Hon. Dr. Satish Chandra, J.
Heard Shri M.K. Srivastava, the petitioner in person. Dr. Ashok Nigam, Addl. Solicitor General of India has appeared for the respondents.
Dr. Ashok Nigam has raised preliminary objection to the maintainability of the writ petition. He submits that though the petitioner was posted at relevant time, when he claimed the disputed Leave Travel Concession (LTC) bills, as a serving officer, posted as Deputy General Manager (Legal) in the Law Department of the National Bank for Agriculture and Rural Development (NABARD) at Lucknow, the order by which the Leave Travel Concession bills have been held inadmissible and the recovery has been directed and made from the petitioner's salary, were issued at Mumbai and were served upon the petitioner at Mumbai. He submits that the entire cause of action had arisen to the petitioner at Mumbai.
Shri M.K. Srivastava has relied upon M/s Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr., AIR 2004 SC 2321 in which the question of jurisdiction was considered with reference to the decisions in Nasiruddin Vs. State Transport Appellate Tribunal, AIR 1976 SC 331; Oil and Natural Gas Commission Vs. Utpal Kumar Basu, (1994) 4 SCC 711; U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow Vs. State of U.P., AIR 1995 SC 2148; Union of India Vs. Adani Exports Ltd., AIR 2002 SC 126 and National Textile Corpn. Ltd. Vs. M/s Haribox Swalram, (2004) 4 JT (SC) 508. The Supreme Court after defining the 'cause of action' and 'situs' of the office of the respondents held that if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
It was further held in para 27 that when an order is passed by a Court or Tribunal or an executive authority, a part of cause of action arises at that place. When the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. It was further held that in view of the Clause (2) of Art.226 of the Constitution of India now if a part of cause of action in respect of which the relief is sought arise within the jurisdiction of the High Court, it would have jurisdiction to issue a writ.
The petitioner and his family members travelled and submitted the LTC bills when he was posted at Lucknow. He claimed and was paid these bills at Lucknow. The order by which the bills have been held to be inadmissible was passed subsequently as per the Inspection Department's observation, when he was posted at Mumbai. The petitioner submits that the bills were admissible. In our opinion, in the circumstances, a part of cause of action for the reliefs claimed by the petitioner has arisen to the petitioner at Lucknow and thus the writ petition is maintainable at Lucknow. The preliminary objection is thus without substance.
It is admitted that the petitioner was entitled to LTC and that he and his family actually travelled, claimed and were reimbursed the travelling expenses of a private car, organised by the travel agency. The only question that calls for consideration is whether the petitioner was entitled to travel in a private car hired by the travel agency as a taxi, or that he was entitled to LTC only if he had undertaken the journey in a taxi hired from Tourism Development Corporation or from Government Approved Travel Agency.
A further question that calls for consideration is whether the petitioner was entitled to the expenses for travelling of his son from Lucknow to Mumbai after he could not get admission and pursued education at Lucknow.
The petitioner relies upon a circular letter dated 29th October, 1993 addressed by the Deputy General Manager, National Bank of Agriculture and Rule Development (NABARD) clarifying the operational problems- Tour, LTC and Transfer in which a direction was issued that to stream line the operational procedure the practice obtaining in different regional offices, it was decided to follow the procedure indicated in the annexure 3 to the circular. In this circular under the title 'Issues Relating to LTC' the Deputy General Manager clarified as follows:-
"A. Issues Relating to LTC Any taxi/ car may be allowed for
1. Journey by tourist taxi-Whether travel while availing of LTC.
Shri Manoj Kumar Srivastava appearing in person states that the clarification as above, superseded all earlier clarifications and thus any taxi/ car was allowed for travel while availing LTC, if the bills and receipt in support of the travel was produced. He further submits that on his transfer his son Ankit Srivastava was brought by him for admission to Mumbai. He could not get admission, and had to return back to Lucknow and pursue engineering course in an engineering College at Lucknow. The air fare was thus admissible to him on his travel from Lucknow to Mumbai in August, 2004, including fare for his son and for which he was paid educational allowance of Rs.400/- per month. The Engineering College at Mumbai had advised him to bring his son to Mumbai so that in case any vacancy is available, the petitioner's son may be interviewed and admitted. His admission could not materialise and thus he had to return back to Lucknow to pursue his studies. His bills were clearly admissible. Shri Srivastava further submits that it was for the sanctioning authority to satisfy himself about genuineness of the claim and sanction of the bills. It was not open for the respondents to doubt its genuineness.
Dr. Ashok Nigam on the other hand submits that the LTC bills were not admissible for private taxi. The LTC bill submitted by the petitioner were not typed on the letter head of the company. The vehicle 4 numbers in both the receipts for travel by taxi arranged by Speed Business Centre, Lucknow, for travel between 1.3.2001 to 28.2.2003 gave the taxi number as U.P.32 X 7944 (Tata Sumo, 'Private'), and did not indicate opening and closing kilometers. In his reply dated 30th January, 2004 (Annex.CA9) the petitioner admitted that the vehicle in question is registered as private car; the travel agency in U.P. runs private cars as taxi for tour/ hiring purpose and that the regional office and BSE and BIRD also engages private cars as taxi by travel agencies. Dr. Nigam submits that by effectively implementing the schemes and to resolve operational problems, the bank clarified the National Bank for Agriculture and Rural Development Leave and Retirement Travel Concession Scheme, 1983 by issuing Circular Letter No.2993 dated 20.6.1987; Letter No.1778 dated 29.10.1993; Letter No.C-29 dated 11.9.1998; Letter No. 2249 dated 22.1.1992 and Letter No.1480 dated 14.10.1994. A reading of these circulars makes it clear that they did not supersede the earlier circulars but only provide for clarifications. In place of journey by tourist taxi, any taxi/ car was allowed for travel provided printed bill/ receipt was produced. By circular dated 11.9.1998 it was clarified that the agency/ owned car was allowed to the extent of actual entitlement on submission of documentary evidence. This letter further clarified that no private car on hire basis is permitted, if the journey is claimed by self owned car.
We have gone through the circulars and find that the circular dated 29.10.1993 clarified the earlier provisions including the circular dated 20.6.1987, regarding reimbursement of taxi charges for visiting different places, and for site seeing under kilometer scheme subject to overall limits of LTC. The taxi engaged should belong to Tourism Development Corporation/ approved taxi operator and receipts verifying the details like registration number, opening and closing meter reading, driver's name duly signed by operator and person engaging the taxi were required to be submitted. The circular dated 29.10.1993 further clarified that in place of journey by tourist taxi, any taxi/ car is allowed for travel while allowing LTC, however, printed bill/ receipt should be produced.
The petitioner had produced the bills for journey for himself and his dependents. The respondents did not question that the petitioner had 5 his family had actually travelled. The car was hired from private tourist operator as taxi. It was not legally open for hire. The receipts were not issued on regular number receipt book, and did not provide verifiable details. The journey was undertaken repeatedly by same car.
We find substance in submission of Dr. Ashok Nigam that the petitioner was not entitled to hire private car through local travel agency for claiming LTC bill. It was not only against the policy of the NABARD but was also against the law in as much as no private car could be used as taxi for hire, even if it is hired by a travel agency. An illegal activity by travel agency could not be recognised for rights to avail travel concession.
So far as petitioner's claim for reimbursement of travel of his son by air is concerned, we find substance in the contention of the petitioner that since the petitioner's son was advised to come to Mumbai by the private engineering colleges but was not admitted, he had to return back and claimed educational allowance, for studying at Lucknow. The petitioner's claim for Rs.8615/- for air fair for his son was thus valid and was admissible along with Rs.138/- as service tax.
The petitioner has since retired. It is not denied by the respondents that the petitioner was entitled and had actually travelled, though not strictly in accordance with rules, in a registered taxi operated by the tourism department or a travel agency approved by the government. The petitioner, therefore, is entitled to actual reimbursement of the fuel charges admissible at the relevant time on kilometer basis.
The writ petition is consequently allowed to the extent that the respondents will refund the amount of LTC allowance recovered from him after recalculating the amount admissible to him for the travel, on actual fuel charges on kilometer basis. He will also be entitled to Rs.8615/- and Rs.138/- towards service tax for the period he was denied these bills with interest at the rate of 8%, as average prevailing bank rate at the relevant time.
Dt.02.02.2010 SP/