Ex. Hav. Jagdamba Prasad vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 794 Del

JUDGMENT

S.N. Aggarwal, J.

1. Ex-Hav. Jagdamba Prasad, a Combatant in the Indian Army was posted to No. 7, Delhi Bn NCC, B-6 Safdarjung Enclave, New Delhi on 20.11.1997 and he remained posted there till 28.6.2000. On 20.11.1997, he was permitted by Station Headquarters, Delhi Cantt. (an office under respondent No. 2) to live with his family at the duty station i.e Delhi under his own arrangement and claim compensation in lieu of quarter (in short CILQ). Pursuant to the said sanction granted to him, he hired a private accommodation at Delhi and resided therein with his family i.e wife and two children out of total four children from 1.5.1998 to 30.6.2000. The petitioner was allowed reimbursement @ Rs.2100/- per month on account of CILQ vide sanction granted by the Station Headquarter, Delhi on 19.8.1998. Pursuant thereto he was paid CILQ @ Rs.2100/-per month from 1.5.1998 to 30.6.2000. The petitioner retired from the Army service while he was posted in 7 Delhi Bn NCC on 31.7.2000. At the time of final settlement of his accounts, a sum of Rs.41,340/- was deducted by Assistant Controller, defense Accounts (an office under Respondent No. 3) without any prior notice to him. The petitioner made representations to the concerned authorities for refund of amount of Rs. 41,340/- erroneously recovered from his retiremental dues but the same was of no avail. The petitioner has, therefore, filed this writ petition seeking a writ of mandamus to the respondents directing them to refund Rs.41,340/- erroneously recovered by them from his retiremental dues. The petitioner has also made a prayer for award of interest at 9% p.a on the afore- mentioned amount.

2. The respondents in the counter affidavit filed on their behalf, have tried to justify the recovery of Rs.41,340/- from the retiremental dues of the petitioner on account of CILQ for the period from 1.5.1998 to 30.6.2000 stating that the said recovery was based on two contradictory station orders issued by the Station Headquarter, Delhi Cantt. on the same day i.e 220/Gen/CILQ/Q- 5, dated 19.8.1998 with the certificate that the family was staying with the individual and other staying at their native place.

3. It is contended that the two contradictory certificates and two station orders of the same date was the reason to recover the CILQ difference of Rs.1590/- p.m i.e (2100/- for CCAI less rupees 510 for CCOTH). In the counter affidavit the respondents have also pointed out the discrepancy in the complaint dated 14.5.2002 addressed by the petitioner to respondent No. 3 and his representation dated 10.10.2003 addressed to Chief of Army Staff. It is stated that in his complaint dated 14.5.2002 addressed to respondent No. 3, the petitioner had stated that he was actually residing with his family at New Delhi w.e.f 20.11.1997, whereas in his representation dated 10.10.2003 addressed to Chief of Army Staff he has admitted that he actually stayed with his family at Delhi for the period from 19.8.1998 to 28.6.2000. It is contended that the above discrepancy was brought to the notice of record office, GRC on 8.12.2003 with a request for investigation of the matter by the competent authority. It is further contended that the petitioner had claimed children education allowance (CEA) from 1.5.1998 to 30.6.2000 though as per certificate furnished from the OC Unit the children education allowance was admissible only to those individuals who are compelled to send their children to a school away from the station at which they were posted and/or residing owing to the absence of school of requisite standard at that station. On this basis, it was said that the petitioner was staying away from his family and had claimed CEA for two children.

4. We have heard the arguments advanced by the learned Counsel for both the parties and have also perused the original record of the case requisitioned from the respondents.

5. The learned Counsel for the petitioner had argued that the respondents could not have deducted Rs. 41,340/- on account of difference of CILQ from retiremental dues of the petitioner because the competent authority of the respondents had granted prior permission to the petitioner vide Office Order dated 20.11.1997 (Annexure P-1) to live with his family under his own arrangement and to claim CILQ. The learned Counsel had also relied upon sanction order passed by the Commanding Officer at 7 Delhi Bn NCC by which Rs.2100 per month was sanctioned as CILQ to the petitioner w.e.f 20.11.1997. It was argued that the petitioner was getting CILQ @ Rs.2100 per month till 30.6.2000 without any objection in regard to the same being taken by anybody till he retired from the service. It was submitted that the action of the respondents in deducting the aforementioned amount from the retirmental dues of the petitioner was wholly arbitrary and unjustified.

6. On the other hand, the learned Counsel for the respondents had half- heartedly argued that the alleged recovery was made from the retiremental dues of the petitioner because of two contradictory sanction orders passed by the competent authority on 20.11.1997, one permitting CILQ at rates applicable to Delhi and the other at rates applicable to other cities. It was not disputed during arguments that while the petitioner was posted in 7 Delhi Bn NCC from 20.11.1997 to 30.6.2000, he had stayed at the station of his posting at Delhi with his family from 1.5.1998 to 30.6.2000. It was also not disputed that the petitioner had made several representations against deduction of Rs.41,340/- from his retiremental dues before filing of the present writ petition. On perusal of the original record it transpired that the deduction in question was made by PAO (Ors.) Brigade of the Guards, Kamptee (Maharashtra). The Accounts Officer (in charge), PAO (Ors.) vide its letter dated 8.12.2003 addressed to the SRO, Records, Brigade of the Guards, Kamptee (MS) had requested for thorough investigation of the matter by the competent authority in the light of frequent representations made by the petitioner. The Record Officer, Capt. B.P.Singh vide his letter dated 1.12.2003 in turn wrote to 7 Delhi Bn NCC for investigating the matter regarding deduction of CILQ from the retiremental dues of the petitioner as directed by CGDA, New Delhi. Pursuant to this request of the Record Officer, the matter was thoroughly investigated by the Commanding Officer of the Battalion where petitioner was posted at the relevant time who after investigation sent the investigation report to the CGDA and also to the record Brigade of the Guards, Kamptee. In the said investigation report, copy of which we have perused from the original record, it was candidly said that it was due to oversight, station orders published by Station Headquarter, Delhi Cantt. and stated that the individual is allowed to draw CILQ @ other cities and accordingly asked the PAO authorities to immediately refund the amount of Rs.41,340/- recovered from the retiremental dues of the petitioner. Strangely enough despite investigation report sent to the PAO Office by the Commandant 7, Delhi Bn NCC, the amount was not refunded to the petitioner by the office of respondent No. 3. This shows a complete lack of sensitivity on the part of those who dealt with the matter of the petitioner relating to his refund from his retiremental dues. Such a casual approach on the part of the Govt. authorities is not expected. It is borne out from the record that the deduction was made from the retiremental dues of the petitioner without giving him any opportunity to show cause as to why the said deduction be made from his retiremental dues. Admittedly no show cause notice was given to him before effecting the said recovery. Hence, we are of the view that the recovery made by the respondents from the retiremental dues of the petitioner was a complete negation of the principles of natural justice and the same cannot stand the test of judicial scrutiny.

7. For the fore-going reasons, we allow this writ petition and direct the respondents to immediately refund Rs.41,340/- to the petitioner with interest @ 9% to be reckoned with effect from the date the same was deducted from the retiremental dues of the petitioner. However, the respondents shall be at liberty to initiate appropriate proceedings after serving the petitioner a show cause notice in case any wrong payment on account of compensation in lieu of quarter was made to him during his posting at Delhi from 20.11.1997 to 30.6.2000. This writ petition stands disposed of accordingly with no order as to costs.