S K TANDON Vs. NEW DELHI

JUDGEMENT

(1.) HEARD Shri R. C. Singh the learned counsel for the petitioner and Shri Asit Chaturvedi for opposite parties no. 1,3 and 4 and none has put in appearance on behalf of the opposite party no. 2. The instant writ petition arises against the judgment and order dated 7. 11. 2003 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow by which the Original Application moved by the petitioner was dismissed and the order dated 7. 1. 2004 by which the review petition preferred by the petitioner was rejected and the order dated 31. 3. 2003 by which request of the petitioner for relaxation of the rules of leave travel concession was declined. The brief facts of the case are that at relevant time the petitioner was working with the Industrial Toxicology Research Center, Lucknow in the pay scale of Rs. 18,400-22,400 and was entitled to travel by air in economy class for the purposes of Leave Travel Concession (hereinafter referred as LTC ). The petitioner applied before opposite parties 3 and 4 for advance to avail LTC for himself and family members. After getting the permission to avail LTC leave was sanctioned from 29. 1. 2001 and advance of Rs. 53,500/- (fifty three thousand five hundred only) was also paid to the petitioner through cheque dated 5. 1. 2001 and the advance amount was credited in the Bank of the petitioner on 8. 1. 2001 as alleged in the writ petition. Since, the tickets in Indian Airlines for 26-1- 2001 were not available the petitioner travelled up to Goa by Sahara Airlines. On 9. 2. 2001 after return from the journey a final LTC claim for Rs. 54,927/- (Fifty four thousand nine hundred twenty seven) was submitted by the petitioner. The said claim was rejected by the respondent no. 3 vide letter dated 18. 5. 2001 and the petitioner was asked to refund the total amount of LTC advance together with penal interest at the rate of 13 per cent per annum. The petitioner has further alleged that on 4. 7. 2001 the petitioner made a representation to the Vice President, CSIR and requested for payment of LTC claim after relaxing the rules. Since, no decision was taken on the representation of the petitioner dated 4. 7. 2001, the petitioner filed an Original Application before the Central Administrative Tribunal, which was registered as O. A. No. 535 of 2001. The said O. A. was decided by the Central Administrative Tribunal vide judgment and order dated 20. 1. 2003 and the respondents were directed to consider the representation of the petitioner sympathetically within four weeks. A review petition was also preferred by the petitioner against the judgment and order dated 20. 1. 2003. Being aggrieved by the order dated 31. 3. 2003 the petitioner filed another Original Application before the Central Administrative Tribunal, which was registered as O. A. No. 198 of 2003. The said application was contested by the respondents by filing written statement. The Tribunal after considering the material on record and after hearing the learned counsel for the parties dismissed the Original Application by the impugned judgment and order dated 7. 11. 2003. The learned counsel for the petitioner submits that in a most arbitrary and illegal manner the claim of LTC was rejected by the respondents. He further submits that the seats for travel from Lucknow to Goa were not available in Indian Airlines for 26. 1. 2001 and the petitioner availed the LTC through Sahara Airlines, the fare of which was cheaper than the fare of the Indian Airlines. He further submits that Rule 18 of the Central Civil Services (Leave Travel Concession) Rules, 1988 gives power to the Government for relaxation but in a most arbitrary and illegal manner the relaxation was not given to the petitioner and the Central Administrative Tribunal also in an illegal manner has dismissed the Original Application moved by the petitioner. He further submits that leave to avail LTC was for a limited period from 29. 1. 2001 to 2. 2. 2001 there was no option for the petitioner except to travel by Sahara Airlines as the tickets in the Indian Airlines were not available. Shri Asit Chaturvedi appearing on behalf of the respondents submits that there is no illegality in the impugned judgment and order passed by the Central Administrative Tribunal. He further submits that in the rules it has been provided that LTC shall be availed by an employee through National Carrier only as the expenditure incurred by the government should go to public sector Air Carrier only and not to any other private airlines. He further submits that non-availability of confirm tickets in the public sector Air Carrier is not an excuse to travel in other than National Carrier. He further submits that the representation made by the petitioner for the relaxation was duly considered by the competent authority and the same was rejected by the impugned order dated 31. 3. 2003 and there is no illegality in the said order. He further submits that the writ petition is devoid of merit and deserves to be dismissed with costs. We have considered the submissions made by the learned counsel for the parties and gone through the record. It is admitted case of the parties that the petitioner at the relevant time, was working with the respondents in the pay scale of Rs. 18400-22400/- and was entitled to travel by Air or AC First Class to avail the LTC. The petitioner after obtaining an advance for LTC went to visit Goa on 26. 1. 2001 through Sahara Air Lines in economy class. After availing the LTC, the petitioner submitted the final LTC claim of Rs. 54,927/- with the respondents. The respondents rejected the claim of the petitioner on the ground that the LTC was not availed by the petitioner by a National Carrier. The petitioner also submitted an application for relaxation under Rule 18 of the Central Civil Services (Leave Travel Concession) Rules, 1988, which was rejected. Rule 18 is as under: "18. Power to relax.--Save as otherwise provided in these rules, where any Ministry or Department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, that Ministry or Department, as the case may be, may, by order, for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and, subject to such exception and conditions as it may consider necessary for dealing with the case in a just and equitable manner: Provided that no such order shall be made except with the concurrence of the Department of Personnel and Training. " The petitioner has availed the LTC in the year 2001 through Sahara Air Lines under compelling circumstances as the leave was granted only for the period 29. 1. 2001 to 2. 2. 2001 and no tickets in National Carrier (Indian Air Lines) were available for the said date. The petitioner has also alleged in the petition that the fare from Lucknow to Goa by Indian Air Lines was higher than the fare of the Sahara Air Lines. We are of the view that no loss has caused to the Government by the action of the petitioner who travelled to Goa by Sahara Air Lines instead of Indian Air Lines. In these days, there is healthy competition among the Air Lines. The Rules were framed in the year 1988 when in addition to Indian Air Lines, there were only few other Air Lines available in different sectors of the country. Rule 18 of the Rules specifically gives power to the competent authority to relax the Rules under special circumstances. We are of the view that the case of the petitioner falls under the category of special circumstances and the respondents ought to have granted relaxation as the leave was granted for a limited period and the tickets in the National Carrier (Indian Air Lines) were not available on the said date. The impugned order by which the respondents have declined to grant relaxation, is arbitrary and illegal. The respondents have not exercised the powers in a just, fair and legal manner. The impugned order dated 31. 3. 2003, a copy of which has been annexed as the Annexure No. 3 to the writ petition, is legally not sustainable. In the result, the writ petition succeeds and is hereby allowed. The impugned judgment and order dated 7. 11. 2003 passed by the Central Administrative Tribunal and the order dated 7. 1. 2004 passed on the review petition, are hereby set aside and the order dated 31. 3. 2003, a copy of which has been annexed as the Annexure No. 3 to the writ petition, is hereby quashed and a writ in the nature of mandamus is issued directing the respondents to refund the amount of Rs. 54927/- to the petitioner forthwith. In the circumstances, there shall be no orders as to costs. 22. 2. 2008 Madhu .