Central Administrative Tribunal - Hyderabad
Suman Kanti Roy vs Council Of Scientific & Industrial ... on 3 January, 2023
O.A.No.021/0441/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
HYDERABAD
O.A.No.021/0441/2022
Date of CAV : 16.12.2022
Date of Pronouncement : 03.01.2023
THE HON'BLE MR. B.ANAND, MEMBER (ADMN.)
Between:
Mr.Suman Kanti Roy, S/o late A.K.Roy,
Aged about 56 years, Occ:Controller of Finance &
Accounts, CSIR-IICT, Tarnaka, Hyderabad,
Telangana State., ...Applicant
(By Advocate:Mr.K.Sudhaker Reddy, Counsel for the Applicant)
AND
The Union of India, rep. By the
Director General, Council of Scientific
And Industrial Research, "Anusandhan
Bhawan", Rafi Marg, New Delhi. ...Respondent
(By Advocate: Mr.M.Srikanth, SC for CSIR
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O.A.No.021/0441/2022
: ORDER:
(By Hon'ble Mr.B.Anand, Administrative Member ) The applicant filed this OA seeking for the following reliefs:
"To quash and set aside the impugned order dated 19.05.2022 communicated vide CSIR OM No.3-8(295)/7/96-E.I dt:
27.5.2022, OM No.15-29(65)/2012-Vig Dated 31 Jan 2019 and the OM. Dated 11 Nov 2019 issued by the Respondent as illegal, arbitrary, and also violation of the applicant's fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India;
and Consequently, direct the respondent herein to restore availment of LTC from the year 2012 onwards while regularising the earlier claims as per Joint Declaration and pass such and further order or orders as this Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case are that the applicant herein was appointed as Section Officer in the year 1995 and presently holding the post of Controller of Finance and Accounts. In the year 2002, when his wife Smt. Moushumi Roy, got a job as Traffic Assistant in Indian Airlines Limited, the respondent had asked the applicant to submit a Joint Declaration to the extent that the reimbursement of expenses on LTC, TA on Transfer, Medical Treatment, Tuition Fee etc., in respect of the family members, who are wholly dependent, would be claimed by the applicant only and not by his wife. In compliance of the directions of the respondent, the applicant herein submitted a Joint Declaration dated 25.11.2022 and the same was accepted by the respondent authorities. In pursuance of the Joint Page 2 of 12 O.A.No.021/0441/2022 Declaration, the applicant had applied for availing LTC for self and the family members for the years 2006-07, 2008-09 and 2010-12, which was duly sanctioned by the competent authorities on different occasions. But, in the year 2012, the applicant was informed that his LTC claim to Jammu and Kashmir was not in order and subsequently the impugned order was issued to recover the amounts for earlier LTC claims as well i.e., the years 2006-07 and 2008-09. Aggrieved by the same, the applicant preferred an appeal dated 12.04.2021 to the Vice President, CSIR. But the same was rejected vide orders dated 19.05.2022, communicated vide CSIR OM dated 27.05.2022, without considering the issues raised by the applicant in his representation.
3. The applicant further submitted that while working as FAO, he had availed the benefit of LTC for the block year 2006-07 to visit Guwahati from Nagpur and for the block year 2008-09 to visit Havelock Island and to visit Jammu & Kashmir in the year 2012 for self and family members. In fact, the LTC on these occasions were sanctioned by the various competent authorities, who were fully aware of the Joint Declaration and on receipt of OM only, the applicant proceeded to avail LTC, which was duly admitted by the respective DDOs.
4 The applicant further submitted that to his utter shock and surprise, the respondent had issued a show cause notice, vide impugned OM dated 31.01.2019 and directed the applicant as to why LTC facility availed by him for the LTC block year 2006-07 to visit Guwahati from Nagpur and for Page 3 of 12 O.A.No.021/0441/2022 the block year 2008-09 to visit Havelock Island, should not be withdrawn and recover the amount with penal interest. The applicant submitted his explanation dated 22.02.2019 to the said show cause notice and stated that his wife who is working as Traffic Assistant in Indian Airlines, and at the time of submission of his joint declaration the then SR.COA had written to the competent authorities to confirm about their joint declaration, who in turn confirmed that this wife would be permitted to avail only medical facility for herself and all the remaining facilities like LTC, medical facilities, tuition fees reimbursement would be claimed by him. The Deputy General Manager (Personnel), Indian Airlines, Hyderabad, had called upon the applicant and explained that the implication of submission of joint declaration would amount to forfeiture of his wife claim for Free Passes. The respondent took an undertaking from the applicant and sent a copy of the SR.COA, IICT, Hyderabad. After due diligence the then competent authority have accepted joint declaration and passed it in the applicant's service book and accepted the then competent authorities, and there was no suppression of the facts or misrepresentation on behalf of the applicant.
5. The applicant further submitted that his salary during 2002 was hardly sufficient for meeting his family needs and he never availed any LTC till he got promotion as FAO in the year 2006. Prior to joining CSIR, the applicant had worked for 10 years in Crime Branch CID, Govt. of A.P, Hyderabad as Sub-Inspector RPF in Indian Railways during 1985 and 1995. The applicant submitted that he had received appreciation awards from the respondent in saving several crores of rupees of IICT/CSIR.
6. The applicant further submitted that as per DOPT OM dated 20-10-1997, in regard to V CPC recommendations on LTC, the Joint Page 4 of 12 O.A.No.021/0441/2022 Secretary level officers and above were permitted to travel by Air or AC 1st Class. That the Government servants and their spouses who are working in Indian Railways and National Airlines would be debarred from availing LTC as they are entitled for Free Pass. A normal employee, whose spouse is not working in Airlines is entitled to travel by Rail/Ship/Bus to places which were not connected by Air and also travel in Private Airlines in more than 70 exempted sectors and to North Eastern Region and Jammu and Kashmir Region, whereas such facility is denied to spouses of National Airlines. It is a clear case of discrimination.
7. The applicant further submitted that regarding availing of LTC on three occasions, the applicant's LTC was sanctioned by various competent authorities fully aware of Joint Declaration, and DOPT OM dated 20.10.1997, and on receipt of OM, the applicant proceeded to avail LTC, which was duly admitted by the respective Drawing and Disbursing Officers.
8. The applicant further submitted that the Chief Vigilance Officer, CSIR vide OM dated 11.11.2019 had stated that forfeiture of free passes is not available under LTC Rules. But, no LTC Rule, as such, debars submission of Joint Declaration, when both the employee and his/her spouse are Government servants. As per the contention of the respondent, the DoPT OM dated 20.10.1997, which denies the Right of an employee to give joint declaration in respect of LTC only, but it permits to give it in respect of other facilities like medical facilities, tuition fee reimbursement, Transfer TA etc., Page 5 of 12 O.A.No.021/0441/2022
9. The applicant, therefore, submitted that he did not suppress any relevant material facts or mislead the respondents while availing the LTC and the same was availed in pursuance of the joint declaration submitted by him and his wife, which was duly accepted by the then competent authorities. The impugned order dated 9.5.2022 communicated through CSIR OM dated 27.5.2022, OM dated 31.01.2019 and the OM dated 11.11.2019 is liable to be set aside as being illegal, arbitrary and in violation the applicant's fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. Hence, the present OA.
10. In reply, the respondents have stated that the applicant joined as Section Officer (Finance and Accounts) on 21.03.1995. While working as SO (F&A) at IICT, Hyderabad, the applicant submitted a joint declaration on 25.11.2002 along with his wife Mrs. Moushumi Roy, who was working as Traffic Assistant in Indian Airlines, Hyderabad w.e.f 2001. It is mentioned in the joint declaration that reimbursement of expenses on account of eligible LTC, TA on transfer, medical treatment, tuition fee etc., in respect of his family. The applicant has availed LTC for the block year 2006-07 to visit Guwahati from Nagpur and for the block year 2006-09 to visit Havelok Island for himself and family members. He had also availed LTC for himself and family members to visit Srinagar for the block year 2010-13. At that time, CSIR-NGRI vide letter dated 10.07.2012 sought clarification from CSIR, whether the claim of the applicant can be entertained in view of Rule 14 (d) of CCS (LTC) Rules when an employee's spouse is working in Indian Airlines.
11. The reply to NGRI letter dated 10.07.2012, CSIR, vide letter dated 16.08.2012, requested the Director, NGRI to settle the issue relating to Page 6 of 12 O.A.No.021/0441/2022 entitlement of Shri Roy to avail the facility of LTC in accordance with Para 2 (e) of DOPT OM No.31011/7/97-Estt (A) dated 20.10.1997 at Institute level. It was found after examining the relevant rules as well as the instructions issued in above DOPT OM that the claim of the applicant for LTC was contrary to the rules. Thereafter, NGRI recovered the entire amount of LTC claim, for the block year 2010-13, from the applicant. A complaint dated 07.09.2018 was also received in Vigilance Section against the applicant regarding misuse of LTC facility by him. After examination a show cause notice was served on the applicant vide OM date 31.01.2019 seeking clarification as to why LTC sanctioned to him may not be cancelled and entire amount may be withdrawn from him with penal interest. Against the aforesaid OM dated 31.01.2019, the applicant submitted his reply dated 20.02.2019, which was considered by the Competent Authority and found that the act of the applicant has not misused LTC facility rather it is an act based on his preconceived notions and wishful interpretation of rules on the subject. However, he was found ineligible for claiming LTC from CSIR in accordance with DoPT OM dated 20.10.1997, as his wife was working in Indian Airlines. Therefore, OM dated 11.11.2019, competent authority ordered that the entire amount in respect of LTC claimed by the applicant for the block years 2006-07 and 2006-09 is to be recovered from him.
12. The respondents further stated that the applicant has availed LTC for the block year 2006-07 to visit Guwahati from Nagpur and for the block year 2006-09 to visit Havelok Islands for self and members. He had also availed LTC for self and family members to visit Srinagar for the block year 2010-13. At that time, CSIR-NGRI vide letter dated 10.07.2012 sought clarification, whether based on the Joint declaration, the LTC claim (for the Page 7 of 12 O.A.No.021/0441/2022 block year 2010-13) could be entertained when an employee's spouse is working in Indian Airlines.
13. The respondents further submitted that the applicant has availed LTC for himself and his family when his wife was working in Indian Airlines as Traffic Assistant (since 2001). As per the Government of India instructions the Government servant and their spouse working in National Airlines are not entitled for LTC facility. The rule still stands and has not been challenged by the applicant. As such, the LTC facilities availed by the applicant after 2001, were not in accordance with the rules and liable to be forfeited. The applicant has contended that he had submitted a joint declaration to the office whereby informing that his wife has surrendered all the facilities offered by National Airlines except medical facility for herself and he would be availing these facilities (including LTC) from his office. The contention of the applicant is not plausible as any option of availing the LTC facility in lieu of forfeiture of free passes is unavailable under the LTC rules. In view of the specific rules disallowing any such claims, the applicant's LTC claim is to be settled in accordance with the instant rules and instructions on the subject. As such, the applicant was not entitled for LTC and he had been paid LTC claim in contravention of rules and the same is to be cancelled and the payments made to him on this account needs to be recovered.
14. The respondents further stated that since the applicant did not suppress the information regarding his wife's employment and that the act of the applicant was not treated as misuse of LTC facility for which he would be liable for disciplinary action, and therefore, there could be no recovery, is untenable. The recovery being made is not as a measure of Page 8 of 12 O.A.No.021/0441/2022 penalty, but as the applicant made towards LTC claim was contrary to the rules. Since, he was paid the LTC facility for which he was not entitled, he is liable to return the amount.
15. The respondents, therefore, stated that the applicant is not entitled for any relief and prayed that this Tribunal may be pleased to dismiss the OA.
16. Heard Mr.K.Sudhaker Reddy, learned counsel for the Applicant and Mrs.Sridevi representing Mr.M.Srikanth, learned standing counsel for the Respondents.
17. It is seen that the administration of CSIR-IICT (unaware of the existence of the DoP&T OM No.31011/7/97-Estt.(A) dtd. 20.10.1997), had permitted the applicant to avail LTC benefits for the Block Year 2006-2007 from Nagpur to Guwahati and for the Block Year 2008-2009 from Nagpur to Havelock Island for self and family members on the basis of the joint declaration submitted by him and his wife Smt.Moushumi Roy who is working as Traffic Assistant in Indian Airlines Limited since 2002. Now, vide OM No.15-29(65)/2012-Vig dated 31.01.2019, the CSIR-IICT is asking the applicant Sri Suman Kanti Roy, F&AO, CFTRI to refund the amount with penal interest for the LTC availed by him and his family members for the Block Year 2006-2007 from Nagpur to Guwahati and for the Block Year 2008-2009 from Nagpur to Havelock Island. It is evident that the applicant has not suppressed the fact of his wife working in the Indian Airlines; he has not unduly obtained the benefit of LTC from CSIR- IICT, Tarnaka, Hyderabad which had ordered for recovery of LTC amount from the applicant who is not entitled to the same.
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O.A.No.021/0441/2022
8. The issue at hand is squarely covered by the judgment of the Hon'ble Supreme Court in Civil Appeal No.11527/2014 (Arising out of SLP(C) No.116684 of 2012) in State of Punjab & others vs. Rafiq Masih (White Washer), wherein the Hon'ble Supreme Court had held that -
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by an employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from retired employees, or employees who are due to retire within one year of the order of recovery.
(iii) Recovery from employees, when the excess payment have been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
19. A careful reading of the above five situations mentioned in Rafiq Masih's judgment of the Hon'ble Supreme Court, indicates that the current case is covered under point no.(iii) at Para 18 above whereby recovery would be impermissible in law as per the judgment. Based on the Hon'ble Page 10 of 12 O.A.No.021/0441/2022 Supreme Court's judgment in Rafiq Masih's case, the DoP&T has issued an OM F.No.18/03/2015-Estt.(Pay-I) dated 02.03.2016, for implementation by all Govt. departments and Autonomous Institutions including CSIR-IICT.
The orders for recovery pertaining to LTC Block Years 2006-2007 & 2008-2009, made by the employer in the present case, are beyond a period of 5 years, and therefore, is impermissible in law.
20. In fact, this Point No.(iii) of the guidelines laid down by the Hon'ble Supreme Court of India in Civil Appeal No.11527/2014 (Arising out of SLP (C) No.116684 of 2012) in State of Punjab & others vs. Rafiq Masih (White Washer) that "recovery from employees, when the excess payment have been made for a period in excess of five years, before the order of recovery is issued" shall be impermissible in law, as per DoP&T OM F.No.18/03/2015-Estt.(Pay-I) dated 02.03.2016, was raised by the applicant Sri Suman Kanti Roy, CoFA,CSIR-CCMB, before the competent authority in CSIR, the same is referred in the impugned order dated 19.05.2022, issued by the Vice President, CSIR. However, this impugned order has taken a narrow view that this aforesaid point is related to only excess payment of salary/wages/emoluments, which is not the case in hand, and also the extreme hardship may not be established in this matter since the applicant is an Officer of Deputy Secretary rank.
21. This is a very narrow interpretation, however, the law laid down in Rafiq Masih's case. It is also not out of place to mention that Rule 18 of CCS (LTC) Rules, 1988 also envisages that the power to relax these rules. In such cases, as the present case in hand, it is not a fraudulent claim as Page 11 of 12 O.A.No.021/0441/2022 admitted by the management of the CSIR and it is only a wishful claim by the applicant, who in a fair manner has given a joint declaration based on his understanding of the CCS (LTC) Rules. The said Rule 18 is an enabling provision "where any Ministry or Department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, that Ministry or Department, as the case may be, may, by order, for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exception and conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that no such order shall be made except with the concurrence of the Department of Personnel and Training" .
22. Hence, keeping the above in view, the impugned orders dated 31.01.2019, 11.11.2019 & 19.05.2022, issued by the respondents ordering recovery of LTC amount from the applicant, are illegal and hence set aside.
23. With the above observation, the OA is disposed of. No order as to costs.
( B.ANAND ) ADMINISTRATIVE MEMBER Dsn/psandya Page 12 of 12