Central Administrative Tribunal - Delhi
The Secretary, Coordination Committee ... vs Union Of India (Uoi) (Through Secretary ... on 2 August, 2006
ORDER Mukesh Kumar Gupta, Member (J)
1. MA No. 2284/2005 is allowed directing that in the Memo of Parties at P-1, Secretary, Coordination Committee of Central Excise Associations, Commissionerate Ghaziabad be taken as Applicant No. 1 instead of Applicant and below that Shri Sudershan Kumar Sharma (affected person) Haveldar, O/o the Commissioner, Central Excise & Customs Ghaziabad be added as Applicant No. 2.
2. Challenge in the OA is made to order dated 10.08.2005 whereby Sr. Accounts Officer (Coord) in the Office of Pr. Chief Controller of Accounts, Central Board of Excise & Customs, New Delhi, directed Pay & Accounts Officers, Ghaziabad, Noida & PAO (C.Ex.) Delhi (under whose jurisdiction Faridabad & Gurgaon falls) to stop payment to employees posted at these places of the transport allowance at the rates of A-1/A-Class cities with immediate effect. The overpayment of transport allowance already made may be recovered through DDOs with immediate effect in easy instalments. Vide para-2 of said Memorandum it was stated that as per the classification of cities for the purpose of entitlement of CCA, Faridabad has been classified as a B-1 city, Ghaziabad as B-2 city, whereas Gurgaon & Noida have both been classified as C class cities. Hence, drawl of transport allowance at these places at the rates of A-1/A class cities is a gross violation of the rules. Reference was also made to Ministry of Finance, Deptt. of Revenue, O.M. dated 22.02.2002 on Transport Allowance to Central Govt. employees, wherein it had been clarified vide item No. 9 that Grant of Transport Allowance should be governed by the new classification of cities for the purpose of CCA as given in Annexure-1 to O.M. dated 03.10.1997. The special dispensation extended to HRA/CCA is not applicable to Transport allowance.
3. Learned Counsel for applicants contended that above Memorandum had been issued without affording them any opportunity of hearing and that they have been treated differently to similarly placed employees of Ghaziabad Municipal area, which is violative of Articles 14 and 16 of the Constitution of India. They are similarly placed to employees of other Ministries and Departments working within the Municipal area of Ghaziabad and their grievance on account of Transport Allowance is no more res integra as decided by this Tribunal vide order and judgment dated 16.09.2005 in OA Nos. 483/2005 and 1292/2005 filed by Joint Action Council Specialists and Doctors and Ors. v. Union of India and Anr. It was further contended that aforesaid order has been further reiterated vide order dated 18.11.2005 in OA No. 1270/2005 Shri J.P. Verma and Ors. v. Union of India and Ors. Further that Respondents had ordered recovery of alleged overpaid transport allowance after more than 8 years, which has a civil consequence and is violative of principles of natural justice. Reliance was placed on 2002 (2) ATJ 208 P.H. Reddy and Ors. v. National Institute of Rural Developments and Ors.
4. Respondents resisted the claim laid and stated that OA is not maintainable as applicants have twisted original facts and rules regarding transport allowance. They are posted at Ghaziabad, and employees posted at Gurgaon, Faridabad and Noid, which do not come under the parameter of group A cities were paid excess amount of Transport Allowance on mis-representation and Respondents have decided to make recovery of excess payment made. There is no restriction to recover excess amount paid. Applicants are entitled to transport allowance only as per rules. As city of Ghaziabad does not fall within the ambit of Group A city, relief claimed cannot be allowed. Reliance was placed on Ministry of Finances OM dated 03.10.1997 as well as clarification issued on 22.02.2002. During the course of hearing, Shri Hari Nath Ram, learned Counsel for Respondents maintained that Memorandum dated 10.08.2005 is just and legal and accordingly deserves to be upheld.
5. Applicants have filed their detailed rejoinder as well as additional rejoinder and reiterated contentions raised vide aforesaid OA.
6. We heard learned Counsel for parties and perused material placed on record including the judgments very carefully.
7. On bestowing our careful consideration, we do not find any justification in the contention raised by Respondents about maintainability etc. of OA. On the other hand, we find justification in applicants contention that the issue raised in present OA is no more res-integra and stands already concluded by orders and judgments dated 16.09.2005 and 18.11.2005. On a pointed query raised to Respondents about the status of aforesaid judgments, it was pointed out that though he has sought instructions from Respondents, but he has not been communicated anything by the concerned department and, therefore, he is unable to make any comment on this aspect. We have carefully perused the latter judgment dated 18.11.2005 which indeed had noticed earlier judgment dated 16.09.2005 also, and find justification in applicants contention. It would be expedient at this stage to notice relevant excerpts of the latter judgment dated 18.11.2005, which read thus:
5. I have heard learned Counsel for parties and carefully perused the impugned communication dated 30.5.2005 and find that the same directed the concerned authorities to make recovery of the excess payment of transport allowance paid to staff working at Faridabad, Gurgaon and Ghaziabad. Para 2 of the said communication also directed the concerned officer to calculate and intimate the said office about the excess amount paid on account of Transport allowance. The same para also states that the recovery of excess payment be started and in future the allowance be paid as per the existing rules. The phraseology of the above said communication has everything to concern with the applicants. As far as the objection regarding territorial jurisdiction is concerned, I find no substance in the said contention for the reasons that the said order has been issued by authority who is located in Delhi and secondly it was issued to the concerned authorities as noted hereinabove for the purpose of effecting recoveries from the applicants though it has not been issued to the applicants directly. Therefore, the effect of such an order cannot be ignored and it cannot read in isolation. I am of the considered view that the cause of action arose partly at Delhi as it was issued by an authority located at Delhi.
6. On merits, Shri D.S. Mahendru, learned Counsel, as noted herein above, rightly contended that the precise issue raised in the present OA, namely, as to whether applicants who were paid TA based at the rates recommended by the Govt. of India from time to time initially by the Ministry of Finance vide OM dated 14.5.1993, on the basis of the principle of contiguity contained in Part 3 (a)(ii) of this Ministrys OM No. 2 (37)-E-II (B)/64 dated 27.11.1965 as well as the subsequent OM issued on the said subject has been dealt with in detail in the aforesaid order and judgment of this Tribunal. It would be expedient to notice para 10 to 16 of the said order and judgment, which not only covered the entire aspect of the OMs as well as the contentions therein, which are also akin to the present case, but also cover on merits as well.
7. The same reads as:
10. I have heard the learned Counsel for the parties and perused the pleadings carefully. At the outset, I may note that the impugned order dated 11.1.2005 had been issued based on E.S.I. Hqrs. Communication dated 23.8.2004, which is a D.O. letter from Joint Director I(B) addressed to Medical Supdtt., ESI Hospital, Noida. Copy of the said communication was made available by the respondents counsel during the course of hearing since it was neither on record nor filed by either party, the same has been taken on record. A perusal of said DO letter indeed goes to show that a reference was made therein to the Ministry of Finance, Department of Expenditure OM dated 03.10.1997 which was circulated vide communication dated 02.12.1997, according to which, transport allowance is to be regulated on the basis of classification of cities for the purpose of said CCA. The thrust of the said communication is the special dispensation extended to HRA/CCA is inapplicable to the payment of transport allowance in terms of Ministry of Finance OM dated 19.4.2003, according to which Noida has been classified as C city. It was emphasized therein that payment of HRA/CCA at higher rates paid to the Central Government employees under the special dispensation of the Government is not applicable to transport allowance.
I may note at this stage that there had been another separate OM.No.21(1)/97.E-II(B) dated 03.10.1997 issued by Ministry of Finance, Department of Expenditure on the subject of 'Grant of Transport allowance to Central Government employees'. Para (3) of the said OM indeed is crucial to adjudicate the issue raised in the present OA, which reads as under:
3. The grant of transport allowance under these orders shall be regulated according to, and will be subject to, following conditions.
i) The cities referred to as A and A-1 in these orders shall be the same as those classified as such for the purpose of Compensatory (City) Allowance (CCA) in terms of the orders issued separately regulating grant of CCA to the Central Government employees;
ii) The allowance shall not be admissible to those employees who are provided with Government accommodation within a distance of one kilometer or within a camp housing the places of work and residence.
Shri K.C. Mittal, learned Counsel for applicants in my respectful view is justified in contending that if the aforesaid OMs dated 03.10.1997 on the subject of grant of transport allowance is read together with another OM of the said date relating to grant of CCA/HRA extract of which were noticed hereinabove earlier vis-`-vis OM dated 14.5.1993, a conclusion is inescapable that the transport allowance is linked with CCA and even if a city has been placed in a lower classification now, in terms of 5th Central Pay commission recommendation and OMs issued based on such recommendations, even then the applicants continue to retain the existing classification for the purpose of CCA/HRA. Similarly I find that the Ministry of Finance has lately issued OM dated 18.11.2004, also reiterated and provides that OM dated 14.5.1993 being a special order relating to grant of CCA/HRA shall continue to be applicable.
13. On bestowing my careful consideration to the contention raised by learned Counsel for respondents that Faridabad is a class B-2 city and Noida as Class -C city in terms of the OM dated 03.10.1997, would have no application in the facts and circumstances of the present case as the said city appears only in Annexure-II appended to the said OM dated 03.10.1997. We are not concerned with the Annexure-II, which only contains a list of cities / towns, and is a general classification of cities / towns. What is relevant for our purpose is the Annexure-1 appended to the aforesaid ONM, which is a classification of cities / towns for the purpose of 'CCA'. The classification of cities provided under Annexure-2 is general classification and has nothing to do with the grant of CCA/HRA, which would be evident from para-2 of the OM dated 03.10.1997, relating to grant of CCA/HRA, as extracted hereinabove.
14. Therefore, I have no hesitation to hold that the applicants continue to be governed by Ministry of Finance OM dated 14.5.1993 read with the latest OM dated 18.11.2004 on the said subject of CCA/HRA and therefore, the respondents action in reducing the said allowance is untenable under law. There is no substance and justification in the respondents plea that Ministry of Finance OM dated 22.2.2002 would be applicable, and special dispensation relating to grant of HRA/CCA as provided under OM dated 14.5.1993 would not be applicable, as projected, moreso for the reasons that the latest OM dated 18.11.2004, as noticed hereinabove, reiterated application of OM dated 14.5.1993. Consequently the impugned communication dated 11.1.2005 is quashed and set aside with all consequential benefits.
15. As far as the question of recovery is concerned since it had a direct relation with the maintainability and eligibility of HRA/CCA and as it has already been held specifically that the applicants are entitled to the benefits of OM dated 14.5.1993 read with OM dated 18.11.2004 and are further entitled to transport allowance @ Rs.800/- p.m., question of recovery did not arise. The judgements relied upon by the respondents thus become inapplicable to the facts of the present case.
In view of the analysis of facts noticed hereinabove, OAs are allowed with all consequential benefits. No costs.
8. It is not disputed by both sides that the said judgment has not been reversed, modified or set aside by any superior Court till date and accordingly it is binding on this Bench being a Coordinate Bench of the Tribunal. Following the law and findings recorded hereinabove, the present OA is allowed. Impugned order dated 30.5.2005 is quashed and set aside with all consequential benefits. No costs.
8. All contentions raised hereinabove are akin to those raised and considered by this Tribunal in aforesaid two judgments. Finding aforementioned order and judgment as a precedent on law and facts, we have no hesitation to allow the present OA. Accordingly, OA is allowed. Impugned Office Memorandum dated 10.08.2005 is quashed and set aside with all consequential benefits. No costs.