Central Administrative Tribunal - Kolkata
Tapan Kumar Maji vs Eastern Railway on 22 November, 2022
1 OA 1756/2022 .
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4 . 1g 8 . fey § ann on ree Seen = As Looe. ne ' Lanne oe Date of Order: 22.11.2022 ' .Coram: Hon'ble Mr. Jayesh VY. Bhairavia, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member (1) 0.A./350/01756/2022 Tapan Kumar Maji, son of Manohar : Maji, aged about 42 years, Ex.
Constable, residing at Vill.-
Kankardanga, PO-. Burnpur, PS-
Hirapur, Paschim Burdwan, Pin-
713325.
(2) 0.A./350/01757/2022 _ Pranab Kumar, son of Bipin Kumar Singh, aged about, 34 years, Ex.
Constable, residing at Baghoria, PO- Sangrampur, PS- Belhar, District-
Banka, Bihar.
| ..... Applicants | Vs.
1. Union of India, service through the General Manager, Eastern Railway, Fairlie Place, Kolkata-
700001.
2. Principal Chief Personnel Officer, Eastern Railway, Fairlie Place, Kolkata-700001.
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s) 2 . ~ OA 1756/2022 3, _ Sr. Divisional Personnel Officer, Malda Division, Eastern Railway, PO + PS- Malda, District- Malda.
4. Divisional Security Commissioner, Eastern Railway, PO+PS-Malda, District-Malda.
sesteaees Respondents --
For The Applicant(s): Mr. A. Chakraborty, Counsel | For The Respondent(s): Mr. S. Paul, Counsel ORDER (ORAL Per: Hon'ble Dr. ( Ms.) Nandita Chatterjee, Administrative Member Aggrieved at being recommended for a lower grade post upon medical decategorisation, the applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following common relief:
"i) Office order no. E/WL/Med-Unfit/Policy/Pt-1 dated 31.08.2022 issued by respondent no. 3 in respect of the applicant cannot be --
sustained in the eye of law and same may be quashed.
ii) Office order dated 30.09.2022 by which decision of the competent authority was communicated to the applicant cannot be sustained -- and same may be quashed."
2. As common questions of facts and law govern these matters, these cases are being heard out analogously, to be disposed of by this common order at the admission stage, with the consent of both the parties.
3. Heard Learned counsel for both sides. 3 OA 1756/2022 () Examined documents and pleadings on record.
4. For the sake of brevity, facts in OA 350/01756/2022 are being delineated and discussed as hereunder :-
Learned Counsel for the applicant would submit that the applicant was working as a Constable in the Railway Protection Force, and, that he was posted at RPF/SCNL/MLDT in the grade pay of Rs. 2000/- which was further enhanced to Rs. 2400/- on account of MACP.
_ That, the applicant was sent for medical examination by the respondent Railway authorities, whereupon it was diagnosed that he was suffering from "CSR- both eyes with Macular Scar". It was opined that his visual condition is not fit in his oresent job as Constable due to disease from which he has been suffering. He "was fit in Medical Category Cey Two (C2) as per visual standard.
That, the applicant was recommended for appointment to the lower grade post in Housekeeping Assistant in Medical Department in Grade Pay of Rs. 1800/-
with all pay protection as admissible as per rules.
The main grievance of the applicant is that, despite a categorical diagnosis leading to his medical decategorisation, the authorities have violated the orovisions of RBE No. 89/99, particularly para 1301 thereof in not offering him a suitable alternative post at GP Rs. 2400/- in "C-2". And that, as no suitable alternative post in GP Rs. 2400/- was available , in violation of paras 1301 and 1303 of RBE No. 89/99, the applicant was offered a lower grade post with GP Rs.
1800/- with admissible pay protection.
The applicant thereafter expressed his unwillingness to joint at a lower grade post and prayed for a desk related job which, in his opinion would be hak 4 OA 1756/2022 oO suitable for him. His prayer was 'regretted vide a communication dated 30.09.2022 (annexed at Annexure-A/3'to the OA). Being aggrieved, the applicant has approached this Tribunal praying for the aforementioned relief.
Learned Counsel for the applicant would' also furnish in support, the judgment and orders of the Hon'ble High Court at Calcutta in WPCT 56 of 2021 :
(Bikash Roy vs. Union of India & Anr.) to highlight that "the employee. may not be aware of his rights created in a statutory document and may be forced to act which is prejudicial to his interest leading to denial of legitimate claim", and, that, reference is made to "the spirit of the said Manual, which clearly debars the posting of such medically decategorized staff to a lower post/rank as well as at the lower pay-scale".
5. Per contra, Learned Counsel for the respondents would submit that the applicant was offered a lower grade post with pay protection as because suitable . alternative post in GP Rs. 2400/- in the category "C-2" was not available at the . material point of time and, that, the provisions of para 1301 and 1303 of RBE No. 89/99 have been duly complied with in the case of the instant applicant.
6. Having heard the rival contentions, this Tribunal would refer to the | contentions of RBE No. 89/99, particularly para 1301, which states as under :-
"1301. A Railway Servant who fails in a vision test or otherwise by virtue of disability | acquired during service becomes physically incapable of performing the duties of the post | which he occupies should not be dispensed with or reduced in rank, but should be shifted to | some other post with the same pay scale and service benefits." .
This Tribunal would also refer to para 1303 of the said RBE :-
"1303. The railway servants both in group {i) and group (ii) of para 1302 above cease to perform the duties of the posts they are holding from the date they are declared medically unfit for the present post. No officer has the authority to permit the Railway Servant concerned to perform the duties in the post beyond that date. If such a Railway Servant hee 5 OA 1756/2022 cannot be immediately adjusted against or absorbed in any suitable alternative post he may be kept on a special supernumerary post in the grade in which the concerned employee was working on regular basis before being declared medically unfit pending location of suitable alternative employment for him with the same pay scale and service benefits; efforts to locate suitable alternative employment starting immediately. The special supernumerary post so created will stand abolished as soon as the alternative employment is located."
Further, in para 1306 detailed steps have been laid down as how to ascertain an alternative employment for a medically decategorised employee.
7. _ In their regret letter dated 30.09.2022, the authorities have not revealed or disclosed their minds as to the specific steps that they had taken to comply 'with para 1306 to find an alternative employment for the instant applicant. In this 'context, the Hon'ble Apex Court, while adjudicating in the matter of Rakeshbhai Jayantilal Patel vs. State of Gujarat in R/Special Civil Application No. 16195 of 2020, had ruled as follows :-
"if the administrative officers having a duty to act judicially are required to set forth in writing the mental processes of reasoning which have led them to the decision, it would to a large extent help to ensure performance of the duty to act judicially and exclude arbitrariness and caprice in the discharge of their functions. The public should not be deprived of this only safeguard.
4. Another reason of equal cogency which weighs with us in spelling out the necessity for giving reasons is based on the power of judicial review which is possessed by the High Court under Article 226 and the Supreme Court under Article 32. The High Court under Article 226 and the Supreme Court under Article 32 have the power to quash by certiorari a quasi- judicial order made by an administrative officer and this power of review exercisable by issue of certiorari can be effectively exercised only if the order is a speaking order and reasons are given in support of it. If no reasons are given, it would not be possible for the High court or the Supreme Court exercising its power of judicial review to examine whether the administrative officer has made any error of law in making the order. It. would be the easiest thing for an administrative officer to avoid judicial scrutiny and correction by omitting to give reasons in support of his order. The High Court and the Supreme Court would be powerless to interfere so as to keep the administrative officer within the limits of the law. The result would be that the power of judicial reyiew would be stultified and no redress being available to the citizen, there would be insidious encouragement to C/SCA/16195/2020 ORDER arbitrariness and caprice. The power of judicial review is a necessary concomitant of the rule of law and if judicial review is to be made an effective instrument for maintenance of the rule of law, it is necessary that administrative officers discharging quasijudicial functions must be required to give reasons in support of their orders so that they can be subject to judicial scrutiny and correction.
mA 6 -OA 1756/2022 14, in view of the aforesaid settled legal position, by no stretch of imagination, it can be said that the impugned order passed by respondent no. |! would satisfy any of the criteria prescribed in the aforesaid decisions as the impugned order on face of it, is not a speaking -- and reasoned order and therefore, without going into the merits of the case, the impugned order dated 23.12.2020 passed by respondent no.1 is required to quashed and set aside by remanding the matter back to respondent no.1 to pass a reasoned speaking order keeping in mind the aforesaid legal position."
Further, the ratio contained in the Hon'ble Apex Court's decision jin Assistant Commissioner, Commercial Tax Department, Works. Contract and Leasing, Kota vs. Shukla and Brothers [(2010) 4 SCC 785] and Union of India & Ors. vs. Essel Mining & Industries Ltd. & Anr. [(2005) 6 SCC 675] also highlight that reasons form the very backbone of any order, bereft of which, an order is meaningless.
Hence, reasons being the sine qua non of any order, whether affirmative or otherwise, the cryptic regret order dated 30.09.2022 is hereby quashed and set aside.
8. We also infer that the conditions at para 1301, namely, that the medically decategorised employees should .be shifted to the same pay and pay scale benefits has not been adhered to in its true letter and spirit by the authorities. Reference is also made to para 1304 which states as under :-
"Railway administrations should take care to ensure that the alternative employment offered is only in posts which the staff can adequately fill and as far as possible should broadly be in allied categories where their background and experience in earlier posts could be utilized."
Such alternative employment should hence be searched out and offered to the instant applicants within a period of 2 months from the date of receipt of a copy of this order. hat
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OA 1756/2022 Till such time that an alternative appointments are made available to them as per the provisions of RBE No. 89/99, the applicants should not be deprived of their rightful entitlements, failing which the provisions of para 1303 would apply.
9. With these directions, the instant OAs stand as disposed of. There will be no orders as to costs.
| "a (Dr. Nandita Chatterjee) Administrative Member sl . (Jayesh V. Bhairavia) Judicial Member