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2020 DIGILAW 15 (CAL)

Dipak Karmakar v. State Of West Bengal

2020-01-03

RAJASEKHAR MANTHA

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JUDGMENT 1. Affidavit-in-opposition filed be taken on record. Sufficient grounds have been made out for the absence of the writ petitioner on 10.12.2018. Hence, the order is recalled and the writ petition is restored to its original file and number. Accordingly, CAN 10372 of 2018 is allowed. 2. The writ petitioner has retired from the service of one S. M. Nagar Derozio Smriti Vidyalaya (High), a sponsored institution. The petitioner has always been residing in a lower income group housing facility provided to his father who was not a government employee. The writ petitioner continues to occupy such quarters even today. 3. Admittedly, the petitioners father was enjoying housing facility under the lower income group housing scheme of the Government of West Bengal and paid subsidized rent. 4. The writ petitioner retired in the year 2018. The School Authorities proposed to recover the House Rent Allowance paid to the writ petitioner as a pre-condition for release of his terminal dues. 5. The contention of the State is inter alia that in terms of the Government Order No. 10826-F dated 18.11.2002 issued by the Government Housing Department, the House Rent Allowance is not permissible to an employee residing in an accommodation allotted to his parents, by the State Government or Central Government or other autonomous Bodies etc. 6. The writ petitioner would argue that since his father was not a government employee, the said Circular cannot be invoked against him and the proposed recovery of House Rent Allowance would be improper and illegal. 7. This court has considered the affidavit-in-opposition as also the impugned order dated 12.04.2014 and the Circular dated 18.11.2002. A further clarification came to be issued by the State in a writing communicated to all the Government Departments concerned on 18.11.2002 that if an employee shares government accommodation and resides in accommodation allotted to his parents by the State Government or Central Government or other autonomous Bodies etc, is not entitled to House Rent Allowance. 8. This court has carefully considered the materials facts and is of the view that the principal object of the Circular of denying House Rent Allowance to a person when such employee is residing with his parents in a Government accommodation is to prevent a double benefit from accruing to such employee. 9. 8. This court has carefully considered the materials facts and is of the view that the principal object of the Circular of denying House Rent Allowance to a person when such employee is residing with his parents in a Government accommodation is to prevent a double benefit from accruing to such employee. 9. A person cannot on one end avail the benefit given to his father of subsidized government accommodation and also in the same breath, claim, House Rent Allowance. 10. In the instant case, one must also note that the writ petitioner first declared by affidavit on 11.09.2018 that he is a permanent resident of the address of his father. The said address is Flat 14, Block U, S. M. Nagar Housing Estate. The house is on subsidized rent since 1978 under a housing scheme for the lower income group and the Government is the landlord. 11. In addition to that, in an online application made to the School authorities, the writ petitioner had himself suppressed the fact that he is living in government accommodation that was originally allotted to his father. He has only stated that he is living with a relative. 12. In the above circumstances and the given object and purpose of the House Rent Allowance, this court is of the view that since the petitioner continues to reside with his father in the accommodation provided by the government by the State Government at a subsidized rate, the petitioner indeed got a double and illegal benefit amounting to unjust enrichment. 13. It is not relevant in the instant case that the petitioners father was not a government employee. This court is mindful of a decision of the Hon'ble Supreme Court in the case of State of Punjab vs. Rafiq Masih reported in 2015 (4) SCC 334 . Paragraphs 7, 8 and 9 of the said judgment is set out hereunder. '7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to the employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, 'for doing complete justice in any cause' would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality can be found in Articles 14 to 18 contained in Part III of the Constitution of India, dealing with 'fundamental rights'. These articles of the Constitution, besides assuring equality before the law and equal protection of the laws, also disallow discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracised section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39-A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the 'directive principles of State policy'. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39-A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the 'directive principles of State policy'. These articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justicesocial, economic and political, by inter alia minimising monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.' 14. While it is true that it is at paragraph 18 of the said judgment that the Hon'ble Supreme Court has summarized the instances where the recovery of the excess amounts paid would be unjust and impermissible, one has to read the judgment as a whole. The principle that emerges from such judgment is that if the benefit has been availed by the government servant by the suppression of material facts and/or a miss-statement thereof which includes a half truth, the State would definitely be entitled to recover the said sum of money from the employee concerned, even post retirement. 15. In facts of the case, one must also bear in mind that the petitioner was an Assistant Teacher in a School and his salary and allowance including pension are reasonable enough. There is no undue hardship to the petitioner. 16. In such circumstances, this court is not inclined to interfere with the impugned order dated 12.04.2018. The State shall be entitled to recover HRA wrongfully obtained by the petitioner as a pre-condition for release of pensionary benefits to him. 17. In view of the above observations, the instant writ petition must fail and is hereby dismissed. There will be no order as to costs. Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.