Gauhati High Court
Kausik Ranjan Dutta vs State Of Tripura And Ors. on 22 March, 2005
Equivalent citations: (2006)2GLR403
JUDGMENT A.B. Pal, J.
1. The petitioner is an Assistant Teacher and by order dated 8.11.1994, he was posted in Sri Krishna Girls' High School, Khowai. His wife is also an Assistant Teacher, who was posted in Chebri Senior Basic School, Chebri, Khowai by order dated 12.9.1986. She had been attending her school from her parent's house at Lalcherra even after her marriage as the petitioner was residing at Bagabil, which was at a distance of 28 km from his in-law's house at Lalcherra. The respondent No. 2 issued a show cause notice on 4.7.1992 (Annexure-5) to the effect that he and his wife were found to be residing in the same house and both of them were drawing house rent allowance, which was in contravention of the Finance Department Memo. No. 5(15)-FIN(G)/75 dated 2.1.1976 and 17.1.1989 and the violation of that memorandum attracted the provision of Rule 3(1) of the Tripura Civil Services (Conduct) Rules, 1988. Therefore, the petitioner was asked to show cause as to why disciplinary action would not be taken against him for drawing house rent allowance by suppressing the fact of residing in same station with his wife in the declaration given by him before drawing the house rent allowance and why the said allowance drawn shall not be recovered in one instalment. After issue of that notice, the respondent No. 2 withheld house rent allowance of the petitioner from the month of July 1992 and his representation, one after another, Could evoke no result. The grievance of the petitioner is that since he and his wife were posted in different stations at a distance of 22 km. both of them were entitled to draw house rent allowance. The petitioner clarified to the respondents that he was living m Bagabil in a rented house and, therefore, there was no ground to deny him the house rent allowance on the basis of false information that he and his wife were living in the same station. All his representations and clarifications could not satisfy the respondent No. 2, who passed an order on 4.5.1993 (Annexure-11B) that the explanation regarding drawal of house rent allowance from the petitioner and others were not found satisfactory and accordingly, it was decided that the amount so drawn shall be refunded forthwith. This Memo along with other relevant orders have been impugned in this writ petition.
2. The State respondents filed affidavit-in-reply contending that the distance between Lalcherra and Bagabil is not 28 km. for the reason that in a similar case, the petitioner Shri Anal Nag in Civil Rule No. 65 of 1995 stated that the shortest distance on foot from Khowai to Bagabil is 16 km. Further contention of the respondents is that in a joint declaration, the petitioner and his wife stated that they were living in their respective stations, but in fact during inquiry, it was found that they were living together in one station. Accordingly, a show cause notice was issued as the employees are not entitled to draw house rent allowance if both husband and wife being employees live together in same station.
3. I have heard Mr. S.M. Chakraborty, learned senior counsel for the petitioner and Mr. P.K. Pal, learned Counsel for the State respondents.
4. The main controversy is whether when posted in different stations, the husband and wife are both entitled to draw house rent allowance even though they are found living in same station. The respondents could not produce any rule or instruction about the distance between two places of posting, which would disentitle the couple from drawing the house rent allowance. The relevant provision relied on by the respondents is contained in regulation 22 regarding HRA and CCA in Swamy's Manual. This provision reads : -
22. HRA is not admissible if his wife/her husband has been allotted accommodation at the same station by the Central Government, State Government, an Autonomous Public Undertaking or semi-Government Organisation such as Municipality, Port Trust, etc., whether he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her.
A plain reading of the above provision makes it clear that only when the husband and the wife have been allotted accommodation at the 'same station', they would not be entitled to draw house rent allowance. Admittedly the petitioner and his wife were posted in different stations, distance of which is stated to be 22 km. by the petitioner, but not admitted by the respondents. But the respondents could not state what is the exact distance between the two stations. They relied on a statement of another employee Anal Nag in Civil Rule No. 65 of 1995, who stated there that the distance between Khowai and Bagabil is 16 km. But the petitioner stated that his wife was staying at Lalcherra and he was staying at Bagabil and distance between the two places is 22 km. So, it cannot be said that the distance between Khowai - Bagabil and Lalcherra - Bagabil are same. Whatever may be the position, even if the distance is 16 km between the two stations, the husband and the wife both are entitled to draw house rent allowance, as the regulation quoted above cannot be treated as a bar. It does not fall within the administrative functions of the department as to whether the husband and wife posted in two different stations are actually living together in same station or in different stations. In my considered view, the distance between the two stations is the only factor to determine the entitlement of house rent allowance, not whether after performing duties in a distant station, the husband or the wife, as the case may be, is coming back to any one station to stay the night together. An inquiry by the department as to where the couple are moving after the duty hours for living together is unwarranted and unethical and any instruction issued to that effect is illegal and arbitrary. In the case in hand, it has come in evidence the husband has a rented house in Bagabil, the place of his posting.
5. In view of the above discussion, this writ petition is allowed and the impugned order for recovery of house rent allowance and stopping of payment of house rent allowance is hereby quashed. The respondents are directed to refund entire amount of house rent allowance recovered from the petitioner and also to pay the house rent allowance, which has not been paid on the above ground.