Central Administrative Tribunal - Cuttack
A P Panda vs D/O Post on 3 December, 2019
1 CENTRAL ADMINISTRARTIVE TRIBUNAL CUTTACK BENCH OA No. 404 of 2016 Present : Hon'ble Mr. Gokul Chandra Pati, Member (A) Amulya Prasad Panda, aged about 39 years, S/o Aparti Kumar Panda, resident of At-Oscar City, Plot No. 1769, Laxmisagar, PO- Budheswari Colony, Bhubaneswar, Dist-Khurda, Odisha, Pin - 751006.
......Applicant VERSUS
1. Union of India represented through its Secretary-cum-director General of Posts, Dak Bhawan, Sansad Marg, New Delhi- 110016.
2. The Chief Post Master General, Odisha Circle, At/PO - Bhubaneswar, dist-Khurda, Odisha-751001.
3. The Senior Superintendent, RMS 'N' Division, Cuttack-753001.
4. The Director Accounts (Postal), Mahanadi Vihar, Cuttack- 753004.
......Respondents
For the applicant : Mr.C.P.Sahani, counsel
For the respondents: Mr.A.K.Mohapatra, counsel
Heard & reserved on : 22.11.2019 Order on : 3.12.2019
O R D E R
Per Mr. Gokul Chandra Pati, Member (A)
The applicant has prayed for the following reliefs in the present OA :
"(i) Admit the Original Application, and
(ii) After hearing the counsels for the parties be further pleased to
quash the objection raised by the audit vide Annexure A/13 and the consequential order for recovery of Rs.19,290/- vide Annexure A/14, Annexure A/18 and Annexure A/20. And consequently, orders may be passé directing the Respondents to refund the amount recovered from the pay of the applicant with interest.
And/or
(iii) Pass any other order(s) as the Hon'ble Tribunal deem just and proper in the interest of justice considering the facts and circumstances of the case and allow the OA with costs.
2. Heard learned counsel for the applicant. He submits that the applicant was allowed LTC advance of Rs.43,000/- vide sanction order dated 25.11.2008 (Annexure A/1). Thereafter he purchased the ticket on 27.11.2008 and submitted the detailed LTC bill on 11.12.2008 amounting to Rs.36,372/- and refunded the remaining amount. However, subsequently an amount of Rs.14,965/- was ordered to be recovered vide order dated 17.8.2009 (Annexure A/5) on the ground that the applicant had purchased the Air ticket at full fare 2 economy price whereas he should have purchased the ticket at LTC-80 as per the OM dated 4.12.2008 (Annexure A/6). Reference was made to respondent No.2 and vide his letter dated 2.12.2009 (Annexure A/10) he directed for passing of the LTC bill concerned on the following grounds :
"The official was availed LTC (NE circle) in package rate than on economy flight rate prior to implementation of the Ministry of Finance instruction, which was not circulated by the Deptt. Of Posts at the time of LTC journey.
Hence, package rate as admissible earlier may be allowed to Sri A.P.Panda, SA as passed the LTC case i.f.o. Sri R.N.Pradhan, Ex.SSRM, RMS 'N' Dn., Cutack."
However, subsequently the Audit raised the matter on the same ground and vide report at Annexure A/13 stated that the case of the applicant along with another employee Mr.Jiban Sahoo were objected by the Audit. Thereafter an amount of Rs.19,000/- has been recovered from the applicant on the ground that the LTC availed was not at the cheapest fare but on the economy fare. Learned counsel further submitted that Mr.Jeeban Sahu against whom similar recovery was ordered as per the audit report, had challenged the order of recovery in OA No. 938/2012, which was allowed by this Tribunal vide order dated 6.5.2014. Copy of the said order has been filed by the learned counsel for the applicant. It is submitted that the applicant, being similarly placed as Mr.Jeeban Sahu, is also entitled for similar relief.
3. Heard learned counsel for the respondents. He referred to para 7 & 9 of the counter to say that the amount is recoverable since the applicant availed full economy air fare from Kolkata to Guwahati whereas he should have bought the ticket at the cheapest fare as per instruction of the Government in OM dated 1.10.2008 which was issued before the commencement of the LTC journey.
4. Learned counsel for the applicant submitted that the applicant has mentioned in his rejoinder that the respondent No.2 has taken a decision in favour of the applicant allowing the economy fair and the amount which was earlier recovered was refunded to the applicant. Therefore the issue was already settled since the OM dated 4.12.2008 is not at all applicable to the applicant. In the rejoinder the case of Mr.Jeeban Sahu under similar circumstance has also been cited.
5. The pleadings on record as well as submissions of the learned counsels including the judgments cited at the time of hearing, have been duly considered by me. In OA No. 938/2012 in the case of Mr.Jeeban Sahu -vs- Secretary, Ministry of Communication & IT & Others, disposed of vide order 3 dated 6.5.2014, the amount was recovered on a similar ground. The OA was allowed by this Tribunal with the following observation :
"5. Respondents have filed their counter reply in which they have submitted that the LTC claim of the applicant was not cancelled, but regularized by the internal audit in accordance with the Ministry of Finance order dated 1.10.2008. In this order issued by the Ministry of Finance, cheapest economy fare was specified to leverage the discount being provided by airlines. Clarification regarding the cheapest air fare was sought by Res.No.3 from NACIL, Bhubaneswar who in turn replied in their letter dated 15.12.2008 which is available at Annexure R/3 to the counter. This was taken into account by the audit party. Therefore, the issue was not regarding LTC-80, but it was about the cheapest fare. The further argument given by the respondents it that there was sufficient scope for the applicant to know about the contents of the Government order dated 1.10.2008 before he could undertake his journey on 26.10.2008. It is further submitted that the internal audit first issued a rough memo on 21.3.2011 and in the final inspection report was issued on 22.12.2011. The internal audit incorporated their objection observing that full economy fare was irregularly reimbursed to the applicant in respect of journey from Kolkata to Guwahati and back in contravention of the Ministry of Finance letters dated 1.10.2008 and 4.12.2008 instead of the cheapest economy fare to leverage the discounts being provided by the airlines. They also observed that it was ascertained form the Station Manager, NACIL, Bhubaneswar vide letter dated 15.12.2008 that the cheapest air fare was Rs.3625 from Kolkata to Guwahati. Accordingly, they regulated the claim of the applicant to the cheapest fare communicated by the NACIL. It is also seen that when the draft memo of objection was given by the audit, the office of Res. No.3 complied with the objection stating that the LTC bill of the applicant was sanctioned on 9.11.2008 before issue of the Ministry of Finance OM dated 4.12.2008. However, in the final audit report, the audit observed that the tickets were actually purchased on 14.10.2008 by the applicant after the issue of guidelines on austerity measure by the Ministry of finance on 1.10.2008 and therefore, these fguidle4ines will apply in the case of the applicant and recovery in accordance with the same will have to be effected. The main contention of the Respondents in the counter reply is that the Ministry of Finance OM dated 1.10.2008 will take effect from that date and the plea of the applicant that he was not aware of this OM before undertaking journey cannot be accepted. Further, the respondents have also emphasized that the objection was not regarding LTC-80 but about the cheapest fare.
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8. ...........Therefore, OM dated 1.10.2008 needs to be examined threadbare. OM dated 1.10.2008 issued by the Ministry of Finance stipulates that as a measure of austerity, each Ministry/Department would have to ensure that they devise internal processes to leverage the discounts being provided by the Airlines. This includes buying the cheapest fare in Economy/Business Class travel; preferably by getting information through the internet and using Corporate Coupons for economy/business class travel through proper planning and coordination. It is, therefore, a direction issued to the various Ministries/Departments to make necessary arrangements in this regard to ensure compliance of austerity measures. It is the case of the applicant that this OM dated 1.10.2008 was circulated though the Department of Posts to all Heads of Circles on 14.10.2008 vide their communication placed at Annexure A/10,. This was received by Respondent No.3 on 24.10.2008 and the Res.No.3 on 27.10.2008 circulated this to HRO, Cuttack. On this basis, applicant has pleaded that before he proceeded on LTC trip on 6.10.2008, he had no knowledge about the issue of this OM by the Ministry of Finance. On the observation of audit party, Respondents have pleaded that the OM should be enforced from 1.10.2008 i.e. from the date of its issue. There is no doubt that the OM takes effect from the date of its issue, i.e. 1.10.2008. However, for implementation of economic measures as stipulated in the said OM, a reasonable time for communication of the same would have to be taken into account since after the issue of guidelines of the Ministry of Finance, the Department of Posts, in a subsequent date communicated this to the head of the Circles and again at a much later date this was communicated to various 4 subordinate offices. Para-2 of the OM indicates that the Department would have to ensure that they devise internal processes to leverage the discount being provided by the airlines. Therefore, by the time these administrative measures could be implemented by the concerned Department and the subordinate offices, LTC claims in respect of the applicant had already been sanctioned on 9.11.2008 after he completed his journey on 28.10.2008. Journey was undertaken under the authority of OM dated 2.5.2008 issued by the DOP&T, in which relaxation was given for air travel to visit NER. Applicant booked the air ticket on 14.10.2008 in the King Fisher airlines in economy class and before booking of this ticket, he was sanctioned 90% of the estimated air fare. It is, therefore, clear that the objection raised by the audit that applicant had purchased the ticket on 14.10.2008 after the issue of the Ministry of Finance OM dated 1.10.2008 does not have any justification, since it appears from the record that neither the applicant nor the sanctioning authority int his case had any knowledge of the measures to be enforced in pursuance of OM dated 1.10.2008......."
6. From the observations made in the order dated 6.5.2014 of this Tribunal it is clear that the OM dated 1.10.2008 was circulated by the respondents on 14.10.2008 and 24.10.2008. Since this LTC advance in favour of Mr.Jeeban Sahu was sanctioned prior to these dates of communication of the circular, it was held by the Tribunal that the objection raised by the respondents to the claim was not appropriate and the order of recovery was quashed with the following observation :
"10. Apart from the above, I am inclined to hold that there should have been a reasonable interpretation of the various guidelines issued in this regard and if no fraud or mischief has been placed by the concerned employee and his claims were duly sanctioned by the concerned authorities under the guidelines covering the field at the relevant point of time, there is no ground to inflict an order of recovery from the concerned Government servant. It is no doubt a fact that in respect of the dues as admissible to a Government servant, if at all over payment has been made, Government at a subsequent point of time can make recovery of the same so as to obviate an unjust enrichment. However, the facts in a given circumstance will decide whether an amount duly sanctioned is an unjust enrichment or not. Here is a case where the Government servant/applicant under the relaxed guidelines visited NER with his family availing of LTC as a substitute of home town LTC. He was given advance and also sanctioned the claims as due to him under the guidelines, relevant at that point of time. The journey admittedly, has been completed and applicant as well as the sanctioning authority have not only violated the rules which were in force at the relevant point of time but also acted in good faith. Therefore, I am of the opinion that passing of an order of recovery on the basis of audit objection hardly has any validity to be legally sustained."
7. Applying the ratio of the above judgment to the present OA, it is seen that the recovery is made mainly on the ground that the applicant has not bought the cheapest air ticket as required under OM dated 1.10.2008 and as noted in the order dated 6.5.2014 of the Tribunal, the OM dated 1.10.2008 was circulated on 24.10.2008. The sanction of LTC advance in case of the present applicant was made on 25.11.2008. Therefore, the sanction date was after the date of circulation of the OM, which is unlike the case of Mr.Jeeban Sahu. Hence, the facts of the case of Mr.Jeeban Sahu are different from the facts of the present OA. In this OA, it was the responsibility of the authorities to have acted as per the OM dated 1.10.2008, while sanctioning the LTC advance or 5 while passing LTC bill in favour of the applicant, which should have been done as per the cheapest economy air fare instead of full economy air fare. Regarding the decision of respondent No.2 on applicability of OM dated 4.12.2008, it was a correct decision because the LTC in favour of the applicant was sanctioned on 25.11.2008 which was prior to issue of OM dated 4.12.2008. Therefore the OM dated 4.12.2008 was not applicable in this case. In that background the decision of respondent No.2 not to recover Rs.14,965/- basing on OM dated 4.12.2008 was issued vide Annexure A/10 dated 2.12.2009. It is clear that this letter did not take into account the implication of OM dated 1.10.2008 which was pointed out subsequently by the Audit report dated 21.12.2011 (Annexure A/13).
8. Therefore, it is clear from the above that since sanction of the LTC was done on 25.11.2008 after the date of circulation of OM dated 1.10.2008, the air ticket should have been purchased in the cheapest rate instead of economy fare and therefore action taken by the respondents for recovering the excess amount paid to the applicant was in accordance with the instruction of the Government that was in force on the date of sanction of the LTC advance. Hence the grounds raised in the OA are not tenable. Further, the claim of similarity of applicant's case with the case of Mr.Jeeban Sahu, by the learned counsel for the applicant is not correct because the fact that the LTC advance and LTC trip in the case of Mr.Jeeban Sahu happened prior to circulation of the OM dated 1.10.2008.
9. In view of the above, the OA is dismissed with no order as to costs.
(GOKUL CHANDRA PATI) MEMBER (A) I.Nath