MUHAMMAD RAZA KHAN (MEMBER).---The appellant had been serving as Assistant Director- General (BPS-19) in the Department of Communication Security under the Cabinet Division. He got his premature retirement with effect from 28-12-1995 and vide an impugned order dated 19-3-1996 the AGPR (respondent No,1), has ordered recovery of Rs,2,34,705.70 from the pension commutation on account of house rent allowance. He field departmental appeal to the respondent No,1 on 18-4- 1996 which has been rejected vide order dated 18-6-1996. Hence this appeal.
2. The gist of the dispute is that the wife of the appellant was serving in Islamabad College for Girls and a Government residential accommodation was provided to her. The appellant contends that he had not been residing with his wife and that he was maintaining a separate establishment at Rawalpindi in House No,85-D, Jehangir Road, Nadeemabad on account of allergy problems in Islamabad and to look after his aged mother. Allegedly he had intimated this fact to the respondent No,3 being the employer department and that is why, since he had not been residing in the house allotted to his wife at Islamabad, he was getting the house rent allowance as admissible to Government servant, He further adds that he decided to get his premature retirement with effect from December, 1995, and he also decided to shift from his Rawalpindi residence to the residence of his wife at Islamabad and thus on 21-8-1995 he intimated to the respondent No, 1 through his parent department (respondent No,3) that since he had shifted to the Government accommodation allotted to his wife, therefore, the house rent allowance may be discontinued.
Payment of the house rent was accordingly discontinued and after three months of retirement of the appellant a huge amount, as stated above, was demanded from him as the recovery on account of house rent allowance. In response to departmental appeal it was disclosed by the respondent No,1, vide letter dated 18-6-1996 that "if one of the spouses has been granted accommodation on the same station the other one is not entitled to house rent allowance" and that "both the husband and wife, unless judicially separated, or treated, as residing together while serving at the same station".
3. The perusal of the record shows that the Office Memorandum, referred to in the impugned appellate order dated 18-6-1996, was issued on the basis of policy of 17-10-1981, whereas the situation has changed and vide Office Memorandum dated 25-8-1991 it was decided that "if both the husband and wife are living together in residential accommodation provided by the Government at the Same station, no house rent shall be allowed to other of them. If however, the spouse is living separately froth husband/wife the house rent allowance shall be admissible to one of them who does not reside in Government accommodation". This is not only a deviation from the earlier policy (relied upon by the respondent No,1) but was also a logical decision thereby superseding earlier instructions issued in this behalf.
4. If the view expressed by the respondent No,1 in the appellate order is considered to be appropriate it would mean that only on judicial separation the spouse will be entitled to the house rent allowance if any one of them has not been allotted any accommodation. Such an argument will be absurd because on judicial separation there will be no relationship of husband and wife and both will be entitled to the benefits and privileges independently of each other because they cannot be treated as spouses inter se after the pronouncement of verdict of judicial separation.
However, if the said impugned appellate order is considered to be final word then what will be fate of the spouses separated otherwise than by judicial process i,e, by the pronouncement of divorce by any of the modes under the Islamic Shariah. There can be another situation that if the husband is provided the Government accommodation and the wife, who was also a civil servant, is expelled by the husband from his house, and she is compelled to reside independently, will she be not entitled to the house rent allowance? Similarly it can also be noted that the process of judicial separation takes considerably long time and in such a situation the wife, while residing in desertion, shall be deprived of the house rent allowance for couple of years till the "judicial separation" is finalised.
5. The policy relating to the admissibility of house rent allowance, needs reconsideration at higher level. If both the spouses are civil servants, they perform their functions independently of each other and shall be entitled to the benefits of service as independent civil servants. No extra convenience or latitude is extended to any one of them hence, logically, they should be entitled to all the benefits that are admissible for performing their functions separately and independently. It is neither just nor reasonable to deprive a civil servant for the only reason that his/her spouse has been allotted Government accommodation. If this principle is applied universally many questions and complications can be faced whereby such type of decision will be considered as illogical.
Some of the situations are as under:-- (a), If one of the spouse is allotted a Government accommodation but he is in a lower scale (entitled to smaller type of accommodation), whether the other spouse will be deprived of the chance of better accommodation or the house rent allowance in lieu thereof only on the ground that one of the partner has already been allotted Government accommodation?
(b) If one of the partners is civil servant in the Federal Government and the other a civil servant in an institution performing functions in connection with the affairs of the Federation and having independent but autonomous rules for payment of salary etc. will the allotment of accommodation to any one of them be binding on the department of the other to refuse the payment of house rent allowance?
(c) In case one of the partners is a civil servant and the other working in statutory body having independent status, whether the autonomous body can be compelled to deprive its employee from the benefits admissible to the rest of similar employees?
(d) Similarly, whether the spirit of the same principle, as applied by the respondent No, 1 can be extended to a situation to deprive the sons and daughters of a civil servant, who are independently performing their functions as civil servant in some other departments on the basis that their father or any one of them has been provided Government accommodation?
6. These and similar type of several situations can be visualized wherein the refusal to pay a benefit will not only amount to discrimination but will also be unreasonable and violate of the principles of good governance in a civilized democratic society. It is high time the concerned agency should take up the issue to allow the identical benefits equally to all the civil servants performing function of identical nature irrespective of the fact whether he resides in an accommodation provided to the husband/wife or nearer relative. We believe that each individual civil servant is entitled to such benefits irrespective of such extraneous and irrelevant consideration.
7. In the instant case, the appellant was so conscious that he informed his employer department about his independent residence by a letter as well as by an affidavit. Then he immediately requested for the stoppage of house rent allowance when he decided to shift to the house allotted to his wife. The employer department fully confirms the version of the appellant and the comments filed on behalf of the respondent No, 3, the employer department, admit the contents of all the paragraphs in the memo. of appeal. The respondent No, 1 has taken the most severe action of recovery without even consulting the head of the department of the appellant. The respondent No, 1 has practically imposed a penalty without affording chance of hearing. The Supreme Court has held that the principle of natural justice should be read as part and parcel of every statute. No order adverse to a civil servant or to any citizen can be passed by any authority without providing him a chance of showing cause or of a personal hearing against the action proposed to be taken against him. Therefore, the entire action of the respondent No, 1 was not only violative of the rules promulgated by its controlling division i,e, respondent No, 2 in 1991 but the impugned original order and the appellate order are illogical, unjust and violate of the principle of natural justice.
8. Hence, we accept this appeal, set aside the impugned orders and remand this case to the respondent No, 1 for a fresh decision in the light of above observations and after affording the opportunity of show cause and personal hearing to the appellant.
9. No order as to costs.