Judgment PRATAP KUMAR RAY, J. (1) HEARD the learned advocates appearing for the parties. (2) CHALLENGING the Judgment and order dated 1st February, 2005 passed by the learned Trial Judge in the writ application as moved by the employees of the present appellants claiming their legal right to enjoy their house rent allowance irrespective of their refusal to stay in the accommodation allotted by the present appellants, whereby the learned Trial Judge allowed the writ application directing payments of house rent allowance on the ground that before stopping the house rent allowance they were not heard personally with liberty to decide the issue by hearing the writ petitioner Nos. 2, 3, 4 and 5 because the other writ petitioner No. 6 since was transferred from the concerned area did not urge his grievance in the writ application, this appeal has been filed by, the Company, Coal India Limited, a Government Company along with its officers assailing the said Judgment under appeal. (3) THE fact of the writ application in a nutshell is to this effect. The writ petitioner Nos. 2 to 6 while working in the Executive posts at dankuni Coal Complex situated at Dankuni, District-Hooghly, admittedly was provided with official accommodation. But they sought permission to construct their own houses in the area in question which was granted by the authority and on taking loan from the said Company they constructed their own house and started to live therein by leaving official accommodation with a right of enjoying house rent allowance till the impugned decision of the writ application was taken in the year 1999. By the impugned decisions which were taken in respect of the respective writ petitioners being the decision dated 8th July, 1999, the appellant company refused to pay any house rent allowance as they did not agree to occupy the quarters allotted to them despite the offer letter of such occupation was issued. (4) THE writ application was opposed by filing affidavit-in-opposition by the company and the affidavit-in-reply was filed by writ petitioners. It was the case of the appellant company before the writ Court that in view of the House Rent Allowance Rules as approved by the Board in its meeting dated 8th May, 1972, the clause 3.1 of the said House Rent allowance Rules was applied to pass the impugned decision and clause 6 had no applicability. It was the case of the appellant company before the writ Court that in view of the House Rent Allowance Rules as approved by the Board in its meeting dated 8th May, 1972, the clause 3.1 of the said House Rent allowance Rules was applied to pass the impugned decision and clause 6 had no applicability. It was the further case before the writ Court that since the house rent allowance is in the nature of compensatory allowance, the writ petitioners cannot make any profit from that by claiming house rent allowance despite the fact of providing accommodation to them in companys quarters which they have refused. The learned Trial Judge, however; allowed the writ application on the premises that there was no observance of principle of natural justice by the mode of hearing before cancelling any benefit, namely, house rent allowance as accrued to them and as was being enjoyed by them so long. The impugned decision was quashed by the learned Trial Judge directing that the appellant company would be entitled to decide the issue afresh on hearing the writ petitioners and a reasoned order to be passed to that effect. The learned Trial Judge further directed to release all arrear house rent allowances with effect from 1999 till the date of judgment by easy instalment on fixing the instalment terms. (5) IN this appeal the appellants have taken the points assailing the said Judgment under appeal, namely, 1]. clause 3.1 of House Rent Allowance Rules applicable in the field as it has overriding effect upon the clause 6 thereof and the field activity of clause 3. 1 and clause 6 thereof are completely on different area; 2]. that the company has already constructed houses to accommodate their officers and staff and if those quarters remain vacant, the company will suffer loss; 3]. that for exigency of the work it is the appellant companys decision that all executives should remain in the companys quarters within the nearest vicinity of the factory premises; and 4]. that house rent allowance is in the nature of compensatory allowance and there should not be any profit earning motive by the employees concerned and reliance has been made for such propositions to the Judgment passed in the case Director, Central plantation Crops Research Institute, Kesaragod and Ors. v. M. Purushothaman and Ors., reported in 1995 Supp (4) SCC 633. that house rent allowance is in the nature of compensatory allowance and there should not be any profit earning motive by the employees concerned and reliance has been made for such propositions to the Judgment passed in the case Director, Central plantation Crops Research Institute, Kesaragod and Ors. v. M. Purushothaman and Ors., reported in 1995 Supp (4) SCC 633. (6) THE respondent/writ petitioners have opposed this appeal by urging the following points: i) that in view of the amendment of the rule by Office Memo dated 14th June, 2001, clause (g) of the amended provision has applicability whereby a provision has been made that in the case of surrender of the companys accommodation, the Executives residing in their own houses would be entitled to the house rent allowance and, as such, clause 3.1 as relied upon has no applicability; ii) that decision of an authority under Article 12 always must be reasonable and fair but in the instant case they have acted unreasonably and unfairly. Reliance has been made to the judgment passed in the case State of NCT of Delhi and Anr. v. Sanjeev alias Bittoo, reported in (2005)5 SCC 181 ; iii) that writ application was maintainable for the action impugned which is within the domain of public law due to breach of reasonableness and fairness doctrine; iv) under clause 6 of the House Rent Allowance Rules once the writ petitioners are enjoying house rent allowance due to their stay in their own houses, the same cannot be taken away on the plea of refusal at the present moment to stay in the companys accommodation. (7) HAVING regard to the rival contentions of the parties, in course of hearing, this Court suo motu raised a question on the issue as to whether the House Rent Allowance Rules as being placed for its applicability by both the parties in their respective field of arguments at all is any statutory provision or it is an administrative instruction? and Secondly, if the answer goes in favour of administrative instruction whether writ is maintainable for its enforceability even if there is a breach assumed? this question is framed by this Court for giving an answer by the respective parties as in the pleading such point at all not canvassed. and Secondly, if the answer goes in favour of administrative instruction whether writ is maintainable for its enforceability even if there is a breach assumed? this question is framed by this Court for giving an answer by the respective parties as in the pleading such point at all not canvassed. This Court has the jurisdiction to raise such point suo motu outside of the pleading by framing the additional point in terms of the views expressed by the Apex Court in the case V.K. Majotra v. Union of India, reported in (2003)8 SCC 40 . The parties argued those points for an answer of the aforesaid additional points as framed by this Court. Before adverting to the rival contentions on merit in terms of the pleading of the parties concerned, this Court is of the view that the suo motu question as framed as additional points requires to be addressed first as it goes to the root of the matter about maintainability of the writ application. (8) THE House Rent Allowance Rules as is being called as such by the respective parties, in fact, as it appears from the document as placed is a decision of the Board of Coal India Limited as taken in its meeting dated 8th May, 1972. Though under the title head it has been mentioned as House Rent Allowance 1972 but, in fact, as per our reading it is not a statutory rule but a rule framed by the Board in terms of the power vested to the Board as per Memorandum and Article of Association of coal India Limited. Under the said rule it appears that the pay has been define under clause 4 thereof by identifying the different features which reads such: "4. (a) pay means the basic pay and (i) Deputation allowance, (ii) Special pay. (iii) Non-practising allowance (for doctors) (iv) Personal pay. (v) Charge allowance (for Mini Engineers posted in fields). (vi) Special pay (For officiating in high post of combination). (vii) Acting allowance (for acting in short-term vacancies). (9) ON a bare reading of the definition of pay appears that house rent allowance has not been included therein as such it is not a pay. If it is not a pay, naturally it will be a compensatory allowance in terms of the views expressed by the Apex Court in the case Purashothaman and Ors. (9) ON a bare reading of the definition of pay appears that house rent allowance has not been included therein as such it is not a pay. If it is not a pay, naturally it will be a compensatory allowance in terms of the views expressed by the Apex Court in the case Purashothaman and Ors. (supra) and relied upon by the learned senior advocate, Mr. Gupta, appearing for the appellants. (10) HAVING regard to the very nature of the House Rent Allowance rules as it was framed by the Board of Coal India Limited not in exercise of any statutory power but by the power vested to Board under memorandum and Articles of Association which within the filed of activity under the Company Law, we are of the view that the said House rent Allowance Rules has no statutory flavour and it very well could be considered as administrative order/decision. But since such decision was taken by the Coal India Limited which is a Government Company fully controlled by the Government so far as its finance, management, supervisory action and thereby the Government, namely, Union of India herein has administrative, financial and functional control which is deep and pervasive and not only regulatory in nature, it has satisfied the test of the authority under Article 12 in terms of the Judgment of the Apex Court passed in the case Pradip Kumar Biswas v. Indian Institute of Chemical Biology, a Judgment of 7-Judges Bench reported in (2002)5 SCC 111 , the principle of which has been reiterated by the Apex Court in the case Srikanta v. Basant Rao, reported in (2006)2 SCC 682 . Once the Coal India Limited is identified as an authority under Article 12 of the Constitution of India, naturally its decision even if in its Board meeting is getting a flavour of administrative decision since it creates rights and obligation to the parties which could be the subject matter of judicial review under public law field and, as such, we are of the view that the writ application is maintainable. (11) AS already discussed that the house rent allowance is not a pay but it is a compensatory allowance and, as such, the employees would not be entitled to claim any profit on such issue. This point has already been answered in the case M. Purushothaman and Ors. (11) AS already discussed that the house rent allowance is not a pay but it is a compensatory allowance and, as such, the employees would not be entitled to claim any profit on such issue. This point has already been answered in the case M. Purushothaman and Ors. (supra) by the Apex court by holding that it is a compensation in lieu of accommodation and the same should not be considered as source of profit. As per the view expressed by the Apex Court in the said case it appears that the amount is paid to compensate for the amenities which are not available and provided to the employees and, as such, from the very nature of its componentary factors naturally the moment when such amenities are provided and/or offered the employee cannot claim the same as a matter of right. The relevant paragraph 8 of the said report reads such: "8. HRA would be covered by the definition of compensatory allowance. It is compensation in lieu of accommodation. The definition itself further makes it clear that compensatory allowance is not to be used as source of profit. It is given only to compensate for the amenities which are not available or provided to the employee. The moment, therefore, the amenities are provided or offered, the employee should cease to be in receipt of the compensation which is given for want of it. We wish the Tribunal had perused the definition of pay and "compensatory allowance" given in the fundamental Rules before pronouncing that HRA is a part of the wages or pay and, therefore, cannot be disturbed." (12) ON the aforesaid angle now we have to decide the impact of clause 3.1 and clause 6 on which the parties have advanced their rival arguments as well as clause 2.1 regarding eligibility criteria. The relevant provisions of the said House Rent Allowance Rules, namely, clause 2.1, clause 3.1 and clause 6.1 are set-out hereinbelow: "2.1. These Rules shall cover all employees of the Bharat Coking coal Limited appointed in or working against the Posts sanctioned in the BCCL Executive Cadre provided they have not been allotted residential accommodation owned, controlled or hired by the company. 3.1. An employee who refuses or surrenders accommodation offered to him by the Company shall not be eligible or house rent allowance. 6. 1. 3.1. An employee who refuses or surrenders accommodation offered to him by the Company shall not be eligible or house rent allowance. 6. 1. An employee residing in the house owned by the employee or the employee and his/her wife/husband jointly shall be entitled to the House Rent Allowance as per Rule 5, or the rental value of the house assessed by the Notified Area/cantonment Board/municipality/municipal Corporation, whichever is less". (13) ON a reading of clause 2.1 which is under the heading eligibility it appears that the House Rent Allowance Rules has its applicability only in respect of the employees of the Company who have not been allotted any residential accommodation owned, controlled or hired by the company. This eligibility criterion under clause 2 and subheading 2.1 is a sine qua non or condition precedent of applicability of the House rent Allowance Rules. Hence the said clause 2.1 has its impact for interpretation of clause 6.1 whereby and whereunder exception has been made allowing house rent allowance to the employees concerned residing in their own houses. On a conjoint reading of clause 2.1 and clause 6.1 accordingly it appears that in the event no allotment of residential accommodation is made by the Company providing such accommodation which are owned or controlled or hired by the Company, an employee residing in the house owned by him under clause 6.1 is entitled to claim House Rent Allowance. So clause 6.1 is controlled/limited by eligibility criterion of clause 2.1. Furthermore under clause 3 with the heading limitations, it appears that under sub-clause 3.1 there is a positive and specific condition stipulated that in case of refusal or surrender of accommodation offered to an employee, the employee concerned shall not be eligible for house rent allowance. (14) ON a reading of the entire House Rent Allowance Rules it appears that it has a provision to provide amenities to the employee concerned by way of allotting residential accommodation owned or controlled or hired by the Company but only under the contingency where the residential accommodation could not be provided either owned or controlled or hired by the Company, an employee is entitled to claim house rent allowance who either may reside in his own house or he may reside in a rented house as per private arrangement. The eligibility criteria and the limitations in terms of clause 2.1 and clause 3.1 respectively have narrowed down the independency of clause 6.1, clause 6.1 has no applicability in the absence of fulfilment of eligibility criteria and the limitation clause as aforesaid. Having regard to such, we are of the view that the contention as raised by the learned Advocate for the respondents/writ petitioners that" under clause 6.1 the writ petitioners got an independent right, as per our considered view, is not legally sustainable having regard to clause 2.1 and clause 3.1 aforesaid. Furthermore, as regards the concept of allotment of Companys accommodation, it appears that in course of employment as presence of employees in the proximity of the organisation for smooth running of the organisation is required, employees should reside in official accommodation. Hence if the Company desires that their staff should be provided with accommodation and thereby invest money in constructing and maintaining quarters, it lead us to another factor to determine as to whether the company will suffer any waste if those quarters are not occupied by the staff in one hand and on the other hand house rent allowance is claimed by the staff concerned. That issue has also been dealt with in paragraph 5 of the Judgment passed by the Apex court in the case of M. Purushothaman and others (supra) as relied upon by the learned advocate for the appellants. The relevant portion of paragraph 5 of the said Judgment reads such. "5. It must be remembered in this connection that the Government or the organisation of the kind of the appellant spends huge public funds for constructing quarters for their employees both for the convenience of the Management as well as of the employees. The investment thus made in constructing and maintaining the quarters will be a waste if they are to lie unoccupied. HRA is not a matter of right. It is in lieu of the accommodation not made available to the employees. This being the case, it follows that whenever the accommodation is offered, the employees have either to accept it or to forfeit HRA. The Management cannot be saddled with double liability, viz., to construct and maintain the quarters as well as to pay HRA. This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum. This being the case, it follows that whenever the accommodation is offered, the employees have either to accept it or to forfeit HRA. The Management cannot be saddled with double liability, viz., to construct and maintain the quarters as well as to pay HRA. This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum. " (15) IN the instant case it appears that the appellants have constructed and maintaining the quarters by spending huge amount of money. The appellant Company being a Government undertaking, naturally the amount, as is being spent, is the amount of public exchequer which is also a relevant factor to identify the present issue involved in the appeal. It appears from the respective affidavits filed that the Company already has invested money to construct and maintain the quarters for executives and for exigency of the work, presence of executives in the official accommodation is a must as the nature of the work in the appellant Company is a continuous process industry and it is a hazardous factory within the meaning of the Factories Act. Having regard to such, the point has been taken which is a categorical point on that particular issue, about the necessity of the executives to stay in the official accommodation. Considering that fact also, we are of the view that the executives cannot deny such official accommodation in one hand and on the other hand to claim house rent allowance. House rent allowance, as already discussed, is not a profit but a compensatory in nature and considering the nature of work of the organisation when they have been offered with proper accommodation which they have refused, clause 3.1 immediately got its applicability to refuse further house rent allowance which factor was not properly addressed by the learned Trial Judge. (16) LEARNED advocate for the respondents relying upon the Office memo dated 14th June, 2001 has submitted before us that clause 3.1 got its tampering edge due to clause (g) of the said circular. Office Memo dated 14th June, 2001 reads such. COAL INDIA LIMITED COAL BHAWAN 10 N. S. ROAD, KOLKATA-700001 No. CIL/c-5a (vi)/50727/252 ????????????????????????? Dated June 14, 2001 ??????????????????????? OFFICE MEMORANDUM Sub: - ?? Office Memo dated 14th June, 2001 reads such. COAL INDIA LIMITED COAL BHAWAN 10 N. S. ROAD, KOLKATA-700001 No. CIL/c-5a (vi)/50727/252 ????????????????????????? Dated June 14, 2001 ??????????????????????? OFFICE MEMORANDUM Sub: - ?? Revision of house rent allowance of Board level and Below Board Level executives of coal India Ltd. and its subsidiaries Consequent upon revision of pay scales of Board Level executives and below Board Level executives w.e.f. 01.01.1997 circulated vide CILs OM dated 06.10.2000 & 22/27.09.2000 respectively, the house rent allowance of Board level and below Board Level executives is hereby revised with effect from 01.06.2001 as per clause 9 of OM No. 2/49/98/dpe (WC) dated 25.06.99 at the rates applicable to the Central Govt. employees based on the classified list of cities notified by the Govt. of India and DPEs letter No. 2/ (49)/98-DPE (WC)-GL. XXXIX dated 22.01.2001. Subject to the eligibility as per CIL. House Rent Allowance Rules in vogue the revised rates of House Rent Allowance on the reclassification of cities will be as under until further orders: SL. No. CITIES RATE OF HRA on the REVISED BASIC PAY 1. Kolkata , Mumbai, Delhi , Chennai (A-I Class Cities) 30% 2. Hyderabad , Ahmedabad , Bangalore (A Class Cities) and Chandigarh , Nagpur , Ranchi & All Coalfield areas including Dhanbad Sanctoria Siliguri , Asansol 25% 3. All B 1 cities excluding Nagpur 20% 4. All B 2 cities excluding Ranchi & Chandigarh 15% 5. Sambalpur , Bilaspur and all C class cities 10% b) In case of companys accommodation/leased accommodation provided to the executives, rent recovery on revised pay would be computed from the date of implementation of these guidelines at the percentages in practice before 1/1/1997 or on the basis of standard rent to be fixed by the companies. c) HRA, leased accommodation and rent recovery would be computed on revised basic pay but the amount to be paid or recovered would be from the date of implementation of this order as per the existing rule. d) HRA will be admissible to the executives at the above rates lying in a house owned by him/wife/children/father/mother or on rental basis subject to declaration in the prescribed proforma (Annexure-A). e) HRA at the applicable rate without production of rent receipt will be admissible subject to declaration in the prescribed proforma (Annexure A). d) HRA will be admissible to the executives at the above rates lying in a house owned by him/wife/children/father/mother or on rental basis subject to declaration in the prescribed proforma (Annexure-A). e) HRA at the applicable rate without production of rent receipt will be admissible subject to declaration in the prescribed proforma (Annexure A). f) HRA will be paid to the executives at the above mentioned rates applicable their workplace is situated irrespective to the place of actual stay. g) An executive who refuses or surrenders accommodation offered to him by the company shall not be eligible for house rent allowance except for those executives who surrenders the companys accommodation to reside in the house owned by him/wife/children/father/mother. h) The other clauses of CIL House Rent Allowance Rules will continue to be in force. This issues with the approval of the competent authority. Sd/: s A YUSUF chief GENERAL MANAGER (PERSONNEL)" (17) IT appears from clause (g) aforesaid that the eligibility of house rent allowance even on residing in the own house by the executives is subject to condition of surrendering the companys accommodation. Surrender of companys accommodation pre-supposes a condition for acceptance of the accommodation, stay thereof and thereafter to surrender. In the instant case even on meaning of the said clause (g) by its theoretical application by reading the word "surrender", it has not advanced any case as has been submitted by the learned Advocate for the respondents. It is an admitted position that the writ petitioners executives in terms of the offer allotting companys quarters did not accept the same and as such the result thereof is that there is no question of surrendering of the accommodation in terms of clause (g) as the condition precedent for applicability of the word "surrender" in its true meaning is absent. Besides, the said Office Memo was issued on 14th June, 2001 whereas the impugned decision under challenge in the writ application was dated 8th July, 1999 when the said Office memo dated 14th June, 2001 did not see the light of the day and as such it has no applicability to adjudicate the impugned decision dated 8th July, 1999 impugned in the writ application. (18) THE learned Trial Judge as appears from the Judgment did not reject the contention of the appellant that clause 3.1 has its applicability and as such directed to consider the matter de novo upon hearing the parties and to pass a reasoned decision. The learned Trial Judge allowed the writ application only on the premises that once the writ petitioners were enjoying the house rent allowance, the same cannot be set at naught by official order without giving any opportunity of hearing that means applying the principle of natural justice. With due respect to the learned Trial Judge, we are of the view that the natural justice principle is not such hard and fast that in each and every case it requires to be followed. It is settled law that natural justice principle, Audi Alteram partem vis-a-vis opportunity of hearing, is applicable when any right of the person is affected and/or a person suffers from any civil consequences due to such breach of right in the angle of views passed in the case Mahinder Singh Gill v. Chief Election Commissioner, reported in AIR 1978 SC 851 . Here in this case no legal right has been infringed by the impugned decision of the writ application as house rent allowance is compensatory in nature vide M. Purushothaman (supra). (19) IT appears from the impugned decision of the writ application as the writ petitioners refused to accept the official accommodation, the company appellant applied clause 3. 1 of the said House Rent Allowance rules to pass the impugned decision directing that they are not eligible to claim any house rent allowance and as such there will be deduction of the house rent allowance as already paid. For passing such decision on the face of the House Rent Allowance Rules, we are of the view that there was no need for further hearing. Furthermore, as it appears from the respective affidavits filed before the learned Trial Judge that a positive stand was taken by the Company employer relying upon the house Rent Allowance Rules and as such the issue was considered at length by this High Court. Under such state of affairs, referring of the matter for de novo hearing will be nothing but an academic exercise. Under such state of affairs, referring of the matter for de novo hearing will be nothing but an academic exercise. Before us the parties have argued at length on the applicability of the house Rent Allowance Rules and its impact and in respect of clause 2.1, clause 3.1 and clause 6.1 we have heard the matter and dealt with those issues. As such we are of the view that there is no further necessity to refer the matter back as has been directed by the learned Trial Judge for fresh consideration as the writ petitioners have already been given an opportunity of hearing by us on that particular point and we have decided that issue. (20) LEARNED advocate for the respondents/writ petitioners however urged a basic principle of law about judicial review under the anvil of fairness and reasonableness doctrine. It is submitted that the impugned decision was absolutely unfair and unreasonable. The impugned decision is annexed at page 41 of the Paper Book which reads such. SECL/dcc T. A. Ref. No. SECL:dcc:04:qtr. 199/1348 (T) ???????????? Dated : 08/07/99 ????????????????????????????? OFFICE ORDER In pursuance of the letter No. SECL : BSP:cm (EE):dcc:99:1881 dated 1/2-07-99 Mr. Lakshmanan , Finance Managers hereby allotted quarter No. C-203 at Dankuni Coal Complex Township. You are hereby requested to take possession of the aforesaid quarter within 7 (seven) days time from the date of issue of this letter. Otherwise the allotment order will be treated as cancelled. Payment of house rent allowance will be stopped with immediate effect and deduction of house rent will be effective from the date of physical occupation of the quarter as per rule of the company. This issues with the approval of the competent authority. Sd /: (B. CHATTOPADHYAY) Sr. EE (C)TA (21) ON a bare reading of the Impugned decision it appears on the reflection of clause 2.1, clause 3.1 of the House Rent Allowance Rules that the same cannot be said as unreasonable and unfair decision on the part of the company appellant. (22) IN that view of the matter, the Judgment as relied upon has no applicability in the present case as the appellant company did not act in unfairly or unreasonable manner in deciding the issue. (23) BEFORE parting with the matter, we have to discuss on the issue about the right of the writ petitioners/respondents to claim house rent allowance. (22) IN that view of the matter, the Judgment as relied upon has no applicability in the present case as the appellant company did not act in unfairly or unreasonable manner in deciding the issue. (23) BEFORE parting with the matter, we have to discuss on the issue about the right of the writ petitioners/respondents to claim house rent allowance. It is the writ petitioners/respondents submission that on seeking permission from the company they constructed their house and they are staying there and enjoying house rent allowance. May be the company earlier granted such permission and it also may be that they have constructed their own house, but that does not mean that the company would not be entitled to provide official accommodation to them in terms of eligibility criteria of clause 2.1 aforesaid if such need arise. (24) CONSIDERING the aforesaid findings observations and the affidavits filed before us, we are accordingly of the view that the respondents/ writ petitioners are not entitled to claim house rent allowance once they have refused to occupy the official accommodation as allotted in their favour having regard to the public interest involved in the matter as from the public exchequer the company is expending huge money for maintenance of the residential accommodation meant for the executives. (25) ACCORDINGLY the appeal succeeds. The impugned Judgment and order is set aside and quashed. (26) THE writ application accordingly stands dismissed. Appeal succeeds.