2022 (8) TMI 306 - HC - Indian Laws

Recovery proceedings - recovery of excess HRA paid to the officers posted at Indore to look after the work of ISEZ - denial of natural justice - no enquiry was conducted and no show-cause notice was given - as submitted assessee were entrusted the work of ISEZ, Indore which made them entitle to get HRA @ 20% - HELD THAT - Undisputedly, before making such recovery, no enquiry was conducted and no show-cause notice was given to the respondents. It is also not the case of petitioners / Department that respondents made any misrepresentation or fraud for getting HRA @ 20%. So far as the entitlement of HRA @ 20% is concerned, the respondents have filed various appointment orders (Annexure-A/2) to show that they were given the additional charge of ISEZ, Indore and some of them were regularly posted for three years and the same has not been disputed by the petitioners. The respondents obtained an information through RTI that Audit Memo No.12 on the subject of 'Review of HRA' which is reproduced in paragraph 7 of the impugned order, according to which Custom Officers posted at Pithampur who are also looking into the work of SEZ located at Indore and also some portion of ISEZ located at Indore that has made them entitled to get HRA at higher HRA despite their regular posting at Pithampur. If the petitioners are disputing the entrustment of respondents' additional work of ISEZ then an enquiry ought to have been conducted to verify the facts that at the relevant point of time they were posted or not. As observed above, it was an account section of the petitioners who paid HRA @ 20% to the respondents, therefore, the Central Administrative Tribunal has rightly set aside the recovery. Also as argued that respondents gave an undertaking at the time of grant of HRA. It is correct that the undertaking binds them, not to object the recovery if excess amount found to be paid without entitlement. Once the Tribunal has held that the respondents were entitled to get HRA @ 20% and the amount cannot be recovered then undertaking has no effect. We do not find any reason to entertain this writ petition.

Summary

Issues:
1. Violation of principle of natural justice in recovery process.
2. Entitlement of House Rent Allowance (HRA) at 20% for Preventive Officers.
3. Lack of enquiry before recovery process.
4. Dispute over additional work entrusted to Preventive Officers.
5. Effect of undertaking given by respondents.

Issue 1: Violation of principle of natural justice in recovery process
The petitioners challenged the Central Administrative Tribunal's order allowing the recovery of excess House Rent Allowance (HRA) from Preventive Officers without providing them with an opportunity to be heard. The Tribunal set aside the recovery, emphasizing the lack of a hearing before initiating the process. The High Court noted that no misrepresentation or fraud was alleged by the Department against the respondents. The Court observed that no enquiry was conducted before the recovery, and no show-cause notice was issued to the respondents, leading to a violation of the principle of natural justice.

Issue 2: Entitlement of House Rent Allowance (HRA) at 20% for Preventive Officers
The dispute centered around the entitlement of Preventive Officers to receive HRA at 20% while posted at Pithampur, despite it not being classified as a city under X and Y categories. The Central Administrative Tribunal found that Preventive Officers, in addition to their regular posting at Pithampur, were entrusted with work at ISEZ, Indore, justifying their entitlement to HRA at 20%. The Tribunal set aside the recovery based on this finding. The High Court upheld the Tribunal's decision, noting that the respondents provided appointment orders demonstrating their additional responsibilities at ISEZ, which were not disputed by the petitioners.

Issue 3: Lack of enquiry before recovery process
The High Court highlighted that no enquiry was conducted by the Department before initiating the recovery of excess HRA from the Preventive Officers. The Court emphasized that the respondents had submitted evidence supporting their entitlement to HRA at 20% due to their additional duties at ISEZ, Indore. The lack of an enquiry to verify the facts regarding their postings and responsibilities was considered a procedural flaw in the recovery process.

Issue 4: Dispute over additional work entrusted to Preventive Officers
There was a dispute regarding the additional work entrusted to the Preventive Officers at ISEZ, Indore, justifying their entitlement to HRA at 20%. The Court noted that the Department did not dispute the fact that the Preventive Officers were assigned responsibilities at ISEZ. The absence of a formal enquiry to confirm the nature and duration of their additional work was highlighted as a deficiency in the Department's actions, leading to the dismissal of the recovery process.

Issue 5: Effect of undertaking given by respondents
The petitioners argued that the respondents had given an undertaking at the time of receiving HRA, agreeing not to object to any recovery if excess payments were made without entitlement. However, the High Court held that since the Tribunal had determined that the respondents were entitled to HRA at 20%, the undertaking had no bearing on the recovery process. The Court dismissed the argument regarding the undertaking, emphasizing the respondents' entitlement to the allowance based on their additional duties at ISEZ, Indore.

In conclusion, the High Court dismissed the writ petition, upholding the Central Administrative Tribunal's decision to set aside the recovery of excess House Rent Allowance from the Preventive Officers. The Court emphasized the importance of following principles of natural justice, conducting enquiries before recovery actions, and recognizing entitlements based on additional responsibilities assigned to employees.