Gp Capt. A.K. Ghosh (Retd.) vs Union Of India (Uoi) And Ors. on 20 May 2004
Delhi High Court
Gp Capt. A.K. Ghosh (Retd.) vs Union Of India (Uoi) And Ors. on 20 May, 2004
Equivalent citations: 111(2004)DLT812, 2004(75)DRJ321, 2005(1)SLJ244(DELHI)
Author: H.R. Malhotra
Bench: H.R. Malhotra
JUDGMENT
Vijender Jain, J.
1. The petitioner retired as Group Captain from the Indian Air Force. Petitioner was attached to unit 8 TAC as commanding officer and throughout during the period of controversy was attached to the said post. Air Force deputed the petitioner during operation ‘Pawan’ in Jaffna, Sri Lanka at Palaly Airfield, but he was always shown to be on the strength of his unit 8 TAC. The area in Sri Lanka, where the petitioner performed duty was an operational area.
2. The short controversy in this petition is whether the deployment of the petitioner at Palaly Airfield in Sri Lanka was to be considered as an operational area or a field concessional area and what allowances he is entitled to. According to the stand of respondents, the petitioner was in the field Concessional area and, therefore, allowances/concessions permissible to him would be as per respondents’ letter dated 3.9.1987. Additional affidavit has been filed by the respondent which has defined field concessional area in paragraph 4 at page 166 of the paper book.
“With regard to the second clarification, it is submitted that the term Field Area is defined by the Central Government as an area where Air Force personnel are deployed near the border for operational requirement and where imminence of hostilities and associated risk of life exists. Air Force personnel in such area are located for reasons of operational considerations alone and are not living cantonments.”
3. On the basis of this definition of field concessional area, the respondents sought to bring in its fold the deployment of petitioner in operation ‘Pawan’ at Palaly Airfield Sri Lanka in field concessional area. Another contention was raised by learned counsel for the petitioner that other officers of the Air Force, who were not deployed in operation ‘Pawan’, were, visiting Sri Lanka i.e. in Colombo for logistic and administrative reasons they have been given allowances as per Travel Regulation Rules.
4. In paragraph 17 of the writ petition it has been mentioned by the petitioner that other officers performing less arduous duty i.e. not involved in operation ‘Pawan’ were allowed cash allowances on the basis of the rules as contained in the Travel Regulations, therefore, petitioner has been discriminated by the respondents as said cash allowance in terms of Travel Regulation has not been paid to the petitioner. The respondents have given such officers cash allowance at the rate of 30 dollars per day, whereas the petitioner has been given 7.50 dollars per day for the first temporary duty from 2.12.1987 to 10.4.1988 i.e. for 121 days and therefore for subsequent period i.e. from 10.4.1989 to 22.9.1989 (165 days) not a single penny has been paid to the petitioner. For the second period of 165 days for operational duty petitioner has been given a paltry sum of Rs.11,273/- as expatriation allowance.
5. Ms. Singh, learned counsel for the respondents, has contended that the petitioner was entitled only on the basis of the field concessions as per the Government of India’s letter dated 3.9.1987. It was contended that the petitioner was posted for a temporary duty from his parent unit 8 TAC to take over the Air Force Command at Palaly Airfield near Jaffna in Sri Lanka. Therefore, petitioner will be entitled to allowances as per field concessional area and expatriation allowance.
6. The participation in operation ‘Pawan’ of the petitioner for the aforesaid period has not been denied by the respondents. It was contended that the petitioner was only entitled to expatriation allowance and field service concession as extended by Government of India. It was further contended by learned counsel for the respondents that Rule 268 of the Travel Regulation with regard to the admissibility of the daily allowance (cash allowance) to the service personnel for each day or part thereof for absence from headquarters on duty is applicable to personnel who were posted in mission abroad as found mentioned in para 263 Travel Regulation and the petitioner shall not be entitled to allowance under such rules as he was not posted to any mission abroad.
7. It was further contended by Ms. Singh that other officers whose reference has been mentioned in para 17 have been given allowances at the rate of 30 dollars per day, as they were not on operational duty but had proceeded to Colombo for administrative and logistic support to the Indian troops.
8. We have given our careful consideration to the arguments advanced by learned counsel for the parties. These kinds of matters ought to have been solved at the end of the respondents. The Indian peace keeping force was deployed by Government of India after signing of Indo-Sri Lankan accord on 29.7.1987 and Indian Air Force was utilized for giving a cover to the Indian Peace Keeping Force against the onslaught of LTTE against Indian ground troops. Obviously, that is the reason petitioner remained attached to 8 TAC Mathura but he was proceeded on duty to Palaly Airfield near Jaffna to perform the duties as the Base Commander. The petitioner has mentioned in the writ petition that there was no accommodation what to talk of free accommodation and he had to perform his duties in a make-shit tent and sometime under some temporary structure, no hospitality was received by the petitioner and none could have been received because said area was a war devastated area. There was total collapse of civil Government machinery and no public authority was existing at the Palaly Airfield, therefore, if the other officers, who have gone for logistic and administrative support to the IPKF in Colombo have been given allowance at the rate of US $30 per day, there is no rationale to allow them to have allowance @ 30 dollars per day as cash allowance and restrict the said allowance to petitioner who was on operational duty for his country, @ 25% to what was being received by his other counter part, when they were having all kind of facilities in Colombo. Such other officers were also not posted to the Indian mission in Colombo. They were also performing duties on administrative and logistic matters. In paragraph 14 of the affidavit it is admitted by the respondents that petitioner was serving in operational area and cannot be expected to be provided with facilities such as accommodation, meals etc. as applicable in non-operational areas. By no stretch of imagination we can visualize the situation where army personnels, who have been deployed in the mission that is to say they are receiving foreign hospitality, better amenities/facilities are to be given a higher allowances than combatant officers who are risking their lives in battle field. The decision of the respondents, in non-grant of equal allowance as has been done to other officers who were on non-operational duties, suffers from irrationality, arbitrariness. The same is devoid of any merit.
9. We need not go into the various circulars which have been placed on record. Let us analyze the arguments of respondents that petitioner is entitled for allowances only on account of circular of Government of India for field concessional area. From the definition of field area it is manifestly clear that the field area is one where the Air Force personnels are deployed near the border for operational requirements and where there is likelihood of commencement of hostilities and where there are no living cantonments. All these requirements are within territory of India, It cannot be outside the territory of India. Territory of India is defined. Same cannot be read to include area outside the territorial limits of India. Jaffna is in Sri Lanka, therefore, field area as defined by the respondents would not cover operation in a foreign territory.
10. From the perusal of the record and the pleadings, it is admitted case of the respondents that the petitioner was posted at Palaly Airfield near Jaffna in Sri Lanka. For obvious reason throughout his posting for two stints, he was shown to be attached to 8 TAC at Mathura. It is also not disputed that the petitioner was on operational duties. The petitioner was the senior most officer of the respondents as Base Commander at Palaly Airfield Jaffna, Sri Lanka. It is also not disputed that there was neither any accommodation nor any facilities at the said Airbase. Petitioner was in a war like zone. In spite of all these admitted facts, reliance placed by the respondents on the field concession letter dated 3.9.1987 is misconceived.
11. As a matter of fact for this class of officers and non-officers, no clear-cut provisions have been placed before us. May be, because it was a solitary incident where Indian Forces have to go to foreign country under Indo-Sri Lankan accord. But if officers are utilised in terms of the policy of the Government to undertake these kinds of operation into foreign territory, the respondents should not shirk from their responsibility to adequately compensate them. But here in this case, we find that instead of giving higher emoluments for their gallant and brave acts they have been forced to approach this court for a very meager amount. It is admitted by the respondents that officers of Air Force who went to Colombo for logistic and administrative reason have been paid allowances according to traveling regulations, particularly in terms of Annexure ‘H’ of the counter affidavit.
12. We are pained to see that officers who have gone for logistic and administrative support to the capital city of Colombo where all facilities existed have been paid said allowance in terms of Annexure ‘H’ filed by the respondents and the petitioner who had gone for operational duty fighting for the Air Force and the country has been denied the same benefit. It is per se discriminatory. There is no force in the arguments of respondents that Travel Regulations under which these officers have been given allowance @ US $30 were on a mission for logistic support. As per the Travel Regulations, said allowance could be given to officers who are posted at the Indian mission abroad. These officers were not posted at the mission. The action of the respondents in creating two classes by classifying them into operation and non-operational is discriminatory. It does not achieve the object for which this classification has been made. Therefore, we hold that non-grant of similar allowance to the petitioner as has been paid to other officers who were performing logistic and administrative duty is irrational, arbitrary and discriminatory. We quash the same.
13. We direct the respondents to make the payment to the petitioner in terms of Annexure ‘H’ filed with the counter affidavit as has been done in the other cases within a period of four weeks. If the amount is not paid within four weeks, petitioner shall be entitled to arrears of his dues with interest at the rate of Rs.12% till the amount is paid by the respondents to the petitioner.
14. Writ petition is allowed.
15. Rule is made absolute.