2022 (12) TMI 61 - HC - Indian Laws

Seeking release/recovery of HRA - no opportunity of hearing was given before starting recovery proceedings - entrustment of respondents' additional work of ISEZ - requirement to conduct an enquiry for making such recovery - 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. 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. Lastly, Shri Sudhanshu Vyas, has 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 - there are no reason to entertain this writ petition. Petition dismissed.

Summary

Issues involved:
Challenge to order allowing recovery of House Rent Allowance (HRA) from Preventive Officers posted at Pithampur and Indore SEZ without opportunity of hearing and based on entitlement to HRA at 20% for work at ISEZ.

Analysis:

1. Violation of Natural Justice:
The petitioners challenged the recovery of HRA from Preventive Officers without providing an opportunity of hearing. The Central Administrative Tribunal (CAT) found that no enquiry was conducted before recovery and no show-cause notice was given to the respondents. The petitioners did not allege any misrepresentation or fraud by the respondents in claiming HRA at 20%. The CAT set aside the recovery due to the lack of natural justice, as confirmed by the High Court.

2. Entitlement to HRA at 20%:
The respondents argued that they were entitled to HRA at 20% due to their additional work at ISEZ, Indore, despite regular posting at Pithampur. The CAT considered the issue of entitlement and found that the respondents had been given additional charge of ISEZ work, supported by appointment orders. The High Court noted that the respondents had fulfilled the requirements for higher HRA based on their duties at ISEZ, which were not disputed by the petitioners.

3. Enquiry Requirement for Recovery:
The petitioners contended that an enquiry should have been conducted before initiating recovery, as the respondents were regularly posted at Pithampur with temporary assignments at ISEZ. The High Court emphasized the need for an enquiry to verify the facts regarding the respondents' work assignments and entitlement to higher HRA. The absence of such an enquiry was a key factor in the decision to dismiss the writ petition.

4. Effect of Undertaking:
The petitioners argued that the respondents had given an undertaking regarding HRA payments, limiting their ability to object to recovery. However, the High Court held that once the Tribunal determined the respondents' entitlement to HRA at 20%, the undertaking became irrelevant. The Court found no basis to entertain the petition based on the validity of the undertaking in light of the entitlement decision.

In conclusion, the High Court dismissed the writ petition, upholding the CAT's decision to set aside the recovery of HRA from the Preventive Officers. The judgment emphasized the importance of natural justice, entitlement based on work assignments, the necessity of an enquiry before recovery, and the impact of undertakings in such cases.