Dr. Vijay Pratap Singh vs Union Of India

he applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

"8.1 Allow the present application and set aside the impugned order dated 07.06.2016.

8.2 Direct the respondents to refund alongwith interest, the instalments amount as deducted from the applicant"s salary in pursuance of the illegal order of recovery of HRA dated 07.06.2016, being the impugned order.

8.3 Direct the respondents to make the payment of House Rent Allowance to the applicant w.e.f. October, 2015 along with interest accrued thereon as per prevalent bank rates.

8.4 Grant interest on delayed payment of House Rent Allowance at market rate if the payment is delayed beyond thirty days from the benefit granted to the applicant by this Hon"ble Tribunal.

8.5 Any other relief which Hon"ble Tribunal may deem proper and just in the interest of justice and equity keeping in view of the facts of this case.

8.6 Direct the respondents to produce all relevant records pertaining to the applicant"s case before Hon"ble Tribunal for its kind perusal with copy to the applicants counsel."

The grievance of the applicant is against the impugned order dated 7.6.2016 vide which respondents have ordered recovery of alleged excess payment of House Rent Allowance from the applicant for the period from May 2006 to September 2015 and also against non-grant of HRA from October 2015.

On 29.8.2016, when this matter came up for hearing, this Tribunal stayed the operation of impugned order.

Sufficient time was granted to the respondents to explain the reasons for passing the impugned order as is evident from orders dated 20.10.2018, 26.11.2018 and 20. 12.2018. However, counsel for the respondents has not been able to satisfy this Tribunal as this Tribunal in OA No.2591/2014 has already adjudicated the similar issue and passed the Order dated 29.4.2014, the relevant part of the said Order reads as under:

"3. Learned counsel for the applicant argued that the respondents had erred in treating Faridabad and Delhi as "same stations". He stated that even the transport allowance rates in the two cities were different. He further relied on the judgment of Hon"ble High Court of Gauhati in the case of Kausik Ranjan Dutta Vs. State of Tripura and Ors., (2006)2GLR 403 in which the following has been laid down:-

"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.

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 : -

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 Organisationsuchas 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."

I have heard both sides and have perused the material on record as well as the relevant Rules. The respondents have relied on Para-5(c)(iii)of HRA Rules, which states that if any spouse has been allotted government accommodation at the "same station" then the other spouse would not be entitled to claim HRA. Same station below this Rule has been defined as follows:-

"Same Station defined."-The phrase, "same station" occurring in Para. 5(c) (iii)includes all places which are treated as contiguous to the qualified city/town in terms of Para. 3(a) (i)and those dependent on the qualified city/town in terms of Paras. 3 (b) (ii)and 3 (b) (iii)and also those places which are included in the Urban Agglomeration of a qualified city."

4.1 Further, I have perused Para-3(a)(i), which the respondents appear to have invoked in this case. The aforesaid Rule is extracted below:-

"The limits of the locality which within these orders apply shall be those of the named Municipality, or Corporation and shall include such of the suburban Municipalities, notified areas or cantonments as are contiguous to the named Municipality or Corporation or other areas as the Central Government may, from time to time, notify."

4.2 A reading of this Rule would make it clear that suburban Municipalities notified areas and cantonments, which were contiguous to the named Municipality or Corporation, were to be treated as same station.

4.3 In the instant case, the application is posted in Delhi whereas the husband of the applicant has been allotted accommodation in Faridabad. Faridabad is not a suburban Municipality contiguous to Delhi. It is a separate Urban Municipality even though it is contiguous to Delhi. It would not be correct to treat Faridabad as a suburb of Delhi as it is a separate District falling in a different State, namely, State of Haryana. Hence, in my opinion, it cannot be treated as "same station" in terms of the above para. The respondents have, therefore, erred in invoking the aforesaid para and withholding the HRA that was being granted to the applicant.

Learned counsel for the applicant has also argued that even if this Court comes to a conclusion that there was justification in stoppage of HRA being paid to the applicant, no recovery of excess HRA being paid to her w.e.f. 01.01.2001 could be made from the applicant as that would be contrary to the law laid down by Hon"ble Supreme Court in the case of State of Punjab and Others etc. Vs. Rafiq Masih (White Washer) etc., (Civil AppealNo.11527/2014,decidedon 18. 12.2014).However, in view of my finding that stoppage of HRA itself was not justified, there is no necessity to invoke this judgment of Hon"ble Supreme Court.

I, therefore, allow this O.A. and quash the order dated 16.10.2012 of the respondents. The respondents are directed to restore payment of HRA to the applicant w.e.f. 01.01.2001 and also pay the consequential arrears. They shall also refund within a period of eight weeks any recovery that has been made from the applicant pursuant to their order dated 16.10.2012. Considering the facts and circumstances of the case, I am not inclined to allow any interest on the amount to be refunded as well as the arrears of HRA. No costs."

In this case also the applicant is impugning the Order dated 7.6.2016 which was passed by the respondents by placing reliance on Para 5(c) (iii) of HRA Rules and also OM dated 20.12.1989, which provides that the "same station" includes contiguous areas and Faridabad is a contiguous area of Delhi. However, since the Coordinate Bench of this Tribunal in the aforesaid case has already adjudicated the similar issue and in the circumstances, we follow the above decision and allow the present OA and quash the order dated 7.6.2016 of the respondents. The respondents are directed to restore payment of HRA to the applicant w.e.f. October 2015 and also pay the consequential arrears. They shall also refund within a period of eight weeks any recovery that has been made from the applicant pursuant to their order dated 7.6.2016. Considering the facts and circumstances of the case, I am not inclined to allow any interest on the amount to be refunded as well as the arrears of HRA. No costs.