Surinder Singh vs Guru Harkishan Public School
2009 Latest Caselaw 832 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) NO. 18673/2006

%                        Date of Decision: 16.03.2009

SURINDER SINGH                                               .... Petitioner

                         Through Mr. Vineet Bhagar, Advocate

                                     Versus

GURU HARKISHAN PUBLIC SCHOOL                                 .... Respondents

                         Through Mr. I.S. Bakshi, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                                 YES
2.    To be referred to the reporter or not?                       NO
3.    Whether the judgment should be reported in
      the Digest?                                                   NO


V.K.SHALI, J. (Oral)

1. With the consent of the parties, the writ petition is disposed

of with the following observations and directions.

2. The following prayers have been made in the writ petition:

"i) Issue a writ of certiorari or any other writ or direction, directing the respondents to allow the petitioner to join his duties with immediate effect and pay him salary as per law.

ii) Issue a writ of certiorari or any other writ or direction, directing the respondents to not to dispossess the petitioner by extralegal measures and either allow the petitioner to retain the rent free accommodation

provided to him or rehabilitate him by making an arrangement for an alternative accommodation.

iii) Issue a writ of certiorari or any other writ order or directions, directing the respondents to pay the arrears of HRA to the petitioner w.e.f. January 2004 along with interest @ 18% p.a.

iv) Issue a writ of certiorari or any other writ order or directions, directing the respondents to pay proper arrears of pay to the petitioner for the period of nearly 10 years (i.e. 30.04.1993 to 08.07.2003) during which he was under wrong and illegal suspension along with interest @ 18% p.a.

v) Issue a writ of certiorari or any other writ order or directions, directing the respondents to refund the illegal deduction of an amount equal to HRA of 6 months (i.e. from January 2004 to June 2004) to the petitioner along with interest @ 18% p.a.

vi) Issue a writ of certiorari or any other writ order or directions, directing the respondents to pay litigation costs to the petitioner.

vii) Impose exemplary costs against the respondents for there, illegal, malafide and arbitrary actions.

viii) Pass any other order as this Hon'ble Court may deem fit and proper, in the facts and circumstances of the case.

ix) Award the costs."

3. The first prayer of the petitioner is with regard to the joining

of his duties with immediate effect and direction to pay him the

salary as per law does not survive on account of the fact that the

learned counsel for the petitioner has admitted that in pursuance

of the settlement arrived at before the learned Labour Court on 8 th

July, 2003, the petitioner has already joined the duty as a Driver

with the respondent school on 9th July, 2003 and is receiving his

salary.

4. The second prayer of the petitioner is that he should not be

dispossessed by extralegal measures and that he should be

permitted to retain the rent free accommodation provided to him

or alternatively he may be given an alternative accommodation.

The prayer No. (iii) and (v) are connected to this prayer inasmuch

as in prayer No. (iii) the petitioner is claiming a payment of arrears

of HRA w.e.f. January, 2004 along with an interest @ of 18% and

in prayer (v) the petitioner, is claiming the refund of the alleged

illegal deduction of HRA for a period of six months starting from

January, 2004 to June, 2004 along with an interest of 18% per

annum.

5. With regard to these prayers, I have heard the learned

counsel for the parties. There is no dispute that the petitioner is

in possession of one room which he is claiming to be without any

basic amenity. It is contended by the learned counsel for the

respondent/school that the petitioner has trespassed into the said

room somewhere around June, 1993 when he was put under

suspension. Be that as it may, the fact remains that as on date

the petitioner is admittedly in occupation of a room in the

respondent/school. The grievance of the petitioner is that the he

may not be dispossessed by the respondents through extra legal

means. The learned counsel for the respondents has assured this

Court that the petitioner will not be dispossessed except in

accordance with due process of law from the room in question or

unless and until the petitioner voluntarily hands over the vacant

and peaceful possession of the room in question to the officials of

the respondents.

6. The contention of the petitioner that the said room was in

his occupation in the capacity of a rent free accommodation is not

supported by any documents placed on record. The letter of

appointment which has been placed on record also does not

support that the petitioner was to be given the rent free

accommodation as a condition of his service.

7. On the contrary, the respondents in their counters affidavit

have specifically stated that according to the terms and conditions

of appointment of the petitioner, he was not to be provided with

rent free accommodation at the time of his appointment, i.e. 23 rd

July, 1990. It is further alleged by the respondents in the counter

affidavit that the petitioner was denied the benefit of HRA from

January, 2004 on account of the fact that he was in occupation of

an accommodation of the respondent/school to which he was not

entitled. With regard to the factum of the petitioner having been

actually paid the HRA for the period of six months, i.e. July, 2003

to December, 2003 it is stated that this was on account of

inadvertent mistake in calculating of his salary and the same has

been subsequently rectified.

8. I have gone through the record. I am satisfied that the

petitioner has not been able to substantiate his plea by any

documentary evidence on record to show that the petitioner was

entitled to a rent free accommodation as an incident of job, nor

has he been able to show that even if he was to be given the

accommodation by the respondents, though allegedly without any

amenity, he was entitled to HRA.

9. I am of the view that the respondents were well within their

right to deny the HRA to the petitioner as he was in occupation of

an accommodation of the respondent, though how so ever

insufficient or ill-equipped, it may be. Therefore, this prayer of the

petitioner that he is entitled to arrears of HRA for the previous

period is untenable in law and cannot be allowed. The learned

counsel for the petitioner has contended that the petitioner would

not like to vacate the accommodation. If the petitioner does not

intend to vacate the accommodation provided by the respondent

then he will not be entitled for HRA. As and when, the petitioner

vacates the accommodation in his occupation and hands over the

possession of the premises to the respondent/school, the

respondent shall release the HRA to the petitioner as is admissible

in accordance with law.

10. The another connected prayer made is with regard to refund

of illegal deduction of an amount equal to HRA of six months from

January 2004 to June 2004. It is claimed by the petitioner that

the refund of HRA along with 18% of interest rate is also not

admissible to the petitioner, on account of the fact that once the

learned counsel for the petitioner has conceded to the fact that the

petitioner will not claim HRA for the period for which he remains

in occupation of the accommodation belonging to the respondent,

the prayer of the petitioner for release of the so called illegal

deduction of an amount equal to HRA for a period of six months

from January, 2004 to June 2004 is also not admissible.

Accordingly, the said prayer is also disallowed.

11. The prayer clause no. (iv) with regard to payment of arrears

to the petitioner for a period of nearly 10 years starting from 30 th

April, 1993 to 8th July, 2003 and further direction to the

respondents to pay the litigation cost to the petitioner.

12. As claimed in prayer (vi) with regard to the payment of

arrears for the aforesaid period of 30th April, 1993 to 8th July,

2003, it is stated that the petitioner himself arrived at a

settlement on 8th July 2003 in terms of which he has given up all

his rights to claim arrears of pay and maintenance in lieu of Rs.

20,000/- to be paid to the petitioner on 9th July, 2003 or within

two or three days thereafter. The said amount has been paid by

the management to the petitioner though it has been claimed by

the petitioner it was paid belatedly. The payment of Rs. 20,000/-

having been made to the petitioner, the prayer of the petitioner for

direction to release the arrears is totally unsustainable and this

will be contradictory to the settlement arrived at by him.

13. The prayer clause no. (vi) with regard to the payment of

litigation cost also, it was open for the petitioner to make a prayer

to the Labour Court which passed the award for payment of cost.

Since neither the prayer was made nor the cost has been given by

the learned Labour Court, it is totally unjustified to claim such a

direction from the writ Court for the payment of the cost in respect

of litigation incurred by the petitioner before the learned Labour

Court. Accordingly, this prayer is also disallowed.

14. The prayer No. (vii) of the petitioner for the payment of

exemplary costs for illegal, malafide and arbitrary action. This

prayer is also totally unjustified. I feel that no such prayer can be

allowed for payment of cost on account of the action been taken

by the respondent of which according to him arbitrary or malafide

though according to the view of the Court this was an award

which was passed on the basis of the settlement arrived by the

petitioner himself.

15. For the reasons mentioned above, the writ petition is

disposed of in terms of the aforesaid directions.

No order as to costs.

V.K. SHALI, J.

MARCH 16, 2009 Skw/KP