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2022 DIGILAW 52 (CAL)

Chhanda Dutta v. State Of West Bengal

2022-01-14

MOUSHUMI BHATTACHARYA

body2022
JUDGMENT Moushumi Bhattacharya, J. - The petitioner retired as the assistant Headmistress of Balurghat Girls High School upon attaining the age of superannuation on 30th June 2017. The petitioner has challenged a decision of the District Inspector (DI) dated 14th May 2018 by which the petitioner was directed to refund the House Rent allowance (HRa) on the basis of salary drawn in excess. The petitioner also claims a direction on the respondents to release her pensionary benefits along with accrued interest. 2. according to learned counsel appearing for the petitioner, the petitioner had to take accommodation in the building adjacent to the school which was maintained by the school authority and was in the nature of a private arrangement. Counsel submits that the petitioner paid rent to the school for the accommodation. Counsel relies on a resolution of the Managing Committee dated 26th February 2009 which decided that the teachers who opted to stay at the Teachers Hostel would have to pay for the maintenance and renovation including electricity charges. Counsel places a letter of the President of the School dated 24th September 2016 which informed that HRa would be deducted from all those residing in the school hostel. Counsel relies on 2 unreported decisions of this Court to submit that the impugned decision of the DI cannot be legally permitted since such decision was taken long after the petitioner retired from the School. 3. Learned Counsel appearing for the State opposes the prayers in the Writ Petition on the ground that the petitioner used to live in the accommodation constructed and maintained by the Government and denies that the said building was maintained by the school authority. Counsel submits that the issue involves disputed questions of fact which cannot be entertained in a writ jurisdiction. Counsel relies on Director, Central Plantation Crops Research Institute, Kesaragod & Ors. Vs. M. Purushothaman & Ors.; 1994 Supp (3) SCC 282; for the proposition that HRa is a compensatory allowance and cannot be used as a source of profit. 4. I have heard learned counsel appearing for the parties. The documents disclosed in the writ petition must first be mentioned. It should also be pointed out that the State did not file any affidavit in opposition to the writ petition. 4. I have heard learned counsel appearing for the parties. The documents disclosed in the writ petition must first be mentioned. It should also be pointed out that the State did not file any affidavit in opposition to the writ petition. The issue which falls for decision is whether the petitioner is entitled to House Rent allowance by reason of the nature of accommodation enjoyed by the petitioner while she was serving in the concerned school. 5. The undisputed fact is that the petitioner paid rent for the accommodation provided by the school which would be evident from the rent receipt annexed to the petition. The documents are described as 'Rent Receipt for School Quarter' including those from October 1999 onwards. The records of House Rent paid by the teachers include the name of the petitioner. The letter of the Headmistress of the School dated 3rd October 2016 states that costs of repair of the school hostel were recovered from the teachers who stayed in the premises vide Resolutions of the Managing Committee dated 14th September 2007 and 26th February 2009. The letter further states that HRa has been allowed in entirety to such teachers and that two teachers have got their pension without any issue being raised about HRa. The aforesaid letter has been referred to by the DI in the letter dated 21st December 2016 in which the DI has admitted that he is unable to decide on the issue of HRa to the petitioner since documents pertaining to the nature of the land could not be traceable. The DI admits that maintenance and other charges of the hostel were borne by the teachers and most important, that the hostel building is the property of the school. The DI also advises that the HRa may be treated as overdrawal and adjusted accordingly. 6. a letter from the Deputy Director of School Education dated 24th October 2017 (signed on 18th October 2017) states that recovery of HRa was justified on the ground that the petitioner occupied government accommodation. another letter dated 16th March 2018 from the Joint Secretary, School Education Department notes that the Headmistress of the School produced copies of the different deeds of the land at different plots of the school. another letter dated 16th March 2018 from the Joint Secretary, School Education Department notes that the Headmistress of the School produced copies of the different deeds of the land at different plots of the school. The said letter curiously mentions that as per the existing policy of the Government, an incumbent cannot draw 'full HRa' if she is given accommodation by the school authority. There is no reference to the relevant rule or notification of the Government in the letter and the expression 'full HRa' raises a doubt as to whether the petitioner can be deprived of her entire HRa altogether. It should also be noted that the Joint Secretary, School Education Department, directed the Head Mistress to finalise the pension case of the petitioner immediately despite which the petitioner has remained deprived of her pension dues till date. 7. The impugned order dated 24th april 2018, which is under challenge in this writ petition, notes that the ownership of the land where the Teachers Hostel is located is in dispute. The DI describes the documents placed before him but proceeds to deduce that since the genuineness of the documents were not in dispute, '..it may be said that the land is actually under the ownership of the school management and on the said ground..' the petitioner was directed to refund the excess drawn salary pertaining to HRa. 8. The impugned order does not come to any definitive conclusion that the petitioner occupied the premises which was owned by the Government or was on Government land. The documents referred to are not placed as evidence of the petitioner residing in a hostel which had no connection with the school. In fact, the DI states that the premises was under the ownership of the school management. There is no causal connection with this observation and the petitioner having to refund the HRa. The impugned order suffers from an absence of cogent and decipherable conclusions which would entitle the authority to deprive the petitioner of the HRa. There is no reference to the resolutions of the school management or the evidence showing that the petitioner had paid for the maintenance and repair charges of the hostel for a substantial length of time which was accepted by the School. There is no reference to the resolutions of the school management or the evidence showing that the petitioner had paid for the maintenance and repair charges of the hostel for a substantial length of time which was accepted by the School. The decision of requiring the petitioner to refund the excess amount drawn is also directly against the decision of the Supreme Court as discussed in the next paragraph. Significantly, the point of the petitioner not being entitled to HRa was not taken by the concerned respondents during the entire service tenure of the petitioner and specifically during the period of occupying the accommodation adjacent to the school. It is also to be noted that the petitioner drew HRa in part from april, 1997 to January, 2007 and again from april, 2009 to September, 2016, which could appear from the tabular statement made in paragraph 4 of the writ petition. 9. adhir Kumar Jana Vs. The State of West Bengal in W.P. 22171 (W) of 2018 assists the case of the petitioner since the decision relied on State of Punjab Vs. Rafiq Masih; (2015) 4 SCC 334 where the Supreme Court held that recovery of excess payments from employees who have retired from service or were close to retirement would not be permissible in law. Paragraph 18 of Rafiq Masih laid down the instances where the recovery would not be permissible in law and included recovery from retired employees or who are due to retire within 1 year and any other case where the Court concludes that recovery would be harsh or iniquitous. at least two of the conditions in paragraph 18 of Rafiq Masih are squarely covered in the facts of the present case. Hence the impugned order directing recovery from the petitioner who retired 9 months before the impugned order was passed would be harsh and arbitrary and would outweigh the balance of the respondent's right to recover. The petitioner is also covered by the particular clause in the judgment which makes recovery from employees where the excess payment has been made for a period over 5 years, impermissible in law. as stated earlier in this judgment, the petitioner received HRa, in part, from april, 1997 to January, 2007 and again from april, 2009 to September, 2016. The petitioner is also covered by the particular clause in the judgment which makes recovery from employees where the excess payment has been made for a period over 5 years, impermissible in law. as stated earlier in this judgment, the petitioner received HRa, in part, from april, 1997 to January, 2007 and again from april, 2009 to September, 2016. Payment of maintenance and repair charges by an incumbent for occupation of a premises directly goes against the very concept of house rent allowance, which is seen as compensation for opting out of accommodation provided by the Government. 10. In view of the above reasons, this Court is inclined to allow the writ petition and set aside the impugned order dated 14th May 2018. It is unthinkable that the petitioner, who retired from the School as assistant Headmistress with effect from 1st July 2017, is still to get her retirement benefits. The respondents are accordingly directed to release the pensionary and other retirement benefits to the petitioner along with accrued interest within 8 weeks from the date of this Judgment without any further delay. 11. W.P.a. 8794 of 2019 is disposed of in terms of the above. Urgent Photostat certified copy of this Judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.