Orissa High Court
Jaya Chandra Mishra vs Union Of India And Others on 3 January, 2018
Equivalent citations: AIRONLINE 2018 ORI 220
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK
W.P.(C). No.22458 OF 2016
An application under Articles 226 and 227
of the Constitution of India.
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Jaya Chandra Mishra ......... Petitioner
-Versus-
Union of India and others.
......... Opposite parties
For petitioner - In Person.
For Opp.party - Mr. Anindya Mishra.
Nos.3, 6 & 7
For Opp.party - None.
Nos.1,2,4,5&8
PRESENT:-
THE HON'BLE SHRI JUSTICE BISWANATH RATH
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Date of Hearing : 20.12.2017 Date of Judgment : 03.01.2018
Biswanath Rath, J.Filing this writ petition the petitioner has sought for the following reliefs :-
"Under the aforesaid facts and circumstances, it is humbly prayed that this Hon'ble Court most graciously be pleased to issue notices to the opposite parties and upon hearing the parties be pleased to issue writ/writs in the nature of writ of certiorari in; (I) quashing the inquiry proceedings conducted behind the back of the petitioner during his medical sick including ex-parte inquiry report not communicated yet to the petitioner as well as the orders of Disciplinary Authority, Appellate Authority, Revisional Authority and Reviewing Authority and orders arising out of Disciplinary Proceedings under Annexures-14, 12, 18, 21, 25, 28 & 30, since those emanated from the illegal charge memorandum, faulty and without authority inquiry report, as well as 2 against the spirit of Railway Rate Tribunal's advice without authority of law;
(II) direct the medical authorities, O.P. No.1, 4 and 5 to certify railway medical fitness of the petitioner pending since 01.11.2012 and early reimbursement of the cost of treatment required for replacement of his artificial limb (B.K. Prosthesis), sanction of Hospital leave and;
(III) to quash the order of commissioner of Disability under Annexure-30 who failed to exercise its jurisdiction.
(IV) be further pleased to direct the Opposite parties at Srl. Nos.3, 6 and 7 to regularize the period from 22.08.2012 to 01.11.2012, as Hospital leave in the light of rule provision under Annexure-2 series and from 02.11.2012 till the date of resumption of duty as duty for all purposes in the light of Railway rules attributable to delay in certification of fitness by Railway Medical authorities after certification of fitness by referral hospital;
And pass such other order(s)/ direction(s) as this Hon'ble Court may deem fit and proper in the bonafide interest of justice;"
2. Short background involved in this case is; petitioner is a physically challenged Railway employee with 65% locomotor disability which he acquired in course of his employment in Railways. Petitioner was initially appointed in Indian Railways as Assistant Station Master in the year 1984, promoted to the pot of Station Master in the year 1987 and Deputy Station Master in the year 1999. It is averred that while the petitioner was working as Deputy Station Superintendent on 09.12.1999 met with an accident while travelling on duty in a train and lost his right leg. Consequently, he was medically de-categorized as a permanent physical locomotor disability to the extent of 65% 3 and capable of movement only with the help of an artificial limb. After becoming a physically disabled he was alternatively appointed as Office Superintendent, Grade-II in the Office of Senior Divisional Operations Manager, East Coast Railway, Sambalpur in October, 2000. He was next promoted to the post of Office Superintendent Grade-I in 2003 which post was subsequently re-designated as Chief Office Superintendent in the year 2010. It is alleged that in spite of his working in the Office with utmost sincerity and satisfactory to the Railway Authorities he was transferred to Titilagarh vide order dated 28.03.2008 in the same capacity which transfer being intervened by the Central Administrative Tribunal, Cuttack and subsequently by this Court, he was allowed to continue at Sambalpur. But, the Railway Authority keeping grudge did not assign him any official duty even though his salary and other drawings are not affected till August, 2012. When he proceeded to Swami Vivekananda National Institute of Rehabilitation Training and Research (for short "SVNIRTAR") for replacement of his artificial limb, but to the ill-luck of the petitioner, the Authority refused to sanction the C.L. and Leave resulting loss of pay on occasions. The petitioner claimed that artificial limb has the limited use and on getting damaged he is being referred by the Competent Railway Medical Authority for its replacement 4 and the whole period required for such purpose has to be treated as Hospital leave following the Railways Rules. While working as Ch.OS in the office of Sr.DOM/SBP petitioner was referred by the Chief Medical Superintendent, East Coast Railway, Sambalpur (CMS/ECoR/SBP) on 21.08.2012 to 'SVNIRTAR' for replacement of his artificial limb. Consequently, he was also kept under Railway Medical Certificate Sick list by the Authorized Medical Officer of the Divisional Railway Hospital, Sambalpur. It is stated that the petitioner was under
the treatment of 'SVNIRTAR' from 23.08.2012 to 30.10.2012 and was discharged from 'SVNIRTAR' on 30.10.2012 with a new artificial limb (B.K. Prosthesis) for his safe movement with issuance of Medical Certificate of fitness on the same date itself.
The petitioner returned to Sambalpur on 31.10.2012 and reported before the AMO at DRH/SBP on 01.11.2012 for certification of his medical fitness by Railway Medical Authority in order to resume his duty as he was declared unfit to perform duty with effect from 21.08.2012. It is alleged that the Senior Divisional Medical Officer, who kept the petitioner under sick list, did not entertain him on the premises that he has already discharged him from sick list vide discharge memo dated 26.09.2012 due to his absence at Sambalpur. It is stated that declaring him discharged is contrary to the own record of the 5 Railway Authority which had already referred the petitioner to outstation for requisite treatment and replacement. There was no intimation in any manner to the petitioner regarding his such discharge from the Railway Medical sick list compelling the petitioner to make a representation to the CMS/SBP dated
02.11.2012 enclosing therein the medical certificate of treatment issued by 'SVNIRTAR' and all supporting documents requesting therein the AMO to intervene in the matter. Finding no response, petitioner made a representation to the next higher medical authority, i.e., Chief Medical Director vide letter dated 02.12.2012 for his intervention. There has been subsequent representations to the other higher authorities also. Referring to support communications from the Railway Authority, the petitioner alleged that the Railway Authority knowing fully well that the petitioner is a disabled person did not obey the conditions through the several communications / circulars protecting the rights of such persons despite the premises that the petitioner had proceeded for replacement to the 'SVNIRTAR' with approval of the competent Railway authority. Actions involving the petitioner alleged to have been not only contrary to their own guidelines but also aimed with victimizing the petitioner. There has been also specific guideline to deal with the Disciplinary proceeding involving such 6 delinquents. It is alleged, Railway Authority has bypassed all such guidelines by concluding the disciplinary enquiry ex-parte. Petitioner's approach to the appellate authority for setting aside the enquiry proceedings concluded behind his back, but the appellate authority construing the same to be as a separate appeal against punishment upheld the punishment of removal from service as imposed by the Divisional Authority vide their letter dated 04.01.2013. Even though by that time, there was no punishment notice ever served on the petitioner the appellate authority directed the petitioner to prefer revision. Petitioner preferred revision on 23.11.2012. While preferring the revision the petitioner also requested to refer the matter to Railway Rates Tribunal, Chennai (for short "RRT") for their advice. Consequently, the revision was referred to RRT. The RRT in their advice while criticizing the role of the IO, DA & AA for their improper handling of the Disciplinary proceeding also observed that CL is not a recorded leave and a Railway servant on CL is not to be treated as absent from duty. It finally concluded the advice with observation that "For the said reasons we are of the considered view that the punishment of removal from service is not valid in law". It is alleged that the General Manager on failure of his accepting the advice of the RRT, in partial modification of the order of punishment, 7 reduced the order of punishment of removal of service to that of compulsory retirement from service in exercise of its revisional power. The petitioner alleged that for clear advice of the RRT, the DA should have entered into revising the charges against the petitioner and concluding the proceeding after providing natural justice to the petitioner. Petitioner's attempt for review under Rule 25(A) of RS (D&A) Rules, 1968 was rejected on the premises that there being no material of evidence for review of the punishment order. Being satisfied with the Authority, even including that of the Health Department of the Railway, the petitioner approached the State Commissioner for Persons with Disabilities, Orissa, Bhubaneswar under Section 62 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the "PWD Act"). The complaint of the petitioner was registered as Case no.SCPD-246/2015 and the proceeding was concluded with an order of rejection of the complaint of the petitioner on the ground of maintainability, but however permitting the petitioner to approach the competent authority.
3. Referring to the provisions contained in the PWD Act and some decisions of the Hon'ble Apex Court, petitioner appearing in person advanced his argument and contended that for provisions contained in the PWD Act and for the directives of 8 the Hon'ble apex Court in the decisions referred to by him, petitioner appearing in person claimed that the order of the State Commissioner, Orissa, Bhubaneswar involving the PWD Act is illegal and thus approaching this Court by way of this writ petition the petitioner sought for the reliefs already reproduced hereinabove in the first paragraph itself.
4. On their appearance, opposite party nos.3, 6 and 7 filed a detail counter affidavit.
5. Shri A.K. Mishra, learned counsel appearing for the above opposite parties while disputing each of the allegations of the petitioner strenuously urged that there is no violation of any provisions of the Service Rules covering the petitioner or any other persons referred to by him. It is contended that the matter has been not only examined at the Disciplinary Authority level but the matter has even gone upto the Review Board and depending on the advice of the Review Board, the punishment imposed as against the petitioner has been reduced. Shri Mishra, learned counsel for opposite party nos.3, 6 and 7 questioning the maintainability of the writ petition justifying the validity of the order of the State Commissioner, Orissa, Bhubaneswar contended that for clear provision under the Central Administrative Tribunal Act, 1985 the petitioner has the only remedy to approach the Central Administrative 9 Tribunal concerned and no case is maintainable before the State Commissioner under the PWD Act and, as such, the writ petition is also not entertainable. Shri Mishra, learned counsel further taking this Court to the several documents filed by opposite party nos.3, 6 and 7, contended that there being sufficient materials available and for providing of opportunities to the petitioner-delinquent involving disciplinary proceeding and for the observance of all procedures by the appellate authority as well as the revisional authority and also the reviewing authority, the petitioner has no case made out for interference of this Court. It is under the circumstances, Shri Mishra, learned counsel also contended that since no proceeding before the State Commissioner, Orissa, Bhubaneswar was maintainable under the provisions of the PWD Act, there remained nothing to be decided in this writ petition leaving it open to the petitioner to approach the competent authority.
6. The petitioner filing a rejoinder while challenging the allegations made by the Railway Authority involving the petitioner by bringing further materials attempted to establish his case in the matter of challenge to the punishment imposed by the Disciplinary Authority.
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7. Considering the rival contentions of the parties, this Court finds, though the writ petition involves order of the Disciplinary Authority, the Appellate Authority, the Reviewing Authority and also at other higher level subsequent to the disposal of the revision and review, but for the petitioner's approach against the order of punishment and reduction and confirmation thereof by the higher authorities to the State Commissioner, Orissa, Bhubaneswar under the provisions of the PWD Act referred to hereinabove and the decision of the State Commissioner, Orissa, Bhubaneswar at Annexure-30, this Court finds, there is no adjudication of the proceeding involving the petitioner as of now by any competent authority except the State Commissioner deciding that the proceeding initiated involving the Disciplinary proceeding concerning the petitioner was not maintainable before the State Commissioner under the PWD Act and leaving it open to the petitioner to approach the competent authority, the question needs here to be decided is "whether the petitioner for the involvements of the particular issue had a remedy to approach the State Commissioner under the PWD Act, 1995 ?"
8. The fact disclosed that the petitioner for his disability used to take permission from the competent authority to leave the Headquarters for further treatment or replacement of the 11 artificial limb and as available on record, the Disciplinary proceeding is an off suit to the petitioner's proceeding for replacement of the artificial limb and as alleged not joining back at appropriate time. Consequently, the Department treating him as unauthorized absent. The undisputed fact remains, the petitioner is admittedly a disabled person for his being suffering from locomotor disability following provisions containing Section 2(i)(v) of the PWD Act, 1995. Following the provision at sub-section (k) of Section 2 of the above Act, 'establishment' means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government. Therefore, there also remain no doubt that the Railway Authority is an Establishment under this Act.
9. Now, coming to examine other provisions of the PWD Act, this Court finds, Section 47 of the PWD Act, 1995 reads as follows :-
"47. Non-discrimination in Government employment. - (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is 12 available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
Reading of the aforesaid provision, this Court finds the whole reading of the same makes out a case for non-discrimination of such employees in Government employment, such as, not to dispense with, not to reduce in rank, adjustment in other postings in case not suitable to hold the post, not to adjust such employees against any post even creating a supernumerary post until a suitable post is available and not to deny promotion to such person.
10. Now, coming to read Sections 60, 61 and 62 of the PWD Act, which reads as hereunder :-
"60. Appointment of Commissioners for persons with disabilities.- (1) Every State Government may, by notification, appoint a Commissioner for persons with disabilities for the purposes of this Act.
(2) A person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.
(3) The salary and allowances payable to and other terms and conditions of service (including pension, gratuity and other retirement benefits) of the Commissioner shall be such as may be prescribed by the State Government.
(4) The State Government shall determine the nature and categories of officers and other employees 13 required to assist the Commissioner in the discharge of his functions and provide the Commissioner with such officers and other employees as it thinks fit.
(5) The officers and employees provided to the Commissioner shall discharge their functions under the general superintendence of the Commissioner.
(6) The salaries and allowances and other conditions of service of officers and employees provided to the Commissioner shall be such as may be prescribed by the State Government.
61. Powers of the Commissioner.- The Commissioner within the State shall -
(a) co-ordinate with the departments of the State Government for the programmes and schemes for the benefit of persons with disabilities;
(b) monitor the utilization of funds disbursed by the State Government;
(c) take steps to safeguard the rights and facilities made available to persons with disabilities ;
(d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner.
62. Commissioner to look into complaints with respect to matters relating to deprivation of rights of persons with disabilities. - Without prejudice to the provisions of section 61, the Commissioner may of his own motion or on the application of any aggrieved person or otherwise look into complaints with respect to matters relating to -
(a) deprivation of rights of persons with disabilities;
(b) non-implementation of laws, rules, bye-
laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Government and the local authorities for the welfare and protection of rights of persons with disabilities, and take up the matter with the appropriate authorities."
Section 60 deals with appointment of Commissioner for Persons with Disability, whereas Section 61 deals with the powers of the Commissioner includes satisfaction to safeguard the rights and 14 facilities made available to the persons with disabilities and Section 62 empowers the Commissioner to look into complaints with respect to matters relating to deprivation of rights of persons with disabilities. Reading of all the aforesaid provisions, this Court finds, there is no doubt that the Commissioner empowered under the PWD Act in respect of matters relating to deprivation of rights of persons with disabilities, non- implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of right of persons with disabilities and to take up such matters with appropriate authorities. The provisions at Sections 60, 61 and 62 of the PWD Act must be aimed with protection of rights of such persons provided under Chapter-VIII of the Act, 1995.
11. Now, coming to claim of the petitioner with regard to imposition of punishment by the Disciplinary Authority that too for non-observance of Rules and Regulation governing Railway Authority involving a disabled person being a matter of consideration by the State Commissioner under the PWD Act this Court takes into consideration the decisions of the Hon'ble Apex Court cited by the petitioner in the cases of Buckingham and Carnatic Co. Ltd. vrs. Venkatiah and another, reported 15 in AIR 1964 S.C. 1272, Union of India and others vrs. Dinanath Shantaram Karekar and others, reported in AIR 1998 S.C. 2722, Union of India and another vrs. S.S. Ahluwalia, reported in (2007) 7 SCC 257 and Union of India and others vrs. S.K. Kapoor, reported in (2011) 4 SCC 589. For the decisions not dealing with the propositions advanced by the petitioner as to whether under the contingency the petitioner will be required to move the State Commissioner under the PWD Act or the Central Administrative Tribunal, none of these decisions have any application to the case at hand.
12. Now, coming to the other decision cited at Bar in the case of Anil Kumar Mahajan vrs. Union of India through Secretary, ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi and others, reported in (2013) 7 SCC 243, wherein the question involved before the Hon'ble Apex Court was "whether the punishment imposed therein was in terms of the provision contained in Section 47 of the PWD Act ?" and there involved no question as to "whether the petitioner under the circumstance should approach the State Commissioner under the PWD Act or not ?" On the other hand, reading of the aforesaid decision, this Court observes, the matter involved there involving disposal of 16 an original application before the Central Administrative Tribunal, therefore, this case has also no application to the case at hand.
13. In the case of Geetaben Ratilal Patel vrs. District Primary Education Officer, reported in (2013) 7 SCC 182. This case involved the competency of the Commissioner in the matter of declaration of the dismissal involving the petitioner therein. The Hon'ble Apex Court while considering the jurisdiction of the Commissioner to set-aside the order of dismissal, in paragraphs-15 and 20 held as follows :-
"15. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act was enacted in 1995 to meet the following object and reasons:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create a barrier-free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits vis-à-vis non-disabled persons;
(iv) to counteract any situation of abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of persons with disabilities into the social mainstream.
20. The provisions of Sections 47 and 62 of the Act, when read together, empower the Commissioner to look into the complaint with respect to the matters 17 relating to deprivation of rights of persons with disabilities and non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions issued by the appropriate Governments or local authorities and to take up the matter with the appropriate authorities for the welfare and protection of rights of persons with disabilities including matters relating to dispensation with service or reduction in rank. The power of the Commissioner "to look into the complaints with respect to the matters relating to deprivation of rights" as provided under Section 62 of the Act is not an empty formality and the Commissioner is required to apply his mind on the question raised by the complainant to find out the truth behind the complaint. If so necessary, the Commissioner may suo motu inquire into the matter and/or after giving notice, hearing the parties concerned and going through the records may decide the complaint. If it comes to the notice of the Commissioner that a person with disability has been deprived of his rights or that the authorities have flouted any law, rule, guideline, instruction, etc. issued by the appropriate Government or local authorities, the Commissioner is required to take up the matter with the appropriate authority to ensure restoration of rights of such disabled person and/or to implement the law, rule, guideline, instruction if not followed. A complaint may be made by any disabled person himself or any person on behalf of disabled persons or by any person in the interest of disabled persons. Thus the issue as involved is decided affirmatively in favour of the appellant and against the respondent."
14. Reading of the aforesaid decision, this Court finds, the Hon'ble Apex Court taking into account the provisions at Section 47 of the PWD Act as well as Section 62 of the PWD Act clearly observed that the Commissioner is competent to take a decision on the order of dismissal or otherwise. This Court 18 finds, the petitioner has the support of this decision of the Hon'ble Apex Court.
15. For the observations made hereinabove and for this Court finding the petitioner has the support of the decision of the Hon'ble Apex Court in the case of Geetaben Ratilal Patel (supra), this Court while declining to interfere in the order of the Disciplinary Authority, the Appellate Authority, the Revisional Authority and the Reviewing Authority for the requirement of consideration of the same by the competent authority, but however while observing that the State Commissioner has the jurisdiction to deal with the aspects involved herein following the decision of the Hon'ble Apex Court in the case of Geetaben Ratilal Patel (supra), interfering in the order of the State Commissioner for Persons with Disabilities dated 20.09.2016 available at Annexure-30, setting aside the order at Annexure-30 this Court remands the matter back to the State Commissioner for Persons with Disabilities, Orissa, Bhubaneswar to have a re-look to the complaint raised by the petitioner and take a lawful decision involving the issues therein and giving opportunity of the material evidence as well as hearing to all the parties concerned. Let the entire exercise, indicated herein above, be concluded by the State 19 Commissioner within a period of six months from the date of production / communication of this order by the petitioner.
16. This writ petition stands disposed of with the aforesaid observation and direction. There shall be no order as to costs.
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Biswanath Rath, J.
Orissa High Court, Cuttack, The 3rd day of January, 2018 /MRS