Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary on 24 November, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Date of Decision : 24.11.2016
O.A.No. 060/00523/2016
Avnish Bansal, son of Sh. R.C. Bansal, aged 33 years, working as Deputy Commissioner, Customs, Central Excise and Service Tax, Office of Commissioner of Central Excise, Customs & Service Tax, Panchkula (Haryana).
.Applicant
BY ADVOCATE: Sh. V.K. Sharma
VERSUS
1. Union of India through the Secretary, Government of India, Ministry of Finance, Department of Expenditure, North Block, New Delhi.
2. Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi.
3. Senior Accounts Officer, Pay and Accounts Office, Commissionerate of Customs and Central Excise, Chandigarh I, Chandigarh.
..Respondents
BY ADVOCATE: Sh. K.K. Thakur
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
(a) Quash the Office Memorandum dated 16.9.2014 (Annexure A-1) and Communication dated 31.3.2016 (Annexure A-2) vide which the claim of the applicant for grant of Transport Allowance at double the normal rate has not been given on the ground that it is admissible to only those employees who suffer from both the disabilities i.e. who are both deaf and dumb and not to a person who belongs to hearing impaired category.
(b) Issue direction to the respondents to grant the applicant benefit of Transport Allowance at double the rate w.e.f. 30.8.2010 onwards in terms of the decision of Honble Apex Court in the case of Deaf Employees Welfare Association & Another Vs. Union of India & Others, Writ Petition ) No. 107/2011 decided on 12.12.2013 with arrears and interest @18% per annum from due date to the actual date of payment in view of the law settled by the judicial courts.
2. It is stated in the OA that the Government of India issued notification dated 19.2.2014 (Annexure A-7) with reference to Order dated 12th December, 2013 of the Honble Supreme Court of India in Writ Petition (Civil) No. 107/2011 of Deaf Employees Welfare Association & Another v/s Union of India & Others and in compliance of the said judgement of the Apex Court, it was decided to extend the benefit of Transport Allowance, as admissible to blinds and orthopedically handicapped employees in terms of para 2 (i) of Ministry of Finance, Department of Expenditure O.M. No.21(2)/2008-E.II(B) dated 29th August, 2008, to deaf and dumb employees of the Central Government also, with immediate effect, subject to the condition that the recommendation of the Head of ENT Department of a Government Civil Hospital is received by the Head of Department and fulfillment of other conditions mentioned in Ministry of Finance, Department of Expenditure O.M.No, 19029/1/78-E IV(B) dated 31st August, 1978 read with O.M. dated 29.08.2008.
3. It is further stated that the applicant submitted a representation dated 16.12.2015 (Annexure A-9) with a request to grant him transport allowance double the normal rate in terms of O.M. dated 19.2.2014. The Commissioner of Central Excise, Chandigarh vide letter dated 18.2.2016 (Annexure A-10) granted sanction holding that the applicant is entitled to get the Transport Allowance at double the normal rate from 29.8.2008. It was done in view of the fact that Honble C.A.T. in its judgment dated 13.11.2015 in the case of Benny George Vs. Union of India & Others (Annexure A-8) has held that the law declared by the Honble Apex Court has modified effect of O.M. dated 29.8.2008. Since O.M. dated 29.8.2008 is prior to the decision of Honble Apex Court, the applicant is entitled to transport allowance. The respondent office also prepared the due drawn statement of Transport Allowance of the applicant and according to which the applicant is entitled to Transport Allowance of Rs. 2,92,364 from 30.8.2010 to 29.2.2016, copy of which is enclosed as Annexure A-11.
4. Vide letter dated 29.2.2016, the Assistant Chief Accounts officer issued the office order sanctioning the Transport Allowance at double the normal rate to the applicant (Annexure A-12). However, later, the case was ordered to be referred to the Ministry of Finance, Department of Expenditure, New Delhi. It was forwarded to Under Secretary (Ad.II), CBEC, North Block, New Delhi vide letter dated 17.3.2016 (Annexure A-13) for clarification. A copy of the letter was sent to the applicant with endorsement dated 31.3.2016 (Annexure A-2) mentioning that in terms of order of 16.9.2014 the double TA is admissible to those employees who are both deaf and dumb and as such arrears cannot be released to him. On the objection raised by Senior Accounts Officer (Annexure A-2), the applicant submitted a representation dated 19.4.2016 (Annexure A-14) clarifying that once sanction had already been issued for grant of double TA there was no occasion to withhold the same. One Group A officer, Mr. Sunder Lal of same Commissionerate is already getting such benefit which cannot be disallowed to the applicant. But to no avail.
5. In the grounds for relief, it has, interalia, been stated as follows:-
(i) Earlier the respondents had discriminated between two categories of physically handicapped employees i.e. Blind and Orthopedically handicapped were granted double Transport Allowance whereas Deaf and Dumb (hearing impaired) were disallowed the same pleading that Centre has told the Supreme Court that deaf and dumb (hearing impaired) government employees could not be equated with blind and physically handicapped ones, who face much more difficulty in commuting and are hence given double the transport allowance paid to other employees. Both these categories approached the Honble Supreme Court of India in the case of Deaf Employees Welfare Association & Another (supra) which consisted of two associations one of deaf and another of dumb which writ petitions were allowed by Apex Court holding that both these categories cannot be discriminated and that being the position, the applicant cannot be denied double Transport Allowance denial of which would not only be contemptuous but also illegal and arbitrary and violative of Articles 14 and 16 of the Constitution of India
(ii) O.M. dated 19.2.2014 was issued in compliance to the aforesaid decision which clearly mentions that the benefit is to be extended to the deaf and dumb employees of the Central Government also. This decision does not say that a person should be both deaf and dumb but the respondents have given this O.M. and decision of Apex Court a destructive meaning which takes away the very purpose for which the decision was announced and O.M. was issued which cannot be allowed to be done by this Honble Court.
6. In the written statement filed on behalf of the respondents, it has been stated that the applicant has filed the OA against order dated 16.09.2014 (Annexure A-1) and communication dated 31.03.2016 (Annexure A-2) vide which decision had been conveyed to him that transport allowance is admissible at double the normal rates to a Government servant who is both deaf and dumb. In fact, letter dated 31.03.2016 (Annexure R-1) is the letter from the office of Commissioner, CBEC, Panchkula vide which clarification has been sought in the matter from Under Secretary (Admn-II), Department of Revenue, North Block, New Delhi, but the applicant has concealed this material fact from the Tribunal and has placed only the endorsement portion of the letter (Annexure A-2) on record.
7. Rejoinder has been filed on behalf of the applicant.
8. Arguments were heard in the matter today. Learned counsel for the applicant argued at length regarding the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation ) Act, 1995 pressing for extending the benefits of double transport allowance to all hearing impaired employees. In this regard he also referred to judgement of the Apex Court in Deaf Employees Welfare Association & Another v/s Union of India & Others (Annexure A-6) . He stated that although the Commissioner, CBEC had issued sanction of double transport allowance to the applicant, but the Pay and Accounts Officer had objected to the sanction. However, in view of the cited judgement of the Apex Court, the applicant who was hearing impaired, was entitled to transport allowance at double the prescribed rate. To a specific query, learned counsel for the applicant stated that the applicant had a driving licence.
9. Learned counsel for the respondents stated that as per OM dated 16.11.2014 (Annexure A-1), the benefit of transport allowance at double the normal rates was admissible to only those employees who suffer from both disabilities, i.e. who are both deaf and dumb. However, on the representation being received from the applicant, the matter had been referred for clarification to the CBEC and reminder had also been issued in this regard vide letter No. II-24(1) Pay matter/PC/PKL/2015/14256 & 14260-61 dated 31.03.2016. He stated that as soon as clarification would be received from the CBEC, the matter regarding quantum of transport allowance allowed to the applicant would be settled.
10. In view of the submissions made by learned counsel for the respondents and this being a policy matter, I am of the view that the decision on the claim of the applicant should await the clarification from the CBEC regarding quantum of transport allowance admissible to hearing handicapped employees who are not dumb. Since the matter has been pending since long, this OA is disposed of with directions to the respondent No. 1 and Central Board of Excise and Customs, New Delhi to decide the issue regarding whether transport allowance has to be allowed at double the normal rate to hearing handicapped employees who are not dumb, within a period of two months of a certified copy of this order being served upon the respondent No. 1 and CBEC. No costs.
(RAJWANT SANDHU) MEMBER(A) Dated:
ND* 1 O.A.No. 060/00523/2016