Smt. Ashlesha vs The Director General & Ors.

The applicant is a permanent employee of the respondents and is presently working as TREX in the office of respondent No. 3. She has been serving in the said capacity since March, 2013.

In the year 2007, while the applicant was working as TREX in the office of All India Radio, Ahmedabad, a complaint was lodged against her by the then Station Director, All India Radio, Smt. Sadhna Bhatt. Pursuant thereto, the then Vigilance Officer of the respondents, Shri Nani Vadekar, lodged an FIR before the Special CBI, Gandhinagar. After investigation, the CBI filed a charge-sheet against the applicant before the learned Special Judge, CBI Court, Ahmedabad, which came to be registered as Special Case No. 06/2009.

As the criminal proceedings arose out of the discharge of her official duties and required her to regularly appear before the CBI Court at Ahmedabad, the applicant requested the respondents to grant her travelling allowance (TA) for attending the said proceedings and to treat the period spent in attending the CBI Court as duty, in accordance with the applicable rules and provisions of the FR/SR.

The respondents considered the applicant's request and, after examining the matter in the light of the applicable rules and Government of India instructions, accepted her claim. Accordingly, orders dated 29.06.2018 and 15.10.2018 were issued, whereby the applicant was permitted to attend the CBI proceedings after informing respondent No. 3 of the dates of hearing and obtaining prior permission. The period spent by her in attending the CBI Court was treated as duty and TA was also sanctioned to her for such attendance.

The aforesaid decision was also preceded by a departmental note dated 21.06.2018, which reflected consideration and approval of the applicant's claim on merits with reference to the relevant rules and Government of India instructions governing the subject.

Subsequently, however, the respondents, without affording any opportunity of hearing to the applicant, reconsidered and sought to withdraw the benefits already extended to her under the orders dated 29.06.2018 and 15.10.2018. By communication dated 05.08.2019, respondent No. 3 was directed not to treat the period spent by the applicant in attending the CBI proceedings as duty and to take action in respect of TA in terms of para (ii) of SR 153(A).

Aggrieved by the aforesaid communication, the applicant approached this Tribunal by filing OA No. 277/2019. The said OA was disposed of by this Tribunal at the admission stage vide Order dated 21.08.2019 (Annexure A/3 refer). This Tribunal observed that the communication dated 05.08.2019 contained guidelines requiring the Head of Office to review the matter and take a final decision. The OA was accordingly treated as premature, while liberty was granted to the applicant to submit a representation raising her contentions before the competent authority.

Pursuant to the aforesaid Order dated 21.08.2019, the applicant submitted a detailed representation dated 05.09.2019 to the respondents (Annexure A/4 refer), specifically placing on record her contentions and requesting that the benefits earlier granted to her be continued. She also sought an opportunity of personal hearing so as to explain her case and the difficulties faced by her.

The respondents, however, did not accept the applicant's contentions and issued the impugned communications bearing No. 15/1693/95/S/VII/475 dated 09.10.2019 and No. 15/1693/95/S/VII/476 dated 15.10.2019 (Annexures A/1 and A/2 respectively refer), whereby the earlier orders dated 29.06.2018 and 15.10.2018 were sought to be cancelled/withdrawn and the applicant's representation dated 05.09.2019 was rejected. Hence, this OA seeking the reliefs as quoted above.

Learned counsel further contended that the criminal proceedings against the applicant in Special Case No. 06/2009 arose from an FIR lodged pursuant to a complaint made by the then Station Director, All India Radio, while the applicant was discharging her duties as TREX. The CBI, after investigation, filed the charge-sheet against the applicant before the learned Special Judge, CBI Court, Ahmedabad. Since the applicant was required to attend the said proceedings at Ahmedabad from her place of posting at Bhuj, she legitimately requested the respondents to treat the period of such attendance as duty and to grant her TA in accordance with the applicable rules and Government instructions.

Further, it is contended that the applicant's request was duly examined by the respondents on merits and, after considering the relevant provisions of the FR/SR and the Government of India instructions, the respondents accepted her claim. The departmental note dated 21.06.2018 itself demonstrates that the applicant's claim was examined and approved on merits. Pursuant thereto, the respondents issued orders dated 29.06.2018 and 15.10.2018, under which the applicant was permitted to attend the CBI Court proceedings after obtaining prior permission and was granted TA while the period spent in attending the proceedings was treated as duty.

Learned counsel argued that, having once considered and accepted the applicant's claim in accordance with the applicable rules and having extended the consequential benefits, the respondents could not have subsequently, without any justifiable reason and without affording the applicant an opportunity of hearing, unilaterally reviewed and withdrawn the benefits already granted to her. The communication dated 05.08.2019, directing that the period spent by the applicant in attending the CBI proceedings should not be treated as duty and that action be taken regarding TA under para (ii) of SR 153(A), was thus issued behind the applicant's back and in violation of the principles of natural justice.

Learned counsel submitted that the applicant had earlier approached this Tribunal by filing OA No.277/2019 against the communication dated 05.08.2019. The said OA was disposed of vide Order dated 21.08.2019, wherein the Tribunal noticed that the matter required consideration by the competent authority/Head of Office and granted liberty to the applicant to submit a representation raising her contentions. Pursuant thereto, the applicant submitted a detailed representation dated 05.09.2019, specifically requesting the respondents to consider all the contentions raised by her in OA No. 277/2019, which was enclosed with the representation, and further requested an opportunity of personal hearing to explain her case and the difficulties faced by her. However, according to learned counsel, the respondents failed to consider the representation in its proper perspective and proceeded to issue the impugned communications dated 09.10.2019 and 15.10.2019.

Learned counsel then contended that the impugned communications suffer from patent non-application of mind. In particular, despite the Tribunal having directed consideration of the matter by the competent authority/Head of Office, the decision was taken by respondent No.1 and not by respondent No.3, who was required to review the matter. The respondents also failed to deal with the specific contentions raised by the applicant in her earlier OA and incorporated by reference in her representation dated 05.09.2019.

Learned counsel also contended that the applicant's specific request for personal hearing was rejected without assigning any reason. The impugned communications do not disclose any consideration of the said request or any reason why an opportunity of personal hearing was denied. Learned counsel, therefore, submitted that the decision-making process was vitiated by breach of the principles of natural justice.

Learned counsel further submitted that the repeated and inconsistent stands taken by the respondents regarding the very same claim create serious doubt regarding the basis on which the benefits initially sanctioned to the applicant were subsequently withdrawn. It is, therefore, urged that the original departmental files and records relating to the orders dated 29.06.2018 and 15.10.2018, communication dated 05.08.2019, impugned communications dated 09.10.2019 and 15.10.2019, and the representation dated 05.09.2019 be called for to ascertain whether the applicant's claim and representation were duly considered by the competent authority.

Learned counsel also submits that, during the pendency of the proceedings, the applicant was acquitted by the learned CBI Court in the criminal case in which she had been arrayed as an accused pursuant to the departmental complaint and FIR. According to learned counsel, this subsequent development, coupled with the fact that the criminal proceedings themselves arose out of the applicant's discharge of official duties, reinforces the applicant's claim that the period spent by her in attending the CBI Court ought to have been treated as duty and that she ought not to be deprived of the TA benefits already granted to her.

On the strength of aforesaid grounds, learned counsel contended that the impugned communications dated 09.10.2019 and 15.10.2019 are arbitrary, contrary to the applicable rules and Government instructions, suffer from non-application of mind and breach of natural justice, and have been issued without properly considering the applicant's representation and the earlier decision of the respondents and therefore, prays that the impugned communications be quashed and set aside and the respondents be directed to restore the benefits earlier granted to the applicant under the orders dated 29.06.2018 and 15.10.2018, including treatment of the relevant period as duty and payment of TA.

Learned counsel also submitted that the present OA has been filed essentially seeking grant of Travelling Allowance (TA) for attending the CBI proceedings and treating the period spent by the applicant in attending the said proceedings as duty. It is contended that the applicant is presently working as TREX at AIR, Bhuj, since 2013 and had submitted a representation dated 25.04.2018 raising several grievances, including her request for transfer from AIR, Bhuj to AIR, Ahmedabad, a complaint against another employee, and her request for TA and treatment of the period spent in attending the CBI Court as duty. However, the applicant had not referred to any specific provision of the FRSR in support of her claim in the said representation.

Learned counsel further submitted that, on consideration of the applicant's representation dated 25.04.2018, the Directorate initially issued Office Memoranda dated 29.06.2018 and 15.10.2018, accepting her request for grant of TA for attending the CBI cases and for treating the periods spent in attending the CBI proceedings as duty. The said orders were issued on the basis of the then understanding of the Government of India's orders contained in SR 153-A and SR 154 of the FRSR. However, while considering the claim for TA, reliance was placed upon para 1(i) of the Government of India's orders under SR 153-A, which contemplates grant of TA where a Government servant, whether under suspension or not, undertakes journeys to attend a Police/Special Police Establishment enquiry in connection with a case in which he is suspected to be involved. Likewise, while considering the claim for treatment of the period spent in attending the CBI proceedings as duty, para 3(a) of the Government of India's orders under SR 154 was taken into consideration, which provides for treatment of the period as duty where a Government servant is summoned by a Court of law to give evidence regarding facts which came to his/her knowledge in the discharge of his/her public duties.

Learned counsel contended on the basis of the aforesaid provisions that the applicant was initially granted TA for attending the CBI cases and the periods spent by her in attending the CBI proceedings were treated as duty vide the Directorate's Office Memoranda dated 29.06.2018 and 15.10.2018. However, subsequently, upon consideration of AIR, Bhuj's letter dated 07.06.2019 and the applicant's subsequent representation, the Directorate noticed that the earlier orders had been issued on an incorrect interpretation of the Government of India's instructions under SR 153-A and SR 154.

The respondents’ learned counsel contended that, so far as the claim for TA under SR 153-A is concerned, the applicant was no longer merely a suspect in the CBI case by the relevant time, but had already been charge-sheeted. According to the respondents, the benefit contemplated under para 1(i) of SR 153-A is available where a Government servant undertakes a journey to attend a Police/Special Police Establishment enquiry in connection with a case in which he is suspected to be involved, and no provision was found in the said Government instructions extending such benefit to an accused/charge-sheeted officer for attending the criminal trial.

It is further submitted that the claim for treating the period spent in attending the CBI Court as duty was also found to be covered by the specific language of SR 154. According to the respondents, the said provision applies where a Government servant is summoned by a Court to give evidence regarding facts which came to his/her knowledge in the discharge of his/her public duties. The applicant, however, was attending the CBI Court as an accused/charge-sheeted officer and not for the purpose of giving evidence. Hence, the respondents contended that the provisions of SR 154 did not authorise treatment of such period as duty.

Learned counsel further submitted that, when the aforesaid factual and legal position came to the notice of the Directorate, it was found that the Office Memoranda dated 29.06.2018 and 15.10.2018 had been issued due to an erroneous interpretation of the Government of India's orders under SR 153-A and SR 154. Consequently, the Directorate withdrew the said benefits vide communication dated 05.08.2019. It is submitted that the subsequent action was not arbitrary but was undertaken to correct an erroneous departmental decision and to ensure that public funds were not disbursed contrary to the applicable rules.

Learned counsel also submitted that the applicant thereafter approached this Tribunal by filing OA No. 277/2019 challenging the withdrawal of the earlier benefits. The said OA was disposed of at the admission stage vide Order dated 21.08.2019, granting liberty to the applicant to submit a representation to the respondents. Pursuant thereto, the applicant submitted her representation dated 05.09.2019, which was duly considered by the Directorate. It is also submitted that after carefully examining the applicant's representation dated 05.09.2019, the Directorate passed a reasoned and detailed speaking order dated 09.10.2019. Thereafter, upon consideration of AIR, Bhuj's request dated 19.08.2019 seeking legal and administrative advice regarding implementation of the communication dated 05.08.2019, the Directorate issued Office Memorandum dated 15.10.2019 to facilitate further processing of the applicant's claim by AIR, Bhuj.

Learned counsel denied the allegation that the applicant's representation was not considered. It is submitted that the representation dated 05.09.2019 was duly examined and a reasoned order dated 09.10.2019 was passed. The respondents, therefore, contended that the allegation of non-application of mind is misconceived.

As regards the applicant's request for personal hearing, learned counsel submitted that the request was duly considered by the Deputy Director of Administration (Programme), DG: AIR, but it was decided that personal hearing was not necessary before taking a decision in the matter. It is, therefore, contended that there was no violation of the principles of natural justice merely because the applicant was not granted a personal hearing.

Learned counsel further submitted that the contention that the impugned communications were issued by an authority other than the competent authority is also misconceived. AIR, Bhuj had itself sought legal and administrative advice vide its letter dated 19.08.2019 regarding implementation of the communication dated 05.08.2019. After consideration of the matter, the Directorate issued the Office Memorandum dated 15.10.2019 enabling AIR, Bhuj to process the applicant's claim in accordance with the applicable rules and instructions. Thus, the respondents' action cannot be faulted merely because the applicant had earlier been granted the benefit. Learned counsel argued that an erroneous administrative decision cannot create a vested right in favour of the applicant to continue receiving a benefit which is not authorised by the applicable rules. The respondents were entitled, and indeed obliged, to correct the mistake once it was noticed. The applicant cannot claim an undue advantage merely on the basis of an earlier erroneous interpretation of the rules by the department.

Learned counsel also disputed the applicant's reliance upon her alleged acquittal by the CBI Court. It is submitted that the applicant has referred to Special Case No. 31/2009 in one place and Special Case No. 06/2009 in another, thereby creating an apparent inconsistency. It is further pointed out that the applicant has not produced a copy of the judgment of the CBI Court evidencing her alleged acquittal in the present proceedings. In any event, according to the respondents, the alleged acquittal does not alter the applicability or interpretation of SR 153-A and SR 154 governing entitlement to TA and treatment of the period spent in attending the CBI proceedings as duty.

Learned counsel, therefore, submitted that the communications dated 05.08.2019, 09.10.2019 and 15.10.2019 were issued after due examination of the applicable Government of India rules and orders under SR 153-A and SR 154 and were intended only to rectify the earlier erroneous grant of benefits. The impugned communications cannot, therefore, be said to be arbitrary, illegal, or contrary to the applicable rules.

On the strength of aforesaid grounds, learned counsel for the respondents contended that the applicant has failed to establish any enforceable right to claim TA for attending the CBI proceedings or to have the period spent by her in attending the proceedings treated as duty. It is accordingly prayed that the instant OA, being devoid of merit and disclosing no cause of action against the respondents, be dismissed.

Learned counsel also submitted that the applicant was transferred from AIR, Ahmedabad to AIR, Bhuj in connection with the aforesaid proceedings and has been working at AIR, Bhuj since March, 2013. While posted at Bhuj, she was required to regularly travel to Ahmedabad for attending the CBI Court proceedings. Accordingly, in her representation dated 25.04.2018, particularly in paragraph 6 thereof, the applicant specifically requested the respondents to grant her TA for travelling from Bhuj to Ahmedabad and to treat the dates on which she attended the CBI Court as duty.

It is further submitted that the respondents' contention that the applicant had not quoted any particular rule or provision of the FRSR in her representation dated 25.04.2018 is wholly immaterial. The applicant had placed the relevant facts before the competent authority and had specifically sought the benefits admissible to her under the applicable rules. It was for the competent authority to examine the claim in the light of the governing rules and instructions, which it admittedly did before taking the decision in her favour.

Learned counsel further submitted that, as admitted by the respondents themselves in paragraph 9 of their reply, the decision to grant TA to the applicant and to treat the period spent by her in attending the CBI Court at Ahmedabad as duty was taken by the Director General, AIR, New Delhi. Thus, the respondents cannot now contend that the earlier orders were issued merely on the basis of an inadvertent or isolated mistake at a lower level. The claim of the applicant was consciously considered and approved by the competent authority.

It is also submitted that, while considering the applicant's representation dated 25.04.2018, the respondents were fully aware of the circumstances in which the CBI proceedings had arisen, including the fact that the FIR had been lodged by the then Vigilance Officer on the basis of the complaint made by the then Station Director. The respondents had, therefore, consciously taken into consideration the factual background and the applicable provisions before granting the benefit. The subsequent attempt to characterize the earlier decision as a mere "wrong interpretation" of SR 153-A and SR 154 is, therefore, an afterthought and is not supported by any cogent justification.

Learned counsel also referred to the correspondence exchanged between AIR, Bhuj and the Directorate. It is submitted that, as reflected in the letter of the Assistant Director (Programme), AIR, Bhuj dated 08.05.2019, the applicant was asked to furnish certain details. Thereafter, in the applicant's representation in June 2019, it was specifically stated that, despite the benefit having been allowed by the Director General, AIR, New Delhi, the same was not being extended to the applicant by AIR, Bhuj pursuant to oral instructions allegedly received from the higher authorities. This, according to learned counsel, demonstrates that the issue was not merely one of rectification of an inadvertent clerical or interpretative error.

Learned counsel emphatically denied the respondents' allegation that the Office Memoranda dated 29.06.2018 and 15.10.2018 were issued due to a wrong interpretation of the Government of India's orders under SR 153-A and SR 154. It is submitted that the subsequent withdrawal of the benefits vide communication dated 05.08.2019 was not occasioned by any genuine discovery of a legal error but was the result of extraneous considerations and pressure. The applicant further submits that the departmental noting dated 16.07.2019, relied upon by the respondents, itself requires scrutiny, as the factual premise recorded therein is alleged to be incorrect.

Learned counsel also submitted that the respondents' stand suffers from serious inconsistency. Having initially examined the applicant's claim and granted TA and duty benefits by specific orders, the respondents subsequently sought to withdraw the same on the ground that the applicant was an accused and not merely a suspect. However, the respondents have failed to satisfactorily explain why the same factual position was not noticed when the applicant's claim was originally examined and approved by the competent authority.

Learned counsel further submitted that the subsequent acquittal of the applicant assumes considerable significance. The applicant was attending the CBI Court at Ahmedabad in Special Case No.06/2009 since March, 2013, and the learned CBI Court ultimately acquitted her vide judgment dated 04.05.2019. A copy of the said judgment, according to the applicant, had already been forwarded to the respondents along with her subsequent representation. Thus, the respondents cannot disregard the fact that the criminal proceedings in which the applicant was required to appear ultimately culminated in her acquittal.

It is, therefore, contended that the respondents' reliance upon the mere fact that the applicant was charge-sheeted/arrayed as an accused does not, by itself, answer the applicant's claim for TA or treatment of the relevant period as duty. The applicant's case has to be examined in the factual context in which the proceedings arose, the nature of her official duties, the circumstances leading to the FIR, the earlier conscious decision of the competent authority granting the benefits, and the subsequent acquittal.

Learned counsel accordingly submitted that the impugned decision dated 05.08.2019 and the consequential communications dated 09.10.2019 and 15.10.2019 deserve to be interfered with, as the respondents have failed to demonstrate any substantial change in circumstances warranting withdrawal of the benefits earlier sanctioned by the competent authority. The applicant, therefore, prays that the impugned communications be quashed and set aside and the benefits of TA and treatment of the relevant period as duty, as granted under the earlier orders, be restored.