Central Administrative Tribunal - Lucknow
Arunendu Kumar Verma vs Union Of India on 24 September, 2024
CAT, Lucknow Bench OA No. 332/00012 of 2020 A.K. Verma Vs. U.O.I. & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00012/2020
Dated this 24th day of September, 2024
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Arunendu Kumar Verma, aged about 61 years, son of Shri Shiv Kumar
Verma, Resident of 2/668, Vivek Khand, Gomti Nagar Lucknow.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India through the Director General of Audit, Department of
Post & Telecommunications, Sham Nath Marg, Civil Lines, Delhi.
2. The Comptroller & Auditor General of India, Deen Dayala Upadhyay
Marg, New Delhi.
3. The Deputy Director of Audit, Department of Post &
Telecommunications, 4th Floor, Audit Bhawan, Vibhuti Khan, Gomti
Nagar, Lucknow.
.....Respondents
By Advocate: Shri Anurag Srivastava
O R D E R (ORAL)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case, the applicant has sought the following reliefs:
"(1) To quash the impugned order dated 06.11.2019 (contained as Annexure No.A-1 to this OA) with all consequential benefits. (2) To refund the recovered amount Rs. 264785/- to the applicant alongwith interest @ 12% per annum from the date of due till the actual date of payment.
(3) Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed. (4) Cost of the present case."
2. The facts of the case are that an amount of Rs. 2,29,500/- was sanctioned and released to the applicant, working as Audit Officer under the respondents, as Leave Travel Concession (LTC) advance on Page 1 of 6 CAT, Lucknow Bench OA No. 332/00012 of 2020 A.K. Verma Vs. U.O.I. & Ors.
02.12.2008 at his request by the respondents. Subsequently, following a complaint, the respondents sought explanation from the applicant regarding LTC availed by the applicant, and decided to recover, vide order dated 11.06.2012, the an amount of Rs. 2,64,785/- from him. The applicant submitted representation dated 08.07.2019 challenging the recovery made from him which was rejected by the respondents vide order dated 06.11.2019. Aggrieved, the applicant has preferred this OA.
3. The applicant contends that the impugned order dated 06.11.2019 is illegal, unreasonable and misconceived as the applicant was never issued any show cause notice. He states that due to belated release of LTC advance, ticket could not be booked at cheapest fare. It is further stated that the respondents have failed to consider that LTC-80 scheme was introduced on 04.12.2008 and was applicable from that date and not from 01.12.2008 as the respondents have apparently assumed.
4. Per contra, the respondents state that the applicant, who was also working as the Drawing and Disbursing Officer (DDO) at the relevant point of time, applied for, and withdrew on 02.12.2008, the LTC advance of Rs. 2,29,500/-. He, then, submitted final LTC bill of Rs.
2,78,158/- on 03.02.2009 and an amount of Rs. 48,658/- (after deducting advance of Rs. 2,29,500/-) was also paid to him on 30.03.2009. Thereafter, following a complaint about fraudulent reimbursement of Rs. 2,78,158/- to the applicant, an explanation was sought from the applicant for not having purchased full economy ticket.
In the ensuing investigation, other irregularities such as non-production of original boarding passes, mismatching of dates of boarding passes and dates of journey, journey by private airlines, booking of tickets from private agent, non-implementation of LTC-80 fares etc. were detected, which had been ignored while passing the final LTC bill by the applicant Page 2 of 6 CAT, Lucknow Bench OA No. 332/00012 of 2020 A.K. Verma Vs. U.O.I. & Ors.
himself in his capacity as DDO. Accordingly, recovery order dated 11.06.2012 for Rs. 1,95,958/- was issued and was communicated to the applicant vide letter dated 18.06.2012 (Annexure CR-8). The said amount was recovered from May, 2012 to April, 2013 as per the recovery statement (Annexure CR-9). The respondents further contend that the applicant has not come with clean hands and he did not challenge the recovery order dated 11.06.2012 so as to overcome the bar of limitation prescribed under section 21 of the Administrative Tribunals Act, 1985.
It is also stated that the applicant made a representation only after he retired from service on 30.06.2019.
5. Heard both the parties.
6.1 It is noted that the cause of action arose for the applicant when the order dated 11.06.2012 for recovery of Rs. 1,95,958/- was issued and communicated to him vide letter 18.06.2012. The amount was recovered from May, 2012 to April, 2013 from the applicant. The applicant could not have been ignorant of the order of recovery as well as the actual recovery. The silence on part of the applicant for more than six years after the recovery is inexplicable.
6.2 The following observations made by Hon'ble Supreme Court in C Jacob vs Director of Geology & Mining 2008 (2) SCC (L&S) are indeed illuminating in the case at hand:
"5. We propose to examine the following two issues arising in this case:
(i) The modus of representation adopted by several claimants/petitioners to get over the bar of limitation/ delay and laches.
(ii) Common error in assuming that 10 years service entitles a government servant of pension under the pension Rules.
The modus of 'representation'
6. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such Page 3 of 6 CAT, Lucknow Bench OA No. 332/00012 of 2020 A.K. Verma Vs. U.O.I. & Ors.
challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
7. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
8. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of 'acknowledgment of a jural relationship' to give rise to a fresh cause of action.
9. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for purpose of pension. That will be a travesty of justice. Where an employee Page 4 of 6 CAT, Lucknow Bench OA No. 332/00012 of 2020 A.K. Verma Vs. U.O.I. & Ors.
unauthorizedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/ removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back-wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back- wages.
10. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for 'consideration'. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing 'consideration' of such claims.
11. The present case is a typical example of 'representation and relief''. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9.4.2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the appellant has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18.7.1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the department in which appellant had worked had been wound up as long back as 1983 itself and the new department had no records of his service. The appellant neither produced the order of termination, nor disclosed whether the termination was by way of dismissal, removal, compulsory retirement or whether it was a case of voluntary retirement or resignation or abandonment. He significantly and conveniently, produced only the first sheet of a show cause notice dated 8.7.1982 and failed to produce the second or subsequent sheets of the said show cause notice in spite being called upon to produce the same. There was absolutely no material to show that the termination was not preceded by an enquiry. When a person approaches a court after two decades after termination, the burden would be on him to prove what he alleges. The learned Single Judge dealt with the matter as if he the appellant had approached the court immediately after the termination. All this happened, because of grant of an innocuous prayer to 'consider' a representation relating to a stale issue."
(emphasis supplied) Page 5 of 6 CAT, Lucknow Bench OA No. 332/00012 of 2020 A.K. Verma Vs. U.O.I. & Ors.
6.3 The present case is analogous to C Jacob (supra) in so far as the stratagem to overcome delay and laches is concerned. After seven years of maintaining silence since the issue of recovery order and after six years of the actual recovery, the applicant retired on 30.06.2019 and then made the representation dated 08.07.2019 to the respondents eliciting the response dated 06.11.2019 which he has challenged in this OA. As observed in C Jacob (supra), the reply to a belated representation cannot become a fresh cause of action. The OA is time barred and deserves to be dismissed on this ground alone.
7.1 In view of the foregoing, this OA is dismissed.
7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) Member (A) RAJUL Page 6 of 6