S.S. Patra vs Union of India (UOI) and Another

Bhagwati Prasad, J.—The petitioner was working with Marine Products Export Development Authority. At the time when he was working as Deputy Director, he was given additional charge in the Society known as WESPARC (West Bengal Scampi Seed Products Supply & Research Center) as Project Director. While working as Projector Director in WESPARC, the claim of the petitioner is that he was entitled to charge allowance and for that he being the disbursing authority for himself, disbursed himself amount which according to the respondents, was in excess pay he was entitled to. Therefore, he was asked by the respondent Department to return that amount, of which he did not repay and consequently thereto a memo was issued to him for drawing without sanction charge allowance which was not due to him and the following charges were framed against him:

That Shri Patra while functioning as Project Director WESPARC has drawn the charge allowance from 10.10.1994 to 29.4.1999, a period of nearly 55 months, without the sanction of the competent authority (i.e. President WESPARC).

That even if the competent authority had sanctioned the charge allowance and that too for the entire period of 55 months, it would have to have been limited to a maximum of Rs. 500/- per month under Rule 8 of the WESPARC Service Rules, Shri S.S. Patra, however, helped himself to a charge allowance of Rs. 1,200/- pm for the period from January, 1996 to April, 1999 (I.e. 40 months). He had thus drawn excess charge allowance of Rs. 700/- per month for 40 months totaling Rs. 28,000/-.

That he did not respond to the letters No. 1/14/SOC/99/HO dated 15.9.1999 and 11.10.1999 issued by the Director, MPEDA and did not refund the amount in spite of specific instructions.

Pursuant to these charges, he submitted his response and stated that he is not an employee of WESPARC and he cannot be governed by WESPARC Rules. He is a Central Government employee and the Rules framed under Article 309 of the Constitution of India will govern his service conditions. He also averred that the earlier person who was on deputation was drawing 10% charge allowance. Therefore, he also drew charge allowances.

The respondents considered the case of the petitioner and punished him for stoppage of three increments without cumulative effect and asked him to return a sum of Rs. 28,000/-.

Appeal was preferred by the petitioner and the appellate authority also did not agree with the petitioner and dismissed the appeal. Hence the present petition is filed by the petitioner.

In the present petition it has been argued on behalf of the petitioner by learned Counsel that WESPARC Rules do not apply to him. For that he has drawn our attention to Clause (2) of the Service Rules of WESPARC reads as under:

Clause (2) . These rules shall apply to every person in the whole-time employment of the Society except, in so far, and to the extent, unless otherwise agreed upon in the letter of appointment.

If for the sake of argument we accept this argument of learned Counsel for the petitioner that WESPARC Rules do not apply to the case of the petitioner then which Rules will govern is a major factor which has to be looked into. Though specifically neither before the Disciplinary Authority nor before the Appellate Authority it was averred that Fundamental Rule 49 will govern the petitioner but at the time of argument it has been pleaded that Fundamental Rule will govern the pettiioner. During the course of argument, learned Counsel for the petitioner drew our attention and based his argument to the Fundamental Rule 49 and stated that this provides for 10% of the pay of the additional post which the person holding another post is entitled to draw it.

Apart from this Rule, the other aspect which has been relied upon is payment to his predecessor which was 10%. This was the second authority pressed into service for drawing 10% allowance by the petitioner. As far as his predecessor''s case is concerned, we do not find sufficient material on record and whatever material on record shows that previous sanction of the higher authority was taken for drawl of whatever charge allowance was withdrawn by him. Therefore, that question cannot be a determining factor as far as the case of the petitioner is concerned.

The other ground which has been emphasized before us is Fundamental Rule 49. If we make a mention to the Fundamental Rules, Rule 49(iii) reads as under:

Where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post, or of the highest post, if he holds charges of more than two posts, in addition to ten percent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 45 days but not exceeding 3 months:

Provided that if in any particular case, it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the Department of Personnel and Training shall be obtained for the payment of the additional pay beyond the period of 3 months.

The aforesaid makes a reference to that in addition to ten percent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 45 days but when the period extends 3 months then permission is required to be sought from the Government, Department of Personnel and Training. This is an admitted fact in this case that no permission has been sought. Apart from this, there are other conditions in the Fundamental Rules. Whether the petitioner fulfills those conditions or not, no foundation has been laid in the petition. Therefore, in our considered opinion no relief can be granted to the petitioner because no sufficient material has been produced before us whether any permission from the Department of Personnel and Training was taken or whether the petitioner fulfills the other conditions. Thus, if the Fundamental Rule 49 cannot be pressed into service and according to the petitioner WESPARC Rule cannot be relied on then perhaps he was not entitled to amount of Rs. 500/- which the respondents have granted him. Thus, we are left to determine questions which are disputed questions of fact which this Court would not go into because the entitlement of the petitioner to get 10% of the charges is not clearly established, the respondents have applied WESPARC and permitted the petitioner to hold Rs. 500/- and was not ordered for its recovery, perhaps, keeping in view that he has discharged the aforesaid work. In that view of the matter, we do not think that any interference with the impugned order passed by the authority is called for in exercise of our extraordinary jurisdiction.

The petitioner has also stated that while he drew the additional charge allowance, there was no audit objection raised. May be it escaped the attention of auditor and no objection was raised. Non-raising audit objection cannot make unauthorized withdrawal authorized. In that view of the matter, this argument loses its significance.

In the result, the petition is dismissed. Rule discharged.