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CASE NO.: Appeal (civil)  1574 of 2000

PETITIONER: Group General Manager {Projects}, O.N.G.C.

RESPONDENT: A.M.Saiyed                                           

DATE OF JUDGMENT: 12/12/2003

BENCH: S. RAJENDRA BABU & RUMA PAL

JUDGMENT: J U D G M E N T

RAJENDRA BABU, J. :

                The appellant introduced Leave Fare Assistance  Scheme [for short ’LFA’] for its employees and officers  posted in the projects mentioned therein whose home town  was situated beyond 500 kms. from the headquarters and  that scheme was modified from time to time although it  was originally introduced in the year 1969.  By an official  memorandum dated 13.12.1977, it was made clear that the  assistance for visiting home town every year for the  employees posted in Assam and whose home towns are  situated outside Assam would not be admissible to them for  their families residing at a place other than the  headquarters/place of duty of the employee concerned and  in that event they would be entitled to avail of the  assistance for their families once in a block of two years.   By another official memorandum dated 21.5.1980, the said  scheme was amended to the effect that LFA can be availed  of by an employee in any calendar year only if the  employee has spent 9 months or more at one or more  places of posting where LFA is available.  By another  modification made on 24.12.1981, it was further provided  that in respect of employees who do not belong to North  Eastern States but are working there on transfer or posting  and are separated from their families and staying alone in  North Eastern States will also be entitled to travelling  assistance once in six months, i.e., twice in a year instead  of LFA once in a year by way of single return fare by the  entitled class to the place of stay of his family.  Their  families are, however, entitled to LFA once in a block of two  years for visting their home town from the place of their  stay subject to the condition that LFA so granted will be  limited to the fare as is admissible for visiting home town or  a place other than home town from place of posting of the  employee.  By another official memorandum dated  2.1.1982, it was clarified that the families of any employee  residing at a place other than the place of posting or  headquarters or home town for various reasons, shall also  be entitled to LFA to visit the employee at his place of  posting or headquarters and back to that place against their  entitlement for visiting home towns against a particular  block of two years.  The clarification was issued on  23.4.1982 extending the LFA to all work centres and it was  again clarified that LFA can be availed by an employee in  any calendar year only if the employee has spent nine  months or more at one or more places of posting where LFA

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is available.   

       From September 1982 to January 1985, the  respondent was working in Assam Region.  He availed of  the LFA for the family for the block year 1982-83 in the  month of November 1983 and similarly in April 1984, for  the block year 1984-85.  Thereafter, he was transferred to  his home town, Ahmedabad.  He made a claim for  encashment for his family for other than home town for the  block year 1982-85 and the same was rejected by the  appellant and he retired from service on superannuation on  31.8.1983.   

A legal notice was sent claiming LFA encashment for  his family other than home town for the block year 1982- 85.  The appellant sent a reply to the said notice explaining  that he was not entitled to such benefit.  In October 1984,  he filed a writ petition before the High Court of Gujarat  alleging discrimination in the matter of grant of LFA.  By an  order made on 4.4.1995, the High Court disposed of the  said proceedings by directing the appellant to take decision  in regard to LFA to the respondent for the block years  1982-85 bearing in mind the instance of one S.L.Garde in  accordance with law and it was further observed that it will  be open to the authority to consider the facts of the  respondent’s case as well as the facts of S.L.Garde and take  appropriate decision within the stipulated time.   

On the direction issued by the High Court, the  appellant considered the claim of the respondent and  rejected the same on the basis that he had already availed  of LFA for the block years 1982-83 and 1984-85 and it was  pointed out that S.L.Garde has been wrongly granted LFA  encashment for the block years 1982-85 and corrective  action in that case was being taken.  

The respondent thereafter filed a second writ petition  in September 1995.  The High Court dismissed the same as  withdrawn and allowed the respondent to make a  representation to the appellant to consider his claim.  He  made a representation to the appellant  which was  examined by the appellant and was rejected again on the  basis that during his stay at ERBC, the respondent had  availed  of LFA for self visiting home town during the years  1982-84 and also encashed LFA for home town for family  members for the block years 1982-83 and 1984-85.   

A third writ petition was filed by him.  The learned  Single Judge dismissed the said writ petition holding that he  cannot agitate the same point again and again and cannot  take advantage of the mistake committed by the appellant  in respect of one of its employees.  The matter was carried  in appeal to the Division Bench.

The appellant took the stand that :

1.      At the relevant time, an employee stationed at  Eastern Region and if residing alone, was entitled  to LFA twice in a year to the place of stay of his  family; 2.      The employee was entitled to encash LFA twice for  block years 1982-85, i.e., in the block year 1982- 83 and block year 1984-85 in respect of family if  both these LFAs are not encashed, then and then  alone he was entitled to encash LFA for the entire

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family for other than home town; 3.      The respondent had twice availed of LFA in each of  the years 1982, 1983 and 1984 and also encashed  LFA for his family for block years 1982-83 in  November 1984 and for 1984-85 in April 1985  while posted at ERBC.

Therefore he was not entitled to any LFA for other  than his home town.

The Division Bench held that the respondent was  entitled to get encashment of LFA other than home  town once in a block of four years and directed the  appellant to consider the claim of the respondent in  accordance with the above directions.  Hence this  appeal by leave.

       The grievance made now is that the Division  Bench of the High Court should not have relied upon  the explanation of the Scheme which is not applicable  to the respondent inasmuch as it is applicable only to  those living with their families at the place of posting.   Secondly, it is submitted that the official  memorandum dated 24.12.1981 held the field and it  clearly stated that the families of the employees who  are staying alone at the place of posting would be  entitled to LFA once in a block of two years.  The  official memorandum dated 12.1.1990 which is  prospective in nature which was issued long after the  rejection of the respondent’s claim and the High Court  could not have placed reliance on that particular  official memorandum dated 12.1.1990 and the  Division Bench also could not have considered the  provisions relating to LFA for home town for  employees in Eastern Region and mixing up the same  for encashment of LFA for entire family for other than  home town.

       The High Court proceeded to consider the matter  as follows:

"It may be noted that the stand taken by the  respondent is not that the claim was rejected as it  was a claim for members of all the family of the  appellant  but as he had availed of LFA twice to  home town in a block of four years.  The respondent  has no case that the appellant’s claim for all the  members of his family is not admissible.  No such  case has been put forward by the respondent in any  affidavit filed by the respondent."

       The stand of the appellant  before the High Court  as stated in the counter affidavit is as follows :

"I say and submit that an employee stationed  at Eastern Region was entitled to Leave Travel  Assistance (LTA) twice in year to the place of  stay of  his family, if residing alone in Bachelor  State.  The employee was entitled to encash  Leave Fare Assistance twice for Block years  1982-1985, that is once for Block year 1982- 1983, (Calender years) and once for Block year  1984-1985 (Calendar years) in respect of  family.  If both these LFA is not enchashed,

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then and in that event alone, an employee was  entitled to encashment of LFA for the entire  family for other than Home Town.  Clause 4 (b)  of the Scheme, is at page 536, which is  already submitted to the Hon’ble Court.  

       I say that the petitioner, during his tenure in  Eastern Region was from 1982 to January 1985,  when he was tranferred to home-twon Ahmedabad.   During his tenure, the petitioner availed:  

(i)     twice Leave Travel Assistance in each year 1982,  1983 and 1984;  (ii)    encashed for entire family Leave Fare Assistance  for Block years 1982-1983 \026 in November, 1983;  (iii)   encashed for entire family Leave Fare Assistance  for Block years 1984-1985 in April, 1984.  

As the petitioner has enchased Leave Fare Assistance  for the Block years 1982-1983 and for the Block  years 1984-1985 the petitioner was not entitled to  encash for his family Leave Fare Assistance for other  than Home Town and therefore when the petitioner  made claim for such enchashment on 30.12.1986 the  same was not granted."

       The understanding of the High Court is that the  case has not been put forward by the appellant  in any  affidavit whereas the position has been clearly set out  in the affidavit and, therefore, the High Court could  not have taken the view that when in particular the  scheme of the benefit had been explained from time  to time and the claim had been rejected on the basis  indicated in the counter affidavit, the High Court ought  not have interfered in a matter of this nature,  particularly as the manner in which the relevant rules  could be explained.  The clear stand of the appellant is  that at the relevant time employee stationed at  Eastern Region and if residing alone was entitled to  LTA twice in year to the place of stay of  his family  and the employee was entitled to encash LFA twice for  Block years 1982-1985, that is once for Block year  1982-1983, (Calender years) and once for Block year  1984-1985 (Calendar years) in respect of family.  If  both these LFAs are not encashed, alone would entitle  the respondent to encashment of LFA for the entire  family for other than Home Town.  The respondent  during his tenure in Eastern Region twice availed  Leave Travel Assistance in each year 1982, 1983 and  1984; encashed for entire family LFA for Block years  1982-1983 \026 in November, 1983; and he had  encashed for entire family LFA for Block years 1984- 1985 in April, 1984 and thus in respect of his family  he was not entitled LFA for other than Home Town and  therefore his claim for such encashment was not  sustainable.

       This aspect was totally lost sight of although  specially pleaded before the High Court.  Hence this  appeal is allowed and the order made by the Division  Bench is set aside resulting in dismissal of writ petition  before the High Court.  

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