Central Administrative Tribunal - Cuttack
Kailash Chandra Mohantta vs M/O Railways on 26 July, 2019
1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 27 of 2014 Present: Hon'ble Mr.Gokul Chandra Pati, Member (A) Hon'ble Mr. Swarup Kumar Mishra, Member (J) Kailash Chandra Mahanta, aged about 39 years, S/o Nakula Charan Mahanta, resident of Titilagarh, Dist. - Bolangir, at present working as Loco Pilot Goods Grade-II in the Loco Booking Office, East Coast Railway, Titilagarh, Dist. - Bolangir.
......Applicant VERSUS
1. Union of India represented through General Manager, East Coast Railway, Chandrasekharpur, Bhubaneswar, Dist. - Khurda.
2. Divisional Railway Manager, East Coast Railway, Sambalpur Division, At/PO-Modipada, Dist. - Sambalpur.
3. Sr. Divisional Mechanical Engineer, East Coast Railway, Sambalpur Division, At/PO-Modipada, Dist. - Sambalpur.
4. Divisional Railway Manager, (Personnel), East Coast Railway, Sambalpur Division, At/PO-Modipada, Dist. - Sambalpur.
......Respondents.
For the applicant : Mr.K.Mohanty, counsel
Mr.S.Das, counsel
For the respondents: Mr.D.K.Mohanty-A, counsel
Heard & reserved on : 19.7.2019 Order on : 26.7.2019
O R D E R
Per Mr. Gokul Chandra Pati, Member (A)
The relief sought by the applicant in this OA are as under :
"(i) Admit the Original Application;
(ii) Call for the records.
(iii) Quash the impugned order dt. 6.1.2014 under Annexure-3 and declare the same as illegal, arbitrary and not sustainable in the eye of law;
(iv) And further be pleased to declare the impugned order dt. 6.1.2014 under Annexure-3 is contrary to the provision provided under Section-47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995 and to the amendment brought to the IREM Vol-I vide RBE No. 89/99;
(v) Direct the Railway Authorities to post the applicant in a suitable alternative post except the post of Power Controller/Crew Controller carrying similar scale of pay and service benefit in terms of the amendment brought to the IREM Vol-I vide RBE No. 89/99;
(vi) This Hon'ble Tribunal further be pleased to pass similar order as has been passed in case of Bibutibhusan Padhiary -vs- UOI (OA No. 434 of 2008) an Suresh Chandra Swain -vs- UOI (OA No. 132 of 2007) which was subsequently upheld/confirmed by Hon'ble High Court of Orissa in WP(C) No. 2826 of 2010.
2(vii) And also pass any other appropriate order(s)/direction(s) as this Hon'ble Tribunal may deems fit and proper keeping in view the fact and circumstances of the case."
2. In this OA, the applicant was a Loco Pilot Goods when he was medically de-categorised and then he was given an alternative posting of Crew Controller/Power Controller (in short CC/PC). The applicant has challenged the order dated 6.1.2014 by which he was posted as CC/PC. The applicant in the OA has cited the judgment of this Tribunal in OA No. 434/2008 vide order dated 1.5.2009, in which the similarly situated applicant was allowed the relief and the respondent-Railways were directed to consider alternative posting of the applicants to posts other than CC/PC.
3. The applicant's counsel in OA No. 27/2014 has argued that the post of CC/PC is not existent as it has been abolished vide RBE No. 9/98 and since as per Para 1301 (Annexure -4), the applicant is to be shifted to an alternative post, the respondents cannot post him as CC/PC.
4. The respondents have opposed the contentions in the OA stating that the post of CC/PC is not abolished, but it is merged in the Running Staff cadre as per the RBE No. 9/98. It is further stated that the post of CC/PC cannot be treated as ex-cadre posts it is merged with the cadre of running staff.
5. We have heard learned counsel for the applicant. He filed a copy of the order dated 1.5.2009 of this Tribunal in OA No. 434/2008 and a copy of the order dated 28.9.2011 of Hon'ble High Court in which order dated 13.11.2009 of the Tribunal in OA No. 134/2007 with similar facts and circumstances, has been upheld by Hon'ble High Court. In OA No. 434/2008, the applicant while working as a Loco Pilot-II (Goods), was medically de-categorised and he was given alternative post as CC/PC, which was challenged in the said OA on the grounds identical to the grounds taken in the present OAs before us. Tribunal, referred to the order dated 3.1.2008 passed in OA No.715/2006 and held as under :
"In view of the above, we have no hesitation in our mind to hold that the order dated 12.8.2008 is not sustainable,. Hence the same is hereby quashed. As a result, the respondents are directed to post the applicant in a suitable alternative post except the Power Controller/Crew Controller and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.I and section 47 of Act 1 of 1996. The entire exercise shall be completed within a period of 60 (sixty) days from the date of receipt of this order. In the result, this OA stands allowed in the afore-stated terms. No costs."
6. Perusal of the order dated 3.1.2008 of this Tribunal in OA No. 715/2006 and OA No. 911/2006, it is noticed that the Tribunal has not held in the said order that the post of CC/PC is not an appropriate post for adjusting a medically decategorized Loco Pilot. The applicant in that OA was at first 3 adjusted as CTI-II and this post was accepted by the applicant. But later on, the respondents cancelled such post and ordered the applicant to look after Crew Controller duties without absorption, which was held to be unsustainable. In para 30 of the order dated 3.1.2008, it is observed that "The service of the applicant was utilized to look after Crew Controller duties without absorption which violates Rule 1305 of IREM...".
7. the applicant's counsel relies on the circular RBE No. 9/98 to argue that the post of CC/PC was abolished by the said circular, which states as under
(vide para 2 of the circular) :
"From the reports received from some of Zonal Railways, it was observed that certain difficulties are being faced by them in filling up the said posts as the selected drivers have to initially work as Crew Controllers/Power Controllers causing drop in emoluments. The matter was raised by the Staff sided also in the PNM & JCM fora. In the light of the above, Railway Board have further considered the matter in consultation with the recognised Federations viz. AIRF & NFIR and have decided to modify the scheme dt. 25.11.92 as under:
(a) The cadre of Power/Crew Controllers with distinct scales of pay will be abolished. Thus Loco Running Supervisors will consist of only Loco Inspectors. The number of posts, as existing on the date of issue of these orders, in the cadre of Power Controllers and Crew Controllers including posts of Chief Power/Crew Controllers, will be added to the cadre of Drivers (Para (K) below may also be referred to).
(b) To perform the duties hitherto being performed by Power/Crew Controllers in the Control Office or ion the place where the Crew Controllers were headquartered, eligible and suitable Mail/Express Drivers, Sr. Passenger/Passenger Drivers and Sr.Goods/Goods Drivers will be drafted.
(c) Such drafting, as stated in (b) above, will be done from those Drivers who apply for the same in response to notification on the basis of a screening to be done by the Officer controlling the motive power of the Division,. Seniority will not be the criteria for such drafting.
(d) Drivers drafted to perform such duties will be eligible for payment of allowance in lieu of kilometreage of 120 kms per day at the rates applicable to them, even if posted at their Headquarters. Such staff would not be eligible to claim TA/DA and Special Pay.
(e) Drivers so drafted will continue to progress in the Running cadre and will be subjected to all the terms and conditions of service as applicable to Running Staff, including pay and allowances, periodical medical examination, selections/suitability tests, etc.
(f) The tenure of posting of such Running Staff drafted to perform the duties of Power/Crew Controllers will be three years with a cooling off period of equal duration.
(g) Medically decategorized drivers will be eligible to be drafted to perform the duties of Power/Crew Controllers. In their case, the tenure rule of three years under Para (f) above will not be applicable. However, if their performance is not found satisfactory, in addition to action under D&AR as they cannot go back to Running duties, they will be considered for alternative jobs following the rules applicable to medically decategorized employees.
(h) Suitable and senior drivers drafted will be designated as Chief Power Crew Controllers.
(i) The existing regularly selected Power Controllers and Crew Controllers under the scheme dt. 25.11.92, effective from 1.1.93 will continue to be in the existing pay scales and will progressively be posted as Loco Inspectors in accordance with the scheme contained in the letter dt. 25.11.92.
(j) When a driver is drafted to work in the Control Office, the vacancy caused will be filled up in the appropriate grade.4
(k) As and when an existing regularly selected Power/Crew Controller vacates his post, the same will be added with the cadre of Drivers, as outlined in para (a) above.
(l) The Drivers drafted to perform the duties hitherto being performed by Power/Crew Controllers will not be eligible to be posted as Loco Inspectors or to any benefit specifically admissible to the Loco Inspectors, Power Controllers or Crew Controllers under the scheme of 25.11.92.
(m) There will be no change either in the eligibility conditions or any other benefit etc. in regard to the Loco Inspectors who will continue to be governed by the extant orders.
(n) The leave reserve for the number of posts of drivers equal to the existing number of Power/Crew Controllers will be worked out as per normal percentages and not at the higher percentage applicable to Drivers."
8. It is seen from above that the cadre of CC/PC has been merged with the running cadre of Loco Pilots/Drivers and although the service conditions for the deployed staffs as CC/PC have been specified in RBE No. 9/98, but there is no specific provision for promotion for medically decategorized staffs posted as CC/PC in the said circular. It is not clear from the documents produced before us if by posting the applicant as CC/PC, he will have similar promotional facilities to which he is entitled as per the rules.
9. At the time of hearing the OA, learned counsel was requested to obtain instructions from the respondents if the order of the Tribunal dated 1.5.2009 in OA No. 434 of 2008, cited by the applicant's counsel will be applicable to the present case. On instructions from the respondents, it was submitted by the respondents' counsel that the order dated 1.5.2009 will be applicable to the present applicant also.
10. In view of the above discussions, the respondents are directed to re- consider the issue of the alternative posting of the applicant after medical decategorisation as per provisions of law taking into account the order dated 1.5.2009 of this Tribunal in OA No. 434/2008 and take an appropriate decision as per the provisions of law and inform the applicant within four months from the date of receipt of a copy of this order.
11. The OA is allowed in part as above with no order as to costs.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI)
MEMBER (J) MEMBER (A)
I.Nath
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