Central Administrative Tribunal - Allahabad
Shyam Charan Saini vs Union Of India on 6 November, 2008
OPEN COURT CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH : ALLAHABAD ORIGINAL APPLICATION NO.1554 OF 2003 ALLAHABAD THIS THE 6TH DAY OF NOVEMBER 2008 HON'BLE MR. JUSTICE A. K. YOG, MEMBER-J Shyam Charan Saini, aged about 49 years, Son of Sri Ram Prasad, Resident of Bhogpur, Mithauni, Chandra Nagar, Moradabad-(U.P.), (Previously working as Valveman under I.O.M., Northern Railway at Harthala, Moradabad but Medically decategorised in 1988). . . . . . . . . .Applicant By Advocate : Shri Shyamal Narain Versus 1. Union of India, through the General Manager, Northern Railway, New Delhi. 2. The Divisional Railway Manager, Northern Railway, Moradabad Division, Moradabad. 3. The Chief Personnel Officer, Northern Railway, Baroda House, New Delhi. . . . . . . . . . Respondents By Advocate : Shri P. Mathur O R D E R
1. Heard Shri Shyamal Narain Advocate, representing the applicant and Shri P. Mathur Advocate, appearing on behalf of the respondents.
2. According to para 4(i) applicant was appointed as permanent employee on the post of Valveman under Northern Railway in the year 1978. However, in his representation dated 09.06.1997/Annexure-4 to the OA, he was appointed as Khallasi under IOW/Herthala on 16.01.1979.
3. However in counter affidavit filed by the respondents, averments of OA para 4(i) have been denied. According to it the applicant was engaged as Temporary DCL Valveman on 16.01.1979 (see para 3-(a) of CA). Unfortunately, no reliance can be placed on averments made in counter and no reliance can be placed upon them-Para 3 has several sub paras. In swearing clause para 3 of counter affidavit has been sworn in two paras initially Part of para has been sworn on the basis of 'record' while part of Para 3 of counter affidavit has been verified/sworn on the basis of legal advice; there is no indication which part of para 3 counter affidavit is sworn on the basis of 'record' and which part of it on the basis of legal advise. Averments contained in para 3 have no evidentiary value (in absence of proper swearing).
4. Further respondents have failed to file relevant orders/documents in support of vital facts-necessary to decide the issues arising for the pleadings on record; even though they are supposed to be in their possession. In normal course of official business relevant records, namely Service Book/ Register having entries showing 'status' of the applicant at relevant time namely in 1986 (when he received injury) and in 1988-when he was declared 'medically unfit'.
5. Applicant has filed copy of certificate dated 17.11.1988 (Annexure A-1 to the OA) issued from Medical Department, Northern Railway recommending for alternate employment and places reliance on other documents annexed with the OA. Annexure A-3 to the OA is an application by the applicant addressed to DRM (Personal), Northern Railway, Moradabad requesting for a 'light job' considering his medical de-categorization. Accordingly to him he approached respondent-authorities personally and submitted written representations. Respondents denyed receipt of representations as alleged by the applicant-but vide para 12 of the counter reply, admit that they had received representation dated 09.06.1997. Copy of said representation dated 09.06.1997 is Annexure A-4 to the OA. According to the Respondent-(as contended in (A)-efforts were made and possibility explored to give alternative job-As to Applicant as well as his request to give 'compassionate appointment' to his son.
6. The defence of the respondents is two fold. One the applicant was a Casual Labour (Temporary status) and hence he was required to get himself registered in view of letter dated 25.06.2002 (Annexure-8 to the OA). Through this letter applicant was required to get himself registered as casual labour (temporary status) with Special Employment Exchange meant on the basis of departmental instructions dated 04.09.1990. The respondent authorities committed a grave error in applying said instruction dated 04.09.1990 in the case of applicant as it did not apply to his case-pertaining to 1986/1988. Case of the applicant deserved to be dealt with under Rules/Instructions/Circulars if any, which prevailed in the year 1986 and 1988. Secondly request of the applicant (for giving compassionate appointment to his son) has been cryptically dealt with. Defence of the respondents cannot be accepted as it runs contrary to their own case in counter-reply that applicant being a Casual Labour (Temporary status) is not entitled to alternative job and it was agreed not to consider other request of compassionate appointment to his son. This stand, taken by the respondents is contrary to their own stand of 'exploring possibility' in this respect. Learned counsel for the applicant refers to para 18 of the rejoinder affidavit and also placed Photostat copies of certain instructions dated 18.01.2000 and 02.11.2006. Since they are not part of record, no final decision can be given on that basis. Prima-facie there is nothing in these instructions to show that it provide no 'cut of date'; so as to exclude the case of the Applicant's son. I find that case of the applicant has not been dealt with in accordance with law and the authorities have acted under 'misapprehension'.
7. In view of it, I direct the applicant to file a comprehensive parawise representation (referring to specific rules/instructions) upon which he refers to place reliance for his claim for alternative reliefs. before 'Divisional Railway Manager, Northern Railway, Moradabad Division, Moradabad, within six weeks and the said Authority, (provided representation along with certified copy of the order is filed as stipulated above), shall decide the same with in a period of three months (from the date of receipt of the representation and certified copy of this order as indicated in this order) by passing a reasoned/speaking order-with reference to Rules/instructions on the subject. It is further made clear that the concerned authority, while deciding representation (in pursuance of this order) shall decide the same exercising his unfettered discretion without being influenced by any of the observation made in this order.
8. OA is allowed by mounding the reliefs (claimed in the OA) to the extent indicated above. No Costs.
(JUSTICE A. K. YOG) Member-A /ns/ 5