CIVIL WRIT JURISDICTION CASE No.8818 OF 2008 -------- In the matter of an application under Article 226 of the Constitution of India. -------- 1. UNION OF INDIA,Ministry of External Affairs, through the Foreign Secretary, Government of India, South Block, New Delhi-110011 2. The Joint Secretary, Bangaladesh, Srilanka, Maldives ( BSM Division ), Ministry of External Affairs, Government of India, Room No. 264, South Block, New Delhi- 110011. 3. The Under Secretary ( Maldives ), Ministry of External Affairs, Government of India, South Block, New Delhi-110011………………….. Petitioners Versus SHRI BASANT KUMAR BIHANI, Son of late Sitaram Bihani Additional G.M./ H.R.M., Ircon Intl.Ltd, Palika Bhawan, Sector- 13, R.K.Puram, New Delhi-110066... Respondents ------- For The Petitioner :Mr. Rakesh Kumar Singh, Central Govt. Counsel For The Respondent :Mr. Gautam Bose,Sr.Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ------------ Shiva Kirti Singh & B.P. Verma, JJ Heard learned counsel for the petitioners and learned counsel for the Respondent who was the applicant before the Central Administrative Tribunal, Patna Bench, Patna 2 2. The petitioners are aggrieved by the Judgment and Order dated 6-1-2004 passed by the Central Administrative Tribunal, Patna Bench, Patna allowing O.A. No. 161 of 2001. The date of disposal of the said O.A. suffered from a typographical error showing the year of disposal as 2001 but the same has been subsequently corrected by the Tribunal by order dated 29-8-2007 as 2004. 3. The sole respondent before us was the applicant before the Tribunal and he raised the grievance that the respondents who are petitioners herein, be directed for payment of Foreign Allowance at the same rate which has been paid to other officers working in the High Commission at Male, Maldives. It appears from the records that prior to raising the present dispute before the Tribunal at Patna the respondent had preferred O.A. 2182 of 1998 before the Central Administrative Tribunal, Principal Bench, New Delhi and the same was disposed of by order dated 27-9- 2000 with a direction to the authority to dispose of representation dated 15-12-1997 in accordance with Rules and Instructions by a speaking and reasoned order . The authority rejected the representation of the respondent by 3 speaking order dated 10-1-2001. This order was also brought to the notice of the Central Administrative Tribunal Patna Bench, Patna in the aforesaid O.A. No. 161 of 2001 but from the discussions made by the learned Tribunal it is clear that the Tribunal has not confined itself to the merit of the reasons given by the respondent- authority in the order dated 10-1-2001 rather it has accepted the submission made before the Tribunal that respondent ought to have given an opportunity of hearing before deciding to fix the foreign allowance at a reduced rate. 4. By the impugned order the Tribunal also examined another grievance of the respondent that he should have been given facility of appropriate foreign allowance by treating him as an official having status of “First Secretary” for the purpose of foreign allowance. Admittedly, this issue was also decided by the order dated 10-1-2001 but since the Tribunal gave a clear direction to the respondent- authority to reconsider this issue, pursuant to the impugned order that issue has been decided separately and hence it is no longer a subject matter of the writ petition. The parties have not advanced any submission in respect of such a claim. 4 5. As observed earlier, the order of the Tribunal shows that the O.A. application of the respondent has been allowed only on the ground of alleged violation of principle of natural justice that he has been condemned unheard by changing the terms and conditions of foreign deputation, resulting into reduction of foreign allowance on the basis of a letter dated 4-9-1995. 6. Learned counsel for the petitioners has submitted that the letter dated 4-9-1995 is not a decision or direction in respect of foreign allowance but is in the nature of a policy decision and therefore there was no obligation upon the petitioners to hear the respondent before formulating such a policy decision. Unfortunately, the alleged policy decision in the letter dated 4-9-1995 has not been brought on record and we are not in a position to examine the correctness of the aforesaid submission. Another letter dated 4.9.1995 has been brought by the respondent on record but this is only a consequential order indicating the reduced amount of compensatory allowances in the light of an earlier order of the same date. 7. Another issue canvassed before us on behalf 5 of the respondent is that even if the letter dated 4-9-1995 be deemed to have laid down a policy decision, the same could not be applied retrospectively so as to affect the claim of the respondent for compensatory foreign allowances, since his deputation at Maldives was made in the year 1993. On this issue we have examined the relevant materials and we are dismayed to find that relevant factual back ground has not been furnished by the parties. The respondent has not pleaded detailed facts as to what was the foreign compensatory allowance he received in the beginning of 1993 and what was the reduced amount and since when he started getting the reduced amount. These facts could have enable us to find out whether the policy decision had any retrospective adverse effect or whether the competent authority had applied its mind and taken a decision to fix the alleged reduced rate of foreign compensatory allowance for the first time in the year 1995 so as to cover the earlier period 1993. On account of non-availability of such relevant facts we are unable to decide the issue raised on behalf of respondent that order dated 4-9-1995 has adverse retrospective effect against the respondent. 6 8. So far as the finding of the Tribunal on the basis of factual position is concerned, we are of the considered view that such a finding alone cannot be of any help to the parties because after quashing and setting aside the order dated 10-1-2001, the Tribunal had to go into the merits and decide the relevant issue for deciding one way or the other as to whether the respondent applicant was entitled for a higher foreign compensatory allowance and if so at what rate. Such relevant issue has not been addressed by the Tribunal. On the other hand, we find ourselves in disagreement with the views of the Tribunal that decision dated 10-1-2001 was required to be set aside only for the alleged violation of rules of natural justice. Such an order was passed on the basis of representation filed by the respondent and pursuant to order of the Principal Bench , New Delhi at the instance of the respondent in the O.A. preferred by the petitioners. In our considered view such an opportunity to represent his grievance through a representation which required consideration on merits as per rules and disposal by a reasoned order was sufficient to meet the requirement of natural justice. In the given facts 7 the Tribunal was obliged to go into the merits of the reasons given by the appellant for rejecting the claims of the respondent made through his representation. That has clearly not been done. 9. For the aforesaid reasons, we set aside the impugned order of the Tribunal and remit the matter back for reconsideration and afresh decision in accordance with law after hearing the parties. This should be done expeditiously as the matter has lingered for a long time. We expect the Tribunal to decide the matter within six months. It will be open for the Tribunal to consider allowing the parties to bring on record clear facts so that if the issue of retrospectivity is to be examined, the same may be determined in the light of relevant facts. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs. Patna High Court, Patna Naresh NAFR Dated the 6th July, 2010. ( Shiva Kirti Singh, J.) ( Birendra Prasad Verma, J) 8