Kerala High Court
Union Of India vs Union Of India on 4 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
OP (CAT).No.201 OF 2018
AGAINST THE ORDER IN OA 829/2016 DATED 22-12-2017 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN O.A:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT
OF INDIA, MINISTRY OF DEFENCE,
NEW DELHI-110 011.
2 THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS
(PENSIONS),
DRAUPADIGHAT, ALLAHABA- 211 014.
3 THE CONTROLLER OF DEFENCE ACCOUNTS,
ZONAL OFFICE, (DEFENCE PENSION DEPARTMENT),
618, ANNA SALAI, TEYNAMPET, CHENNAI-600 018.
4 THE ACCOUNTS OFFICER,
ZONAL OFFICE(DEFENCE PENSION DEPARTMENT),
DAD OFFICE COMPLEX, THIRUMALA P.O.,
THIRUVANANTHAPURAM-695 006.
5 THE DEFENCE PENSION DISBURSEMENT OFFICER,
PERUMANOOR P.O., KOZHI-682 015.
6 THE JOINT DIRECTOR,
CENTRAL GOVERNMENT HEALTH SCHEME,
2/117, MOSQUE LANE, KESAVADASAPURAM,
THIRUVANANTHAPURAM-695 004.
BY ADV. SRI.T.V.VINU, CGC
O.P(CAT) No.201/2018
2
RESPONDENT/APPLICANT IN THE O.A:
N.P.VISWANATHAN,
AGED 74 YEARS, S/O C GOPALA MENON (LATE),
RETD.ADMINISTRATIVE SUPERINTENDENT,
NAVAL PHYSICAL AND OCEANOGRAPHIC LABORATORY
NPOL),
DEFENSE RESEARCH AND OCEANOGRAPHIC LABORATORY
(NPOL),
DEFENCE RESEARCH AND DEVELOPMENT ORGANIZATION
(DRDO),
THRIKAKKARA P.O., KOCHI-682 021,
RESIDING AT "RESHMI", MAMANGALAM,
PALARIVATTOM P.O.,
KOCHI-682 025.
R1 BY ADV. SRI.T.C.GOVINDASWAMY
R1 BY ADV. SMT.KALA T.GOPI
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(CAT) No.201/2018
3
ALEXANDER THOMAS & T.R.RAVI, JJ.
------------------------------------
O.P (CAT) No. 201 of 2018
(Arising out of the order dated 22-12-2017
in OA No.829 of 2016 of CAT, Ekm Bench.)
------------------------------------
Dated this the 4th day of February, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in this Original Petition (CAT) filed under Article
226 & 227 of the Constitution of India is as follows:
"............to set aside Ext.P3 order dated 22-12-2017 in
O.A/No/180/00829/2016 of the Central Administrative Tribunal,
Ernakulam Bench, and dismiss Ext.P1 O.A in the interest of justice."
2. Heard Sri.T.V.Vinu, learned Central Government Counsel
(CGC) appearing for the petitioners (Union of India & three
others)/respondents in the O.A and Sri.T.C.Govindaswamy,
learned counsel appearing for the sole respondent in the O.P/sole
original applicant in the O.A before the Tribunal.
3. The respondent superannuated as an Administrative
Superintendent from the Naval Physical & Oceanographic
Laboratory (NPOL), Kochi on 30-09-2002. The complaint of the
O.P(CAT) No.201/2018
original applicant is that, the respondents in the O.A are not
restoring and paying the applicant the monthly fixed medical
allowance due to him from 01-01-2010 onwards, notwithstanding
that the applicant has not opted and has not become a member of
the Central Government Health Scheme (CGHS). The respondents
in the O.A/petitioners herein contended that the respondent
herein/original applicant has availed the one time option under the
provisions for the grant of the fixed medical allowance as notified
by the Union Government and that hence again switching over to
the grant of fixed medical allowance and restoration from January,
2010 is not possible. The petitioners would make a critique that
the Tribunal on an erroneous consideration of the facts and
circumstances of the case as well as the law govern in the field has
held that the original applicant is entitled and eligible to seek for
change over to fixed medical allowance from the date of his choice
and that it will be made available to him along with consequences
for the two earlier occasions and that it may be recomputed and
recalculated and should be made available to him within a month.
It is in the light of these aspects that the petitioners
O.P(CAT) No.201/2018
herein/respondents in the O.A has filed the aforementioned
Original Petition with the aforementioned prayer.
4. The impugned Ext.P3 final order dated 22-12-2017
rendered by the Central Administration Tribunal in the instant O.A
No.829/2016 filed by the respondent herein reads as follows:
"Heard. The matter lies in a very narrow compass.
2. Whether the applicant can change his option from
fixed medical allowance as provided in PPO to that of CGHS and
why it is so, as the case may be, is the question. The word 'option'
itself relegates a choice in the person concerned. The only
reasoning behind it is that when an option is exercised, he will be
called upon to shoulder the consequences and burden of it. When
he has a benefit of fixed medical allowance, he can only claim
under it. Once he opt to go for CGHS, he can only claim under it.
But once he wants to escape from the CGHS and come out with
fixed medical allowance also, the same consequences for the
duration of the time operates against him. But otherwise his
option is sacrosanct and cannot be challenged. Therefore, the
appellant is entitled and eligible to seek for change over to fixed
medical allowance from the date of his choice. This will be made
available to him along with consequences as aforesaid in the
earlier two occasions. This may be re-calculate and re-computed
and made available to him within one months next. OA is allowed
to the limited extend. No order as to costs."
5. Both sides have made their submissions based on the
pleadings and materials on record. After hearing both sides and
after anxious consideration of the pleading and materials on
record, we feel that many of the contentions urged by both sides
have not been considered and adjudicated on merits by the
Tribunal. Hence, it may not be right and proper for this Court
sitting in judicial review and judicial superintendence of the verdict
O.P(CAT) No.201/2018
of the Tribunal, which is a court of first instance, to entertain this
case on merits. The Tribunal should have adjudicated the case on
merits after hearing both sides. Since that cardinal aspect of the
matter is not available in this case, the interest of justice would
warrant that the matter should be seriously reconsidered by the
Tribunal after hearing both sides. To effectuate so, the matter
would require a remit and for effectuating such a remit, it is
ordered that the impugned Ext.P3 final order dated 22-12-2017
rendered by the CAT, Ernkaulam Bench in O.A No.829/2016 will
stand set aside and consequently O.A No.829/2016 will stand
remitted to the CAT, Ernakulam Bench for consideration and
decision afresh.
6. Sri.T.V.Vinu, learned Central Government Counsel
appearing for the petitioners herein would submit that no further
pleadings may be necessary in this case from both sides and that
the matter could be decided by the Tribunal afresh after hearing
both sides on the basis of the existing pleadings and materials on
record.
7. Sri.T.C.Govindaswamy, learned counsel appearing for the
O.P(CAT) No.201/2018
respondent herein/original applicant would submit that, the
original applicant would wish to place on record certain additional
documents for the consideration of the Tribunal and for which a
breathing time may be granted.
8. The original applicant may ensure that additional
documents and additional pleadings if any, may be filed along with
miscellaneous application in the main matter in O.A No.829/2016
before the Tribunal without any further delay and for that purpose
the original applicant need not wait for the formal proceedings of
the certified copy of this judgment. The pleadings on the part of
the original applicant may be completed within two weeks. The
Tribunal will afford reasonable opportunity of being heard to both
sides and take all reasonable endeavours possible in the
circumstances to ensure the early final disposal of the main matter
in O.A No.829/2016, after hearing both sides, without much delay,
preferably on or before 31-03-2021, or at any rate, before the
Tribunal closes for the summer holidays in the second week of
April 2021.
9. The Registry will forward a copy of this judgment to the
O.P(CAT) No.201/2018
Central Administrative Tribunal, Ernakulam Bench, who dealt with
O.A No.829/2016 for necessary information and further action.
With these observations and directions the above Original
Petition will stand disposed of .
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
KAS
O.P(CAT) No.201/2018
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION
IN O.A./180/00829/2016 DATED
29.09.2016 FILED BY THE RESPONDENT
BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH, KOCHI.
ANNEXURE A1 TRUE COPY OF GOVERNMENT OF INDIA,
DEPARTMENT OF PENSIONS AND PENSIONERS'
WELFARE OM, BEARING NO.45/57/97-
P&PW(C) DATED 19/12/1997.
ANNEXURE A2 TRUE COPY OF 'PENSION CERTIFICATE'
DATED 19/01/2010 ISSUED BY THE 5TH
RESPONDENT.
ANNEXURE A3 TRUE COPY OF REPRESENTATION DATED
23/01/2012 ADDRESSED TO THE 5TH
RESPONDENT.
ANNEXURE A4 TRUE COPY OF COMMUNICATION BEARING NO.
DPDO/EKM/P-4089 DATED 30/01/2012,
ISSUED FROM THE OFFICE OF THE 5TH
RESPONDENT.
ANNEXURE A5 TRUE COPY OF REPRESENTATION DATED
09/02/2012, ADDRESSED TO THE 4TH
RESPONDENT.
ANNEXURE A6 TRUE COPY OF LETTER BEARING NO. ZO
(DPO)/TVM/PDS/GEN DATED 01/03/2012
FROM THE OFFICE OF THE 4TH RESPONDENT.
ANNEXURE A7 TRUE COPY OF REPRESENTATION DATED
16/03/2012 TO THE 6TH RESPONDENT.
ANNEXURE A8 TRUE COPY OF LETTER BEARING NO.
ZO(DPD)/TVM/PWS/GEN. DATED 02/04/2012
FROM THE OFFICE OF THE 4TH RESPONDENT.
O.P(CAT) No.201/2018
ANNEXURE A9 TRUE COPY OF LETTER BEARING NO. F.76-
CGHS/TVM/2012/1182 DATED 10/05/2012
ISSUED BY THE 6TH RESPONDENT.
ANNEXURE A10 TRUE COPY OF LETTER BEARING NO.
ZO(DPD)/TVM/PWS/GEN. DATED 21/05/2012
ISSUED FROM THE OFFICE OF THE 4TH
RESPONDENT.
ANNEXURE A11 TRUE COPY OF LETTER BEARING NO.
ZO/DPD/518/PWS-115 DATED 05/06/2012
ISSUED FROM THE OFFICE OF THE 3RD
RESPONDENT.
ANNEXURE A12 TRUE COPY OF COMMUNICATION BEARING NO.
ZO(DPD)/TVM/PWS/GEN. DATED 25/09/2012
FROM THE OFFICE OF THE 4TH RESPONDENT.
ANNEXURE A13 TRUE COPY OF COMMUNICATION FROM THE
APPLICANT'S OFFICE TO THE 3RD
RESPONDENT, UNDER NO.
NPOL/A/FIN/319/NPV/93 DATED 15 NOV.
2012.
ANNEXURE A14 TRUE COPY OF COMMUNICATION BEARING NO.
ZO(DPD)/TECH/604/EKM DATED 23/11/2012
ISSUED FROM THE OFFICE OF THE 3RD
RESPONDENT.
ANNEXURE A15 TRUE COPY OF REPRESENTATION DATED
22/04/2015, ADDRESSED TO THE 2ND
RESPONDENT.
ANNEXURE A16 TRUE COPY OF REPRESENTATION DATED
07/10/2015, ADDRESSED TO THE 2ND
RESPONDENT.
ANNEXURE A17 TRUE COPY OF COMMUNICATION BEARING NO.
AT/DPDO/ERNAKULAM/2016 DATED
10/03/2016 ISSUED FROM THE OFFICE OF
THE 2ND RESPONDENT.
O.P(CAT) No.201/2018
ANNEXURE A18 TRUE COPY OF REPRESENTATION DATED
05/04/2016 ADDRESSED TO THE 2ND
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
14.02.2018 IN OA/180/00829/2016 FILED
BY THE PETITIONERS.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
22.12.2017 IN O.A.NO.180/00829/2016 OF
THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH.
PETITIONER'S/S EXHIBITS: NIL
