BALI, J. - (1.) PETITIONER after remaining posted at different places was transferred to Jaipur in June, 1984. His wife Smt. Prem Lata, an Assistant Manager, State Bank of India, on her transfer from Delhi joined her husband, the petitioner herein in July, 1984. The petitioner hired a house in Jaipur on a monthly rent of Rs. 1550/ -. Her wife was entitled for reimbursement of house rent allowance from the Bank and therefore, a formal lease deed was executed between the Bank and the owner of the premises taken on rent by the petitioner. This formal lease deed was executed only for the purpose that the benefit of house rent allowance could be given to the wife of the petitioner. The necessity to get a formal lease deed executed arose for the reason that the Bank at the relevant time did not have accommodation of its own. The petitioner claimed house rent allowance for the period he remained with his wife under the same roof in the rented house through the lease deed executed between the owner of the premises and the Bank. He was indeed given house rent allowance but the moment the respondent department realised that the petitioner was not entitled to house rent allowance, issued a letter dated 03. 07. 1997 (Annexure-A2) and followed it up by yet another letter dated 04. 03. 1999 (Annexure-A5) vide which it was ordered that the petitioner shall not be entitled to any house rent allowance for the period mentioned above and vide a subsequent letter (Annexure-A3) he was asked to return the house rent allowance already taken by him. It is these two letters which were challenged by the petitioner before the Central Administrative Tribunal (herein after referred to as `the Tribunal') which, however, found no merit in the petition filed on his behalf as the same was dismissed vide order dated 10. 12. 2003. It is against this order of the Tribunal that the present writ petition filed on his behalf as the same was dismissed vide order dated 10. 12. 2003. It is against this order of the Tribunal that the present writ petition has been filed under Article 226 of the Constitution of India.
(2.) LEARNED counsel for the petitioner contends that Rule 5 of the FRSR Part (V) that has been applied in denying relief to the petitioner is not applicable, in as much as, the wife of the petitioner was neither allotted any Government accommodation nor the State Bank of India, was covered under the definition of Semi Government Organization. With a view to appreciate the contention of the learned counsel for the petitioner as noted above, it will be use to reproduce Clause (iii) of Rule 5 of the FRSR the same reads thus:- Clause (iii) "his wife/her husband has been allotted accommodation at the same station by the Central Government, State Government, an autonomous public undertaking or semi Government organisation such as Municipality, Port Trust, etc. whether he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her. " The respondent department in the written statement filed by it opposed the cause of the petitioner by inter-alia pleading that when the Bank may take an accommodation on lease deed basis as per the entitlement of the concerned employee and rent is directly paid to the owner, it would not alter the position so long as the accommodation is provided by the Bank to its employee. It was further pleaded that the petitioner was residing with his spouse in an accommodation taken on lease where the wife was the employee and he was not entitled to the house rent allowance. It was also pleaded that the State Bank of India, is an autonomous body, an undertaking of Government of India. Before the Tribunal, the petitioner relied upon the judgment of the Central Administrative Tribunal, Bombay Branch, in S. G. Rajarshi vs. UOI & Ors. (1995) Raj. 25 ATC 761. The learned Tribunal did not find favour with the plea raised by the petitioner on the basis of the judgment of S. G. Rajarshi vs. UOI and Ors. (supra) and rather preferred to rely upon the judgment of the Larger Bench of the Tribunal in K. R. Raghu Nandan vs. Government of India & Ors. 1999 (1) SLJ CAT 609. The Tribunal also relied upon a Full Bench judgment of the Tribunal in All India Postal Employees Union & Anr. 200 (3) ATJ 419 taking a view contrary to the one reflected in the judgment of Rajarshi's case (supra ). We have heard the learned counsel for the parties and with their assistance examined the records of the case. In the contest to the facts of this case, we find no merit in any of the contentions raised by the learned counsel for the petitioner. The purpose of giving house rent allowance to an employee is to compensate him as he is deprived of an official accommodation which may not be available at the given time. If the spouse of the employee may however, be allotted a government accommodation, no question would arise to compensate such an employee. Clause (iii) of Rule 5 of FRSR Part (V) is a complete answer to the claim of the petitioner. The contention of the learned counsel for the petitioner that taking accommodation on lease from a private owner would not amount to allotment of accommodation made by the Central Government, State Government or an Autonomous Body or Public Undertaking etc. needs summary rejection. The accommodation may be allotted by an employer if it may have the same but if the accommodation may not be available with the employer but the employer pays the rent for the premises taken by an employee it would amount to allotment by the employer. The core issue would be the employee staying in the rent free accommodation. Whether it is a rent free accommodation for the reason that it belongs to an employer or that the employer pays the rent to the owner of the house, whosoever he or she may be, would not make the least difference. The only right of the employee is that he has not to pay the rent. The petitioner, in our considered view, was not entitled to claim the house rent allowance. It is significant to mention that once the wife of the petitioner was living in a rent free accommodation or rent was being paid by her employer, the petitioner cannot get house rent allowance even if, he was residing separately from his wife. For the time, thus, the petitioner shared the same roof with his wife for which neither of them was to pay the house rent to the owner, surely, the petitioner could not claim the house rent allowance. In view of the fact that the petitioner when confronted with the pleadings made in their written statement that the State Bank of India, was an autonomous government undertaking the learned counsel could not urge anything on that count.
(3.) IN so far as the case of the petitioner with regard to non- refund or recovery of the house rent allowance already paid to him is concerned, the present case, cannot be equated with a mistake in the matter of calculation of salary etc. , in which, an employee may not have made any misrepresentation. All judgments which have been cited by the learned counsel for the petitioner seeking relief with regard to order of recovery pertain to such facts where department itself, had made a mistake in calculating some or other financial benefit to an employee there being, no misrepresentation made by the employee. IN the present case, the petitioner was sure that he was residing with his wife and further that his wife was not paying rent to the owner of the rented premises with whom direct lease agreement was made between the employer namely; the State Bank of INdia and the owner of the rented premises. The claim of the house rent allowance in a situation as mentioned above, borders on cheating or fraud. The petitioner, in our view, would not be entitled even to seek quashing of the order directing him to pay the amount which he had taken towards the house rent allowance. We find no merit in this petition and the same is thus dismissed. .;