Pramod Kumar Hota vs Union Of India & Ors

Swarup Kumar Mishra, Member (J)

The dispute, a familiar terrain/topography in service jurisprudence, i.e. claim of HRA and recovery thereto, is the subject matter of consideration in this O.A. inasmuch, according to the applicant, he joined as Postmaster, Jajpur HO on 17.07.2017. As the post attached quarters was not in habitable condition and also office records were kept in the quarters, on his request, the SPOs, Cuttack North Division vide letter dated 08.11.2017 (Annexure-A/2) permitted him to reside outside and draw HRA in lieu of post attached quarters from 17.07.2017 to 30.09.2018. The respondents ordered for recovery of Rs. 66,064/- paid to him from 17.07.2017 to 30.09.2018. According to the applicant, the recovery is not permissible in law because he was not granted any show cause notice or opportunity of being heard in compliance with the principle of natural justice or the fact that the quarters was not habitable for which he was staying outside with due permission of the competent authority. Hence, by filing this O.A. he has prayed for the following reliefs:

“(i) Admit the original application, and

(ii) After hearing the counsels for the parties be further pleased to quash the order vide letter No. D-61/Ch VI dated 29.05.2018 at Annexure-A/4, letter No. D-61/Ch VI dated 14.06.2019 at Annexure-A/10, LPC issued vide letter No. AC/LPC(Out)/2019-20/32 dated 17.06.2019 at Annexure-A/12 and the impugned order of rejection vide Order No. Bldg/8-Misc/CK(N)/2011 dated 20.08.2019 at Annexure-A/14. And consequently, orders may kindly be passed directing the respondents to refund the recovered amount with interest giving consequential benefits.

And/or

(iii) Pass any other order(s) as the Hon’ble Tribunal deem just and proper in the interest of justice considering the facts and circumstances of the case and allow this O.A. with costs.”

Against the order of recovery the applicant submitted representation, which did not yield any fruitful result. He made an appeal dated 15.06.2019, and thereafter approached this Tribunal in O.A. No. 415/2019, which was disposed of on 26.06.2019 at the admission stage with direction to the authority concerned to consider the appeal of the applicant. The authority concerned rejected the appeal vide order dated 20.08.2019 (Annexure-A/14) inter alia stating that the applicant joined as Postmaster Jajpur HO on 17.07.2017. The Head of Circle is competent to suspend the post attached quarters for any particular post but in the instant case no such order was issued by the respondent No.2. In terms of Rule 4(b)(i) of HRA-General Rule and Orders (FR&SR Part-IV), house rent allowance shall not be admissible to those who occupy accommodation provided by the Government or those to whom accommodation has been offered by the Government but the employee has refused to accept. In the latter case, the HRA will not be admissible for the period for which a government servant is debarred from further allotment of Government accommodation under the allotment rules applicable to him. It is further submitted that the applicant is entitled for the post attached quarter during his incumbency as Postmaster, Jajpur HO. He himself has admitted that he created space in the post attached quarter and made it suitable for stay from 01.10.2018. He being the custodian of the post attached quarter as well as Jajpur HO, he should have made the arrangement immediately after his joining. As per rules, the Post master is to reside in the campus of the Post office whereas, according to the applicant, he requested respondent No.3 to stay outside post office campus although post attached quarter of Postmaster, Jajpur HO was very much available. Further, it has been stated that the DGP&T Instruction 11(3) below FR 45, it is mandatory for the Postmaster, Jajpur HO to reside in the post attached quarters, in question.

In the counter, besides reiterating the facts stated above, it has been stated by the respondents that without the approval of the competent authority, the applicant allowed to keep old records in his residence and represented to SPOs Cuttack North Division for residing outside and claiming HRA thereby and the SPOs, Cuttack North Division had permitted the official to stay outside till the quarter was vacated and handed over to the incumbent Postmaster. The order of the SPO, Cuttack North Division was also irregular as the competent authority to dequarterise any specific quarter is Head of the Circle. The official preferred representation to SPO, Cuttack North Division on 06.01.2018 requesting to stay in one room of the earmarked quarter and to fix proportionate HRA. The SPO, Cuttack North Division allowed to draw HRA w.e.f. 17.07.2017 and recommended for recovery of 1/4th of HRA as the applicant was occupying 1/4th of the resident vide order dated 03.05.2018. The matter was referred to Circle Office by SPO, Cuttack North Division and on consideration of the case, the competent authority conveyed the decision of non-admissibility of the HRA vide letter dated 28.05.2018 and, accordingly, the order of recovery of HRA was issued. The respondents have admitted in the counter in paragraph 6 that respondent No.3 in letter dated 08.11.2017 (Annexure-A/2) allowed the applicant to remain outside till the quarter was completely vacated but it is stated that the said decision was not in accordance with rules. The sum and substance of the case of the respondents is that there being no illegality in the order of recovery, this OA deserves to be dismissed.

The precise case of the applicant in his rejoinder is that the respondent No.3 after being satisfied the difficulties to stay in the post attached quarters, allowed him to reside outside the quarter and payment of HRA being in lieu of quarters was rightly allowed to the applicant, which ought not to have been recovered for his no fault.

Heard. Ld Counsel for the applicant submitted that on joining as Post master, Jajpur HO, the applicant submitted representation to the Respondent No.3 specifically stating that the post attached quarter was filled up with records and office almirahs besides requiring some repairing work, the quarter was not habitable for his stay and, therefore, he may be permitted to reside outside. Respondent No.3 had permitted the applicant to stay outside till the quarter is made habitable with specific order that the applicant shall be entitled to draw HRA from 17.07.2017. It was also ordered that the said order is provisional and may be reviewed at any time. It has been stated that the post attached quarter is of 600 sq. ft. out of which one room of 144 sq. ft. was cleaned and made habitable for his stay. Therefore, according to the applicant, holding that the order of respondent No.3 is illegal and consequent recovery of the HRA for no fault of the applicant is bad in law. On the other hand, Ld. Counsel for the respondents has submitted that since the quarter was not decategorized, the permission by Respondent No.3 is no permission in the eye of law and, therefore, as the applicant did not stay in the quarters in his own volition, as per the rules, he was not entitled to the HRA. Since, the applicant is not entitled to HRA as per rules, recovery is well justified.

After considering the arguments, perused the records. Neither in the order of rejection nor in the counter it is the case of the respondents that although the quarter was habitable, the applicant has intentionally and deliberately stayed outside and drew the HRA. Although, it was specifically mentioned in the order that allowing the request of the applicant was provisional subject to review, it is not the case of the respondents that the matter was reviewed and although the quarters were made habitable, the applicant did not stay in the quarter. Rather, it is seen that the applicant explaining the position had sought the permission of the higher authority, i.e. SPO, Cuttack North Division, to stay outside, which was duly considered and allowed with specific direction that the applicant shall draw the HRA. The stand of the respondents that the permission accorded by Respondent No. 3 was not legal is of no consequence insofar as staying outside and drawal of HRA by the applicant are concerned. Law is well settled in a plethora of judicial pronouncement that no recovery is permissible when payment is made to the employee concerned without any of his fault and such recovery would cause immense financial hardship to him/her. It is also not out of place to mention that right to life includes the necessary infrastructure to live with human dignity [ref: Shantistar Builders Vs. Narayan Khimalal Totame, (1990) 1 SCC 520, and Chameli Singh Vs State of U.P., (1996) 2 SCC 549]. The stand of the applicant that recovery was ordered without giving him opportunity also stands in favour of the applicant. The bona fide of the applicant is also significant from the point of view that after cleaning of the records, the applicant occupied the quarters subsequently. In view of the discussions made above, this Tribunal is of the considered view that none of the grounds taken by the respondents is justified in support of recovery of HRA paid to the applicant. Hence, the impugned order directing recovery of HRA to the tune of Rs. 66,064/- for the period he stayed outside is hereby quashed and, resultantly, if any recovery is already made, the applicant shall be entitled to refund back the said amount.

In the result, this O.A. stands allowed to the extent stated above.