IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 WP(C).No. 17103 of 2007(J) -------------------------- PETITIONER ------------------- P.P. DUETHI, W/O. G.HARIKRISHNAN NAIR, AGED 35 YEARS, ASSISTANT AGRONOMIST, REGIONAL COFFEE RESEARCH STATION, CHUNDALE, WAYANAD DISTRICT, RESIDING PERMANENTLY AT PADMA VILASOM, OORUTTAMBALAM,THIRUVANANTHAPURAM. BY ADVS. SRI.M.R.HARIRAJ SMT.REKHA VASUDEVAN SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. RESPONDENT(S): ------------------------ 1. THE COFFEE BOARD OF INDIA, REPRESENTED BY ITS SECRETARY, COFFEE BOARD HEADQUARTERS, DR. AMBEDKAR VEEDHI,BANGALORE-560001 2. THE DIRECTOR OF RESEARCH, CENTRAL COFFEE RESEARCH INSTITUTE (CRS), CHICKMANGALORE DISTRICT, KARNATAKA. 3. THE DEPUTY DIRECTOR OF RESEARCH, REGIONAL COFFEE RESEARCH STATION, CHUNDALE, WAYANAD DISTRICT. 4. M. SELVAKUMAR, THE DEPUTY DIRECTOR OF RESEARCH, REGIONAL COFFEE RESEARCH STATION, CHUNDALE, WAYANAD DISTRICT. 5. CHAIRMAN, COFFEE BOARD OF INDIA, COFFEE BOIARD HQ, DR.AMBEDKAR VEEDHI, BANGALORE; BY ADV. SRI.V.BHASKARA MENON, SC,COFEE BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17103 of 2007(J) ------------------------------------ APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE REPRESENTATION DATED 29.6.2004. EXT.P2. COPY OF THE LETTER DATED 2.7.2004 EXT.P3. COPY OF THE ORDER NO.ADM/EB.1/2006-07/2515 DATED 1.9.2006 ISSUED BY THE CHAIRMAN OF THE FIRST RESPONDENT. EXT.P4. COPY OF TRANSCRIPT OF ORDER RES/CHU/06/1613 DATED 22.9.2006 ISSUED BY THE THIRD RESPONDENT. EXT.P5. COPY OF THE REPRESENTATION DATED 25.9.2006. EXT.P6. COPY OF ORDER NO. RES/CHU/06-07/641 DATED 27.9.2006. EXT.P7. COPY OF ORDER NO.RES/CHU2006-07 DATED 9.10.2006. EXT.P8. COPY OF THE REPRESENTATION DATED 16.10.2006. EXT.P9. COPY OF THE MEMO NO. RES/CHU2006-07/701 DATED 18.10.20-06 ISSUED BY THE THIRD RESPONDET. EXT.P10.COPY OF THE REPRESENTATION DATED 31.10.2006 SUBMITTED TO THE CHAIRMAN. EXT.P.11. COPY OF THE REPRESENTATION DATED 6.11.2006 SUBMITTED TO THE SECRETARY EXT.P12. COPY OF THE BY ORDER NO.ADM/EB.1/2006-07/4366, DATED 22.12.2006 ISSUED BY THE FIRST RESPONDENT. EXT.P13.COPY OF THE A JOINT DECLARATION ALONG WITH A CERTIFICATE EXT.P14. COPY OF THE CERTIFICATE DATED 25.11.2006. EXT.P15. COPY OF THE UNDERTAKING DATED 9.1.2007 EXT.P16. COPY OF THE REPRESENTATION DATED 19.3.2007, BEFORE THE THIRD/FOURTH RESPONDENT. EXT.17. COPY OF THE REPRESENTATION DATED2.3.2007 BEFORE THE 2ND RESPOJNDENT. EXT.P18. COPY OF THE MEMO NO.RES/CHU/EB[2006-07/1486 DATED 29.3.2007 ISSUED BY THIRD RESPONDENT. WP(C).No. 17103 of 2007(J) -------------------------------------- EXT.P19. COPY OF THE REPRESENTATION DATED 4.4.2007. EXT.P20. COPY OF THE ORDER NO.CCRI/DR/HRA/CHUNDALE/67 DATED 5.4.2007 ISSUED BY THE 2ND RESPONDENT. EXT.P.21. COPY OF THE MEMO NO.RES/CHU/EB/2007-08/87 DATED 27.4.2007 EXT.P22. COPY OF THE REPRESENTATION DATED 1.5.2007 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR. EXT.P23. COPY OF THE REPRESENTATION DATED 3.5.2007 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR. EXT.P24. COPY OF THE OFFICE ORDER NO.RES/CHU/EB/2007-08/144 DATED 11.5.2007 ISSUED BY THE 3RD RESPONDENT. EXT.P25. COPY OF THE REPRESENTTION TO THE 2ND RESPONDENT. EXT.P26. COPY OF THE ORDER NO.ADM/LEG/2007/1782 DATED 19.07.2007 ISSUED BY THE CHAIRMAN OF THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS -------------------------------------- EXT.R4(A). COPY OF THE COMMUNICATION DATD 25.10.2006 EXT.R4(B). COPY OF SHOW CAUSE MEMO EXT.R4(C). COPY OF THE PROCEDURE AND APPROPRIATE ACTION FOR RECOVERY OF HRA FROM ALL EMPLOYEES. / TRUE COPY / P.A. TO JUDGE VK S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 17103 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th day of June, 2011. J U D G M E N T The petitioner has filed this writ petition for redressing certain grievances regarding payment of HRA while she was an officer of the 1st respondent-Coffee Board. While working as Assistant Agronomist at Regional Coffee Research Station, Chundale, Wayanad district, she was originally allotted quarter no. SQ-5 by the Board. According to the petitioner, it was in a very dilapidated condition and uninhabitable since the same was leaking profusely and during rainy season, it was not humanly possible to live in that quarters. Therefore, by Ext. P1 dated 29.6.2004, the petitioner brought this to the attention of the 3rd respondent, who endorsed therein to allot vacant quarters immediately. But the petitioner submitted that since no other quarter was vacant, she will reside in the same quarters. Subsequently, she found that it is totally impossible to continue residing in that quarter. Therefore by Ext. P2 dated 2.7.2004, she informed the 3rd respondent that she is moving to a rented house at Kalpetta along with her husband, a State Government employee, who got a transfer to Wayanad district. Consequently, she vacated the quarters on 2.7.2004. While so, on a complaint by the petitioner regarding non-declaration of probation, Ext. P3 order dated 1.9.2006 was passed by the Chairman of the Board, declaring her probation with effect from 15.6.2005. According to the petitioner, the 3rd respondent who is also impleaded in his personal capacity as the 4th respondent alleging mala fides, did not relish the petitioner going to the higher authorities, and issued Ext. P4 order allotting another quarter SQ-8 to the petitioner specifically noting therein that she is not eligible for HRA. Ext. P4 order is dated 22.9.2006. The petitioner W.P(C) No. 17103 of 2007 -: 2 :- found that SQ-8 quarter was occupied by somebody else, which the petitioner reported to the 3rd respondent by Ext. P5. According to the petitioner, despite a specific direction, the person who was occupying the quarters did not vacate the same and therefore the petitioner could not occupy the quarters. The petitioner therefore in Ext. P5 submitted that the petitioner's eligibility for HRA is justified since the petitioner cannot occupy the quarters as the same is occupied by somebody else. Still, the 3rd respondent denied the petitioner HRA. After some time, the 3rd respondent availed of long leave, during which period, the person in charge of the office of the 4th respondent, sanctioned the HRA due to the petitioner with arrears. But, again, when the 4th respondent rejoined duty after leave, the position was reversed and he sought to recover the HRA already paid to the petitioner. The petitioner filed a representation Ext. P17, in which the Director made an endorsement as follows: “DDR/E.B 1. It is directed that all the arrears due to Asst. Agronomist shall be paid immediately which arised due to declaration of her probationary period which is a mandatory payment. 2. The recovery of HRA shall be stopped immediately till further communication is made from DR office. DR will discuss this issue with Sec/DF/legal Assistant of Board. If needed, the HRA will be afterwords deducted from the salary. This may be taken as order.” But, the Deputy Director, instead of releasing the HRA as directed by the Director, sought to initiate proceedings against the petitioner by issuing Ext. P18 memo. Again, on a representation from the petitioner, by Ext. P20 dated 5.4.2007, W.P(C) No. 17103 of 2007 -: 3 :- the Director directed the 4th respondent as follows: “This is to inform with regret that in spite of clear directions, DDR has failed to pay the arrears of probationary period and HRA due to Smt. P.P. Duethi, Asst. Agronomist for which she is eligible. It is once again directed that the eligible arrears be immediately paid to the officer failing which the matter will be viewed seriously. Any discrepancies if noted in the calculation will have to be analyzed subsequently by the EB, if recovery of any excess payment is needed she may be directed to refund same to the office. It is also further directed that her normal salary has to be paid in time with all the eligible allowances. This for strict adherence and compliance.” Despite the same, the 4th respondent issued Ext. P21, which reads as follows: “Smt. P.P. Deuthi, Asst. Agronomist RCRS, Chundale has failed to give explanation to the memo issued dated 29.3.2007 within the stipulated period. It is presumed that you have accepted the lapses in your project work as well as in claiming of the ineligible HRA. The instructions of Director of Research CCRI, CRS on 5.4.2007 does not confirm with the rules pertaining to HRA. The amount paid to you by EB Section in a hurry is not in order and mere violation of financial sanctioning norms. Hence, the amount of Rs. 21,280/- (rupees twenty one thousand two hundred and eighty only) paid to you has to be refunded by you immediately failing which it will be recovered from your salary in three monthly installments with effect from April, 2007. You can very well concentrate only on your project work discussing with HOD, Agronomy and the undersigned in order to achieve the objective of XI Plan programmes like Content development for Sustenance of the Coffee growers of Kerala in principle. Instead, it is observed that you have been continued to involve in unhealthy discussions with other staff and blaming the Controlling Officers for no reasons and defying to comply to the memos issued to you is against the code of conduct rules which attracts disciplinary action against you.” W.P(C) No. 17103 of 2007 -: 4 :- According to the petitioner, that very well demonstrates the animosity harboured by the 4th respondent against the petitioner insofar as he has even gone to the extent of stating therein that the instructions of the Director do not conform with rules pertaining to HRA. Again, by Ext. P24, the 4th respondent passed the following order on her representation: “The representation submitted by Smt. P.P. Deuthi, Asst. Agronomist dated 30.4.07 was examined in detail, by Joint Director (Extension), Kalpetta based on the directions of Secretary and Director of Research. It is observed that, you have taken unilateral decision to vacate the quarters in the pre-context to join your husband Sri. Harikrishnan Nair, Forest Department who was transferred and posted to Kalpetta without obtaining the approval of the competent authority. Accordingly, you are not eligible for HRA and other allowances as per rules including the other Officers/Officials posted at RCRS, Chundale, since the Government accommodation with other facilities is available at RCRS, Chundale. The HRA arrears amount of Rs. 22,013/- (rupees twenty two thousand and thirteen only) paid by the Office has to be recovered in three installments of Rs.7338.00, 7338.00, 7337.00 from her salary for the month of May, June and July, 2007. Further, she has to produce the transfer order of her spouse along with request letter for allotment of quarters at RCRS, Chundale if required in future. Further, she is hereby informed to concentrate on her research programmes and to help the growers. In this regard, no further representations will be entertained/modified.” Ultimately, the Chairman of the Board passed Ext. P26 holding that the petitioner is not entitled to the HRA and the Director of Research was not correct in directing release of ineligible HRA to the petitioner on the ground that the petitioner voluntarily surrendered the quarters. It is under the above circumstances, the petitioner has filed this writ petition seeking the following W.P(C) No. 17103 of 2007 -: 5 :- reliefs: “i) Quash Exhibit P9, P18, P21, P24 and P26 by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to refrain from making any recovery on alleged overpayment of HRA to the petitioner and to direct the respondents to pay the petitioner HRA and other allowances due till a proper quarter is allotted to her in accordance with the rules. iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay back the money already recovered from the petitioner with interest at the rate of 18% per annum. iv) Grand such other reliefs as may be prayed for and as the court may deem fit to grant, and v) grant the cost of this writ petition.” 2. A counter affidavit has been filed by the 4th respondent taking the stand that since the petitioner had voluntarily surrendered the quarters, as per rules, she is not eligible for the HRA. 3. I have considered the rival contentions in detail. 4. Exts.P1, P2, P3, P4 and P5 are not disputed by the respondents. Those documents would show that the petitioner had intimated the 4th respondent about her inability to continue to occupy the SQ-5 quarter because the same was uninhabitable. She has also specifically informed the 4th respondent that the SQ-8 quarter allotted by Ext. P4 is occupied by somebody else. In paragraph 8 of the counter affidavit, it is admitted thus: “8. The statement contained in paragraph 10 that quarter W.P(C) No. 17103 of 2007 -: 6 :- No. SQ-5 was allotted to another officer is not fully correct. Actually, the petitioner joined with her husband stayed with him and she was transferred to Kalpetta thereby the quarters allotted to her remained vacant for a long period. Her attempt is to claim HRA by contenting that she was not allotted quarters thereby entitle for the same. Quarter No. 5 was alloted to one of the senior staff after undertaking the repair thereby she was allotted quarter No. 8. The allotment order of the said quarters in favour of Shri. Devendran, Extension Inspector was cancelled and he was informed to vacate the same as per Communication dated 25.10.2006. A true copy of the same is produced herewith marked as Ext. R4(a). Since Shri. Devendran did not promptly comply the order thus he was served with a show cause notice for not vacating the quarters by the Chairman of the Coffee Board. Evidently, during the period the petitioner was staying with her husband and her attempt is only to establish her claim for house rent allowance allegedly for not allotting quarters to her.” (Underlining supplied) From these admitted facts, it is more than clear that the petitioner was not at fault in the matter of not occupying the quarters. In paragraph 8 of the counter affidavit quoted above, it is specifically stated that Quarter No. 5 was allotted to one of the senior staff after undertaking repairs, which would go to show that the quarter needed repairs as contended by the petitioner and after repairs only the same was allotted to another officer. That proves that the petitioner's contention that the said quarters was inhabitable is correct. Paragraph 8 of the counter affidavit further proves beyond any reasonable doubt that SQ-8 quarters allotted to the petitioner was being occupied by somebody else and he refused to vacate the same in spite of specific show cause notice issued and he continued residing there. Therefore, the petitioner cannot be found fault with for informing her inability to stay in either of the two quarters which were for very valid and cogent reasons. I do not think that W.P(C) No. 17103 of 2007 -: 7 :- the same can be considered as a voluntary surrender of the quarters allotted to the petitioner. A Government servant is not expected to reside in a quarter, which is uninhabitable or which is actually in the possession of somebody else. 5. In the above circumstances, I find that the allegation of the petitioner that there was some bad blood between the petitioner and the 4th respondent and that he 4th respondent was trying to victimize the petitioner on account the same appears to be a very plausible conclusion. I am fortified in this view by the statement of the 4th respondent in Ext. P21 to the effect that the instructions issued by his senior Director of Research does not confirm to the rules pertaining to HRA and his steadfast refusal to comply with the specific direction of the Director. In fact, it amounts to refusal to obey the orders of the superiors and insubordination. A subordinate cannot disregard an order from the superior on the ground that the order does not conform to the rules pertaining to HRA. It is significant to note in this context that while the 4th respondent was on leave, the person who was in charge of the office of the 3rd respondent found the claim of the petitioner for HRA sustainable and directed to release the same with arrears. The order of the Chairman in Ext. P26 in this regard appears to be blindly accepting what the 4th respondent has reported in the matter. I am of opinion that the Chairman could not have by any stretch of imagination come to the conclusion that the conduct of the petitioner suggested a voluntary surrender of the quarters allotted to the petitioner and failure to occupy quarters deliberately. I also note that Ext. P26 was passed subsequent to the filing of the writ petition and the petitioner got the writ petition later amended incorporating a W.P(C) No. 17103 of 2007 -: 8 :- challenge against the same also. I wonder why the Chairman chose to pass that order while the issue was pending consideration of this Court in this writ petition. The order does not indicate that the said order was not passed not on the basis of any appellate or revisional powers of the Chairman. I note that this Court admitted the writ petition on 5.6.2007 when the standing counsel took notice for the Board and by interim order dated 21.6.2007 stayed recovery from the petitioner. Despite that order, the Chairman has, by Ext. P26 order dated 19.7.2007, ordered recovery from the petitioner. When this Court was seized of the matter, there was no reason for the Chairman to do so. In the above circumstances, I have no doubt in my mind that the impugned orders are unsustainable. 6. Accordingly, the impugned orders are quashed. It is declared that the petitioner is eligible for HRA for the period covered by the orders, which have been quashed. 7. It is submitted that the petitioner resigned from service on 9.2.2009 and she was never allotted a vacant quarter till her resignation. Therefore, the petitioner is entitled to HRA from the date of Ext. P2, namely, 2.7.2004 to 9.2.2009. The same shall be released to the petitioner within one month from the date of receipt of a copy of this judgment. The petitioner submits that on the ground that the petitioner has not refunded the HRA drawn by her, her pay revision arrears have not yet been disbursed. The same shall be disbursed to the petitioner within one month. All the amounts due to the petitioner shall carry interest at the rate of 9% p.a. The respondents shall also pay costs of Rs. 10,000/- to the petitioner along with the amounts payable to her. Insofar as the entire proceedings were on W.P(C) No. 17103 of 2007 -: 9 :- account of some ill-will harboured by the 4th respondent against the petitioner, the interest as well as the costs that are to be paid to the petitioner, shall be recovered by the Board from the salary of the 4th respondent, if he is still in service and by other coercive proceedings if he is not. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/