from 04.04.2008 to 03.06.2008 he would be liable to pay normal rent @ Rs.500/- per month and for the period from 04.06.2008 to 22.3.2009 he would be liable to pay monthly rent as per his monthly HRA entitlement and that he should deposit the aforesaid rent with the General Manager/HQ, IRCON International Limited, Corporate Office, New Delhi, immediately.
2.1 In the meantime, an order dated 28.5.2008 (Annexure A/11) was issued by respondent no.2 posting the applicant to East Central Railway, Hajipur, where he joined as CPDE on 16.06.2008. The applicant, vide his letter dated 13.4.2009 (Annexure A/19), requested the Chief Personnel Officer, East Central Railway, Hajipur, to extend the facility of HRA at the same rate as admissible to him at New Delhi, i.e., the last station of posting, with effect from 23.3.2009, in terms of the Railway Boards letter No.E(G)2008 QR 1-1, dated 5.9.2008 (Annexure A/12). The applicant also requested in the said letter that the HRA for the period from 04.06.2008 to 22.3.2009 might be directly sent to IRCON International Ltd..
2.2 Respondent no.1, vide its letter dated 26.6.2009 (Annexure A/20), decided (i) to deduct quarters rent from 06.05.2008 to 22.3.2009 from the salary of the applicant and send the same to IRCON International Ltd., and (ii) to make payment of HRA to the applicant at Hajipur rate, i.e., 10%, from 23.3.2009. Accordingly, Rs.49,382/- was recovered from the salary of the applicant for remitting the same to IRCON International Ltd, vide letter dated 3.8.2009 (Annexure A/21).
2.3 Aggrieved thereby, the applicant made a representation dated 26.6.2009 (Annexure A/22) to respondent no.1. In the said representation, the applicant requested (i) to make payment of HRA at the rate applicable to previous place of posting, i.e., New Delhi, and (ii) to refund the HRA deducted and remitted to IRCON International Ltd.
2.4 Respondent no.1 made recovery of HRA amounting to Rs.39,093/-, which was already paid to the applicant from April 2009 to September 2009, from the salary payable to him for the month of October 2009, as he was in occupation of Officers Rest House at Hajipur.
2.5 Being aggrieved by the aforesaid decisions, the applicant made a representation dated 23.9.2009 (Annexure A/22) to respondent no.1. In the said representation, the applicant pointed out that Shri A.K.Bansal, CME-I posted to Workshop Project at Patna and Shri Biyani posted as CPO in Diesel Locomotive Workshop, Varanasi, whose cases are similar to that of the applicant, have been paid HRA at the rate applicable to their previous place of posting, i.e., New Delhi.
2.6 When the applicant was not favoured with any decision on his representation dated 23.9.2009 (Annexure A/22), he approached this Tribunal in OA No.2525 of 2011. The Tribunal, vide its order dated 25.7.2011 (Annexure A/26), disposed of the said O.A. at the admission stage itself, by directing respondent no.1 to look into the applicants representation dated 23.9.2009 and take a considered decision thereon in accordance with the rules within a period of two months from the date of receipt of a copy of the order.
2.7 Respondent no.1, vide speaking order dated 16.11.2011, having rejected the applicants claim, the present OA has been filed by the applicant.
3. Resisting the claim made by the applicant in the O.A., Respondents have filed a counter reply wherein it is stated that the applicant was living in the Officers Rest House, Hope Narayani Apartment, Patna, duly allotted by the Railways in his favour. He was paid HRA at the rate applicable to Hajipur on the basis of wrong declaration given by him, vide his letter dated 13.4.2009 (Annexure A/19), that he was not provided with any Railway accommodation and there was no illegality in recovering the HRA wrongly paid to him. In terms of RBE No.48/2004, dated 9.3.2004, the applicant was not entitled to HRA at the rate applicable to his previous working station, i.e., New Delhi, as he was not getting HRA there. Recovery of rent of Rs.49,382/- for the period from 4.4.2008 to 3.6.2008 at the rate of Rs.500/- per month and for the period from 4.6.2008 to 22.3.2009 as per his HRA entitlement, and remittance thereof to the IRCON International Ltd., was made at the instigation of the applicant who was bound by the terms and conditions imposed by the IRCON International Ltd. while permitting the applicant to retain the residential accommodation provided by them beyond the period of deputation. It is further stated by the respondents that action has been taken by them for recovering the HRA wrongly paid to Shri A.K.Kansal, Ex CE/WP/Patna. In view of the above, the respondents have prayed for dismissal of the O.A.
4. The applicant has filed a rejoinder reply refuting the stand taken by the respondents in the counter reply. It is stated by the applicant that the respondents were fully aware of the fact that he was residing in the Officers Rest House in as much as recovery of charges was being regularly effected from him for occupation of the Officers Rest House and therefore, there was no question of his giving any wrong declaration. It is also stated by the applicant that before effecting recovery of Rs.39,093/- from his salary, no notice was given to him. It is further stated by the applicant that as no suitable Railway accommodation was provided to him at Hajipur/Patna, he was entitled to HRA at the same rate as applicable to his previous work station, i.e., New Delhi. It is further stated by the applicant that no proof has been adduced by the respondents showing that any action has been taken against Shri A.K.Kansal, Ex CE/WP/Patna for recovery of the HRA wrongly paid to him.
5. I have perused the pleadings and heard the learned counsel appearing for the parties.
6. R.B.E.No.48/2004, dated 9.3.2004(Annexure A/13) stipulates that Railway employees posted to New Zones/New Divisions may be allowed to draw HRA admissible at the last place of posting for a period of two years from the date of their relief from the old posting subject to the conditions enumerated in clauses (a) to (g) of paragraph 2 of the said R.B.E. Clause (a) states that only those employees who were in receipt of HRA at the last station of posting before joining any of the New Zones/New Divisions would be eligible to draw HRA at the same rate as it was admissible to them at that station. Admittedly, the applicant was not getting HRA at the last station of posting, i.e., New Delhi, where he was working on deputation in IRCON International Ltd. and residential accommodation was provided to him by IRCON International Ltd. As the applicant was not entitled to HRA at the rate applicable to New Delhi, his claim has been rightly rejected by the respondents.
7. In support of his claim to get HRA at the same rate as applicable to his previous place of posting, i.e., New Delhi, the applicant has cited the case of one Shri A.K.Kansal, Ex-CE/WP/Patna, who was paid HRA at the same rate as applicable to his last working station. Without disputing this statement of the applicant, the respondents have disclosed that action has already been taken by them for recovering the amount of HRA from Shir Kansal which was wrongly paid to him. As discussed above, in terms of RBE 48/2004 (ibid), the applicant and similarly placed officers are not entitled to HRA at the same rate as applicable to their last working stations. It is to be noted that the Tribunal cannot go beyond the rule of law, nor can it step into an area which otherwise falls within the domain of the executive. By and large, respondents are accountable for their omissions and commissions at all events and under all circumstances. Undoubtedly, the applicant in the present O.A. is similarly circumstanced as Shri Kansal. But the fact remains, whether or not the Tribunal while applying its own wisdom and sagacity could come to the aid of the applicant herein on the ground of his being similarly circumstanced in a given case where the respondents have paid HRA by misapplication, or wrong application, or even contrary to rules and have subsequently initiated action to recover the HRA wrongly paid to similarly circumstanced officer. The answer is very precise. If at all the Tribunal comes to the aid of a person aggrieved after coming to a finding that he/she is similarly circumstanced in a given case notwithstanding the fact of application of rules in that given case, certainly it would tantamount to not acting in keeping its eyes open. It would not only set a precedent which is unprecedented, but also open floodgates for unwanted and undesirable litigations before the Tribunal. It is well established and well understood that the Tribunal being the creature of statute is expected to be guided by the rules of law, and one of the prime duties entrusted to it is to examine and probe into the facts that the action of the respondents is within the four corners of rules. Therefore, the contention of the learned counsel that the applicant being similarly circumstanced with that of Shri Bansal, the respondents should have granted HRA to the applicant at the same rate as applicable to New Delhi, i.e., his last working station, failing which it amounts to discrimination, is reductio ad absurdum inasmuch as it would be an improper administration of justice to direct the respondents to act contrary to rules.
8. In (2010) 2 SCC 59, Union of India v. M.K.Sarkar, the Honble Supreme Court observed and held thus:
Learned counsel for the respondent lastly submitted that one K.V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19.9.1994, and therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the respondents' representation by order dated 15.5.2004 has clarified that K.V. Kasturi's case was similar to that of D.R.R. Shastri as he had also not been informed of the availability of option. There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegally extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459; Faridabad C.T. Scan Centre vs. Director General, Health Services -1997 (7) SCC 752; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321, State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. -2000 (9) SCC 94 and Union of India vs. International Trading Company - 2003 (5) SCC 437. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief.
9. In view of the above decision of the Honble Supreme Court in Union of India v. M.K.Sarkar (supra), I do not find any force in the submission of the learned counsel that the respondents ought not to have treated the case of the applicant differently and should have acceded to the applicants request.
10. As regards the applicants claim to get refund of the rent deducted from his salary and remitted to IRCON International Ltd., it is found that after completion of his deputation period of three years on 3.4.2008, he was repatriated to his parent Department. On his request, IRCON International Ltd., vide its letter dated 7.4.2008 (Annexure A/5), approved retention of the residential accommodation by the applicant for 2 months w.e.f. 04.04.2008 to 03.06.2008 on payment of normal rent at the rate of Rs.500/- per month, with the stipulation that he was liable to vacate the accommodation by the specified date. As the applicant did not vacate the said residential accommodation, IRCON International Ltd., vide its letter dated 8.8.2008 (Annexure A/7), intimated him that he was liable to pay damage rent @Rs.1000/- per day for the period of unauthorized occupation with effect from 04.06.2008. The applicant vacated the said residential accommodation on 22.3.2009 (Annexure A/9). IRCON International Ltd., vide letter dated 1.4.2009 (Annexure A/10), approved the retention of the said residential accommodation by the applicant up to 22.3.2009, with the stipulation that for the period from 04.04.2008 to 03.06.2008 he would be liable to pay normal rent @ Rs.500/- per month and for the period from 04.06.2008 to 22.3.2009 he would be liable to pay monthly rent as per his monthly HRA entitlement and that he should deposit the aforesaid rent with the General Manager/HQ, IRCON International Limited, Corporate Office, New Delhi, immediately. The applicant, vide his letter dated 13.4.2009 (Annexure A/19), requested the Chief Personnel Officer, East Central Railway, Hajipur, to recover the HRA from him for the period from 04.06.2008 to 22.3.2009 and directly remit the same to IRCON International Ltd.. Accordingly, Respondent no.1, recovered Rs.49,382/- from the applicant and remitted the same to IRCON International Ltd. The applicant did not challenge the decision of IRCON International Ltd. permitting him to retain the said residential accommodation from 4.6.2008 till 22.3.2009 on payment of rent as per his HRA entitlement. He having accepted the aforesaid decision of the IRCON International Ltd. and further having requested respondent no.1 to recover and remit the same to IRCON International Ltd, cannot be allowed to raise any grievance in that regard subsequently. Therefore, his claim to get refund of the rent recovered from his salary and remitted to IRCON International Ltd. is without any substance.
11. So far as the applicants grievance regarding recovery of Rs.39,090/- from his salary is concerned, the stand taken by the respondents is that since the applicant was living in Officers Rest House allotted to him by the Railways, he was not entitled to HRA for the period in question and therefore, HRA wrongly paid to the applicant was recovered from his salary. The applicant has admitted the fact of his living in the Officers Rest House. It is the contention of the applicant that no notice was given to him by the respondents before effecting recovery of the said HRA from his salary. The applicant has not shown any rule or instructions of the Railway Board stipulating that even if the employees of the Railways are allotted accommodation at the Officers Rest House, HRA is payable to them. As the applicant has not been able establish his right to get HRA under any rule or instructions of the Railway Board 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 right there is remedy and the latter stands for a legal wrong that causes no actual damage or 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 the applicant before effecting the said recovery from the applicant. In this view of the matter, there is no infirmity in the decision taken by the respondents in recovering the amount of HRA wrongly paid to the applicant.
12. In the light of the above discussions, I do not find any merit in the Original Application. Accordingly, the Original Application is dismissed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN