Sh. Mahinder Kapoor vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1464 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner has filed this writ petition impugning order dated 14th September, 1994 passed by the respondents. As per this order, a sum of Rs. 30,675/- was recoverable from the petitioner representing over-payment of TA/DA.

2. While the petitioner was posted in Command of 67 Battalion, Ajmer, he was temporarily transferred to the office of the Inspector General, CRPF, New Delhi. His aforesaid transfer in 4 spells was as under:

First period of temporary transfer 10.1.87 to 8.7.1987 Second period of temporary transfer 18.7.87 to 21.1.1988.

Third period 1.2.1988 to 29.7.1988 Fourth period 2.8.1988 to 30.9.1988"

3. On each occasion the petitioner submitted his claim of daily allowance at full rate for 180 days only. for the remaining three periods of temporary transfer/halt away from his headquarter, D.A. claim bill was submitted for 180 days on each occasion and not beyond, treating the periods as separate and distinct tours as those actually were. The total D.A. that thus was paid to the petitioner was calculated to a total sum of Rs. 45,058.50 paise by the Internal Audit Party.

4. This payment of DA is governed by SR-70. As per this SR-70, for first 180 days of the period of temporary transfer, the concerned employee is entitled to full daily allowance and beyond 180 days no such allowance is admissible. This relevant portion of SR-70 stipulating the aforesaid condition reads as under:

"Govt. of India's order contained in G.I.M.F.O.M.No. 19030/1/76-E.IV(B) dated 30.1.1978 provides as under:-

"D.A. for continuous halt-In modification of S.R. 73, the admissibility of daily allowance at a place outside Govt. Servant's headquarters for a continuous halt up 180 days or more during tour/temporary transfer/training shall be as follows:-

i) First 180 days...Full daily allowance.

ii) Beyond 180 days...Nil."

5. While making the payment to the petitioner in the first instance, as mentioned above, each period of temporary transfer was treated as less than 180 days, and therefore, the petitioner was paid full daily allowance. However, thereafter the Audit Department of the respondents raised objection to the effect that the breaks between the first temporary transfer and second temporary transfer, second and third temporary transfer and likewise third and fourth temporary transfer were artificial breaks which had to be ignored and the total period from 10th January, 1987 to 30th September, 1988 was to be treated as one period. That being so, according to the Audit objection, the petitioner was not entitled to the daily allowance beyond 180 days calculated from 10th January, 1987. It was pointed out that in order to give him the full daily allowance for the entire period, the petitioner was sent back to his parent Department but retransferred within few days as is clear from the short breaks. In these circumstances, the Audit calculated an amount of Rs. 30,675/- which was allegedly over-paid.

6. On the basis of these Audit Objection, the order dated 14th September, 1994 was passed to recover the "excess" amount in question. The petitioner represented against the same and requested for regularising the over-payment which was rejected by a communication dated 14th September, 1994. In these circumstances, the petitioner approached this court by way of instant writ petition challenging the action of the respondents in recovering the amount in question.

7. On 1st March, 1995 while issuing notice show cause notice in the writ petition, recovery on account of alleged excess payment was stayed. After notice when the rule was issued on 16th October, 1995 interim order was made absolute.

8. When the matter came up for hearing the counsel for the petitioner informed that the petitioner had since retired from service. IN view of this fact that the petitioner now stands retired from service and that the stay of the recovery in this case is continuing for last more than seven years, we are of the opinion that in such a situation there should not be any recovery from the petitioner at this stage.

9. There is yet another reason for arriving at this conclusion. Admittedly, each spell of stay/temporary transfer of the petitioner had been less than 180 days. If there was a so-called artificial break given, it was done by the officials of the respondents themselves by passing orders to this effect from time to time. But for the orders of the respondents, the petitioner could not have gone back to Ajmer and again join Delhi on temporary transfer each time. Therefore, when the situation is brought about by the orders of the respondents themselves, the petitioner cannot be entirely blamed for the creation of the aforesaid situation. May be, the concerned officials of the respondents deliberately did so to benefit the petitioner. However, it is not pointed out that any action is taken against erring officials. This fact coupled with the fact that the petitioner has already retired from service, we do not deem it appropriate that any recovery is warranted. We may reiterate that while taking this particular view, we have been persuaded by all the aforesaid facts taken into consideration cumulatively.

10. This writ petition is accordingly allowed. The recovery orders are hereby set aside.

11. There shall be no order as to cost.