Chhanda Dutta vs The State Of West Bengal & Ors
2022 Latest Caselaw 80 Cal

                       IN THE HIGH COURT AT CALCUTTA
                       CONSTITUTIONAL WRIT JURISDICTION
                                    APPELLATE SIDE

Present:
The Hon'ble Justice Moushumi Bhattacharya

                                    WPA 8794 of 2019
                                     Chhanda Dutta
                                              Vs.
                           The State of West Bengal & Ors.

For the Petitioner                   : Mr. Ekramul Bari, Adv.
                                      Mr. Siddhartha Sankar Mondal, Adv.
                                      Mr. Tanuja Basak, Adv.
                                      Md. Imtiaz Uddin, Adv.

For the State                        : Ms. Chaitali Bhattacharya, Adv.
                                      Mr. Subhendu Roychoudhury, Adv.

Last Heard on                        : 22.12.2021.

Judgment on                          : 14.01.2022.

Moushumi Bhattacharya, J.

1. 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. 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. 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. 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. 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.

(Moushumi Bhattacharya, J.)