2017 (5) TMI 980 - HC - Indian Laws

Disbursement of the additional remuneration as per Fundamental Rules 49, within the prescribed period - need for sanction of the higher authority for giving additional charge to a particular officer - Held that - For the purpose of payment of additional pay beyond the period of three months, sanction is required. It does not speak for non-entitlement, on account of the holding charge exceeding a period of three months. In our view, the entitlement for the additional charge allowance/remuneration is one thing and the disbursement aspect is another thing. FR 49(iii) expressly provides for the charge allowance for holding the charge of another post. Once the entitlement is proved, merely because for disbursement, the sanction is required of the higher authority is no ground to deny the benefit for the additional charge allowance. The interpretation as canvassed by the learned counsel that in the absence of any sanction granted by the higher authority, one is not entitle d for the charge allowance for the period exceeding three months is not correct and the same cannot be accepted. When proviso to FR 4 9(iii) expressly provides for sanction of the competent authority for payment, it cannot be mixed with the sanction to be granted at the time when charge is to be handed over. In any case, it was not contended on behalf of the petitioner before the Tribunal nor any material is shown to this Court that the respondent held charge of the additional post unauthorisedly. Under these circumstances, once the charge of additional post is held in lawful manner, the employee concerned would be entitled for additional charge allowance. The disbursement thereof is a procedural aspect which cannot nullify the entitlement of the employee concerned.

Summary

Issues:
1. Interpretation of Fundamental Rule 49 regarding additional charge allowance.
2. Requirement of higher authority sanction for payment of additional charge allowance.
3. Impact of Office Memorandum dated 16th April, 2015 on the entitlement of additional charge allowance.
4. Legal validity of the Tribunal's decision on directing payment of remuneration.

Analysis:

Issue 1: Interpretation of Fundamental Rule 49 regarding additional charge allowance
The petitioner contended that as per the proviso to FR 49(iii), sanction from the higher authority is necessary for granting additional charge allowance beyond three months. However, the Court clarified that the entitlement for additional charge allowance is separate from the disbursement process. The Court emphasized that once entitlement is established, the lack of sanction for disbursement does not negate the entitlement. The Court rejected the interpretation that absence of higher authority's sanction for holding charge exceeding three months affects entitlement for charge allowance.

Issue 2: Requirement of higher authority sanction for payment of additional charge allowance
The Court highlighted that the proviso to FR 49(iii) mandates sanction for payment of additional pay beyond three months but does not imply non-entitlement due to holding charge exceeding three months. The Court distinguished between entitlement and disbursement, stating that lack of sanction for disbursement does not negate entitlement. The Court rejected the argument that absence of higher authority's sanction for holding charge exceeding three months affects entitlement for charge allowance.

Issue 3: Impact of Office Memorandum dated 16th April, 2015 on the entitlement of additional charge allowance
The Court dismissed the reliance on the Office Memorandum dated 16th April, 2015, stating it cannot have retrospective effect. The Court emphasized that the Memorandum cannot nullify or dilute the statutory effect of Fundamental Rules. It was clarified that the procedural requirement of sanction for disbursement does not nullify the entitlement of the employee if the charge of the additional post is held lawfully.

Issue 4: Legal validity of the Tribunal's decision on directing payment of remuneration
The Court noted that the respondent lawfully held the charge of another post, and the Tribunal's decision to direct payment of remuneration as per FR 49 was based on a circular and a decision of the Calcutta Bench of the Tribunal. The Court found no illegality in the Tribunal's decision and dismissed the petition, stating that no interference was warranted.

In conclusion, the Court upheld the entitlement of the employee for additional charge allowance, emphasizing the distinction between entitlement and disbursement processes. The Court clarified the requirements for higher authority sanction and the limited impact of the Office Memorandum on entitlement. The Tribunal's decision to direct payment of remuneration was deemed legal, leading to the dismissal of the petition.