BENNY GEORGE v. UNION OF INDIA & ORS.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 17TH DAY OF NOVEMBER 2017/26TH KARTHIKA, 1939** **OP (CAT).No. 324 of 2017 (Z)** **-----------------------------** ## **AGAINST THE ORDER IN OA 686/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 13-11-2015** ## **PETITIONERS/RESPONDENTS:** - **-------------------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE,SOUTH BLOCK,NEW DELHI-110011.** **2. THE COMMANDER, BOSE LOGISTICS OFFICER,BASE LOGISTICS OFFICE,NAVAL BASE, COCHIN-682004.`** **3. THE ACCOUNTS OFFICER, AREA ACCOUNTS OFFICE(N),PERUMANOOR.P.O,KOCHI-682015.** **4. THE BASE LOGISTICS OFFICER, BASE LOGISTICS OFFICE NAVAL BASE,COCHIN-682004.** **5. THE FLAG OFFICER COMMANDING-IN -CHIEF, SOUTHERN NAVAL COMMAND,NAVAL BASE,COCHIN-682004.** **BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** ## **RESPONDENT/APPLICANT :** **-------------------------** **BENNY GEORGE,** **AGED 43 YEARS,S/O.J0SEPH VARKEY LDC,BASE LOGISTICS OFFICE, NAVAL BASE,KOCHI-682004,RESIDING AT PADANNAMAKKIL HOUSE, KURIANAD.PO,KOTTAYAM,PIN-686636.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 17-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 324 of 2017 (Z)** **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 TRUE COPY OF THE O.ANO.180/00686/2014 DATED 23.08.2014 DATED 23.02.2024 FILED BY THE RESPONDENT BEFORE THE CAT,ERNAKULAM BENCH** **EXHIBIT P2 TRUE C0PY OF THE REPLY STATEMENT 27.11.2014 FILED BY THE PETITIONERS** **EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.180/00686/2014 DATED 13.11.2015,OF THE CENTRAL ADMINISTRATIVE TRIBUNAL** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **O.P(CAT)No.324 of 2017** **------------------------------------------------------** ## **Dated this the 17[th] day of November, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Ext.P3 verdict passed by the Tribunal in O.A No.180/00686/2014 is under challenge at the instance of the the respondents in the Original Application 2. Heard the learned Standing Counsel at length. 3. The crux of the case projected before this Court is that as per Annexure A5, some Transport Allowance came to be sanctioned in the case of physically challenged persons. Originally, it was in respect of the blind and the orthopaedically challenged persons. The Deaf Employees Welfare Association took up the matter before the Apex Court projecting their grievance. After detailed examination, the Apex Court passed Annexure A6 verdict dated 12.12.2013, whereby the benefit of Annexure A5 O.P(CAT)No.324 of 2017 2 was ordered to be extended in the case of 'deaf and dump' persons as well. The operative portion of the said verdict as contained in the said verdict reads as follows: “Under such circumstances, we are inclined to allow this writ petition and direct the Respondents to grant transport allowance to deaf and dumb persons also on par with blinds and orthopaedically handicapped employees of Central and the State Governments and other establishments wherever such benefits have been extended to the blinds and orthopaedically handicapped employees. Ordered accordingly.” Pursuant to passing of Annexure A6 verdict in 2013, Annexure A7 OM was issued by the Ministry of Finance on 19.2.2014, whereby the benefit as aforesaid was ordered to be extended to all the deaf and dumb persons as well. 4. The case of the petitioner is that, while giving effect to Annexure A7, the benefit of Annexure A5 was inadvertently given from the date of Annexure A5 OM, instead of restricting to the date of Annexure A7 ie. 19.2.2014, by virtue of the fact that it was stipulated in the OM that it would come into effect only on 29.8.2008. O.P(CAT)No.324 of 2017 3 On finding out the mistake, this was sought to be rectified as per Annexure A1, which made the beneficiaries to challenge the same by filing the Original Application with the following prayers: “ i) Call for the records leading to the issue of A1 and quash the same; ii) Declare that the applicant is entitled to be paid the arrears of transport allowance at double the normal rate as declared in A6 and as directed in A7/A8 with effect from the date of the applicant's initial appointment in the year 2000 and direct the respondents to calculate and to pay the same to the applicant forthwith, less what has already been paid by way of arrears of transport allowance for the period from 1.9.08 upto the date of A7 ie., 19.2.2014, iii) Direct the respondents to grant the applicant the benefit of the declaration in (ii) above and direct further to grant the arrears of transport allowance for the period from the date of the applicant's initial appointment in the year 2000 up to 31.8.2008 within a time frame as may be found just and proper by this Hon'ble Tribunal; iv) Award costs of and incidental to this Application; v) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.” ## 5. The claim was opposed strongly from the part of the Department. After hearing both the sides, the Tribunal passed Ext.P3 order, whereby the Original Application was allowed. O.P(CAT)No.324 of 2017 4 ## 6. The observations and the declarations made by the Tribunal for granting the benefit, as discernible from paragraphs 13 and 14, are reproduced below. “13. In the facts and circumstances of the present case, this Tribunal is of the view that the law declared by the Apex Court in Annexure A6 judgment has a modifying effect on Annexure A5. Since Annexure A5 is dated 25.8.2008, and that being the latest OM on the subject prior to the Annexure A6 judgment of the Supreme Court, the applicant is entitled to get the transport allowance at double the rate from 29.8.2008. Annexure A7 is only an Office Memorandum implementing the order of the Apex Court. It clearly states that it will have immediate effect. It is worth noticing that Annexure A7 further refers to Annexure A5 OM. Therefore Annexure A5 has to be read with Annexure A7 OM. 14. Taking stock of the facts and circumstances of the case and as per the law laid down by the Supreme Court, applicant is entitled to the relief sought for. Annexure A1 is hereby quashed and set aside. In the light of the decision in P.V. George's case (supra) since Annexure A6 judgment has retrospective effect dating back to the commencement of PWD Act and also to the date of Annexure A4 OM, it is declared that the applicant is entitled to be paid arrears of transport allowance at double the normal rate from the date of his intial appointment in the year 2000. Respondents shall calculate and pay the same to the applicant less what has already been to him by way O.P(CAT)No.324 of 2017 5 of arrears for the period from 01.09.2008 to 19.02.2014. The payment ordered shall be disbursed by the respondents within two months. Parties shall suffer their own costs.” 7. The above order is under challenge, at the instance of the respondents in the Original Application. The first thing to be noted is that, the above verdict was passed by the Tribunal way back on 13.11.2015; virtually two years ago. Obviously, the petitioners were sleeping over the issue and on a fine morning as a matter of revelation they have approached this Court by filing this Original Petition. A vague attempt is made to explain the delay by raising ground (G) where it only says that there was some “inter ministerial discussion” between the Ministry of Finance and the Ministry of Defence. The said ground reads as follows: “(G) The dictum of the order of the Tribunal granting the benefit from the date of appointment would have wide financial ramifications and it would encourage employees to stake similar claim thereby setting a bad precedent. After inter-Ministerial discussions between Ministry of Finance/Department of Expenditure and O.P(CAT)No.324 of 2017 6 Ministry of Defence, it was advised that the order has to be appealed against. The administrative deliberations and discussions took up considerable time and there occurred a delay in preferring this (OP(CAT). The delay is not willful or deliberate, but due to the unavoidable administrative procedure involved.” 8. The above version offered by the petitioners is not liable to be accepted as a 'reason'; much less any 'satisfactory explanation'. The Original Petition is liable to be dismissed on this score alone; more so in view of the ruling rendered by the Apex Court in _**Rabindra Nath Bose and others v. Union of India and others (AIR 1970 SC 470).**_ 9. We find that the Apex Court, as per Annexure A6, had ordered to give benefit to the 'deaf and dump persons' as well, on par with the other categories mentioned in Annexure A5. The right of recovery in respect of persons belonging to the lower strata stands already interdicted by the Apex Court as per the decision reported in _**Rafeeq Masih vs. State of Punjab and others (2015 (4) SCC 334)**_ . That apart, in the instant O.P(CAT)No.324 of 2017 7 case, it is to be noted that recovery is sought to be made from the persons to whom even the God was cruel to some extent. The officers of the petitioner/Department who proclaim themselves as eager to safeguard the public money, act in a still more cruel manner; instead of implanting the said verdict passed by the Tribunal based on the verdict passed by the Apex Court-by letter and spirit, that too by making such an attempt after a long lapse of two years. In the said circumstance, we do not find any ground to interfere with the the matter. The Original Petition stands dismissed with a cost of Rs.10000/-. **P.R. RAMACHANDRA MENON JUDGE** smm **SHIRCY.V JUDGE**