GROUP GENERAL MANAGER (PROJECTS)versusA.M. SAIYED

A         GROUP GENERAL MANAGER (PROJECTS); O.N.G.C.
                             v.
                        A.M. SAIYED

                            DECEMBER 12, 2003

B              [S. RAJENDRA BABU AND RUMA PAL, JJ.]

         Service Law :

         Allowances-Leave Fare Assistance (LFA) Scheme-Entitlement to
   encash LFA twice for block years 1982-85 for family-Jn case these LFAs
C are not encashed, employee entitled to encashment ofLFA for entire family
   for other than home town-Held : Respondent-Employee having encashed
   LFA for block years 1982-85, he is not entitled to LFA encashment,
   for other than home town for the family-Judgment of High Court set
  ·aside.
D
         The question which arose for consideration in the present appeal
    is whether the respondent-employee posted in Assam region,. after
    availing the LFA for self visiting home town and also having encashed
    LFA for home town for the family members for the block years 1982-
    83. and 1984-85, was entitled to LFA encashment for his family for
E   other than home town for the block year 1982-~5.

         Allowing the appeal, the Court

          HELD : At the relevant time, an employee stationed at Estern
    Region and if residing alone was entitled to LTA twice in year to the
F   place of stay of bis family and the employee was entitled to encash LFA
    twice for Block years 1982-85, that is once for Block year 1982-83 and
    once for Block year 1984-85 in respect of family. If both these LFAs
    are not encashed, alone would entitle the respondent to encasbmerit of
    LF A for the entire family for other than Home Town. The respondent
G   during his tenure in Eastern Region twice availed Leave Travel
    Assistance in each year 1982, 1983 and 1984; encashed for entire
    fa.mily LFA for Block years 1982-1983 and 1984-1985 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.
                                                           [757-F-H; 758-AI
H
                                      752
      GROUP GENERAL MANAGER v. A.M. SAIYED [RAJENDRA BABU, J.]         753
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1574 of A
2000.

    From the Judgment and Order dated 12.8.99 of the Gujarat High
Court in L.P.A. No. 1155/98 in S.C. Appln. No. 1354 of 1998.
                                                                             B
    P.P. Rao, Sr. Adv., John Mathew and K.R. Sasiprabhu for the
Appellant.

     R.N. Singh, H.A. Raichura, Feroj Khan Pathan, S.H. Raichura and
Shailendra Singh for the Respondent.
                                                                             c
     The Judgment of the Court was delivered by

      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 D
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 E
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 .vould 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 F
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 G
assistance once in six months, i.e., twice in a year instead of LF A 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
$tay subject to the- condition that LFA so granted will be limited to the fare H
    754                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A 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
B   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 23.4.19S2 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 ha~ spent nine months or more
C   at one or more places of posting where LFA 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,
D   Ahmedabad. He made a claim for encashment for his family for other than
    home town for the block year _1982-85 and ttc same was rejected by the .
    appellant and he retired from service on superannuation on 31.8.198~.

          A legal notice was sent claiming LF A encashment for his family other
E   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 LF A. 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 LF A to the respondent for the
F   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 ta~e appropriate decision within the stipulated time.

G         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
H taken.
     GROUP GENERAL MANAGER v. A.M. SAIYED (RAJENDRA BABU, J.]        755

      The respondent thereafter filed a second writ petition in September A
1995. The High Court dismissed the same as withdrawn and ~!lowed 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 B
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 C
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 :

         l.   At the relevant time, an employee stationed at Eastern D
              Region and if residing alone, was entitled to LF A twice in
              a year to the place of stay of his family;

        2.    The employee was entitled to encash LF A twice for block
              years 1982-85, i.e., in the block year 1982-83 and block year E
              1984-85 in respect of fan1ily if both these LFAs are not
              encashed, then and then alone he was entitled to encash LFA
              for the entire 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      F
              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 G
encashment of LF A 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 H
    756                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A 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 atthe place of posting. Secondly, it is submitted
    that the official memorandl!m dated 24.12.1981 held the field an.d it clearly
    stated that the families of the employees who are staying alone at the place
B   of posting would be entitled t0 LF A once in a block of 'two years. The
    official memorandum dated l 2. l.l 990 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
C   considered the provisions relating to LFA for home town for employees
    in Eastern Region and mixing up the same for encashment of LF A for
    entire family for other than home town.

           The High Court proceeded to consider the matter as follows:

D            "It may be noted that the stand ta.ken 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 LF A 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
E            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 :

F            "I say and submit that an employee stationed at Eastern Region
             was entitled to Leave Travel Assistance (L TA) twice in year to
             the place of stay of his family, ifresiding 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,
G            (Calendar years) and once for Block year 1984-1985 (Calendar
             years) in respect of family. If both these LFA is not enchashed,
             then . and in that event alone, an employee was entitled to
             encashment of LF A for the ·entire family for other than Home
             Town. Clause 4 (b) of the Sc;heme, is at page 536, which is
             already submitted to the Hon'ble Court.
H
     GROUP GENERAL MANAGER v. A.M. SAIYED [RAJENDRA BABU, J.]         757

             I say that the petitioner, during his tenure in Eastern Region A
        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;                                                        B
        (ii)   encashed for entire family Leave Fare Assistance for Block
               years 1982-1983 in November, 1983;

        (iii) encashed for entire family Leave Fare Assistance for Block
              years 1984-1985 in April, 1984.                               C
        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 D
        petitioner made claim for such enchashment on 30.12.1986 the;
        same was not granted."

        The understanding of the High C1.mrt is that the case has not been
put forward by the appellant in any affidavit whereas the position has been E
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 F
relevant time employee stationed at Eastern Region and if residing alone
was entitled to LT A 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, (Calendar years) and once for Block
year 1984-1985 (Calendar years) in respect of family. If both these LFAs G
are not encashed, alone would entitle the respondent to encashment of LF A
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 in November, 1983; and he had encashed for entire family LFA H
    758               SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A 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 asP.ect was totally lost sight of although specially pleaded
B 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 Comt.

    D.G.                                                     Appeal allowed.