Central Administrative Tribunal - Delhi
Jogesh Singh Sondhi vs Union Of India Through on 22 September, 2010
Central Administrative Tribunal Principal Bench TA No.1315/2009 New Delhi this the 22nd day of September, 2010. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) Jogesh Singh Sondhi, IRSE, Executive Director, Civil Engineering (RC&F), Ministry of Railways, Rail Bhawan, New Delhi. -Applicant (By Advocate Ms. Meenu Mainee) -Versus- Union of India through: 1. Secretary, Railway Board, Ministry of Railways, New Delhi. 2. Managing Director, RITES Ltd., RITES Bhawan No.1, Sector 29, Gurgaon. -Respondents (By Advocate Shri Anil Kumar Seth) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Applicant has assailed respondents order dated 18.4.2007, whereby he has not been paid conveyance allowance and retention money. By virtue of this TA he has sought release of amount of US$10,883.33 with interest and also a direction to the respondents to bear all the amount paid by applicant as foreign service contribution to the Northern Railway as also to compensate him for the business development efforts made by him in terms of Team Leader allowance @ 300 US $ per month.
2. Applicant, a member of Indian Railway Service of Civil Engineering was sent on deputation by Railways to WRITES Ltd. where he was deputed as a General Consultant to Delhi Metro Rail Corporation from where he was further sent on deputation to DRB-HICOM, foreign client company, Malaysia as Head for a period of 36 months in terms of a service agreement executed between RITES and client company. As per the conditions of the contract he was entitled for a monthly salary of US$ 2400/- per month, out of which an amount of US$ 240/- p.m. was to be kept by WRITES as retention money. An additional amount of US$ 140 per month as conveyance allowance for commuting from home to office and back was also agreed to be paid, in addition to the salary. As per the term of the agreement a personal tax if levied in Malaysia will be reimbursed by RITES to applicant. Although the agreement was executed for a period of 36 months, but with the mutual consent of both the parties, the applicant came back on 24.11.2003, i.e., after about 28 months. However, the amount claimed in US$ was retained by the respondents despite his repatriation. When the applicant sent a representation it has been conveyed on decision of WRITES management that conveyance allowance has been withdrawn from retrospective effect as the applicant has been provided an official vehicle by DRB-HICOM and its expenses were borne by them. A legal notice served upon applicant was responded to on 18.4.2007 through the impugned order, whereby a liability of 3512.89 US$ was shown against applicant.
3. Learned counsel of applicant would contend that terms of the contract are paramount, which have to be enforced, according to which apart from retention money for 28 months, salary for the month of September 2003 was partly paid, salary for the month of November 2003 was not paid. Applicant was also not paid performance award and as per the corporate policy a gift.
4. Learned counsel would also contend that withholding of amount and stoppage of conveyance allowance on withdrawal from retrospective effect has caused civil consequences and before which no show cause notice has been afforded to the applicant.
5. Insofar as tax liability is concerned, learned counsel would contend that while working in Malaysia applicant was taxed as per the law in Malaysia, which has been borne by WRITES as per the personal agreement and they went ahead to deduct tax at source on foreign salary payable in the year 2003-3004 to deposit with Indian Income Tax Authorities even though double tax treaty agreement exists between Malaysia and India from the dues of the applicant and that too without any justification.
6. Learned counsel would contend that insofar as conveyance allowance is concerned, no vehicle was provided by the client for commuting from home to office and back as had been certified by the DRB, where it is certified that vehicle was provided from time to time for official purpose as per the agreement. The tax liability accrued allegedly to the applicant in India is also not correct. The income at Malaysia was subject to the income tax, which has already been paid. As such, recovered TDS on same salary in India and to adjust in the amount due to applicant is arbitrary. As per the spirit of personal agreement, applicant was to be paid tax-free salary for assignment in Malaysia, as such the applicant cannot be taxed twice for the income tax.
7. On the other hand, the respondents have filed their reply and as a preliminary objection it is stated that the TA is barred by limitation as applicant was relieved and repatriated on 24.11.2003 whereas he had filed this Writ Petition in August 2007, i.e., after the expiry of three years. Reliance has been placed on a decision of the Chandigarh Bench of the Tribunal in Bishwa Nath & Ors. v. Union of India & Ors., 1994 (3) SLJ CAT 260. Learned counsel has also relied upon the decision of the Apex Court in Union of India & others v. Tarsem Singh, (2008) 8 SCC 648, to contend that arrears should be restricted to three years prior to filing of the Writ Petition. Learned counsel has also relied upon the decision of the Apex Court in Board of Secondary Education of Assam v. Md. Sarifuzzaman and others, (2003) 12 SCC 408.
8. We have considered the rival contentions of the parties and perused the material on record. In our considered view in service jurisprudence the commutation of arrears in Bishwa Naths case (supra) was barred by laches as the claim of 7.9.1989 was raked up in 1992. Before the Apex Court the issue of continuing wrong and the fact that a belated service related claim has been held to be unsustainable with the delay of 16 years would affect the consequential claim for arrears. That is why it has been restricted to three years from the date of Writ Petition. However, in the instant case, applicant, who has completed his tenure on 20.11.2003 as per the documents appended by the respondents and acknowledgement to his fax message was entertained on 18.04.2004 and once on legal notice order has been issued on 18.04.2007 the Writ Petition had been filed immediately thereafter. As such, the respondents while considering the claim of applicant and acknowledging the same cannot now approbate and reprobate simultaneously by putting an objection of delay, as the applicant when a final decision has been arrived at by the respondents has challenged the same and the legitimate dues of applicant are also not lapsed by laches as the due was in 2003 and in 2007 he has filed a case. As ruled by the Apex Court in Union of India & others v. Shantiranjan Sarkar, (2009) 3 SCC 90 that Government cannot take advantage of its own wrong in grant of equitable relief. Moreover, in the matter of limitation technicality is to be ignored and meritorious consideration is mandated, as ruled by the Apex Court in Improvement Trust, Ludhiana v. Ujjagar Singh & Ors., 2010 (6) SCALE 173.
9. In the above view of the matter, the preliminary objection of the respondents as to limitation is turned down.
10. Insofar as merit is concerned, the stand of the respondents is that applicant has suppressed the fact of refund of Rs.2,00,704/- on 3.7.2008 by the Income Tax Department and not released an amount of US$3437.63 refunded by the Malaysian Taxation authorities. It is stated that the vehicle No.WLJ 4591 was allotted to applciant for commuting between residence to office and back.
10. Insofar as team leader allowance of US$200 is concerned, it is stated that Mr. A.K. Chakravarty had joined the foreign assignment much before applicant, as such he was not given the said allowance.
11. As regards conveyance allowance of US$150, it is stated that by a decision it has been denied to all, a such applicant cannot be an exception.
12. On careful consideration of the contentions of the learned counsel of applicant and the pleadings on record and the impugned order passed by the respondents, we are of the considered view that once an agreement has been entered between the WRITES and the applicant all its terms and conditions are binding on both the parties. Accordingly, apart from salary in clause 4.1 an additional amount of US$ 150/- p.m. as conveyance allowance has been paid. It is also provided that transport expenses will have to be borne by DRB for visits within the city but there is nothing in the agreement that the amount of 150 US$ would not have to be paid if transport is provided.
13. Insofar as tax liability is concerned, though the tax liability in Malaysia will be reimbursed by WRITES the same is not liable for tax as TDS, once the tax has been paid. The respondents have taken a policy decision to discontinue conveyance allowance, that too retrospectively for which they are not authorized under the contract.
14. As per the Constitution Bench decision of the Apex Court in Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889 though initially the Government service is a contract, it is governed by the Rules framed by the Government of India. However, the contract once entered the parties are bound by the terms if no Rules etc. exist. As we find that that this deputation of applicant on foreign assignment was operated and governed by the terms and conditions of the contract, the same are binding on the parties. As per the contract, not only conveyance allowance but also the retention money is to be paid back to the applicant on successful completion of the project, which is not disputed by the respondents. Moreover, once respondent No.2 has borne the tax liability, applicant is not supposed to pay any tax in India. Also held by the Apex Court in Ahmedabad Education Society v. Girbert B. Shah & Ors., 2004 SCC (L&S) 253, that in case of contract, the terms of contract would govern the service conditions. The aforesaid has also been reiterated by the Apex Court in P. Venugopal v. Union of India, 2008 (2) SCC (L&S) 50.
15. In the above view of the matter, we are of the considered view that the respondents being bound by the terms and conditions of the contract have not considered the request of applicant in right perspective. Moreover, as per the decision of the Apex Court in Grid Corporation of Orissa & Ors. v. Rasananda Das, 2004 SCC (L&S) 214 the conditions of service cannot be altered to the disadvantage. In the present case the conveyance allowance has been stopped retrospectively without putting applicant to notice. Moreover, a civil consequence of loss of pay when accrued to a Government servant with infraction of property and personal rights, the administrative order should be passed after a pre-decisional hearing, as ruled by the Apex Court in Sahara India, Lucknow v. CIT, 2008 (3) AJW 847. Also held in Tejshree Ghag & Ors. v. Prakash Parashuram Patil & Ors., 2007 (2) SCC L&S) 452 that on civil consequences audi alteram partem is a rule.
16. Resultantly, we are of the considered view that rejection of request of applicant for grant of retention money and other benefits is not in consonance with law. TA is allowed to the extent that impugned order is set aside. Respondent No.2 is directed to reconsider releasing all dues to the applicant, as prayed for in the TA, with arrears, by passing a detailed and speaking order, within a period of three months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
San.