Full Judgment Text
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CASE NO.:
Appeal (civil) 1574 of 2000
PETITIONER:
Group General Manager {Projects}, O.N.G.C.
RESPONDENT:
A.M.Saiyed
DATE OF JUDGMENT: 12/12/2003
BENCH:
S. RAJENDRA BABU & RUMA PAL
JUDGMENT:
J U D G M E N T
RAJENDRA BABU, J. :
The appellant introduced Leave Fare Assistance
Scheme [for short ’LFA’] for its employees and officers
posted in the projects mentioned therein whose home town
was situated beyond 500 kms. from the headquarters and
that scheme was modified from time to time although it
was originally introduced in the year 1969. By an official
memorandum dated 13.12.1977, it was made clear that the
assistance for visiting home town every year for the
employees posted in Assam and whose home towns are
situated outside Assam would not be admissible to them for
their families residing at a place other than the
headquarters/place of duty of the employee concerned and
in that event they would be entitled to avail of the
assistance for their families once in a block of two years.
By another official memorandum dated 21.5.1980, the said
scheme was amended to the effect that LFA can be availed
of by an employee in any calendar year only if the
employee has spent 9 months or more at one or more
places of posting where LFA is available. By another
modification made on 24.12.1981, it was further provided
that in respect of employees who do not belong to North
Eastern States but are working there on transfer or posting
and are separated from their families and staying alone in
North Eastern States will also be entitled to travelling
assistance once in six months, i.e., twice in a year instead
of LFA once in a year by way of single return fare by the
entitled class to the place of stay of his family. Their
families are, however, entitled to LFA once in a block of two
years for visting their home town from the place of their
stay subject to the condition that LFA so granted will be
limited to the fare as is admissible for visiting home town or
a place other than home town from place of posting of the
employee. By another official memorandum dated
2.1.1982, it was clarified that the families of any employee
residing at a place other than the place of posting or
headquarters or home town for various reasons, shall also
be entitled to LFA to visit the employee at his place of
posting or headquarters and back to that place against their
entitlement for visiting home towns against a particular
block of two years. The clarification was issued on
23.4.1982 extending the LFA to all work centres and it was
again clarified that LFA can be availed by an employee in
any calendar year only if the employee has spent nine
months or more at one or more places of posting where LFA
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is available.
From September 1982 to January 1985, the
respondent was working in Assam Region. He availed of
the LFA for the family for the block year 1982-83 in the
month of November 1983 and similarly in April 1984, for
the block year 1984-85. Thereafter, he was transferred to
his home town, Ahmedabad. He made a claim for
encashment for his family for other than home town for the
block year 1982-85 and the same was rejected by the
appellant and he retired from service on superannuation on
31.8.1983.
A legal notice was sent claiming LFA encashment for
his family other than home town for the block year 1982-
85. The appellant sent a reply to the said notice explaining
that he was not entitled to such benefit. In October 1984,
he filed a writ petition before the High Court of Gujarat
alleging discrimination in the matter of grant of LFA. By an
order made on 4.4.1995, the High Court disposed of the
said proceedings by directing the appellant to take decision
in regard to LFA to the respondent for the block years
1982-85 bearing in mind the instance of one S.L.Garde in
accordance with law and it was further observed that it will
be open to the authority to consider the facts of the
respondent’s case as well as the facts of S.L.Garde and take
appropriate decision within the stipulated time.
On the direction issued by the High Court, the
appellant considered the claim of the respondent and
rejected the same on the basis that he had already availed
of LFA for the block years 1982-83 and 1984-85 and it was
pointed out that S.L.Garde has been wrongly granted LFA
encashment for the block years 1982-85 and corrective
action in that case was being taken.
The respondent thereafter filed a second writ petition
in September 1995. The High Court dismissed the same as
withdrawn and allowed the respondent to make a
representation to the appellant to consider his claim. He
made a representation to the appellant which was
examined by the appellant and was rejected again on the
basis that during his stay at ERBC, the respondent had
availed of LFA for self visiting home town during the years
1982-84 and also encashed LFA for home town for family
members for the block years 1982-83 and 1984-85.
A third writ petition was filed by him. The learned
Single Judge dismissed the said writ petition holding that he
cannot agitate the same point again and again and cannot
take advantage of the mistake committed by the appellant
in respect of one of its employees. The matter was carried
in appeal to the Division Bench.
The appellant took the stand that :
1. At the relevant time, an employee stationed at
Eastern Region and if residing alone, was entitled
to LFA twice in a year to the place of stay of his
family;
2. The employee was entitled to encash LFA twice for
block years 1982-85, i.e., in the block year 1982-
83 and block year 1984-85 in respect of family if
both these LFAs are not encashed, then and then
alone he was entitled to encash LFA for the entire
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family for other than home town;
3. The respondent had twice availed of LFA in each of
the years 1982, 1983 and 1984 and also encashed
LFA for his family for block years 1982-83 in
November 1984 and for 1984-85 in April 1985
while posted at ERBC.
Therefore he was not entitled to any LFA for other
than his home town.
The Division Bench held that the respondent was
entitled to get encashment of LFA other than home
town once in a block of four years and directed the
appellant to consider the claim of the respondent in
accordance with the above directions. Hence this
appeal by leave.
The grievance made now is that the Division
Bench of the High Court should not have relied upon
the explanation of the Scheme which is not applicable
to the respondent inasmuch as it is applicable only to
those living with their families at the place of posting.
Secondly, it is submitted that the official
memorandum dated 24.12.1981 held the field and it
clearly stated that the families of the employees who
are staying alone at the place of posting would be
entitled to LFA once in a block of two years. The
official memorandum dated 12.1.1990 which is
prospective in nature which was issued long after the
rejection of the respondent’s claim and the High Court
could not have placed reliance on that particular
official memorandum dated 12.1.1990 and the
Division Bench also could not have considered the
provisions relating to LFA for home town for
employees in Eastern Region and mixing up the same
for encashment of LFA for entire family for other than
home town.
The High Court proceeded to consider the matter
as follows:
"It may be noted that the stand taken by the
respondent is not that the claim was rejected as it
was a claim for members of all the family of the
appellant but as he had availed of LFA twice to
home town in a block of four years. The respondent
has no case that the appellant’s claim for all the
members of his family is not admissible. No such
case has been put forward by the respondent in any
affidavit filed by the respondent."
The stand of the appellant before the High Court
as stated in the counter affidavit is as follows :
"I say and submit that an employee stationed
at Eastern Region was entitled to Leave Travel
Assistance (LTA) twice in year to the place of
stay of his family, if residing alone in Bachelor
State. The employee was entitled to encash
Leave Fare Assistance twice for Block years
1982-1985, that is once for Block year 1982-
1983, (Calender years) and once for Block year
1984-1985 (Calendar years) in respect of
family. If both these LFA is not enchashed,
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then and in that event alone, an employee was
entitled to encashment of LFA for the entire
family for other than Home Town. Clause 4 (b)
of the Scheme, is at page 536, which is
already submitted to the Hon’ble Court.
I say that the petitioner, during his tenure in
Eastern Region was from 1982 to January 1985,
when he was tranferred to home-twon Ahmedabad.
During his tenure, the petitioner availed:
(i) twice Leave Travel Assistance in each year 1982,
1983 and 1984;
(ii) encashed for entire family Leave Fare Assistance
for Block years 1982-1983 \026 in November, 1983;
(iii) encashed for entire family Leave Fare Assistance
for Block years 1984-1985 in April, 1984.
As the petitioner has enchased Leave Fare Assistance
for the Block years 1982-1983 and for the Block
years 1984-1985 the petitioner was not entitled to
encash for his family Leave Fare Assistance for other
than Home Town and therefore when the petitioner
made claim for such enchashment on 30.12.1986 the
same was not granted."
The understanding of the High Court is that the
case has not been put forward by the appellant in any
affidavit whereas the position has been clearly set out
in the affidavit and, therefore, the High Court could
not have taken the view that when in particular the
scheme of the benefit had been explained from time
to time and the claim had been rejected on the basis
indicated in the counter affidavit, the High Court ought
not have interfered in a matter of this nature,
particularly as the manner in which the relevant rules
could be explained. The clear stand of the appellant is
that at the relevant time employee stationed at
Eastern Region and if residing alone was entitled to
LTA twice in year to the place of stay of his family
and the employee was entitled to encash LFA twice for
Block years 1982-1985, that is once for Block year
1982-1983, (Calender years) and once for Block year
1984-1985 (Calendar years) in respect of family. If
both these LFAs are not encashed, alone would entitle
the respondent to encashment of LFA for the entire
family for other than Home Town. The respondent
during his tenure in Eastern Region twice availed
Leave Travel Assistance in each year 1982, 1983 and
1984; encashed for entire family LFA for Block years
1982-1983 \026 in November, 1983; and he had
encashed for entire family LFA for Block years 1984-
1985 in April, 1984 and thus in respect of his family
he was not entitled LFA for other than Home Town and
therefore his claim for such encashment was not
sustainable.
This aspect was totally lost sight of although
specially pleaded before the High Court. Hence this
appeal is allowed and the order made by the Division
Bench is set aside resulting in dismissal of writ petition
before the High Court.
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