Delhi High Court
Harish Chander vs Union Of India And Ors on 23 September, 2016
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ REVIEW PET. NO.632/2013 & CM No. 6053/2014 in
W.P.(C) 5051/2012
% Date of Decision : 23rd September, 2016
HARISH CHANDER ..... Petitioner
Through: Ms. Jyoti Singh, Sr. Adv.
with Mr. Dinesh Yadav,
M. Tinu Bajwa and Mr.
Sameer Sharma, Advs.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Sarat Chandra,
Mr. Sachin Chandra and Ms.
Poonam Saha, Advs. for R-1
to 6.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT (ORAL)
GITA MITTAL, J.
CM No.6053/2014
Heard.
For the reasons stated, delay in filing the application is
condoned.
The application is allowed.
Review Petition No. 632/2013
1. We have heard learned counsel for the parties on this review
petition which seeks review of our judgment dated 23 rd September,
2013. The review is primarily premised on an order dated 27 th
October, 2010 passed by us in LPA No. 618/2002 in an appeal
filed by Amar Nath Prasad, another employee of the GREF
similarly placed as the petitioner.
2. It has been pointed out that Amar Nath had earlier filed a
writ petition bearing WP No.4350/2001 against the respondent
claiming the Bhutan Compensatory Allowance (BCA) for the
period for which he had remained attached with the 504 SS & TC
Battalion which was located in Bhutan. The review petitioner
points out that his tenure with Amar Nath was overlapping and he
had actually performed duties in Bhutan.
3. We find that in our judgment dated 27th October, 2010
allowing Amar Nath's writ appeal, we have returned a finding that
the 504 SS & TC Battalion of GREF was actually deployed and
performing duties under the project 'DANTAK' at Bhutan. This
finding was premised on documents placed before us which
included the Duty Roster, Part-I Orders, Attendance Registers and
the List of the People who were paid the Bhutan Compensatory
Allowance.
4. We had queried from learned counsel for the respondent as
to whether they had assailed the judgment dated 27 th October,
2010. We are informed that it was assailed, however, the challenge
was rejected by the Supreme Court of India. The findings returned
by this court in the judgment dated 27th October, 2010 have,
therefore, attained finality.
5. We have been further informed by the respondent that in
compliance of our judgment, Amar Nath Prasad has been paid the
Bhutan Compensatory Allowance.
6. The petitioner had sought the same relief by way of the
present writ petition, as had been sought by Amar Nath by way of
WP(C) No.4350/2001. However, those facts were not placed
before us as would be evident from the discussion hereafter. As a
result on 23rd September, 2013, we had rejected the prayer made by
Harish Chander in the above writ petition, necessitating the review
petition for the reason that documents placed on record have not
been brought to our notice and the material fact that Amar Nath
and Harish Chander's presence in Phuentsholing Bhutan is noted on
all documents, was not noted by us, which is an error apparent on
the face of the record.
7. In addition thereto, the findings returned by this court in the
case of Amar Nath by the judgment dated 27 th October, 2010 are
squarely applicable to the case of Harish Chander as well.
8. During the course of hearing, Ms. Jyoti Singh, learned senior
counsel for the petitioner has drawn our attention to the extract of
the attendance register maintained by 504 SS & TC Battalion
which is forthcoming on the record from page 43 to 72 which
related to the period December, 1998 to May, 2001. Reliance has
been placed by the review petitioner on the certificate dated 16 th
March, 2012 which was issued by the Commander Headquarters
23 BRTF with regard to the services rendered by the review
petitioner.
9. We had by our order dated 12th August, 2016 given an
opportunity to the respondents to file an affidavit explaining these
documents and also the circumstances in which they were issued or
noted. Though an affidavit dated 31st August, 2016 has been filed
by the respondents, however, it is an admitted position that the
respondents are unable to dispute the authenticity or the correctness
of the contents of the documents.
10. No submission to the contrary has been pointed out on
behalf of the respondents. Perusal of the extract of the attendance
register would show that the respondents have granted leave to the
persons reflected as serving personnel in the registers on the
holidays which are not holidays in India but are holidays in
Bhutan, say for instance on 17th December, which is the Bhutan
National Day and 11th November which is the birthday of the King
of Bhutan.
11. We find that all these documents are evidence of the fact that
both Amar Nath, Harish Chander and Satwinder Singh were posted
with the same Unit during the same period. The attendance register
notes their presence during the period from December, 1998 to
May, 2001. These registers have been accepted as evidence of
Amar Nath working with the Unit in Bhutan. Therefore, it stands
established that Harish Chander was also employed at Bhutan
during the period to which these registers relate.
12. Our attention has also been drawn to the certificate of
handing over and taking over charge between Sh. Amar Nath and
the petitioner Harish Chander dated 19th April, 1999 which
certifies the change of charge with regard to property held in
respect of Dantak School Hostel (DSH) Phuentsholing Care 504
SS&TC (GREF). On the same aspect are certificates dated dated
19th April, 1999 and 1st September, 1999. The certificate dated 1st
September, 1999 executed between change of guard between Amar
Nath Prasad and Harish Chander for change of charge of loan items
has also been placed on record.
13. The Daily Part-I Order dated 6th June, 1998 which reflects
the time of checking by the Duty JCO/Supervisor is at 0800 hrs
(BST) had been placed on record. The reference is clearly to
Bhutan Standard Time. This order contains duties assigned to
Harish Chander as well as Amar Nath Prasad. Similarly, two
orders were issued on 17th July, 1999 and 28th August, 1999.
14. Also on record is a certificate issued by Col. Raman Kumar
SV, Commander Headquarters 23 BRTF inter alia certifying as
follows :-
(a) GS-172563L SR SUPVR STORE Harish
Chander was posted in 504 SS&TC (from Jun 1997
to 03 Jan 2001 as Non-BCA
(b) The location of 504 SS&TC is at
Phuentsholling, which is in Bhutan.
xxxxxx
(f) The high court of Delhi has ruled in favour of
Shri Amarnath Prasad and directed the
Department to pay the individual Bhutan
Compensatory Allowances for the entire period
served by the individual in Bhutan alongwith
interest. The judgment of Hon'ble High Court has
been upheld by Hon'ble Supreme Court of India
also.
(g) Shri Amarnath has received full entitlement as
due to him for BCA despite being posted by GREF
Records on Non-BCA posting.
(h) On going through the case and documents of Shri
Harish Chander, it can be seen that the case is simiar
to the case of Shri Amarnath Prasad."
15. From the documents brought on record, the following facts
stand established, which are not disputed by the respondents even,
which hold good for both Amar Nath and Harish Chander the
review petitioner :
(i) Both of them were posted with 504 SSTC which was located
inside of Bhutan.
(ii) Both BCA and NON ECA staffs worked in same building,
same office and on same table.
(iii) Both BCA and NON BCA staffs were sharing same mess and
same accommodation in inside of Bhutan.
(iv) For attendance and unit parade state, single/same register was
maintained for both.
(v) Both BCA and NON BCA staffs performing their regimental,
Adm, Security check and other duties under same unit Part-I order.
(vi) NON BCA staffs were equally maintaining their standard,
discipline and status.
16. It is apparent from the above narration that Amar Nath was
similarly and identically placed as the petitioner. So far as the
judgment dated 27th October, 2010 in LPA No. 618/2002 is
concerned, we extract the following portions hereunder :
"7. The undisputed facts giving rise to the present
appeal are in a narrow compass. The appellant was
recruited as a Store Keeper, Technical with General
Reserve Engineer Force (GREF) on 27th August,
1969. After twenty seven years of sincere and
satisfactory service, in July, 1996 the appellant was
promoted to the post of Store Supervisor-II (SS.II).
The appellant was posted to 504 SS&TC with its
Project Dantak vide order bearing GREF Record PO
No. 97/SSIT/GP/N/PoS with the Non Bhutan
Operator.
8. The appellant has contended that the unit where
he was posted was actually undertaking works in
Phuentsholing within the boundaries of Bhutan. The
petitioner has therefore claimed grant of Bhutan
Compensatory Allowance for the period when he
was so posted. The respondents have, however,
contended that this unit was posted in Jaigaon, West
Bengal and for this reason the appellant could not be
paid the Bhutan Compensatory Allowance. The
appellant's representation for such allowance was
rejected by the communication dated 14th July,
2000. The appellant made a further representation
on 9th August, 2000 in this regard to the Director,
Ministry of Personnel and Training, Department of
Administrative Reforms and Public Grievances,
New Delhi which was also of no avail.
xxx xxx xxx
12.In support of his preliminary contention that the
appellant was actually serving Pheuntsholing,
Bhutan, the appellant has placed before us a copy of
the duty rosters which were issued by the
respondents on 21st November, 1998 and several
dates thereafter. These duty rosters clearly include
the name of the appellant with several other persons.
It has been pointed out that just as the appellant,
several other persons including Sh. Malkit Singh,
Sh. Faquir Singh and Sh. Harish Chander were also
posted on Non Bhutan Compensatory Allowance
criteria with the 504 SS&TC battalion of GREF.
These persons along with several other employees
including the appellant performed duty in Bhutan.
Other than the petitioner, such persons who stood
posted with the 504 SS&TC battalion of GREF were
paid Bhutan Compensatory Allowance for the
period when they performed duty in Bhutan, even
though they were posted on the Non Bhutan
Compensatory Allowance criterion.
xxx xxx xxx
14.Having addressed this issue, we may now
consider the appellant's contention that he had
actually performed duties in Bhutan. The duty
roster dated 21st November, 1998 assigns duty not
only to the appellant, but to several other employees.
Mr. A.K. Pandey, learned counsel for the appellant
has drawn our attention to the details mentioned in
the duty rosters. We find that the assignment of
duties by the Officer Commanding in the roster is
according to 'BST' which is the reference to Bhutan
Standard Time as against 'IST' which stands for
Indian Standard Time. In case the duties had been
assigned within the national boundary, the officer
would have obviously referred to the Indian
Standard Time.
xxx xxx xxx
16.The appellant has also placed strong reliance on
the extracts of the attendance register for the period
between December, 1998 till 2nd May, 2001
received by him from the respondents. Pursuant to
our directions, the respondents could produce before
us the original attendance register relating to the
period January, 1999 onwards. The attendance
register and extracts placed before us clearly show
that the appellant has performed the same duties as
other persons who were working with 504 SS&TC
battalion irrespective of posting, whether on 'BCA'
or 'NBCA' criteria. Before us, it is also not
disputed that this battalion was actually deployed
and was performing duties under Project Dantak at
Bhutan.
17.We also find that on 22nd January, 1998, the
appellant alongwith his other colleagues identically
situated, had performed duties which included
handing/taking over change of the store. Several
receipts in this respect are placed on record. This
would manifest that there is certainly force in the
appellant's contention to the effect that he was
posted with the 504 SS&TC (GREF) battalion with
effect from 9th February, 1998 till 2nd May, 2001
for purposes of the Project Dantak at Bhutan. Such
other similarly placed persons have been paid the
Bhutan Compensatory Allowance, irrespective of
the criteria on which they were posted. The
appellant would also therefore be entitled to the
payment of Bhutan Compensatory Allowance in
terms of the policy of the respondent in this regard.
18.It appears that in view of the denial of the
claimed entitlement by the respondents, the
appellant had also approached the Central
Information Commissioner ('CIC' hereafter) by way
of a petition which was registered as F. No.
CIC/AT/C/2008/00428. After hearing the parties,
the CIC on 11th September, 2008, inter alia,
recorded as follows :
"4. It is also noted that the information
pertaining to item 'a' of the RTI-application
of the complaint dated 06.01.2005 has been
provided to him except for the part
corresponding to the period February, 1998 to
November, 1998. Respondents explained that
in spite of a diligent search, they were not
able to locate the documents corresponding to
the requested information."
xxx xxx xxx
20.It has been pointed out that 17th December is
celebrated as Bhutan National Day and 11th
November is celebrated as birth anniversary of the
4th Druk Gyalpo (King of Bhutan). We find that
these days have been treated as holidays in the
attendance register placed by the parties before us.
This fact also lends support to the petitioner's
contention that the Duty Roster and Attendance
Register related to performance of duties in Bhutan
alone.
21.The above narration would show that
respondents were correct in the submissions made
before the learned Single Judge which resulted in
passing of the impugned orders dated 24th April,
2002 and 7th May, 2002. The appellant, though
posted on Non-Bhutan Compensatory Allowance
criteria, was actually deputed and performed duties
at Bhutan for the period between 9th February, 1998
to 2nd May, 2001 even as per the records of the
respondents.
xxx xxx xxx
23.Normally, this court would as a consequence
thereof, remanded the matter for consideration
before the learned Single Judge. However, Sh.
Tapasdas has today placed before us a copy of
communication dated 25th October, 2010 wherein
details of the Bhutan Compensatory Allowance paid
to similarly placed Sh. Harish Chander, Sh. Malkit
Singh and Sh. Om Prakash have been mentioned.
As per this communication Sh. Om Prakash was
paid full Bhutan Compensatory Allowance. Learned
counsel for the respondent has handed over a copy
of the communication dated 25th October, 2010 and
the same is taken on record. In para 4 of the letter
dated 25th October, 2010, it is disclosed that as per
the rates prevalent during 1998 to 2001, the
approximate financial impact of making payment of
the Bhutan Compensatory Allowance would be to
the tune of around `7,00,736/-.
We may note that this computation does not
appear to take into consideration the period between
9th February, 1998 till December, 1998 for which
period the respondents have stated that records are
not available with them."
17. After so holding, we had held as follows :
"28. In view of the above, we direct as
follows:-
xxx xxx xxx
(ii) It is held that the appellant was performing duty
from 9th February, 1998 to 2nd May, 2001 at
Phuentsholing in Bhutan while posted with 504
Store Supply and Transport Company (SS&TC)
battalion of GREF and is, therefore, entitled to
Bhutan Compensatory Allowance for this period.
(iii) It shall be open to the respondents to
compute within a period of eight weeks from today
the amount which would be admissible to the
appellant towards Bhutan Compensatory Allowance
on the rates which were prevalent between 9th
February, 1998 to 2nd May, 2001.
(iv) Full details of the computation including
the dates, rates as well as the amount payable shall
be communicated to the appellant within the same
period. The respondents shall also pay amount
which is found admissible to the appellant within a
period of four weeks thereafter.
(v) The appellant would be entitled to and paid
simple interest @ 9% per annum from 3rd of May,
2001 till date of payment of the amount. The
interest should be also paid within four weeks."
18. The above narration would show that our judgment dated
23rd September, 2013 has errors apparent on the face of the record
and therefore the same is liable to be reviewed in exercise of our
jurisdiction to do so.
19. It is submitted by Mr. Sarat Chandra that the petitioner has
been paid house rent allowance and cannot be paid Bhutan
Compensatory Allowance. This is not disputed on behalf of the
petitioner and he would be liable to adjustment/refund of the
amounts so received for that period.
In view of the above discussion, the judgment dated 23rd
September, 2013 is hereby reviewed and recalled.
20. It is held that Harish Chander is entitled to same relief as
Bhutan Compensation has been given to Amar Nath in LPA
No.618/2002.
21. The respondent shall compute amount payable to Harish
Chander for the period with which Amar Nath and he were posted
with 504 Store Supply & Transport Company (SS&TC) Battalion
of GREF for the period from 9th February, 1998 to 2nd May, 2001.
The amount payable towards the Bhutan Compensatory Allowance
to Harish Chander on the rates prevalent between 9 th February,
1998 to 2nd May, 2001 shall be computed within a period of eight
weeks from today. Full details of the computation including the
dates, rates as well as the amount payable shall be communicated
to the review petitioner within the same period. The respondents
shall also pay amount which is found admissible to the review
petitioner within a period of four weeks thereafter. The review
petitioner would be entitled to and paid simple interest @ 9% per
annum from 3rd of May, 2001 till date of payment of the amount.
The interest should be also paid within the same period.
22. While computing the amounts payable to the petitioner, it
shall be open for the respondents to reflect the adjustment of the
amounts which have been received by him towards house rent
allowance and the dearness allowance by the petitioner for this
period.
This review petition is allowed in the above terms.
Dasti.
GITA MITTAL, J
DEEPA SHARMA, J
SEPTEMBER 23, 2016/kr
