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Judgment
O R D E R (ORAL)
Per: Dr. Lata Baswaraj Patne, Judicial Member
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief(s):
“a)To quash and/or set aside the impugned office memo being No. Admn.9(1697)/98 dated 18th May, 2020 issued by the Section Officer, CSIR-IICB, Kolkata by which without assigning any reason the applicant was directed to refund a sum of Rs. 31,890/- in respect of her journey with her family through private airlines after availing LTC to travel from Kolkata to Pelling (Sikkim) without assigning any reason and without giving any opportunity to the applicant being Annexure A-4 of this original application.
b)To declare that the journey of the applicant with her family through private Central Administrative Tribunalairlines after LTC by the applicant from Kolkata to Pilling (Sikkim) is in accordance with the DoP&T's office memo dated 20th September, 2018 and under any circumstances it cannot be said that the applicant was availed LTC from Kolkata to Pelling (Sikkim) is illegal through private airlines. To save the government money, the applicant booked the air ticket through IndiGo airlines of Rs. 31.890/- which was the cheapest air fare for three passengers for onward and return journey from Kolkata to Bagdogra and from Bagdogra to Kolkata than any other airlines;
c)To pass an appropriate order directing upon the respondent authority to produce rectified document and availing materials to prove before this Tribunal that in respect of journey availing by the applicant with her family through IndiGo airlines on 16th March, 2016 and 21st March, 2016 in respect of total air fare of Rs. 31,890/- was not a cheapest air fare whatever the cheapest air fare was of the other airlines as on that date, that document has to be produced by the department for sustaining their impugned office memo dated 18th May, 2020;
d)The respondents be directed to produce records before this Hon'ble tribunal to justify their stand in respect of issuing the impugned office memo dated 18th May, 2020 including the DoP&T's office memo dated 20th September, 2018 wherein under paragraph 2(v) it is clearly mandate that the applicant can avail their journey through private airlines than Air India and Indian Airlines.
e)To pass an appropriate order directing upon the respondent authority to refund the money if any recovered from the salary of the applicant along with penal interest;”
Brief facts of the case in a nutshell are as under:
The applicant at present is working in the post of Senior Technician (I) under the Director of CSIR - Indian Institute of Chemical Biology, Kolkata. The applicant has applied for LTC vide application dated 9th March, 2016 of 10 days' leave for her journey with family from Kolkata to Pelling (Sikkim) with effect from 16th March, 2016 and 21st March, 2016 in accordance with the rules and prevailing circular of the Department of Personnel & Training and in view of such the applicant applied for LTC for availing journey in the North-East Region. In view of the application dated 9th March, 2016, the Section Officer, CSIR-IICB, Kolkata vide office memo dated 11th March, 2016 duly sanctioned such LTC in respect of her journey with the family in the North-East Region from 16th March, 2016 to 21st March, 2016.
After the LTC claim was sanctioned by the respondent authority on 11th March, 2016, the applicant booked the air tickets in IndiGo flight for effecting her journey in economy class on 16th March, 2016 from Kolkata to Bagdogra and with effect from 21st March, 2016 from Bagdogra to Kolkata. The applicant booked the air tickets for herself and her husband and child. On that date, the total air fare as per the said ticket was Rs. 31,890/- and the same was also the cheapest air fare compared to any other airlines. To save government money, the applicant booked such air tickets as per the rules. The applicant duly carried out and effected such journey through IndiGo flight on 16th March, 2016 and 21st March, 2016. The boarding pass was issued by the IndiGo Airlines in respect of the applicant, her husband and child to avail the journey in North-East Region after receipt of LTC amount from the department.
However, all of a sudden, without giving any opportunity of hearing, the Section Officer, CSIR-IICB, Kolkata issued an impugned office memo being No. Admn.9(1697)/98 on 18th May, 2020 during the period of Lockdown and directed the applicant to refund the amount of Rs. 31,890/- , i.e. the air fare in availing the journey in the North-East Region by the applicant and her family members. As such, no cogent reason was assigned in the impugned office memo as to why the said money has to be refunded by the applicant. The applicant has availed the LTC claim and has carried out the journey. The tickets and boarding passes are available and the air fare which she has claimed was the cheapest air fare as on that date. The applicant does not know why the authority directed the applicant to refund such amount vide impugned office memo dated 18th May, 2020 during the period of Lockdown and she now apprehends that the authority concerned at any point of time might recover the said money from the salary of the applicant which is absolutely illegal and bad in law and is also against the Circular of the DoP&T.
Against such impugned office memo dated 18th May, 2020, the applicant made a representation before the authority concerned by disclosing the office memo dated 20th September, 2018 and requested the Director, CSIR-IICB, Kolkata not to make any recovery in respect of the amount of Rs. 31,890/- from the salary of the applicant. The applicant also cited the DoP&T's office memo dated 20th September, 2018 which was circulated vide office memo dated 01.10 .2018.
The DoP&T vide office memo dated 20th September, 2018 under paragraph 2(v) has clearly stated that Government servants not entitled to travel by air are allowed to travel by air in Economy Class by any airlines subject to the maximum fare limit of LTC-80 in the following sectors: (a) Between Kolkata/Guwahati and any place in NER. (b) Between Kolkata/Chennai/Visakhapatnam and Port Blair (c) Between Delhi/Amritsar and any place in J&K. In terms of the said office memo dated 20th September, 2018 there is a clear mandate of the Department of Personnel & Training that the government employee can travel by any private airlines on LTC in the North-East Region which the applicant exactly did. The applicant did not violate anything in terms of the said office memo dated 20th September, 2018. Moreover, the total air fare of her including her family towards onward and return journey was Rs. 31,890/- which was the cheapest air fare on that date. The Department of Personnel & Training has also instructed Government servants to travel by air in Economy Class by any airlines subject to the maximum fare limit of LTC-80. The applicant duly carried out such instructions and booked the air tickets through IndiGo airlines in respect of the onward and return journey from Kolkata to Bagdogra and from Bagdogra to Kolkata at Rs. 31,890/- which was cheapest air fare as on that date. It is submitted that the department has to prove what the cheapest air fare was in respect of that date and in respect of other airlines. Without proving anything and without assigning any reason, why the authority concerned directed the applicant to refund the said money is not understandable and without issuing any show-cause notice, such impugned office memo dated 18th May, 2020 has been issued which is absolutely bad in law and illegal.
The applicant has filed this original application against such impugned office memo during the period of Lockdown and for not recovering any money from the salary of the applicant.
After notice, respondents have appeared through Ld. Counsel Mr. S. Das through virtual mode, filed a detailed reply and a supplementary affidavit and have opposed the relief on the following grounds:
The applicant, working as a Sr. Technician-I under CSIR-IICB, undertook LTC with her husband and child from Kolkata to Pelling (Sikkim) via Bagdogra and back during 16.03.2016–22.03.2016, and was sanctioned air fare of ₹31,890/-.
On subsequent scrutiny, Internal Audit objected to the reimbursement on the ground that, being a Government servant not ordinarily entitled to travel by air, the applicant was required to comply with the DoPT OM dated 26.09.2014 and the MoF OM dated 16.09.2010, which were applicable when the journey was undertaken.
Under the applicable instructions, such employees undertaking LTC to the North East Region (NER) were permitted to travel by Air India, subject to the prescribed conditions. The applicant travelled by IndiGo, a private airline, and therefore the air fare was held inadmissible.
Pursuant to the audit objection, the respondents issued Memo dated 18.05.2020, requiring the applicant to refund ₹31,890/-. The respondents contend that the memo merely sought recovery of inadmissible LTC fare and did not threaten any punitive action.
In her representation dated 03.06.2020, the applicant relied upon the DoPT OM dated 20.09.2018, contending that she had travelled by the cheapest available private airline and seeking waiver of recovery.
The respondents contend that the OM dated 20.09.2018 came into force only on 26.09.2018, whereas the applicant’s journey was undertaken in March 2016. Accordingly, the OM dated 20.09.2018 could not have retrospective application, and the applicant’s LTC claim had to be governed by the instructions prevailing in March 2016.
The respondents further submit that the applicant approached the Tribunal only 6–7 days after making her representation dated 03.06.2020, without allowing reasonable time for its consideration, and therefore the OA was premature. The representation was subsequently replied to by the respondents on 14.09.2020.
The respondents maintain that the applicant was neither directed nor permitted to travel by a private airline merely because it offered a cheaper fare. Her journey was required to conform to the rules/instructions in force at the time, which she failed to do.
The respondents accordingly submit that the applicant has failed to establish any legal or factual basis for reimbursement/waiver of the disputed air fare, and that the reliefs sought in the OA are impermissible under the rules prevailing at the relevant time.
The respondents therefore seek dismissal of the OA contending that the application is devoid of merit and that the recovery of ₹31,890/- is justified under the applicable LTC rules.
Heard both sides and perused the records.
The main thrust of the argument by the Ld. Counsel for the applicant is that it is not in dispute that the applicant has travelled after availing the LTC which was sanctioned and for which permission was granted. She booked the tickets through a private agency, i.e. Indigo Airlines. The applicant has also relied upon the boarding pass in respect of the journey issued by the concerned Airline to prove her travel. It is also the contention of the applicant that when the recovery was ordered, there was no show-cause and audi alteram partem has not been followed.
On the other hand, Ld. Counsel for the respondents has vehemently opposed the relief on the ground that she was required to travel by Air India in Economy Class only subject to the maximum fare limit of LTC-80 and not by any other airlines she wished. He has also relied upon the O.M. dated 26.09.2014 annexed with the reply at Page 12 marked as R-2. He has further submitted that the applicant cannot seek the benefit of O.M. dated 20.09.2018 since her travel pertains to the year 2016, policy in vogue is applicable and the O.M. dated 20.09.2018 relied upon by the applicant does not have retrospective application since the bill has to be submitted within a stipulated period of time.
It is to be noted that the fact remains that the applicant has not been given a show-cause before passing the order of recovery. Considering the said, we deem it fit to remand the matter back to the competent authority among the respondents with a direction to issue show-cause to the applicant and give her an opportunity of hearing within a period of 04 (four) weeks from the date of receipt of the order. On receipt of the same, the applicant is at liberty to submit her detailed reply to the said show-cause and on its receipt, the competent authority among the respondents who is dealing with the matter is directed to pass a reasoned and speaking order as per rules in vogue at that particular time as well as the other rules which are applicable in respect of claim of LTC. Till such time, recovery is not to be effected by the respondents.
With the aforesaid directions, the O.A is disposed of with no order as to costs.