Dr. A.W.Sohoni vs Union Of India & Ors.
2013 Latest Caselaw 1950 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 3535/1997
%                                                           30th April, 2013

DR. A.W.SOHONI                                                ......Petitioner
                            Through:     Mr. Nitin S. Tambwekar and Mr. B.S.Sai,
                                         Advocates.


                            VERSUS

UNION OF INDIA & ORS.                                             ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by petitioner /Dr. A.W. Sohoni, who was the Chief

Director of the respondent No.2. The petitioner prays for grant of House Rent

Allowance (HRA) from May, 1995 and till the same is due to him in accordance

with the terms and conditions of his service. The petitioner has set up a case that

he has been wrongly denied HRA because he was justified in not occupying the

premises/flat which was allotted to him by the respondent No.2-Corporation. The

petitioner claims that the flat was not in accordance with the status of the

petitioner, and petitioner's representation for reconsideration has been malafidely

rejected by the respondent No.2. Petitioner has relied upon office order dated

30.04.1991 to claim that the petitioner will be entitled to 30% of the basic pay as

HRA.

2. Respondent No.2 has not filed a detailed counter-affidavit, but it filed the

counter-affidavit to an affidavit of the petitioner dated 20.07.2009. In the affidavit

dated 20.07.2009, petitioner claimed that three persons namely Sh. John Kurien,

Director (Training), Sh. S.K. Tucker, Deputy Director (Training) and Sh. S.K.

Anand, Deputy Director (Training) were given HRA, although they did not occupy

the official accommodation. In response, the respondent No.2 has stated that the

respondent/Corporation undertook a project and got flats constructed from trainers

in the TOPIC Institute of the respondent no.2 at Gurgaon. It is stated that

petitioner was also a trainer and was allotted a flat along with the others, but the

petitioner refused to occupy the allotted flat and, therefore, petitioner's HRA was

stopped. The basic contention of the respondent No.2 appears to be that flats

constructed by it cannot remain vacant on the one hand because persons such as

petitioner did not occupy them, and on the other hand, persons such as petitioner

can claim HRA from the respondent No.2. Respondent No.2 has also denied

payment of HRA to Sh. S.K. Tucker and Sh. S.K. Anand and has stated that HRA

for all the three trainers, as also the petitioner was stopped by the

respondent/Corporation. It is further stated in the reply affidavit of respondent

No.2 that the flats constructed by respondent-Corporation were allotted and lying

vacant hence the HRA to Sh. John Kurien, Sh. S.K. Tucker and Sh. S.K. Anand

was stopped, and it was on the same very principle on which HRA to the petitioner

was also stopped. In the reply affidavit, it is stated that Sh. S.K Tucker and Sh.

S.K. Anand started receiving HRA from 1998, when the flats were allotted to

others and were hence not lying vacant.

3. A reference to the writ petition, the other pleadings on record

including the additional affidavit filed by the petitioner, the affidavit of the

respondent No.2 dated 12.11.2009 and the response of the respondent No.2 to the

RTI queries show that the following position emerges:-

(i) Respondent No.2/ employer-organization constructed flats for its

trainers including the petitioner.

(ii) These flats were allotted to all the four trainers including the

petitioner, who refused to occupy the same and, therefore, HRA of all

the four officers namely, the petitioner, Sh. John Kurien, Sh. S.K.

Tucker and Sh. S.K. Anand was stopped.

(iii) HRA of Sh. S.K. Tucker and Sh. S. K. Anand was resumed only after

flats were allotted to other employees and, therefore, flats were not

vacant. Same is the position with respect to Sh. John Kurien.

(iv) The principle adopted by respondent No.2 was that till the flats were

vacant, and which could be occupied by the petitioner and other

employees, HRA was not paid to such persons because flats could not

be allowed to remain vacant, and yet employees could claim HRA.

HRA was only paid after the flats were allotted to other employees of

respondent No.2.

4. In my opinion, respondent No.2 was perfectly justified in taking

up the stand it did that flats which were constructed by it on a great cost could not

lie vacant in spite of allotting them to the officers such as petitioners, and hence

HRA cannot be paid.

I agree that it would be an unfair attitude of the employees not to occupy

flats but claim HRA and also unnecessary monetary loss to the respondent

No.2/Organization because what is the use of the respondent No.2 spending huge

amount of money by constructing flats and yet such flats would remain vacant on

the one hand but still employees on the other hand can claim HRA by refusing to

occupy the flats.

5. Learned counsel for the petitioner could not point out to me any rule

of respondent No.2/employer-Organization or any circular issued by it that even if

a person refuses to occupy the accommodation, such a person will be entitled to

HRA.

6. Learned counsel for the petitioner placed reliance upon the Director,

Central Plantation Crops Research Institute, Kesaragod and Ors. v. M.

Purushothaman and Ors., 1994 Supp (3) SCC 282 to contend that this Court

should grant relief of HRA to the petitioner once the flat which was allotted to the

petitioner was occupied by someone else.

7. I may note that the judgment relied upon by the petitioner, in fact,

directly goes against the petitioner because in the said judgment the employees

were denied the benefit of HRA because the employees refused to occupy the flats

which were allotted by the employer. The employer took an action in that case on

the basis of its office memorandum dated 27.11.1965 and respondent No.2 in the

present case appears to have followed similar policy/principles. Thus, the judgment

cited by the petitioner infact directly goes against the petitioner for dismissal of the

writ petition.

8. It is contended on behalf of the petitioner that para 9 of the judgment

relied upon should be read for giving the petitioner the benefit of HRA once the

flat which was allotted to the petitioner is occupied by another employee. On

being asked, counsel for petitioner failed to point out to me any such case pleaded

in the writ petition as to when the flat allotted to the petitioner was allotted to some

other persons, and, accordingly, for which particular period petitioner can claim

HRA. Since the necessary factual base is wholly absent from the pleadings of the

petitioner on record, this aspect cannot be decided by this Court and no relief on

that basis can be granted to the petitioner and which could have been granted only

on a specific case being pleaded with respect to the dates as to when the flat

allotted to the petitioner was allotted and occupied by some other employees of

respondent No.2/Organization.

9. In view of the above, there is no merit in the petition, which is,

therefore dismissed, leaving parties to bear their own costs.

                                               VALMIKI J. MEHTA, J

APRIL      30, 2013/rb