Central Administrative Tribunal - Lucknow
P K Pachori vs Union Of India on 17 January, 2022
CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16
Central Administrative Tribunal
Lucknow Bench, Lucknow
Reserved on: 01.12.2021
Pronounced on: 17.01.2022
Original Application No. 130 of 2016
Hon'ble Mr. Devendra Chaudhry, Member (A)
Dr. P.K. Pachori, aged about 58 years, S/o late B.B.
Pachori, presently posted as CMO, SAG, CGHS, Plot No. 8-
11, Ratan Lal Nagar, Kanpur, R/o 65-66A Navsheel
Dhaam, Phase-II, Bithoor Road, Kalyanpur, Kanpur
.............. Applicant
By Advocate: Sri Raj Singh
Versus.
1. Union of India through Secretary, Ministry of Health and
Family Welfare, Directorate General of CGHS, Nirman
Bhawan, New Delhi.
2. The Director General of Audit (Central Expenditure),
Indraprastha Estate, New Delhi.
3. Additional Director, CGHS, Lucknow.
4. Additional Director, CGHS, Kanpur.
.............Respondents
By Advocate: Ms. Prayagmati Gupta.
A.W.
Original Application No. 131 of 2016
Dr. Manjul Kumar, aged about 58 years, W/o Late Dr.
Kuldeep, Presently posted as Chief Medical Officer (SAG)
Plot No. 8-11, Ratan Lal Nagar, Kanpur, Resident of
122/232, 'A', Kalpi Road, Fazalganj, Kanpur
.............. Applicant
By Advocate: Sri Raj Singh
Versus.
1. Union of India through Secretary, Ministry of Health and
Family Welfare, Directorate General of CGHS, Nirman
Bhawan, New Delhi.
2. The Director General of Audit (Central Expenditure),
Indraprastha Estate, New Delhi.
Page 1 of 15
CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16
3. Additional Director, CGHS, Lucknow.
4. Additional Director, CGHS, Kanpur.
.............Respondents
By Advocate: Ms. Prayagmati Gupta.
A.W.
Original Application No. 132 of 2016
Dr. Chandra Bhushan, aged about 59 years, s/o Late
Ram Rathi, presently posted as CMO, SAG, CGHS, Plot
No. 8-11, Ratan Lal Nagar, r/o House No. 127/380, W-
Block, Keshav Nagar, Juhi, Kanpur.
.............. Applicant
By Advocate: Sri Raj Singh
Versus.
1. Union of India through Secretary, Ministry of Health and
Family Welfare, Directorate General of CGHS, Nirman
Bhawan, New Delhi.
2. The Director General of Audit (Central Expenditure),
Indraprastha Estate, New Delhi.
3. Additional Director, CGHS, Lucknow.
4. Additional Director, CGHS, Kanpur.
.............Respondents
By Advocate: Ms. Prayagmati Gupta.
A.W.
Original Application No. 133 of 2016
Dr. Bachan Singh, aged about 56 years, S/o Late Umrao
Singh, presently posted as CMO, SAG, CGHS, Plot No. 8-
11, Ratan Lal Nagar, Kanpur, r/o Flat No. 06, Plot No.
24.B Panch Deep Apartment, Ratan Lal Nagar, Kanpur.
.............. Applicant
By Advocate: Sri Raj Singh
Versus.
1. Union of India through Secretary, Ministry of Health and
Family Welfare, Directorate General of CGHS, Nirman
Bhawan, New Delhi.
Page 2 of 15
CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16
2. The Director General of Audit (Central Expenditure),
Indraprastha Estate, New Delhi.
3. Additional Director, CGHS, Lucknow.
4. Additional Director, CGHS, Kanpur.
.............Respondents
By Advocate: Ms. Prayagmati Gupta.
ORDER
Per consent of the parties, OA Nos 130 of 2016, 131 of 2016, 132 of 2016 and 133 of 2016 are taken up together for disposal as common question of law and facts are involved in all the cases. For sake of convenience, the brief facts in OA 130/2016 (Dr SK Pachori v Union of India) are taken up. The OA is preferred against the orders dated 19.08.2014, 07.12.2015, 06.11.2015 and 05.01.2016 passed by various respondents whereby directions have been issued concerning recovery in the matter of grant of Traveling Allowance (TA).
2. Per applicant, brief facts are that he was working as Chief Medical Officer, Senior Administrative Grade (SAG) Central Government Health Scheme (CGHS), Kanpur under Respondent no.5 in the Pay Band-4 of Rs. 37400- 67000/- with Grade Pay of Rs. 10,000/-. That, he was being paid Travelling Allowance (TA) per month along with D.A. thereon as per the Pay Slip of February 2016 (Annexure-5). That, as per Office Memorandum (OM) of Page 3 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 Department of Expenditure, Ministry of Finance No. 22(2)/2008-E-II(B) dated 29/08/2008 ('MOF 2008 circular' for short) read with OM dated 28.01.1994 (Annexure A-7) also of the MOF, the TA/Car allowance is admissible to Central Government employees and continuing as per recommendations of 6th Central Pay Commission (CPC). That, the applicant has been receiving the said TA plus DA thereon which would be clear from the Pay slip above, issued to the applicant in this connection. That, the impugned order dated 19.8.2014 (Annexure-A1) issued by R-1 and addressed to R-4 (Additional Director, CGHS, Kanpur) is erroneous because, when the O.M. dated 29.8.2008 ('MoF OM 2008' for short) is read along with MOF O.M. dated 28.01.1994 ('MOF OM 1994' for short), it clearly emerges that the officers drawing the Grade Pay of Rs. 10,000/- and those in HAG + Scale, who are entitled for the use of official cars in terms of said memo dated 28.01.1994 shall be given option to avail themselves of the existing facility of Staff Car or to draw the TA @ Rs. 7000/- per month + DA thereon. Per applicant, as official Staff car was not provided therefore, he was eligible for grant of TA @ Rs. 7000/- per month + DA thereon. That, accordingly he was rightly being paid the same right uptill 2016 as evident from the payslip. However, vide impugned order of Page 4 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 19.8.2014 this TA has not only been stopped but retrospective recovery ordered. That, in light of the law laid down by the Hon Apex Court in the matter of State of Punjab & ors. v. Rafiq Masih (White Washer) etc., in CA No. 11527 of 2014 (arising out of SLP (c) no. 11684 of 2012), the CAT Principal Bench, Delhi has, in the O.A No. No. 4016 of 2014 and other related OAs mentioned therein, vide order dated 13.11.2014, stayed the recovery in an identical matter (Annexure-A-9). Further that CAT Lucknow Bench has also in the interim stayed the said recovery in other OAs viz, 332/0434/2014 decided on 23.9.2014, O.A. No. 332/102/2016 decided on 26.2.2016, and O.A. 103/2016 decided on 26.2.2016 (Annexures -A-8 A-10, and A-11). Accordingly, it is prayed that the recovery in the instant OA may also be stayed and the OA allowed.
3. Per contra, the Respondents have filed counter in which it is asserted that while the MOF circular 29.08.2008 (CR-1) indeed provides for grant of TA in lieu of official car facility, but Para-3 of the aforesaid OM, specifies the conditions for such TA admissibility inasmuch that the same would be available to only those officers who ipso facto ab initio are provided the facility of office Car facility in terms of MOF OM 1994 and are in the Grade Pay of Rs. 10000/- and Rs. 12000/- and those in Page 5 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 HAG+ Scale. That is to say that the officer inorder to be entitled to the TA in lieu of car facility would have to be ab initio entitled to a car facility in terms of MOF OM 1994 and then in addition should be also be drawing the Grade pay of Rs 10,000/12,000/HAG + Scale, only and only then, are the conditions satisfied with regards to the entitlement of the TA of Rs 7000/- p.m. That the applicant is wrongly and misleadingly interpreting the MOF 2008 circular only in terms of the Grade pay without reading it with the necessary condition of eligibility of official car which is only to such officers specified in the 1994 OM which is specifically limited to only officers in the actual rank of Joint Secretary and above. The misleading part is that the applicant is assuming that just because he is getting the said/same Grade pay therefore, he is ab initio entitled to an official car notwithstanding and in denial of the 1994 MoF OM.
3.1 That the officer has to be also entitled to the car facility which is available as per the 1994 OM to only those who are posted as actual Joint Secretaries and above and who also draw the same Grade pay alongwith an additional entitlement of an official car in terms of the 1994 OM. That this distinction has been lost sight of by the applicant and hence the erroneous claim by him Page 6 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 with regards to the TA. That since the downstream offices had also wrongly interpreted / mis-interpreted the 2008 OM and not read it properly with the 1994 OM, hence the TA had been erroneously paid all along since 2008 right uptill 2016 and which is now sought to be recovered by the impugned order along with the stoppage of the hitherto erroneously granted facility of the TA. The point asserted by the respondents is that the applicant was never entitled to a car facility inspite of the same Grade pay as he did not fulfill the condition of being posted as Joint Secretary in terms of the 1994 OM and only satisfied just one condition viz of Grade pay which was not ab initio complete in entitling him to a car facility and hence the TA in lieu of the same. Accordingly, therefore the impugned order(s) is/are fully legal and correct and so the OA is liable to be dismissed.
3.2 It is further asserted by the ld counsel for the respondents that first of all the quoted orders of CAT Principal Bench and CAT Lucknow Bench are interim and the final order has not yet been pronounced or in any case presented before this court. Secondly, that the Principal Bench (PB), New Delhi on the other hand, in a final order dated 20/11/2019 in an identical matter after taking into account the judgement of the Hon Apex Court in the Rafiq Page 7 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 Masih (supra) upheld the recovery. That the said PB CAT order was upheld by the Hon'ble High Court, Delhi in W.P. NO. 3445 (c) of 2014 vide its order dated 03.09.2014 (CR-
7). Further, that final orders are awaited in similar matters in OA No. 693 of 2014, Dr. Nirmal Mandal & 51 others v. UoI & Ors., CAT, Mumbai Bench and OA No. 4016 of 2014 in CAT, PB, as also in the OA No. 434 of 2014, Dr. P.K. Srivastava & Others v. UoI & Ors. before CAT, Lucknow Bench. It is further submitted that the Railway Board has in a similar situation issued an order dated 25/08/2015 (Annexure-8) keeping the TA facility of Rs. 7000/- p.m. plus DA in abeyance.
4. The applicant has also filed Rejoinder affidavit (RA) in which arguments similar to those stated in the OA are reiterated except inter alia, highlighting certain points like non-recovery of erroneous TA granted in the matter of Ramachandran (supra) by the Hon High Court Delhi apart from lack of prior notice before issue of the impugned orders. The respondents have also filed Counter reply to the RA wherein judgement of the PB CAT New Delhi dated 20/11/2019 and CAT Cuttack Bench dated 23/02/2018 dismissing the petition in a similar matter has been highlighted and it is further stated that these judgements Page 8 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 take into account the judgements by the Hon Apex Court in the matter of Rafiq Masih (supra), Chandi Prasad Uniyal and Ors., vs State of Uttrakhand, dated 17/08/2012, AIR 2012 SC 2951, (2012) 8 SCC 417 and the judgement of the Hon Punjab High Court in the matter of State of Haryana vs Jagdev Singh AIR 2016 SC 3523.
5. Heard learned counsels for both the parties at length and perused all the pleadings carefully.
6. The key issue which falls for consideration is whether the applicant is entitled for TA as per the circular therein in the context of averments made by the respondents' side with respect to the circular stated therein.
7. In order to examine the issue, it would be useful to reproduce the impugned order dated 19/08/2014 and the circulars dated 19/09/2014, circulars dated 28/01/1994, 29/08/2008 and 25/08/2015.
Impugned order dated 19/08/2014 (Annexure A1) Dated 19.08.2014 As you are aware that the Transport Allowance is granted to the Central Government employees as per the rates and on the terms and conditions mentioned in the Department of Expenditure's Office Memorandum No. 21(2)/2008-E-II(B) dated 29th August, 2008. In view of the audit objection on the payment of Transport Allowance @ Rs. 7000/- to the CHS Officers drawing Grade Pay Rs. 10000/- and recommendation of the Director General of Audit that TA @ 3200/-+DA per month may be paid to the CHS Officers with immediate effect instead of Rs. 7000/-+DA per month as they are not provided with staff car and the excess amount paid to them may be recovered under intimation to Internal Audit HQ.
------------------------------------------------------------------------------- Page 9 of 15
CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 Circular dated 28/01/1994 Annexure A-7 "...New Delhi, the 28th January, 1994 Office Memorandum Subject: Use of Staff cars by senior officers of the Government of India, Heads of Departments of the Central Government in the field in the Senior Administrative Grade and above and Chief Executives of Statutory/Autonomous bodies.
In partial modification of this Ministry's Office Memoranda No. F. 3(16)- E.II(A)/84-(1), (2) and (3) dated 20 th and 21st February, 1985 and No. F.1 (42)- E.II(A)/87, dated 1st June, 1990 respectively, officers of the rank of Joint Secretary and above who desire to avail of the facility of the use of the staff cars for journeys from residence to office and back shall now pay at the following rates:
Joint Secretaries. Rs. 100/- per month.
Additional Secretary and above Rs. 125/- per month.
The above charges are to be recovered every month from the salary of the officers who avail of this facility...."
-------------------------------------------------------------------- Circular dated 29/08/2008 (Annexure A6) "....New Delhi, the 29th August, 2008 Office Memorandum Subject: Grant of Transport Allowance to Central Government employees. The undersigned is directed to say that consequent upon the decisions taken by the Government on the recommendations of the Sixth Central Pay Commission, the President is pleased to decide that in modification of this Ministry's O.M. No. 21(1)/97-EII (B) dated 3.10.1997, the Central Government employees shall be entitled to Transport Allowance at the following rates:
......
2. The grant of transport allowance shall be subject to the following conditions:-
(i) ....
(ii) The allowance shall not be admissible to those employees who have been provided with the facility of Government transport.
(iii) ....
(iv).....
(v) .....
Officers drawing grade pay of Rs 10,000 & Rs 12,000 and those in the HAG + Scale, who are entitled to the use of official car in terms of OM No. 20(5)-E-II (A)/93 dated 28.1.94 shall be given the option to avail themselves of the existing facility to draw the Transport Allowance at the rate of Rs 7000/- p.m. plus dearness allowance thereon
--------
The order shall take effect from September 1, 2008"
-------------------------------------------------------------
Circular dated 25/08/2015 filed by respondents Annexure CR-8 "....New Delhi, dated 25.08.2015 Attention is invited to Board's letter of even number dt. 12.09.2014 (RBE No.100/2014) whereby Board's decision regarding grant of Transport Allowance @ Rs. 7000/- pm+DA the thereon to the IRMS officers drawing Grade Pay of Rs. 10000/- under DACP Scheme have been communicated. The Page 10 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 issue regarding admissibility of Transport Allowance @ 7000/- p.m.+DA thereon to IRMS officers is being re-considered. In view of this position, Board have decided that payment of Transport Allowance to IRMS officers @ 7000/- p.m. + DA thereon, may be kept in abeyance till further advice...."
7.1 An examination of the above circulars would reveal that the 28/01/1994 MOF circular clearly concerns providing facility to officers actually holding rank of Joint secretaries and above and does not specify any pay scale or Grade pay. It rests only and only on the factum that a Joint secretary and above level officer is entitled to an official car facility from residence and the same is permissible on payment of certain minimal charges. On the other hand, the 29/08/2008 MOF circular provides for TA only to central government employees having a certain grade pay and is in modification of the circular dated 03/10/1997. On the contrary, it clearly specifies towards the end after (v) that -
"...Officers drawing grade pay of Rs 10,000 & Rs 12,000 and those in the HAG + Scale, who are entitled to the use of official car in terms of OM No. 20(5)-E-II (A)/93 dated 28.1.94 shall be given the option to avail themselves of the existing facility to draw the Transport Allowance at the rate of Rs 7000/- p.m. plus dearness allowance thereon.."
Implying and emphasizing thereby that this condition stands at an entirely different footing as compared to the grant of transport allowance under conditions specified in
(i) to (v). That being the case the facility to the only central government officers is distinguished from those to that provided to an officer who is designated as Joint Secretary or above level to the Government of India.
7.2 It is for this reason that we find that, it only mentions grant of monthly travelling allowance in lieu of official transport and to that extent specifies in para 2(ii) and 2(iii) that the said allowance would not be available to employees who have been provided the facility of Page 11 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 government transport and that in this regard, the 03/10/1997 order concerning disallowance of TA to those officers residing in government accommodation within one km of office stands withdrawn. The purpose of this circular quite clearly is with respect to those officers who are not Joint secretary or above who by the 1994 MOF circular have been specifically allowed the privileged facility of official car rather than just any government transport irrespective of the distance from the office to the official residence.
7.3 Given the above fresh assessment of the applicability of the circulars, the DG Audit has vide circular dated 06/11/2015 directed the Medical Dept, to recover of the erroneous TA payments. Similarly vide circular dt 25/08/2015 the Railway dept has directed keeping the unlawful grant of TA in abeyance. The point which is clear from the said circulars is, that the TA was not admissible at the said rates to the applicant in the first as he was merely a central government employee having a similar grade pay but having the prescribed and specified level of a Joint secretary and so there was illegality in the drawal of the TA which were not ab initio admissible to him in light of the MOF 1994 circular and not merely on the basis of the MOF 2008 circular. At best he could have been admissible to TA rates as specified in the circular dated 29/08/2008 which are lesser than those admissible to a Joint secretary. That even these lesser rates were only admissible if he/she were to forsake any office transport, which facility stood at an altogether different level and prescription as compared to the facility provided to a Joint secretary vide the MOF 1994 circular.
Page 12 of 15
CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16
8. Now in this backdrop we may note a few important points regarding State of Punjab v. Rafiq Masih (White Washer) judgement for which purpose the five conditions stated in the judgment are reproduced below:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recover.
As may be seen, the first condition concerns Class-III/IV employees. Therefore, the same would not apply in the extant case as the applicants are Class-I senior doctors. Conditions (ii) and (iv) do not concern the applicants as neither are the applicants retired nor it is a claim qua any discharge of higher function duties. Now, when we read condition (iii) it would be well to read it in consonance and harmony with condition (v). The applicants are well paid senior Class-I service doctors and the erroneous payments which cannot be denied as having been paid erroneously Page 13 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 have been enjoyed for some time now. That, as regard of the issue of the direction of Hon'ble Supreme Court in the matter of Rafiq Masih (supra) it has been observed that waiver of recovery has been permitted under specific conditions in case of Clause III and IV employees including from retired employees etc., and not as a blanket largess.
8.1 In this context, in order to settle these contra positions w.r.t the applicability of this portion of the conditions we may refer to an identical matter rendered by the CAT PB Division Bench as late as just less than two years ago vide judgment dated 20.11.2019 comprising the Chairman CAT and another Member (A) wherein it is held as below:
CAT PB New Delhi judgment dt 20.11.2019 ".....12. In the context of recovery, reliance is placed on the judgment in Rafiq Masih's case. The Hon'ble Supreme Court has summarised certain situations where recoveries from certain categories of employees would not be permissible under law. They are Class -III and Class -IV employees or employees who have already retired from service or where the excess payment has been made for a period, exceeding five years. We do not find that the ratio of the judgment of Hon'ble Supreme Court applies to present case. The applicants fairly senior officers in the Ministry of Health and if the TA has been wrongfully drawn by them, it needs to be refunded. They cannot be compared to low class employees. Further it needs verification, as to whether, any member of the association was entitled to official car facility. We find it difficult to grant relief in general terms.
13. We, therefore, dismiss the OA. We, however, make it clear that in case any officer who happens to be a member of the Applicant Associations, covered by adjudication in this OA was entitled to use official car facility, it shall be open to him to satisfy the concerned authority in the context of recovery. ..."
It is clear from the aforesaid that the CAT PB judgement takes into account the judgement of the Hon Apex Court Page 14 of 15 CAT, Lucknow Bench- OAs No. 130/16, 131/16, 132/16 and 133/16 in the matter of Rafiq Masih and it is only after taking it into account has the said PB judgement laid down that the ratio of the judgement of the Hon Apex Court would not apply in the matter of fairly senior officers as in the present OA also who are identically placed senior doctors as in the case of the PB judgement.
9. That being the case, we need not look any further and therefore, since the facts and law points in the extant matter are identical therefore there is no way available to help the applicant.
10. In light of the detailed discussions heretofore, all the OAs are liable to be dismissed and are dismissed. The recovery of excess payments in each case shall be made in easy equitable instalments over three years from the date of receipt of a certified copy of this order by the competent authority amongst the respondents.
11. A copy of this judgment be also served on the Secretary Finance, Union of India and the Secretary Health Union of India by the Registry.
12. No costs.
(Devendra Chaudhry) Member (A) JNS Page 15 of 15