CR No. 4893 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 4893 of 2001 Date of decision:- 1.12.2010 Rajinder Singh ......petitioner vs. State of Punjab and another ......respondentss CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Puneet Jindal, Advocate for the petitioner Mr. S. S. Sahu, AAG, Punjab HEMANT GUPTA, J (ORAL) Challenge in the present revision petition is to an order passed by learned Executing Court on 1.2.2001 whereby an execution application for recovery of the balance amount of arrears of salary filed by the petitioner was dismissed as satisfied. The petitioner filed a suit for declaration challenging the order dated 6.3.1985 and the order in appeal dated 3.4.1989 whereby the plaintiff was dismissed from service. The said suit was decreed by the Civil Court on 17.9.1990. The operative part of decree reads as under: - This suit coming on this 17th Day of September 1990, for final disposal, before me (Sh. A. S. Kathuria, PCS, Sub Judge Ist Class, Ludhiana) in the presence of Narinder Behal, Advocate for plaintiff and Govt. Pleader for defendant. It is ordered that the suit of the plaintiff succeeds and the same is hereby decreed with costs. The order dated 6.3.1985 and dated 3.4.1989 are set aside and as a consequential relief, the plaintiff shall be entitled to all benefits securing the reform. However, he would not be entitled to any interest. CR No. 4893 of 2001 -2- The petitioner sought execution of the aforesaid decree. In execution, the petitioner was paid a sum of Rs. 1,04,000/-. The petitioner claimed that another amount of Rs. 61,700/- is still payable. The details of such of claim is as under: - 1. House Rent (6.3.85 to 11.12.1991): Rs. 19,400.00 2. Pay over and above the subsistence: Rs. 3,500.00 allowance paid during the period of suspension (27.4.84 to 6.3.85) @ Rs. 350/- per month. 3. Balance pay after the grant of : Rs. 28,800.00 increments and revision of pay on 1.1.1986 upto 11.12.1991 @ Rs. 100/- per month 4. Interest @ 12% p.a. on the over due amount Rs. 10,000.00 Rs. 61,700.00 Learned Executing Court has found that the petitioner is not entitled to house rent allowance as the same is compensatory in nature. The petitioner was required to stay at Ludhiana during service but there is no proof of stay at Ludhiana after his termination. In view of the said fact, learned trial Court found that the execution stands satisfied and consequently, dismissed the same. Learned counsel for the petitioner admits that in terms of the decree granted, the interest is not payable. But the petitioner is entitled to house rent allowance, pay over the above the subsistence allowance already paid as well as the balance amount of increment and revision of pay. Learned counsel for the petitioner has relied upon Rule 7.3 A read with Rule 5.5 of Punjab Civil Services Rules Volume 1 Part I to contend that on reinstatement, the petitioner is entitled to be paid full pay and allowance for that period for which he would have been entitled had he not been dismissed and compulsorily retired. It is contended that in terms of Rule 5.5, the house rent allowance is admissible to government employee CR No. 4893 of 2001 -3- even during leave or transfer and suspension, therefore, the petitioner is entitled to house rent allowance as well. Rule 5.5 reads as under: - “A house rent allowance may be drawn by a Government employe during leave or transfer in the circumstances specified in Clauses (a) or (b) of Rule 5.3: Provided that he certifies that, his previous rate of expenditure for a house continues during his absence and that he places his house, free of rent, at the disposal of the Government employee, if any, who officiates in his post. The officiating Government employee cannot, in such case, draw the house-rent allowance attached to the post. If, however, the officiating Government employee, for reasons which a competent authority considers to be sufficient, refuses the accommodation placed at his disposal, he and not the absent Government employee, will draw the allowance. Clarification:- The house rent allowance being a compensatory allowance may be allowed to be drawn by a Government employee under suspension like other compensatory allowances, subject to the conditions laid down in Rule 7.2(b), being satisfied. In the case of an employee whose period of suspension is treated as having been spent on leave, the grant of house-rent allowance will be regulated under the relevant provisions of Rules 5.3 to 5.9 as in the case of other compensatory allowances. Note 1. The employee should have continued for the period for which house rent allowance is claimed to retain the house at the same station from which he proceed on leave; paid for it and did not sublet it.” Note 2. A Government employee who, on transfer, has been permitted to retain Government accommodation at the old station will be eligible for house-rent allowance, in respect of the new station, if otherwise admissible, without regard to the fact whether he has been permitted to retain the Government accommodation at old station on payment of normal rent or penal rent. CR No. 4893 of 2001 -4- I do not find any merit in the said argument raised by learned counsel for the petitioner. Though the employee who has been ordered to be reinstated is entitled to full pay and allowances for the period he would have been entitled, had he not been dismissed or compulsorily retired. But, the house rent allowance is not an allowance which is the part of pay. In terms of Clause (a) of Rule 5.3 all allowances during leave are payable at the same rate, when the employee proceed on leave, whereas Clause (b) relates to payment during temporary transfer. As per Rule 5.5, an employee is entitled to house rent allowance on certification that the rate of expenditure for a house continues during his absence. The clarification appended to Rule 5.5 allows house rent allowance under suspension being a compensatory allowance like other compensatory allowance as laid down in Rule 7.2(1)(b). Rule 5.1 provides that compensatory allowance is not a source of profit to the recipient. An employee is entitled to house rent allowance only if he has paid rent for arranging an accommodation at the place of his posting. Since, there is no proof that the petitioner has availed residential accommodation at Ludhiana, the place from where his services were terminated and deemed to be posted, the petitioner is not entitled to house rent allowance without proof of payment of such amount. In respect of the other payments, i.e., pay over and above the subsistence allowance and the balance pay, learned State Counsel has argued that the earlier execution application filed by the petitioner was dismissed as satisfied. Therefore, the second execution application is not maintainable. Learned counsel for the petitioner has controverted the said argument and stated that the application to recover the balance amount is in CR No. 4893 of 2001 -5- the nature of objections under Section 47 of the Code of Civil Procedure against the satisfaction of the decree recorded. Therefore, learned Executing Court is competent to pass such order as it considers appropriate to give effect to the decree passed by the Civil Court. The question of satisfaction of the decree was required to be decided by the learned Executing Court. Once, the petitioner has filed an application that the amount is still recoverable in pursuance to the decree passed, it is in the nature of objections under Section 47 of the Code of Civil Procedure. Thus, the learned Executing Court has the competency to decide the said question. However, a perusal of the order passed by learned Executing Court does not show that the amount claimed by the petitioner against Sr. No. 2 and 3 has been dealt with or the said amount has been paid to the petitioner. In view of the said fact, revision is allowed. The matter is remitted back to learned Executing Court to decide whether the claim of the petitioner as mentioned at Sr. No. 2 and 3 is admissible to petitioner or not. The same be decided expeditiously in accordance with law. (HEMANT GUPTA) JUDGE 1.12.2010 preeti