Central Administrative Tribunal - Bangalore
Nishar Ahamad M Inamdar vs South Western Railway on 26 July, 2023
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OA.No.170/00266/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00266/2022
DATED THIS THE 26TH DAY OF JULY, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Nishar Ahamad M Inamdar
S/o Shri Mainuddin
Aged about 51 years
Rtd Senior Record Sorter
Commercial Department
S.W. Railway,
Hubballi 580 020 .... Applicant
(By Shri K. Shivakumar, Advocate)
Vs.
1. Union of India
Rep. by General Manager,
S.W. Railway
Gadag Road,
Hubballi 580 020
2. Senior Divisional Personnel Officer/co-ord
South Western Railway,
Divisional Office
Hubballi 580 020 ...Respondents
(By Shri H.R. Sreedhara, ACGSC)
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OA.No.170/00266/2022/CAT/BANGALORE
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Call for the records and quash the letter No. H/P.268/1/09/21/88/NAMI dated 06.05.2022 (Annexure- A5) as the same is in contravention to the orders of the Railway Board;
(ii) Order the Respondents to grant appointment to the son of the applicant Sri Md. Wasim N. Inamdar in the post to which he is found eligible/suitable and
(iii) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that he was working as Senior Record Sorter in Commercial Department of South Western Railway, Hubli Division and he was declared unfit to perform the duties of the said job by the railway medical authorities on 30.01.2021. Further to that, he was kept under supernumerary post to find out alternative employment. As the applicant's health condition did not permit to do any kind of job, no alternative appointment could be found for him by the respondents, he was declared unfit for all categories of posts in 3 OA.No.170/00266/2022/CAT/BANGALORE Indian Railways as per Memorandum dated 13.08.2021. It appears the applicant decided to take voluntary retirement so that he can seek appointment to his son on compassionate grounds as the applicant was the only breadwinner of the family. His voluntary retirement request was accepted with effect from 18.08.2021 and settlement dues were paid to him but his request for compassionate appointment to his son was turned down by the respondents on 06.05.2022 without assigning any reason. Being aggrieved, the applicant has preferred this OA.
3. Learned counsel Shri K Shivakumar, placing reliance on Railway Board Circular RBE No. 08/2000 dated 18.01.2000 (Annexure-A6) and RBE No. 78/2006 dated 14.06.2006 (Annexure-A7), submitted that in cases where an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement and, in such cases, request for appointment on compassionate appointment to an eligible ward may be considered. Despite the said instructions reiterated by the Railway Board's Circulars, the respondents without assigning any reason, much less valid reason, have rejected the request of the applicant. 4
OA.No.170/00266/2022/CAT/BANGALORE
4. Learned counsel Shri H.R. Sreedhara representing respondents invited attention of the Bench to the Corrigendum dated 30.09.2021 issued by the South Western Railway (Annexure-R1). Learned counsel submitted that the said Corrigendum was issued to the Office Memorandum dated 13.08.2021. The first para of the Memorandum dated 13.08.2021 has been replaced and the same reads that Shri Nisharahmad M Inamdar, General Assistant (Senior Record Sorter) Sr.DCM/O/UBL, Level-1 (Level-3 under MACP) of 7th PC Pay Matrix, General Administration Department is declared "UNFIT FOR PRESENT JOB AS SENIOR RECORD SORTER AND FIT FOR JOB where he can sit in one place and do the work, in Group C, in Cee One (C-1) and below medical category with glasses for DV and NV". Hence, the applicant is not covered by Para 4 (a) and (b) of RBE No. 78/2006. The applicant has placed on record Annexure-A3 Memorandum dated 13.08.2021, suppressing the Corrigendum issued to the said order. Corrigendum was issued to set right the mistake crept in Annexure-A3 which was nothing but a typographical error.
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5. Learned counsel further referring to the letter of the applicant dated 22.02.2021 addressed to Sr.DPO/UBL and Screening Committee submitted that the applicant declining the alternative post, opted to retire voluntarily on medical grounds. Medical certificate and the decision of the Screening Committee would disclose that the applicant was unfit for the job of Senior Record Sorter and was fit for alternative job, hence, the applicant's case would come under Para 4 of RBE No. 08/2000 and thus, not entitled to the benefit of appointment on compassionate grounds to ward.
6. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.
7. The issue involved herein revolves around the Corrigendum dated 30.09.2021 issued to the first para of the Office Memorandum dated 13.08.2021.
8. Firstly, it would be apt to understand the meaning of the word "corrigendum". The word "corrigendum" is stated to have been derived from a Latin word "corrigere" which means "to 6 OA.No.170/00266/2022/CAT/BANGALORE correct". In terms of Cambridge dictionary, "corrigendum" means "a mistake in a printed text that needs to be corrected." In "Oxford Advanced Learner's Dictionary" Seventh Edition at page 343 word "corrigendum" is defined "something to be corrected, especially a mistake in a printed book". In "The Concise English Dictionary", 1982 Edition, page 253 meaning of "corrigendum" is "an error needing correction, esp. in a book". In Black's Law Dictionary, Eighth Edition, at page 370, meaning of "corrigendum" is, "an error in a printed work discovered after the work has gone to press".
9. It is settled law that a corrigendum to an order can be issued only to correct a typographical/arithmetical error or omission. It can neither take away the vested right of a person nor can it have the effect of nullifying the rights of persons conferred under the original order.
10. The relevant paragraphs of the Memorandum dated 13.08.2021 and the Corrigendum dated 30.09.2021 are extracted hereunder for ready reference.
I) Memorandum dated 13.08.2021 (Annexure-A3): 7
OA.No.170/00266/2022/CAT/BANGALORE "Shri Nisharahmad M Inadar, Sr. Record Sorter Sr.DCM/O/UBL (PF No. 06432323), in Level-6 (Level-7 under MACP) of 7th PC Pay Matrix he has been declared medically unfit for all categories of Indian Railway Service in Commercial Department; vide medical certificate No. 149/2020 dtd: 30.01.2021 (wrongly typed as 30.01.2020) issued by CMS (Medical Exam)/SWR/UBL. Accordingly, in terms of Railway Board's instructions contained in letter No. F(NG)96/REF/9(2) dated 24.09.1999, one special supernumerary post in the pay in Level-6 (Level-7 under MACP) of 7th PC Pay Matrix was created at Sr.DCM/O/UBL with effect from 30.01.2021, vide this office memorandum issued under letter No. H/P.578/VIII/Genl Admin/Vol.I dated: 02.02.2021.
The above named employee requested for Voluntary retirement from service, on medical grounds, vide his application dated 04.03.2021. Approval of the Competent Authority is hereby communicated for acceptance of the request of Shri Nisharahmad M Inadar, Sr. Record Sorter, Sr.DCM/O/UBL (PF No. 06432323), with effect from 18.08.2021. Accordingly, the employee will retire voluntarily, on medical grounds with EFFECT FROM 18.08.2021." II) Corrigendum dated 30.09.2021 (Annexure-R1):
"Shri Nisharahmad M Inamdar, General Assistant (Senior Record Sorter) Sr.DCM/O/UBL, Level-1 (Level-3 under MACP) of 7th PC Pay Matrix, General Administration Department is declared "UNFIT FOR PRESENT JOB AS SENIOR RECORD SORTER AND FIT FOR JOB where he can sit in one place and do the work, in Group-C, in Cee One (C-1) and below medical category with glasses for DV and NV" vide certificate, CMS/UBL L. No. AEMG No. 149/2020 dtd:
30.01.2021 (wrongly typed as 30.01.2020) issued by CMS (Medical Exams)/SWR/UBL."8
OA.No.170/00266/2022/CAT/BANGALORE
11. A bare reading of this Corrigendum indicates that it is not a mere correction of the error apparent but it changes the nature of the order. It is nothing but "change of opinion" of the respondents after giving effect to the request of the applicant for voluntary retirement with effect from 18.08.2021. In terms of Para 3 of RBE No. 08/2000 (Annexure-A6), the applicant was eligible to seek appointment on compassionate ground to an eligible ward, being declared medically unfit for all categories of Indian Railway Service in Commercial Department as per Annexure-A3 dated 13.08.2021. Under the guise of Corrigendum, that benefit cannot be nullified/withdrawn declaring the applicant unfit for present job as Senior Record Sorter and fit for job where he can sit in one place and do the work. Moreover, the said order dated 13.08.2021 is not withdrawn/replaced in toto. The applicant was made to understand that he is eligible to the benefit flowing from Para 3 of Annexure- A6 and after he taking voluntary retirement and seeking for appointment on compassionate ground to his son, his position cannot be altered from Para 3 to Para 4 of RBE No. 08/2000 (Annexure-A6). It makes a sea change for an employee and the employer is estopped from taking a different version subsequent to 9 OA.No.170/00266/2022/CAT/BANGALORE the voluntary retirement of an employee which adversely affects the rights of the employee.
12. In our considered view, Annexure-R1 Corrigendum is totally unjustifiable and no weightage could be given to the said document. This being the basis for the respondents for denying the request/application of the applicant seeking for compassionate appointment to his son, as stated in the reply statement and argued by the learned counsel for the respondents (as no reasons are assigned in the impugned order), the application must succeed. The legal maxim 'Sublato fundamento, cadit opus' is squarely applicable to the facts of the present case. As the basis being the Corrigendum dated 30.09.2021, the same being held to be unjustifiable, the edifice built on it must fall.
13. The impugned order dated 06.05.2022 (Annexure-A5) has been issued in response to the request made by the applicant for appointment on compassionate grounds to his son Shri Md. Wasim Inamdar. The said order reads thus:
"In connection with the above and in response to your representation dated 20.09.2021, it is informed that Competent 10 OA.No.170/00266/2022/CAT/BANGALORE Authority has not agreed to your request of compassionate grounds appointment in favour of your son Shri Md. Wasim Inamdar."
14. It is ex-facie apparent that the impugned order is cryptic and non-speaking, suffers from legal infirmities.
15. We are of the considered view that without any hesitation this impugned order/reply could be declared as non est in the eye of law for want of reasons. It is well-settled that analysis of decision making process would be more relevant rather than the decision in exercising the power of judicial review. It is well-settled that reasons introduce clarity in an order. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. One of the salutary requirements of natural justice is recording reasons for the decision taken. It is beneficial to refer to the judgment of the Hon'ble Apex Court in Raj Kishore Jha v. State of Bihar, (2003) 11 SCC 519, wherein the Hon'ble Apex Court observed that the reason is the heartbeat of every conclusion, and without the same, it becomes lifeless. 11
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16. For the reasons aforesaid, the impugned order dated 06.05.2022 (Annexure-A5) is set aside and the matter is restored to the file of the Respondent No. 2 to reconsider the matter in accordance with law and to pass an appropriate reasoned and speaking order, keeping in mind the observations made hereinabove without being influenced by Annexure-R1.
17. Compliance shall be made in an expedite manner, in any event, not later than eight weeks from the date of receipt of the certified copy of this order.
18. Resultantly, OA stands allowed to the extent indicated above. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/