Partly allowed

O.Anthony and 10 Others v. the Union of India and Others

Kerala HC17 Nov 2016WP(C)/18474/2009

Case brief

AI extract

What is this about?

Petitioners, veterans of Operation PAWAN, challenged an order calculating their expatriation allowances. The Court held the order was unsustainable due to a failure to consider a prior notification and directions.

What did the court decide?

Impugned order set aside. 2nd Respondent directed to reconsider claim in accordance with P1 and P4 and pass orders within two months.

O.Anthony and 10 Others Vs the Union of… — Constitutional and Fundamental Rights | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938

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WP(C).No. 18474 of 2009 (D)

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PETITIONER(S):

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1. O.ANTHONY, EXGS-153251-A PNR RESIDING AT ST.MARYS COTTAGE, MUTHUKULAM NORTH, CHOOLATHERUVU P.O, ALAPPUZHA.

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2. RAMANKUTTY EXGS-128568-K PNR, RESIDING AT VATTATHARAKIZHAKKATHIL, MUTHUKULAM NORTH, MUTHUKULAM, ALAPPUZHA.

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3. PUSHPAVALLY, EXGS-129099-Y PNR W/O.LATE K.RAJAPPAN, KOCHUPADANNAYIL, MAHADEVIKAD, KARTHIKAPPALY, ALAPPUZHA.

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4. EXGS-147618 Y PNR, G.BHASKARAN, RESIDING AT PUTHENPURAYIL KIZHAKKATHIL,

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THAMALLACKAL, P.O KATTIL MARKET, ALAPPUZHA.

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5. LALITHA, EXGS-129115-L PNR, W/O.LATE R.RAJAN, RESIDING AT LALITHA BHAVANAM, CHINGOLI P.O,

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ALAPPUZHA.

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6. G.NATARAJAN, PNR EXGS-099756A, RESIDING AT PUTHUSSERIL HOUSE, PUTHIAVILA SOUTH P.O, PATTOLI MARKET, ALAPPUZHA DISTRICT.

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7. P.SUKUMARAN, PNR EGS-14337 L, KANNEPARAMPIL HOUSE, KARUVATTA SOUTH, KARUVATTA P.O,, ALAPPUZHA DISTRICT.

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8. N.UTTAMAN, PNR EXGS-83291, RESIDING AT VETTATHU THRAYIL HOUSE,

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MUTHUKULAM SOUTH P.O, ALAPPUZHA DISTRICT.

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9. A.PRABHAKARAN, PNR EXGS-141413 N, RESIDING AT VELIYIL HOUSE, KATTOOR P.O,VIA KALAVOOR, ALAPPUZHA DISTRICT.

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10. SUGATHAN NAIR, PNR EXGS-095682 N, RESIDING AT MEENATHE PADEETTATHIL PALLICKAL, ELIPPAKULAM P.O, ALAPPUZHA.

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2/-

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-2-

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WP(C).NO.18474/2009

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11. K.MOHAMMED, PNR EXGS-14705I N, RESIDING AT MULLAPARAMBIL HOUSE, PANOOR, P.O.PALLANA,,VIA:- THRIKKUNNAPUZHA, ALAPPUZHA DISTRICT.

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BY ADVS.SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN

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RESPONDENT(S):

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1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF SURFACE TRANSPORT, NEW DELHI.

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2. THE DIRECTOR GENERAL BORDER ROAD, KASHMIR HOUSE, NEW DELHI.

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3. THE ACCOUNTS OFFICER (NE GROUP) PAO, GREF, ADM BLOCK, GREF CENTRE, DIGHI CAMP, PUNE-15.

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4. THE CHIEF ENGINEER, HQ, PROJECT VARTAK GREF C/O.99 APO

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5. THE COMMANDER 117 RCC (GREF), C/O.99 APO.

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6. THE OFFICER COMMANDING 238, PMT WORKS PLATOON C/O.99 APO.

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R1 TO R6 BY ADV. SRI.N.NAGARESH, ASST SOLICITOR GENERAL OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.18474/2009

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE LETTER OF DEFENCE MINISTRY NO.PA/1345/NHQ/117/S/D (PAY/SERVICE) DATED 28/8/1989

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P2 COPY OF THE JUDGMENT DATED 01/2/2008 IN WPC.NO.21754/2004 OF THIS HON'BLE COURT

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P3 COPY OF THE SPEAKING ORDER DATED 11/9/2008 OF THE 2ND RESPONDENT

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P4 COPY OF THE LR.NO.18378/EXPTL.ALLEE/DGBR/T&C DATED 22/9/2003 OF THE 2ND RESPONDENT

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P5 COPY OF THE LETTER NO.87754/II/AG/PS3(A)/822-S/D(PAY)/SERVICES DATED 2/9/1978

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P6 COPY OF THE CALCULATION SHEET.

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RESPONDENT'S EXHIBITS:

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R2(A) COPY OF THE LETTER NO.F41(1)BRDB/88-ESTT/DGBR/E2A (T&C) DATED 24/02/1998

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R2(B) COPY OF THE LETTER NO.87754/II/AG/P53(A)/1822-S/D (PAY/SERVICE) DATED 02/09/1978

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R2(C) COPY OF THE LETTER NO.PA/1345/NHQ/12-S/D (PAY/SERVICE) DATED 07/01/1998

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R2(D) COPY OF THE LETTER NO.BRDB/03/156/2001-GE1/18378/DFBR/E2A (T&C) DATED 25/09/2002

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R2(E) COPY OF THE LETTER NO.PA/1345/NHQ/17-S/D (PAY/SERVICE) DATED 28/08/1989 ISSUED BY THE MINISTRY OF DEFENCE

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R2(F) COPY OF THE ORDER NO.Q/FD/6910/6910/10/86 DATED 15/07/1987 ISSUED BY MINISTRY OF EXTERNAL AFFAIRS

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R2(G) COPY OF THE SPEAKING ORDER NO.17303/2831/DGBR/32/LCHRK DATED 11/9/2008 ISSUED BY 2ND RESPONDENT

/TRUE COPY/

P.A.TO JUDGE

sts

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = W.P.(C).No.18474 of 2009

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= = = = = = = = = = = = = = = Dated this the 17^th day of November, 2016

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JUDGMENT

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1.This writ petition is filed seeking benefits of expatriation allowances granted to personnel who were part of Operation PAWAN in Sri Lanka in connection with the Peace Keeping Force of the Indian Army.

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2.Heard the learned counsel for the petitioners and the learned Assistant Solicitor General appearing for the respondents.

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3.Exhibit P3 order passed by the 2^nd respondent pursuant to Exhibit P2 judgment of this Court is under challenge. It is stated in Exhibit P3 that the calculation of expatriation allowance by taking the rate of foreign allowance as provided in Exhibit R2(d) letter dated 25.09.2002 at Rs.4,450/- and making a slab deduction of 50% of basic pay as per Exhibit R2 (f) order dated 15.07.1987, and further reducing the amount

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W.P.(C).No.18474/09

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so arrived by 33 1/3% of the repatriation allowance admissible to Group C/JCO/Hawilder, arriving at an amount of Rs.629/- as expatriation allowance was correctly done. However, by Exhibit P1 order dated 28.08.1989, it is provided that foreign allowance in respect of personnel drawing pay not exceeding Rs.1350/- will be Rs.4,450/-. It is stated that foreign allowance will be subject to deduction as per Ministry's order dated 15.07.1987. Exhibit R2(f) is the order dated 15.09.1987 which provides that the slab deduction will be at 50% of pay in the revised scale, subject to a maximum of Rs.1450/-.

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4.It is the common case of the parties that the amount which is due to be deducted from the repatriation allowance is 50% of the basic pay, subject to a maximum of Rs.1450/-. By Exhibit P4 communication dated 22.9.2003 the 2^nd respondent had addressed the PAO (GREF) stating that by Exhibit P1, the rates of foreign allowance had been revised and as such, rates in respect of personnel drawing pay not exceeding Rs.1350/per month would be Rs.4450/- and that the only deduction

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W.P.(C).No.18474/09

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permissible there from would be the deduction of 50% of the pay drawn by the officer, and no further cut of 50% would be allowable in case of Group-D employees. It is seen that this clarification has not been considered while issuing Exhibit P3 order. It is seen that Exhibit P3 order is also issued by the 2^nd respondent, who has not taken into account the recommendations contained in Exhibit P4.

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5.In the above view of the matter, I am of the opinion that Exhibit P3 order, which had not considered Exhibit P1 order dated 28.8.1989 or Exhibit P4 recommendation which was issued on the basis of Exhibit P1, is vitiated by total want of application of mind and is unsustainable. Exhibit P3 order is accordingly set aside. The 2^nd respondent is directed to take up and reconsider the claim of the petitioners for expatriation allowance in accordance with Exhibits P1 and P4, and to pass orders thereon within a period of two months from the date of receipt of a copy of this judgment. Amounts, if any, found due to the petitioners on account of recalculation of expatriation

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W.P.(C).No.18474/09

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allowance, shall be disbursed within a period of one month thereafter.

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This writ petition is ordered accordingly.

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sd/- Anu Sivaraman, Judge

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O.Anthony and 10 Others v. the Union of India and Others

Case brief

What is this about?

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O.Anthony and 10 Others v. the Union of India and Others

Case brief

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