' ROSHAN ALI MANGI (MEMBER).---Having been aggrieved, by Audit Report, on the accounts of the Mission at Hague for the years 1988-92, whereby an amount of Rs, 72,24439 (equivalent to U.SA.
3282/15) was held inadmissible by the Director, Foreign Audit, Islamabad, being 50% of the DA. For 15 days in lieu of the foreign allowance and the house rent allowance, and is, therefore, being recovered from the payment of gratuity of the appellant vide Director, Foreign Audit letter, dated 13th August, 1995, and having been failed to get a positive response from the respondent, on submission of the departmental appeal on 7-12-1994, the appellant has filed this appeal to the Tribunal.
2. The brief facts of the case as stated in the memo of the appeal are, that, the appellant was transferred to Embassy of Pakistan Hague in January, 1988. He joined the Mission on 28-1-1988. After availing of 6 days joining period under the rules, he was accommodated alongwith his family in a hotel from 28-1-1988 to 31-3-1988.
3. The appellant was provided with residential accommodation on 1-4-1988.
4. On the basis of two precedents, whereby, the Mission had paid full DA. For 15 days for stay in the hotel to Messrs M. Aslam Rizvi in 1986, and Shahryar Rashid in 1989, former Councilors in accordance with rules, No,4/15-63, dated 24-4-1964, and No, 4/13/80, dated 5-11-1981, the appellant submitted representation to the Secretary, Foreign Affairs, Islamabad on 14-10-1988 for non- payment of 15 days DA.
5. In response the Director-General, Personnel, vide his Telex No, Estt. (II-A)-14/44/73, dated 9-6- 1990, instructed the mission to pay DA. In question to the appellant. Despite the instructions according to appellant, the Mission paid only 50% of the DA. In lieu of Foreign Allowance and house rent taking hotel as the provision of the Government accommodation, contrary to the instructions issued by the Ministry of Finance vide O.M. No,4(5)-R(II)/76, dated 9-3-1977, wherein the term of accommodation has been dearly defined by Finance Division, as to be suitable.
6. In the meantime, the appellant was transferred to Ministry of Foreign Affairs and claimed the payment of remaining 50% of DA. As per rules. This was sanctioned by the Ministry vide Sanction Letter No, Estt: (II-A)-4/44/73 dated 21-10-1991.
7. The appellant appeared in person and argued that the Audit para. 2 of the Audit Team became redundant after the issuance of the sanction letter by the Ministry regarding payment of DA.
8. In Case No, 127/R of 1990 filed by Major Zia-ul-Haque, the then Director Haj as posted to Jeddah, the Service Tribunal had ordered payment of Full 15 days DA. For stay other than the suitable residential accommodation on the basis of Ministry of Finance O.M. Referred above. In view of this decision he should also be paid DA.
9. He further pleaded that in case, he is not allowed 'the DA. For days, for not providing the suitable accommodation, then this benefit already allowed to others, should also be recovered from them to apply the rule equally to all.
10. The representative of the Ministry of Foreign Affairs supported the case of appellant, however, the representative of the Audit, resisted the appeal. The Audit also filed the comments, wherein it has been contended that, the appellant was accommodated in a hotel for the period from 28-1- 1988 to 31-3-1988, by the Mission rent also pre-paid, after obtaining the prior approval of the then Ambassador. As the appellant was provided accommodation on his arrival at Hague, therefore, he was not entitled to draw 15 days DA. In lieu of House Rent Allowance and Foreign Allowance from 28-1-1988 to 11-2-1988 in terms of F/A, letter Rules-4/11/68, dated 24-11-1968.
11. However, the appellant in clear violation of aforementioned orders, following payment on account of 15 days DA. In lieu of House Rent Allowance and Foreign Allowance, was paid at a belated stages:-- {{TABLE}} "By Mission Para. 2 of the Audit Vr.No, 2 of 6/90 Report 1988-92 50% DA. In US 53282/15 lieu of House Rent Allowance & Foreign Allowance.
By Ministry Para 39 of Sanction No,Estt. 50% DA. In 3171.50 Ministry Report (II-A)-4/44/73 lieu of House Dt. 21-10-1991 Rent Allowance paid on 26-10-1991 and Foreign Vide Cheque No, Allowance. 52137 dt. 28-10-1991.
Total: 56453.65" {{TABLE}}
12. It is further stated, that, the payment of 15 days DA., in lieu of Foreign Allowances, and House Rent Allowance was refused by the Head of the Mission on 26-8-1988, 12-2-1990 and again on 19-4-1991.
The mysterious circumstances, under which the official managed to draw 50% of DA. For 15 days at Hague after the lapse of period of two and half years is not known to Audit. It has been vehemently contended that the claim was not only irregular, but also time-barred. Mission authorities were, therefore, not competent to make payment of the time-barred TA./DA. Claims of the official. The payment was also against the instructions issued to all the Head of Missions abroad by the Director General (Ministry), Ministry of Foreign Affairs vide No,Rule-4/13/80 dated 5-11-1981.
13. It has further been pointed that appellant was transferred from Hague to Islamabad in June, 1994. He made a representation for the payment of balance 50% of DA. For 15 days in lieu of house rent allowance and foreign allowance. His case was processed vide para. 233 of the office note. It was proposed to refer the case to the Mission for its settlement under the rules. This proposal was approved by the Director P-II, on 15-7-1991 instead of referring the case to the Parep Hague, the Section Officer, Mrs. Iffit Khalid issued sanction vide No, Estt. (II-A)/4-44/73, dated 21-10-1991, allowing the appellant to draw 15 days DA. At full rate froth 28-1-1988 to 12-2-1988. This action of the Section Officer was not covered by the administrative order of the competent Authority.
14. The appellant, was granted full DA. For the joining period of 6 days, on joining the Hague Mission on 28-1-1988. Thereafter, he was put in Hotel and its rent pre-repaid by the Mission with approval of the then Ambassador, since the residential accommodation at that time was not readily available, the appellant accepted not only the hotel accommodation, but also the Foreign Allowance.
15. This action on the part of the Mission was in accordance with the instructions contained in official letter dated 5-11-1981, the relevant portion of the letter is reproduced below:- "It is reiterated that provision of accommodation is the responsibility of the Mission, and the direct responsibility of the Heads of Mission whose decision in each case is fmal. Should an official refuse to accept the accommodation approved by the Head of Mission, the requirement of providing official accommodation having been met, the consequences must be faced by the official himself including disciplinary action for defying official orders."
16. From the above it becomes clear that, the action of the Mission was according to instruction, as such in order. The accommodation so provided in fact was not permanent, but rather stop-gap arrangement. The official ultimately was provided the required suitable accommodation after about 2 and half months.
17. The necessity of providing the temporary accommodation arose because, as explained in the said letter reproduced below: "It came to the notice of authorities that, in certain cases, the officials tried to delay acquiring of accommodation with intention to misuse the facility of daily allowance in lieu of Government Accommodation and Foreign Allowance. There were instances in which official accommodation had been acquired immediately after drawing the daily allowance for 15 days. The authorities also came across cases in which the accommodation was surrendered on one pretext or the other to enable the incoming officials to get the facility of daily allowance."
18. The appellant, has relied upon Ministry of Foreign Affairs No,M(11)- 25/1/55, dated 12-7-1955 and No,Rules-4/15/63, dated 24-2-1964 for claiming the full DA. For 15 days. The relevant extract is reproduced below:- "SI. No,97-(i) It has been decided that an officer or member of the Staff who is unable to find suitable residential accommodation immediately on his arrival at the new post is entitled to draw daily allowance in lieu of Foreign Allowance for himself, wife and children above 12 years at full rate and one half for children above 12 months for a period not exceeding 28 days (reduced to 15 days vide Ministry of Foreign Affairs No,Rules-4/11/67, dated 11-12-1971)."
19. However, the experience showed that this facility was being misused.
' This has been expressed in para 3 of Foreign Affairs Circular No,12/17/75, dated 3-8-1976 (SI.
No,1983, (reproduced below):-- "It has been observed that the facility is often misused. The official generally stay in hotel and draw D.A. For full 15 days period and move to the residential accommodation secured for them immediately thereafter. It would be readily appreciated that this attitude is against the spirit and the intention underlying the concession in question and runs counter to fmancial canons and proprieties. It results in substantial expenditure from public exchequer which could be avoided if due care was taken to ensure the residential accommodation for new arrivals in Missions was arranged without unnecessary loss of time before hand."
' It was, therefore, advised vide para. 4 of the said circular:- "In cases of replacement of officials the allotments occupied by the out going official should be retained for the incoming officials after receiving orders in each cases, from the Ministry so that latter have to stay in hotels only during the overlapping period."
' It was further advised vide para 6 of the said circular:-- "6. The utmost care and economy must be observed in this regard and the procedure outlined in para. 4 above followed miticulously."
19. The letter dated 5-11-1981 mentioned above was the follow up of the -previous communications in which, the Head of the Mission was made competent to decide, the temporary accommodation for the incoming officials, till, a permanent, suitable accommodation could be arranged.
20. The Hotel accommodation so provided to the appellant, for which, the rent was paid by the Mission, with prior approval of the former Ambassador, was in accordance with instructions contained in the said letter. As such he was not entitled to draw 15 days DA., in lieu of the house rent allowance and foreign allowance for the period from 28-1-1988 to 12-2-1988. The Audit has rightly pointed, that the DA. In question was not permissible under the latest rules.
21. However, the appellant, although during his stay in the hotel accepted the Foreign Allowance, later on demanded the 15 days DA. Which the Mission refused rightly to pay vide letter dated 13-10- 1988 stating therein, that, "Mr. Asghar Ali, Additional Assistant is informed that the accommodation to lodge him and his family for a period from 28-1-1988 to 31-3-1988 was hired as per rules and.That the Ministry has held that you are not entitled to daily allowance for 15 days," and his attention was drawn to Ministry Circular dated 5-11-1981.
22. After some time, the appellant changed his stand and addressed a letter dated 8-2-1990, to the Head of the Mission Hague, stating therein, the circumstances, under which he was accommodated in hotel for about two months; and further stated as reproduced below:- "I did not claim full DA. As the advance rents were paid by the Mission. I am, therefore, under the rules entitled to 50% DA. In lieu of Foreign Allowance (for non-provision of suitable residential accommodation) for stay in hotel which may kindly be ordered to be paid to me in accordance with the Ministry's decision dated 4-1-1990 to mitigate my hardships and suffering from more than two years."
23. In response, the Chancery informed the appellant vide letter dated 12-2-1990, that, the accommodation so provided should be treated as a case of provision of accommodation envisaged under para. 5 of the even number dated 5-11-1980. No DA., therefore, seem to be due.
24. However, the appellant managed to get 50% of the DA. Amounting to 3280.15, by the Mission through getting it issued instructions by the Ministry by telex in June, 1990, after the lapse of 2-1/2 years, although it was not in order under the rules it should have been claimed within a year and as such needed the approval of the competent Authority, but no such rules were observed.
25. After his return to Pakistan the appellant wrote a letter dated 16-1-1991, to the Section Officer, Establishment (II-A), Ministry of Foreign Affairs, stating therein that, he was paid only 50% of DA. For stay in the Hotel at the instructions of the Ministry and further requesting that he might be paid full DA., as per rules on the analogy of the DA. Paid by Mission to M/s. M. Aslam Rizvi and Shahryar Rashid, Councillors respectively on their stay in hotels. He further stated in the said letter, that if it was not possible to pay to him full DA. As per rules, then he would request that the 50% DA. Was recovered from M/s Aslam and Shahryar Rashid in conformity with said rules for justice and fairplay.
26. The record shows that Section Officer concerned submitted the case to the Director on 14-7- 1991 vide para. 232-33/N of the file. In these paras Section Officer Establishment (II-A) proposed to ask Parep the Hague to settle the claim of the appellant as admissible under the rules. This para was approved by the Director in writing "as proposed." Parep the Hague vide their Letter NoAdmn.2/6/79-II, dated 19-4-1991 refused to make payment.
27. Although the Head of Mission' decision in the case of accommodation was final, therefore, once again the Mission refused to pay. TA. Bills once settled cannot be re-opened at any level, but then the Section Officer issued sanction letter bearing number Estt. (II-A)-4/44/73 dated 2110-1991, allowing remaining 50% of the DA. Amounting to $ 3171.50 to the appellant, stating therein "this issues with the approval of the competent Authority', although record shows, that it has not been approved by the competent Authority. As such the appellant drew full DA. For 15 days amounting to $ 6453.65.
28. After examining all the aspects of the case, we come to the conclusion, that, the appellant was provided accommodation with approval of the Head of the Mission, who was the competent Authority under the rules as per instructions contained in letter dated 5-11-1981. The appellant lived in the hotel and accepted the Foreign Allowance until, he got the suitable residential accommodation as such he was not entitled to the DA. For 15 days and was rightly declared not permissible by the Audit under the rules. Later on he agitated and claimed initially for 50% DA. For 15 days, which was refused first by the Mission as well as by the Ministry of Foreign Affairs, however, the appellant later on managed to get remaining 50% of the DA. Also although no competent Authority had approved it.
29. This claim was not only against the instruction contained in the Ministry circular dated 5-11-1981, but also was paid after a period of 2-1/2 years as such was not permissible under the rules. Besides this TA. Bill once B settled cannot be re-opened at any time. Its settlement needs the approval of the Ministry of Finance.
30. This is very stated that the Ministry of Foreign Affairs has been supporting the appellant all along despite the facts that it issued some instructions according to which, the claim in question was not permissible but it issued other instructions to the Mission to pay appellant 50% of DA. In violation of its previous instructions and paid remaining 50% of DA. Without observing rules. As such they violated the same instructions which were issued to the Mission to be complied with. This could be because they have been committing such irregularities in other cases as well, which the appellant, exploited to his benefit by quoting them, just to hide those cases. The appellant was allowed DA. Which was not admissible under the rules as was in other cases. Authorities may like to look into the matter.
31. For the reasons stated above, we do not find any merit in the case, and therefore, we dismiss the appeal with no order as to costs.
32. Parties are informed.