Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs Union Of India Through on 17 April, 2014
Central Administrative Tribunal Principal Bench OA No.2762/2012 Reserved on: 21.11.2013 Pronounced on:17.04.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Singh, Member (A) Tushar Ranjan Mohanty S/o Shri Rabi Narayan Mohanty An SAG Officer of the Indian Statistical Service, Deputy Director General, Research and Publication Wing, Coordination and Publication Division, Central Statistics Office, Ministry of Statistics and Programme Implementation, Wing No.6, West Block No.8,R.K. Puram, New Delhi 110 066. Now residing at: G-31, HUDCO Place Extension, New Delhi-110 049. Applicant (Applicant in person) Versus Union of India through The Chief Statistician of India and Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi 110 001. Respondent (By Advocate: Shri R.N. Singh) O R D E R By Dr. B.K. Sinha, Member (A):
The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 assailing the OM dated 02.08.2012 rejecting his claim for payment of LTC reimbursement for the block year 2006-07 as appended at Annexure A-I.
2. The applicant, vide means of this Application, has sought the following relief(s):-
8.1 to allow the present Original Application;
8.2 to quash and set aside the impugned Office Memorandum dated 02.08.2012 (Annexure : A-1) as illegal, arbitrary, whimsical, fanciful and violative of the extant rules and law;
8.3 to direct the respondent to pay a sum of Rs.15,360/- (Rupees Fifteen thousand three hundred and sixty only) to the applicant towards the claims of Leave Travel Concession preferred by the Applicant [Annexure A-3 (Colly)];
8.4 to direct the respondent to pay compound interest @ 18% per annum, compounded monthly with effect from 21.02.2011, the date on which the Leave Travel Concession Bill [Annexure A-3 (Colly)] was preferred by the applicant, till payment of the claim amount by the respondent Ministry;
8.5 to issue any such and further orders/directions this Honble Tribunal deems fit and proper in the circumstances of the case; and 8.6 to allow exemplary costs of the application.
3. The case of the applicant, in brief, is that the applicant is a Member of Indian Statistical Service, a Group A Service under the Union of India recruited on the basis of the Indian Statistical Service Examination, 1980 conducted by the Union Public Service Commission. Currently, the applicant is serving in the Senior Administrative Grade of the ISS. He was placed under suspension vide order dated 03.03.2008 while he was posted as Chief Statistical Adviser, Directorate of General Income Tax (Legal & Research), Research and Statistics Wing (Annexure A:2 (Colly). The suspension of the applicant was revoked by the respondent Ministry vide order dated 11.11.2009 (Annexure A-2 (Colly). It was further decided vide the order dated 24.02.2010 that the period of suspension (03.03.2008 to 11.11.2009) of the applicant would be treated as duty for all purposes. The submission of the applicant is that during the period of suspension, the applicant sought permission from the respondent Ministry to visit his ailing mother at Cuttack, which was granted on 26.11.2008 by the respondent Ministry for travelling to Cuttack between 27.11.2008 to 30.11.2008. The son of the applicant also accompanied the applicant to Cuttack. The applicant submits that knowing well that the charges were cooked up and would not stand the test of law, the applicant had purchased the costlier LTC-80 tickets from Air India for his travel from Delhi to Cuttack and back. The applicant further submits that the LTC was available to him for 4-years block of 2006-09 and 2-years block of 2006-07. As per the extant rules, the block of 2-years i.e. 2006-07 had to be availed before 31.12.2008. The applicant submits that little knowing that he would be placed under illegal suspension, he had not availed the LTC for the 2-years block of 2006-07 before being placed under suspension and could have availed the same before 31.12.2008. Once the period of suspension of the applicant has been declared to be treated as duty for all purposes, the applicant submitted his LTC claim for the 2-years of 2006-07 for the journey performed by him to Cuttack during the period from 27.11.2008 to 30.11.2008. The interpretation of the application is that the term duty period for all purposes would include the performance of LTC which is also a matter of service conditions. The applicant had applied for casual leave for two days i.e. 27.11.2008 and 28.11.2008 with 29.11.2008 and 30.11.2008 being Saturday and Sunday respectively, which, as per the applicant, was duly sanctioned. However, the respondent Ministry rejected the LTC claim of the applicant vide OM dated 11.10.2011 on the ground that the LTC cannot be availed by him during the period of suspension without having realized that the period of suspension had been treated as duty for all practical purposes.
4. The applicant also submits that there were two writ petitions bearing WP(C) Nos. 562 and 1095 of 2011 filed by the respondent-department challenging the orders of the Tribunal dated 13.01.2010 and 21.01.2010 whereby the major penalty charge sheet dated 30.06.2008 and the minor penalty charge sheet dated 29.04.2008 respectively had been quashed. The applicant submits that he had, inter alia, raised the issue of non-payment of his LTC claim before the Honble High Court of Delhi, which was pleased to direct the respondent vide its order dated 09.11.2011, which is extracted below:-
We consider it appropriate to direct the UOI to re-examine the matter especially taking into consideration the office order dated 24.02.2010 by which the respondent is treated as on duty for all purposes and consequently the telephone bills and LTC would become reimbursable to the respondent. A decision containing reasons in that regard be communicated to the respondent with one month from today.
5. The case of the applicant is that despite the clear cut directives given by the Honble High Court, the respondent Ministry has issued the impugned Memorandum dated 02.08.2012 rejecting the claim of the applicant once again on the same very ground as has been done earlier.
6. The applicant has adopted the following grounds in support of his OA:-
The entire period of suspension had been treated as duty for all purposes in terms of order of revocation of suspension dated 24.02.2010. The applicant claims that once this order has been passed, the disability of the applicant regarding being on suspension vanishes giving rise to a legal fiction that the applicant was on duty through the period of suspension i.e. from 03.03.2008 to 11.11.2009. This makes the LTC claim of the applicant admissible.
The case of the applicant was referred to DOP&T, which was pleased to advise in the following terms:-
The suspension period was from 03.03.2008 to 11.11.2009 and the journey was performed during 27.11.2008 to 30.11.2008. A Govt. employee who was under suspension is not allowed to go on LTC. Claims of LTC and reimbursement is wrong.
Secondly even after revocation, retrospective sanction of leave/LTC is not permissible. Family is, however, entitled for LTC. However, the respondent-Ministry again referred the matter to the DOP&T on having received the directives of the Honble High Court as cited above and the same was rejected vide the impugned order dated 02.08.2012 in identical terms. This, as per the applicant, has been passed in utter violation of the directive of the Honble High Court, which was to re-examine the matter.
The applicant submits that his second disability vis-`-vis the LTC claim was in respect of not being on leave. The applicant submitted an application dated 21.02.2011 (Annexure A-3 colly) stating the fact that he could not avail of his LTC for the block year 2006-07 which could have been availed during the year 2008 on account of suspension. However, the applicant was permitted to visit Cuttack during the period from 27.11.2008 to 30.11.2008 vide order dated 26.11.2008 accompanied by his son. The applicant submitted that vide this permission, his second disability relating to leave had been removed and, therefore, he requested that his journey to Cuttack during the period from 27.11.2008 to 30.11.2008 should be treated as LTC for the block year 2006-07, vide his representation dated 21.02.2011.
The applicant rebuts the contention of the respondent that leave could not be granted retrospectively on the basis of the provisions of Swamys manual on disciplinary proceedings for Central Government Staff by Muthuswamy and Brinda, Swamy Publishers (P) Limited, Twelfth Edition, 2012, at Chapter-5, Reinstatement A Digest at page 268 of the Book. This provides for regularization of leave in such cases where the dismissal, removal or compulsory retirement is set aside for non-compliance of requirements of Article 311(2) of the Constitution or when exoneration is not on merits or when suspension was not wholly unjustified, the period of suspension could be converted into leave of any kind due with the sanction of the competent authority. This period of absence from duty would have the effect of vacating the order of suspension and it would be deemed not to have been passed at all. The applicant argued that all kinds of leave can be granted retrospectively for the period of suspension.
The applicant further argued that if the contention of the respondent-Ministry were to be accepted this would lead the applicant into a worse off situation as if he had not been fully exonerated. This makes the LTC claim of the applicant reimbursable.
The applicant further rebuts the claim of the respondent-Ministry that the claim for LTC was delayed as his claim of LTC is not be considered strictly within the four walls of CCS( LTC) Rules, 1988 [hereinafter referred to LTC Rules] but in terms of principles of equity, justice and good conscience. The applicant further submits in this regard that his claim for LTC became payable only w.e.f. 16.05.2011 when the casual leave was sanctioned by the Director General, Central Statistical Office and hence the plea of delayed claim cannot be taken.
The applicant has drawn the attention of the Tribunal to the reference made by the respondent-Ministry to the DOP&T, Department of Expenditure and Ministry of Law and Justice. The latter had left it to the respondent-Ministry to take a conscious administrative decision in view of the policy laid down by the DOP&T and their comments on the same. This has not been the case. The applicant submits that the respondent-Ministry having placed the applicant under illegal suspension and having restored the same cannot invoke the same conditionalities to deny the lawfully earned benefit of LTC to the applicant.
The applicant has also relied upon the duty of care cast upon the Government stating that the State, being the model employer, must look after the welfare of its employees. Such a duty of due care demands that a patent wrong as committed in the case of the applicant be corrected. The applicant in this regard has relied upon the decision in the case of Anns v. London Borough of Merton [1977] 2 All ER 118 and has quoted extensively from the same.
The applicant further submits that in view of the afore mentioned facts, he had no alternative except to verify from the file whether the applicant was entitled to the LTC for the block year 2006-07, whether the journey was declared to be home town and whether the applicant has actually performed the journey in the entitled carrier or otherwise. Since all these conditions were satisfied, the prayer of the applicant stands to be accepted by the respondent-Ministry. Other grounds were also stated in the OA but, the only grounds as discussed above, were pressed during the course of the arguments and in the written submissions made and none others.
7. The respondent has filed a counter affidavit rebutting all the points raised in the OA. Up to 41 pages of the counter affidavit, the respondent has dealt with the history of long standing recurrent litigation between the applicant and the respondent, which in fact is not germane to the facts of the instant case. We, therefore, skip over the same except to stick, in very brief, to the respondent submission that applicants allegation of false complaints being made against the respondent is totally baseless and not supported by the facts. The applicant, to the contrary, is in habit of litigating service matters on one pretext or the other. Right from the very beginning of the service, the applicant has raised several litigations, the details of which have been provided in Annexure R-3 of the counter affidavit. It appears from the perusal of Annexure R-3 and the counter affidavit that the applicant had joined the Indian Statistical Service in the year 1981 and since then he has been a party to 173 cases filed vis-`-vis the respondent including CPs and MAs. A complaint bearing FIR No.72/2008 was filed by one V R Hegde at PS Tilak Marg Police Station against the applicant for criminal assault while being on duty to attend the proceedings in OA No.2220/2007 before the Tribunal, which was investigated and a chargesheet was filed under Sections 186/323/332/353/506 IPC and subsequently taking cognizance against the applicant, charges were framed against the applicant under Section 323 read with Section 506 IPC. A criminal revision bearing no. 4/2010 was dismissed vide order dated 23.07.2007 directing the applicant to appear before the Trial Court. The Applicant moved the Honble High Court of Delhi for quashing of FIR No.72/2008. The Honble High Court taking cognizance of the state of litigation, which we need not go into at this juncture, directed an amicable settlement among the parties which took place vide order dated 22.02.2011 thereby quashing the criminal case arising out of FIR No.72/2008 against the applicant and paved the way for his regular promotion. The submission of the respondent in this regard in short is that the two Writ Petitions bearing WP(C) Nos. 562 and 1095 of 2011 were disposed of as a part of settlement of long disputed dispute under the good office of the Honble High Court and not on merit as it has been alleged by the applicant. Even this amicable settlement had not put an end to the litigation and the applicant had filed a number of cases thereafter.
8. The respondent has further submitted that the DOP&T Circulars cannot take place of statutory provisions of law. Under the provisions of FR 54 B (8), the payment of allowances under sub-rule (2), sub rule 3 or sub rule (5) have been made subject to other conditions under which these allowances are permissible. The respondent submits that even if the period of suspension is treated on duty under any executive order, this does not entitle an employee to automatic payment of allowances which are rather subject to other conditions under which such allowances are admissible. Under Rule 7(2) of the LTC Rules, the leave travel concession is admissible during any period of leave including casual leave and special casual leave. Further, as per the GoI instruction No.15 below Rule 7 of the CCS (LTC) Rules, it has been provided that A question has been raised whether LTC is admissible during the period of suspension. It is clarified that a Govt. servant under suspension cannot avail of LTC as he cannot get any leave including casual leave during the period of suspension. As he continues to be in service during the period of suspension, members of his family are entitled to LTC. The respondent further rebuts the argument that the grant of casual leave from the subsequent date entitles but does not cure the defect as the casual leave is not recognized form of leave, the Government servant on casual leave is not treated as absent from duty and his pay is not intermittent. However, it cannot become the basis of evasion of rules regarding date of reckoning of allowances, charges of office, commencement and end of leave, return to duty. As per the explanation under Rule 11 of LTC Rules, casual leave, which is not recognized form of leave, cannot be combined with any other kind of leave. It lapses with the end of the calendar year and cannot be recognized after a period of almost three years retrospectively. The respondent has further argued that the applicant was not sure about his intending visit to Cuttack as he informed about the date of visit only on telephone according to which he was granted permission to leave headquarter during suspension from 27.11.2008 to 30.11.2008 for which no leave was required as during the period of suspension one is not required to take leave. It is the case of the respondent that the applicant had never informed nor intended to avail home town LTC during this period and the whole issue is now being raised as an afterthought. The applicant had not pressed the matter after revocation of suspension in the month of February, 2011 that he had preferred the LTC claim as an afterthought. Even his so-called sanction of casual leave application had been submitted only in the month of May, 2011 after more than two years of the actual purported journey for which illegal LTC claim is being made. The learned counsel for the respondent emphasizes that application of casual leave was filed two months after the claim of LTC was made. The claim of the applicant was referred to the DG, CSO who informed vide OM dated 16.11.2012 that leave has been refused (Annexure R-17). Further, prior sanction of the leave for LTC and permission to avail LTC are pre-requisites which have not been followed in this case. Even though when the period of suspension has been treated as duty for all purposes, casual leave for 2008 cannot be sanctioned in the year 2011 as there is no provision for sanction of such leave.
9. The learned counsel for the respondent has further submitted that under Rule 14 of the LTC Rules, a claim for reimbursement of expenditure incurred on journey under leave travel concession is required to be submitted within a period of three months after completion of the return journey, if no advance had been drawn. Failure to do so will entail forfeiture of the claim and no relaxation is permissible in this regard. The respondent has also resisted the issue of bias and submitted that the applicant has been grossly exercising the process of law. It is for the courts to ponder that an officer holding fairly a substantial senior rank of Joint Secretary, who has indulged in litigation numbering 173 cases, does not have any time to discharge his official duties.
10. The learned counsel for the respondent emphatically submitted that out of the claim of Rs.60,360/-, an amount of Rs.45,000/- has already been paid and that it is not a question of Rs.15,360/- but is a question of upholding the law. He has, therefore, strongly pleaded for dismissal of the OA.
11. The applicant has submitted a rejoinder application rebutting the counter affidavit of the respondent Ministry. He has also submitted a Note of Written Arguments after the hearing of the OA containing the oral submissions made and the important points of pleadings, which would be dealt with while dealing with the arguments of the parties. Therefore, no detailed examination of the rejoinder application is being made here as the same would simply add to the bulk to the order.
12. The only issue to be adjudicated by us is that whether the applicant is entitled to LTC claim in respect of a journey undertaken from 27.11.2008 to 30.11.2008 while under suspension retrospectively treating the casual leave sanctioned in May, 2011 in respect of a claim on the basis of a claim filed on 21.02.2011.
13. We start by examining essential provisions of the CCS (LTC) Rules, 1988, which have been promulgated under the powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution of India. The very nomenclature of the Rules indicates three things it is a concession;
it is to be given for traveling; and it is to be exercised during leave period.
14. Rule 3 of the LTC Rules covers the government servant himself and his family. The definition of family under Rule 4(d) is a restrictive definition which extends to the government servant, his wife and two surviving unmarried children or step children irrespective of the fact that whether they are residing with him or not. This is in contradiction to SR-2(8), which define family as under:-
Family means a Government servants wife or husband, as the case may be, residing with the government servant and legitimate children and stepchildren residing with and wholly dependent upon the Government servant. However, vide GI MF F.No.10/2/98-IC & 19330/2/97-E IV dated 17.04.1998, this restriction was imposed w.e.f. 1.1.1999 for TA purposes as well. This concession is available twice in a block of 4 years, once for the Home Town in a block of two years and the other for anywhere in India in a block of two years[Rule 8 of CCS (LTC) Rules, 1998]. One of the fundamental requirements of the Rules is that the place of visit anywhere in India has to be declared by the Government servant in advance to his controlling officer. For the sake of greater clarity, the provisions of Rule 6 are extracted as below:-
Declaration of place of visit under Leave Travel Concession to any place in India.When the concession to visit any place in India is proposed to be availed of by a Government servant or any member of the family of such Government servant, the intended place of visit shall be declared by the Government servant in advance to his controlling officer. The declared place of visit may be changed before the commencement of the journey with the approval of his controlling officer but it may not be changed after the commencement of the journey except in exceptional circumstances where it is established that the request for change could not be made before the commencement of the journey owing to circumstances beyond the control of the Government servant. This relaxation may be made by the Administrative Ministry/Department or by the Head of the Department, as the case may be. Rule 7 provides that the LTC is admissible to categories of employees specified in Clause (i) and (iii) of sub-rule (3) of Rule (1) only where they have completed one years continuous service under the Central Government from the date of journey performed by him or his family. Further, the LTC is admissible during any period of leave including casual leave and special casual leave. Again for the sake of clarity, Rule 7 is extracted hereunder:-
7. Admissibility of Leave Travel Concession. (1) The leave travel concession shall be admissible to persons of the categories specified in Clauses (i) and (iii) of sub-rule (3) of Rule (1) only, if they have completed one years continuous service under the Central Government on the date of journey performed by him or his family, as the case may be, to avail of the concession.
(2) The leave travel concession shall be admissible during any period of leave, including casual leave and special casual leave. This is enshrined in the DOP&T Circular dated 19.06.1987, which reads as under:-
Under the leave Travel Concession Scheme, expenditure incurred by a Government servant in respect of journeys undertaken by him during some kind of leave (including casual leave) alone is reimbursable subject to the conditions laid down in the various instructions issued from time to time in the matter. Hence, when a Government servant undertakes a journey during the weekend holidays without taking any leave, he is not entitled to Leave Travel Concession. However, OM dated 03.02.1977 specifies that this concession is available to the family members of a Government servant and not to the Government servant himself, which reads as under:-
(20) LTC to officials under suspension.- A question has been raised whether LTC is admissible during the period of suspension. It is clarified that a Government servant under suspension cannot avail of LTC as he cannot any leave including casual leave during the period of suspension. As he continues to be in service during the period of suspension, members of his family are entitled to LTC. Under Rule 9 of the LTC Rules, it is provided that the entitlement of the employee to this concession is confined to the different groups at different times during a block of two of four years, as stated earlier. Under Rule 10, there is also a provision for carrying over of the LTC within a particular block of two years or four years, which reads as under:-
10. Carry over of leave travel concession.-A Government servant who is unable to avail of the leave travel concession within a particular block of two years or four years may avail of the same within the first year of the next block of two years or four years. If a Government servant is entitled to leave travel concession to home town, he can carry forward the leave travel concession to any place in India for a block of four years only if he has carried forward the leave travel concession to home town in respect of the second block of two years within the block of four years. Under Rule 12 (2) of the Rules ibid the modes of journey prescribed, subject to circulars issued from time to time, are by air/road/sea/river and such journey which has been performed by non-entitled modes are not subject to reimbursement.
Rule 14 of the Rules further provides as under:-
14. Forfeiture of claim. A claim for reimbursement of expenditure incurred on journey under leave travel concession shall be submitted within three months after the completion of the return journey, if no advance had been drawn. Failure to do so will entail forfeiture of the claim and no relaxation shall be permissible in this regard. Rule 15 of the Rules makes provision for grant of advance to the Government employees in respect of journeys performed by him or by his family members.
Rule 17 provides that where there is any doubt regarding any of the provisions of these rules, the matter shall be referred to the Government of India, DOP&T who shall decide the same. Rule 18 gives the power of relaxation as follows:-
18. Power to relax.-Save as otherwise provided in these rules, 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. Rule 19 stipulates a saving clause, which reads as under:-
19. Saving.- All the existing instructions which are not contrary to any of the provisions of these rules and all instructions which cover matters and specifically covered by these rules, shall continue to be in force until they are amended, modified or cancelled.
15. The admitted position in respect of this case, as submitted by the parties, are that the applicant was under suspension from 03.03.2008 to 11.11.2009; the applicant and the respondent Ministry have been on loggerheads leading to 173 cases being filed amongst themselves, details whereof has been given in Annexure R-3; the applicant had been charge sheeted in an FIR No.72/2008 under Sections 186/323/332/353/506 IPC; Charges were framed against the applicant under Section 323 read with Section 506 IPC; a petition to quash the charge sheet was dismissed by the Honble High Court of Delhi in Crl.MC No.233/2010 vide the order dated 27.01.2010; a Criminal Revision bearing C.R. No.4/2010 was turned down vide the order dated 23.07.2010 by the Special Judge NDPS; the Honble High Court of Delhi through their kind auspices brought about an amicable settlement vide order dated 22.02.2011 with the hope that the applicant would abide by the undertaking given by him not to persist the matter and not take any adverse action against the complainant in that case that being one V R Hegde and/or his wife; despite this amicable settlement, litigations have continued to be filed and two Original Applications bearing OA Nos.3762/2012 and 3782/2012 and one Contempt Petition bearing No.11/2013 in addition to the present OA are pending before this Tribunal.
16. Coming to the basics of this case, it is further admitted that the applicant was under suspension from 03.03.2008 to 11.11.2009. On 18.11.2008 he sought permission from the respondent Ministry stating as under:-
My mother, who is at present at Cuttack is ill and wishes to see me.
2. Accordingly, I request you to kindly permit me to travel to Cuttack for the said purpose. I am planning to start for Cuttack on 22.11.2008, after attending the Honble High Court on 21.11.2008, or soon thereafter. In reply vide the communication dated 20.11.2008, the applicant was asked to communicate his intended duration of absence and postal address/contact number during the period of his absence in response to which the applicant has written in hand, which reads as under:-
1. Reference letter above.
2. I intend to visit Orissa for a week or so. The postal address is my Home Town address in the Service Book. The residential phone of my parents is 06771-2442627. My mobile will be working. My exact date of travel (both ways) shall be intimated after booking of tickets. The journey was accordingly performed by the applicant from 27.11.2008 to 30.11.2008 by air. Though the applicant had subsequently submitted his LTC claim of Rs.15,360/- for the above journey, but there was no mention of LTC at the time of getting the casual leave sanctioned.
17. On 16.05.2011, the applicant had applied for casual leave stating as under:-
The undersigned had traveled to his Home Town, Cuttack during 27.11.2008 to 30.11.2008, while on suspension, after availing due permission from the competent authority (copy enclosed).
2. As per Order dated 24.02.2010, the entire period has been treated as on duty and I have applied for LTC for the said journey (copy enclosed).
3. Accordingly, I may kindly be granted two days casual leave on 27.11.2008 and 28.11.2008, with headquarter having permission from 27.11.2008 to 30.11.2008 (the last two days being Saturday and Sunday).
4. Submitted for approval please. It is also on record that on 26.11.2008, the applicant was granted permission to leave headquarters for the period from 27.11.2008 to 30.11.2008 (Annexure A-3). However, his ex-post facto casual leave application was considered by the competent authority and declined vide OM dated 16.11.2012, which read as under:-
Reference Shri T.R. Mohanty, DDGs application dated 16.05.2011 for ex-post facto approval to two days casual leave from 27.11.2008 to 28.11.2008 with headquarter leaving permission from 27.11.2008 to 30.11.2008 (the last two days being Saturday and Sunday) when Shri Mohanty was under suspension.
2. His request was considered by DG, CSO but it has not been sanctioned.
3. This issues with the approval of Competent Authority.
18. In view of the afore cited admitted position and the provisions of rules already discussed, we discuss the particular questions raised in the OA. The first of these questions is that whether the competent authority has complied with the directives of the Honble High Court of Delhi reproduced in earlier part of this order. We have already noted the contention of the applicant that the two orders namely 11.10.2011 and 02.08.2012 are the same and do not speak of application of mind [para 4.54 of the paper book].
19. We find that the respondent Ministry, in compliance of the directives of the Honble High Court, decided the issue vide the impugned order dated 02.08.2012. The impugned order clearly states that the matter has been re-examined by them in consultation with the DOP&T, Ministry of Law & Justice and Ministry of Finance, Department of Expenditure but the same was not found permissible for the reasons mentioned below:-
i. that, Shri T.R. Mohanty was under suspension from 3.3.2008 to 11.11.2009 and after revocation of his suspension he reported for duties in the cadre on 12.11.2009.
ii. that it was decided by the concerned authority that the period of suspension (3.3.2008 to 11.11.2009) is to be treated as duty for all purposes in terms of OM No.11018/2/2006-ISS dated 24.2.2010.
iii. that Shri T.R. Mohanty availed casual leave for 27.11.08 & 28.11.08 which were sanctioned retrospectively in May, 2011.
iv. that as per existing LTC rule, the concession is restricted to the family members of a Government servant who is placed under suspension and thus, the LTC claim of the applicant was not reimbursable.
v. that the case of the applicant was referred to DOPT for further clarification as to whether the reimbursement of LTC bill pertaining to his suspension period can be allowed to the applicant.
vi. that after examining the facts DOPT revealed that The suspension period was from 03.03.2008 to 11.11.2009 and the journey was performed during 27.11.2008 to 30.11.2008. A govt. employee who was under suspension is not allowed to go on LTC. Claims of LTC and reimbursement is wrong.
Secondly even after revocation, retrospective sanction of leave/LTC is not permissible. Family is however entitled for LTC. vii. that under these circumstances, it is felt that the rule position and clarification of DOPT is very clear and his claim for LTC reimbursement(self) is not as per rule. Hence, the decision intimated vide earlier OM No.dated 11.10.2011 is still enforced.
This issues with the approval of competent authority. It is significant to note that while the respondent, vide their communication dated 16.11.2012 (Annexure R-17) have indicated that the applicant had applied for ex post facto approval of casual leaves for 27th & 28th Feb.,2008, which had been declined vide the above communication, but the impugned order indicates that the above leaves were sanctioned in May, 2011. It gives rise to presumption that the above leaves were sanctioned but the same is not substantiated by any evidence.
This matter had been considered earlier and rejected vide order dated 11.10.2011, which reads as follows:-
1. The undersigned is directed to refer to Sh. T.R. Mohanty, DDGs claim dated 21.2.2011 for Home Town LTC (Block year 2006-07) bills for the period of his suspension. In this regard he is informed that as per Rules, if an official is under suspension, LTC is admissible only to his family member which has already been paid. However, the matter was also referred to DoPT who have confirmed that as per rules, he is not entitled to avail LTC during period of suspension. Even after revocation of suspension, retrospective sanction of leave/LTC is not permissible. Accordingly, it is not possible to accede to his request for admitting his claim for the said Home Town LTC.
2. LTC claim is returned herewith unactioned in oridinal.
20. The position has already been noted that under Rule 17 of the LTC Rules, the DOP&T is the competent authority to decide any doubt. The learned counsel for the respondent has argued forcefully that in full deference to the orders of the Honble High Court of Delhi dated 09.11.2011, the DOP&T not only examined the matter itself but it also made cross references to the Ministry of Law & Justice and Ministry of Finance, Department of Expenditure. Normally, the DOPT being the competent authority, such cross-references are not made. Still the respondent Ministry has taken the stand that this has been done as a measure of abundant caution and to carry out the orders of the Honble High Court of Delhi. We agree with the view of the learned counsel for the respondent Ministry that the order of the Honble High Court was to re-examine the issue and the respondent Minsitry has taken full steps to get the matter re-examined not only within its own office though it was competent to do so but also through cross references to the other departments namely Ministry of Law & Justice and Ministry of Finance, Department of Expenditure. It is also clear from the views that all other two departments, which are competent to give opinion on legal or financial matters, have not supported the LTC claim of the applicant. Therefore, we are not impressed by this argument of the applicant that the orders of the Honble High Court have not been complied with. To the contrary, we find that the respondent Ministry has been very cautious in complying with the orders of the Honble High Court of Delhi.
21. The next question that we take up is that whether the order dated 24.02.2010 treating the period of suspension from 03.03.2008 to 11.11.2009 as duty for all purposes will ipso facto entitles him to LTC claim. Here, having taken panoramic view of the provisions of the Rules, we are to note what the LTC Rules provide is that a journey performed on LTC is a concession to the entitled persons as a matter of dispensation. The rules also provide that LTC has to be taken on a leave period and it cannot be taken during the course of a week end or otherwise. Rule 7 (2) of the LTC Rules do entitle a person to avail of this leave even during the period of casual leave or special casual leave but a leave in any case is a pre-requisite condition which cannot be dispensed with. It also stands to reason that under the provisions of CCS (Leave) Rules, casual leave is subject to lapse at the end of the year and is not carried forward to the following year like earned leave or some other kinds of leave. We do not see how the order of revocation of suspension of the applicant would also serve to revive his casual leave with retrospective effect as the same lapses at the end of the calendar year. Therefore, it stands to reason that the applicant cannot be sanctioned casual leave in respect of the journey undertaken by him in the year 2008 retrospectively in the year 2011 and the respondent Ministry has been right in rejecting the application.
22. Now the view can be taken here that once the suspension period has been treated to be spent on duty for all purposes, the applicant should get the LTC concession for the journey performed by him five years back and there should not be much quibbling or hairsplitting over minor issues and one should take a larger view in the interest of the employee. The plea of duty to care has also been pleaded by the applicant. In the same context, we also take a note of the averment of the respondent Ministry that out of LTC claim of Rs.60,360/-, a sum of Rs.45,000/- has already been paid to the applicant, which fact has not been denied anywhere by the applicant either in the pleadings or in the written arguments or during the course of oral arguments. However, we are of the view here that it is not the amount of Rs.15,360/- which matters but the fundamental question is one of interpretation and implementation of the rules. This Tribunal is acutely aware of the fact that it does not enjoy the powers vested into the High Courts under Article 226 of the Constitution. The High Court is a Court of Record and also of Equity. The role of the Tribunal is only to interpret the rules. The LTC Rules, as had already been discussed above, Rule 6 whereof provides that there should be a proposal and approval of the competent authority for the intended place of visit availing LTC. Another essential pre-requisite is the time limit within which the LTC claim for reimbursement has to be submitted. Under Rule 14, such claims have to be submitted within a period of three months where no advance had been drawn. Where the claim is not preferred within the stipulated period, the rules are specific that delay entails forfeiture of the claim and no relaxation whatsoever is permissible.
23. There is yet another point that we like to consider is that whatever we decide here at this juncture is likely to become a precedent and a rule to be observed. Though Rule 18 of the LTC Rules do provide the power of relaxation, but no power of relaxation can be exercised where there are specific provisions prescribing such act. Therefore, we are of the opinion that the respondent Ministry has not erred either arbitrarily or otherwise in considering the LTC claim of the applicant. Rather, they have adopted an approach of extreme caution.
24. There is yet another point that weighs with us. We are acutely conscious of the fact that our decision is likely to set up a precedent and to be quoted by others in future references. We have already noted that LTC is a concession which must abide by certain rules of the game which have been framed. The Rules can be bent to a certain extent for which discretion has already been provided to the DOP&T under Rule 18 but they cannot be bent to that extent that they are made to stand on their heads. We are sure that, under the circumstances discussed above, allowing the claim of LTC of the applicant would tantamount to making the LTC Rules stand on their heads as also making mockery of the rules.
25. Here, we also take note of the fact that it is a well settled and accepted principle of law that if a thing is prescribed to be done in a particular way it can only be done in that particular way and none other. This time honoured principle has been propitiated by the Honble Supreme Court in the case of Nazir Ahmad v. King-Emperor (AIR 1936 P.C. 253). This view has further been reiterated by the Honble Supreme Court in the case of Prabha Shankar Dubey versus State of Madhya Pradesh [2004(2)SCC 56] and in the case of Selvi J. Jayalalithaa & Ors. Versus State of Karnataka [WP (Crl.) No. 154/2013 with WP (Crl.) No.166/2013 decided on 30th September, 2013], relevant portion whereof is extracted hereunder:-
There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim Expressio unius est exclusio alterius, meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible.
In State of Uttar Pradesh v. Singhara Singh & Ors., AIR 1964 SC 358, this court held as under:
8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. (See also: Accountant General, State of Madhya Pradesh v. S.K. Dubey & Anr., (2012) 4 SCC 578).
26. No doubt, we are impressed by the indefatigable capacity of the applicant to litigate but, as per the LTC Rules, 1988, we cannot allow the situation of the LTC to become one of walk in and walk out. As stated earlier, LTC Rules, 1988 are designed to regulate the availing of this concession to the employees at large. Compromising these rules to the extent desired by the applicant would render them ineffete for this body of employees.
27. We have already noted that it is not merely a question involving an outgo of a sum of Rs.15,360/- from the State exchequer but one of upholding the rules. For the afore discussed reasons, we find the Application of the applicant rather misplaced. The OA is, therefore, dismissed being bereft of merit leaving the parties free to bear their own costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/