Central Administrative Tribunal - Delhi
Sankara Subbu vs M/O External Affairs on 3 October, 2018
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2816/2017
Reserved on : 14.09.2018.
Pronounced on : 03.10.2018.
Hon'ble Ms. Praveen Mahajan, Member (A)
Sh. Sankara Subbu,
S/o Shri M.S. Rajagopal Naidu
First Secretary,
High Commission of India,
Victoria-Mahe, Seychelles,
Presently At:
A-31, Kailash Apts.,
Plot No.2, Sector-4,
Dwarka, New Delhi. .... Applicant
(through Sh. Anand Nandan with Sh. Sumit Mishra, Advocate)
Versus
1. Union of India through
Secretary,
Ministry of External Affairs,
South Block, New Delhi.
2. Sh. Azar Abul Hasan Khan,
Formerly Ambassador of India to Libya,
E/1 Tripoli , Tripoli (Libya),
Through Ministry of External Affairs, GOI,
Ministry of External Affairs,
South Block, New Delhi. ..... Respondents
(through Sh. M.S. Reen, Advocate)
ORDER
The present Original Application has been filed by the applicant against the deduction of Rs.5,79,062/- by the respondents 2 OA-2816/2017 from the salary of the applicant vide impugned orders dated 22.09.2016 (Annexure A/1) and 13.12.2016 (Annexure A/2).
2. Brief facts of the case are that the applicant, who is working as Deputy Secretary in the Indian Foreign Service at High Commission of India (E/I, in short), Victoria, Seychelles was posted as First Secretary at Embassy of India, Tripoli on 20.08.2014 (Annexure A/3). Vide order dated 14.10.2014 (Annexure A/4), the sanction of the President was accorded to grant single dependent status to his mother in connection with his transfer to E/I, Tripoli as admissible to single dependent parent, as per rules.
3. The applicant states that civil war was going on in Tripoli since May 2014. Due to collapse of Government and complete lack of security, most of the officials including the Indian Ambassador shifted to Djerba, Tunisia 240 kms from Tripoli, Libya. Tripoli was still being treated as a „Family Station‟ by Ministry of External Affairs, Government of India, therefore, the applicant was allowed to take his family comprising of his single dependent parent (mother) vide the aforesaid order dated 14.10.2014 (Annexure A/4) on a diplomatic passport and airfare was paid by Government of India. The applicant reached Djerba, Tunisia on 16.11.2014. In the absence of any regular flat/house accommodation for the applicant, both the applicant and his single parent were provided separate single 3 OA-2816/2017 room accommodation at a 2 star hotel at Djerba booked by E/I Tripoli on the instruction and approval of respondent No.2. The applicant avers that he was in transit at Djerba till he reached Tripoli, Libya where the Indian Embassy is permanently located.
4. The applicant has placed reliance on IFS (PLCA) Rules Annex- XI placed at Annexure A/5. He avers that during the transit period, as per IFS (PLCA) Rules, the concerned officer and his single dependent parent are entitled for hotel accommodation and daily allowance at scheduled/enforced halts till the concerned officer reaches his destination. At the relevant time, the enforced halt was Djebra in Tunisia. The Government had approved temporary duty for all officials and family members from E/I Tripoli staying at Djerba authorizing stay at separate hotel rooms and daily allowance, which is the official responsibility of Government during such halt and temporary duty.
5. Following this development, a mail dated 08.01.2015 (Annexure A/6) was exchanged between the applicant and the respondents in relation to the status of the dependent mother of the applicant. In their reply, the respondents confirmed that the mother of the applicant will be entitled to the benefits mentioned in para 5(1)(i) of Annexure XI of the PLCA. 6.
4 OA-2816/2017
6. Subsequently, respondent No.2, who was the Head of the Mission (HOM) sought clarification from the Ministry on 16.04.2015 whether separate hotel rooms and DA are admissible to the single dependent parent of the applicant though the room was booked under his (respondent No.2) instructions before the arrival of the applicant and payment of DA to the parent was also approved by him, periodically. The respondent No.1 directed E/I Tripoli on 08.08.2016 to include a recovery of Rs. 5,79,062/- towards hotel room rent and daily allowance paid in respect of the single dependent parent (mother) of the applicant in his Last Pay Certificate (LPC) without intimating or giving any chance to the applicant, before or after, to defend himself (Annexure P/8).
7. On 10.08.2016 E/I Tripoli, 15 months after the applicant left E/I Tripoli, the respondents issued the final LPC to the applicant recovering an amount of Rs. 5,79,062/- towards hotel room rent and daily allowance (Annexure A/9). The applicant preferred an appeal dated 16.08.2016 to respondent No.1 against the aforesaid order. Without responding to the said appeal, respondent No.1 issued another Office Order dated 22.09.2016 directing High Commission of India, Victoria, Seychelles to recover an amount of Rs. 5,79,062/- from the salary of the applicant. The applicant vide his representation dated 07.11.2016 represented against the already started recovery, which was rejected by respondent No.1 on 5 OA-2816/2017 13.12.2016. To a subsequent representation made by the applicant on 17.01.2017, there has been no response till date.
8. The applicant further avers that the India Based Domestic Assistant (servant) of the applicant‟s predecessor, Sh. Sandeep Sood, Second Secretary, was provided a single room accommodation at the same hotel at Djerba by E/I Tripoli in October, 2014 and was paid daily allowance at specified rates. Having on their own allowed his mother to accompany him and provided separate hotel rooms, the respondents did not intimate or caution the applicant that separate hotel room for single parent was not admissible and that the hotel rent, along with daily allowance will be recoverable from the applicant.
9. Aggrieved, the applicant has filed the current O.A. seeking the following relief:-
"Quash the impugned order dated 22-9-2016 (ANNEXURE P/I) and the appellate order dated 13-12-2016 (ANNEXURE P/2) vide which orders a sum of Rs.5,79,062/- (rupees five lacs seventy nine thousand and sixty two) has been directed to be recovered from the salary of the applicant on account of hotel accommodation and Daily Allowance in respect of his parent (single dependant parent) as per the letter No. Q/PA-II/6611/14/2014 dated 8-8-2016 by the respondent."
10. The respondents in their counter affidavit admit that the applicant was posted as First Secretary in the Embassy of India, Tripoli which was relocated to Djerba, Tunisia during the period between November 2014 to May 2015. However, they contend that even 6 OA-2816/2017 before his joining the Mission, Embassy of India, Tripoli had been relocated to Djerba, Tunisia on 12.10.2014. Hence, the applicant had to join the Camp Office in Djerba, Tunisia and was not to be based in Tripoli. They state that the applicant was the Head of Chancery (HOC), i.e. in charge of Administration Wing in the Mission, so he booked separate rooms and paid daily allowance for his mother, both of which are inadmissible to dependent parent during officer‟s posting.
10.1 The respondents further submit that in response to the clarification sought by the applicant on 08.01.2015, he was informed by e-mail (Annexure-II) that entitlement of single dependent parents are mentioned in Para-5(1)(i) of Annexure-XI of IFS (PLCA) Rules. Para-5(e) of the same Annexure stipulates that "no other facility/concession such as accommodation, baggage etc. will be provided to the dependent mother and there will be no additional financial implication to the Government". It is emphasized that the Embassy in Tripoli had already shifted to Djerba, Tunisia before the applicant left India. Since E/I had already shifted to Djerba, before the applicant arrived there, his stay cannot be treated as a transit halt and the expenditure on accommodation and daily allowance granted to his mother is not available to him.
7 OA-2816/2017
11. I have gone through the facts of the case carefully and considered the rival submissions made during the course of personal hearing.
11.1 It is not disputed that civil war was going on Tripoli due to which the Mission in Embassy of India in Tripoli was relocated to Djerba in November, 2014. The applicant‟s transfer order dated 14.10.2014 (Annexure A/4) is to Embassy of India (E/I) at Tripoli, not Djerba, Tunisia, granting dependent status to his mother.
12. That the applicant was honest in his intent, can be seen from the fact that on 08.01.2015 (Annexure A/6), he sought confirmation regarding admissibility of separate hotel accommodation and daily allowance for single parents under IFS (PLCA) Rules, Annexure-XI Travelling Allowance as laid down in para-5 (1)(j). This was confirmed by the respondents stating that dependent parents are entitled to benefits mentioned in sub para of Para-5(1)(i) of Annexure-XI of PLCA. A perusal of the rules shows that Para-5(1)(i) of the aforesaid rules covers 5(j) (cited by the applicant in his mail). The same stipulates that:-
"It is also clarified that the single dependent parent shall be entitled to DA/Hotel accommodation and other admissible benefits during a scheduled halt on journeys by the approved route during transfer and home leave passages.
[] Added vide letter no Q/GA/791/20/85 dated 6.6.2002 The above provisions will be applicable to non-IFS officers as well.
8 OA-2816/2017 (Order No.Q/GA/791/20/85 dated 13.6.97)"
Needless to mention here that this clarification of the respondents, lent credence to applicant‟s bona fide belief that the benefit of hotel accommodation and daily allowance was available to his single dependent parent.
13. The applicant was not issued any show cause notice, for the proposed recovery. The respondents would have us believe that the message sent from Ministry of External Affairs, Delhi to the Mission‟s communication dated 16.04.2015 regarding admissibility of the amount paid by the Mission in respect of the mother of the applicant is akin to a show cause notice. This plea is not acceptable. The fax message is not addressed to the applicant and is only a communication directing the mission to recover Rs.5,79,062/- from LPC of the applicant. There is thus a total denial of principles of natural justice to the applicant.
14. The applicant has submitted that most of the people from Embassy were shifted due to lack of facilities and paid incidental daily allowance. The respondents have not refuted the charge levelled by the applicant that applicable daily allowance was paid to the servant of the applicant‟s predecessor, who was similarly situated (in principle) like the single dependent mother of the applicant.
9 OA-2816/2017
15. As per the IFS (PLCA) Rules, the Government officials on transfer brought can take with them their single dependent parent. It would appear that the single dependent parent is entitled to daily allowance and hotel accommodation during scheduled halt during transfer.
16. Be that as it may, in any case, the applicant was entitled to a show cause notice, giving him a chance to explain as to how his single dependent parent was not entitled to the daily allowance and accommodation, now sought to be recovered from him. He has been deprived of this right without being given any opportunity of hearing. This order of recovery thus is not sustainable being in violation of principles of natural justice. Similar view has been held by the Hon‟ble High Court of Delhi in the case of Munna Ram & Ors. Vs. UOI & Ors., (2004) 113 DLT 232 (DB) holding that:-
"7....In our considered opinion, taking a unilateral decision on a subject as the present one whereby the vested right of the petitioners is being affected is not permissible without following the principles of natural justice and without affording an opportunity to represent and being heard to the petitioner. The said action cannot be sustained......"
17. In view of the aforementioned, the impugned orders dated 22.09.2016 and 13.12.2016 ordering recovery of Rs. 5,79,062/-, cannot be sustained being violative of principles of natural justice and are quashed. O.A. is allowed. This order, however, does not preclude the respondents from issuing a proper show cause notice to the 10 OA-2816/2017 applicant and conduct proceedings, if considered necessary, as per law. The O.A. is allowed. No costs.
(Praveen Mahajan) Member (A) /vinita/