Kerala High Court
Union Of India Represented By vs Fancy Babu on 5 February, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY, THE 25TH DAY OF AUGUST 2014/3RD BHADRA, 1936
WP(C).No. 15871 of 2010 (Z)
----------------------------
AGAINST THE ORDER/JUDGMENT IN OA 49/2009 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 05-02-2010
PETITIONERS:
---------------
1. UNION OF INDIA REPRESENTED BY
THE GENERAL MANGER, SOUTHERN RAILWAY, CHENNAI-3.
2. THE SENIOR DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, PALGHAT.
3. THE DIVISIONAL FINANCE MANGER,
SOUTHERN RAILWAY, PALGHAT.
BY ADV. SRI.TOJAN J.VATHIKULAM,SC,RAILWAYS
RESPONDENT:
----------------
FANCY BABU, W/O. BABU THOMAS,
(EX.SR.CLERK, PALGHAT DIVISION, SOUTHERN RAILWAY)
RESIDING AT MUTTATHUPADAM HOUSE, GANDHI NAGAR P.O.,
KOTTAYAM 686 008.
R,R1 BY ADV. SRI.MARTIN G.THOTTAN
R,R1 BY ADV. SRI.M.P.VARKEY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 15871 of 2010 (Z)
: 2 :
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1: TRUE COPY OF O.A NO. 49/2009 ALONG WITH ANNEXURES OF
CAT/ERNAKULAM.
EXT.P2: TRUE COPY OF REPLY STATEMENT IN O.A. NO. 49/2009 OF
CAT/ERNAKULAM.
EXT.P3: TRUE COPY OF REJOINDER IN O.A NO. 49/2009 OF CAT/ERNAKULAM.
EXT.P4: TRUE COPY OF ADDL REPLY STATEMENT OF REJOINDER IN OA NO.
49/2009 OF CAT/ERNAKULAM.
EXT.P5: TRUE COPY OF ADDL. REJOINDER IN O.A NO. 49/2009 OF
CAT/ERNAKULAM.
EXT.P6: TRUE COPY OF 2ND ADDL. REPLY STATEMENT IN O.A NO. 49 OF 2009 OF
CAT/ERNAKULAM.
EXT.P7: TRUE COPY OF ORDER DATED 05.02.2010 OF CAT/ERNAKULAM IN O.A
NO. 49/2009.
RESPONDENTS' EXHIBITS:
EXT.R1: TRUE COPY OF THE DISCHARGE CARD IP NO.16690 DATED
02.05.98 ISSUED BY MEDICAL COLLEGE HOSPITAL, GANDINAGAR, KOTTAYAM.
EXT.R2: TRUE COPY OF THE CASE SUMMARY AND DISCHARGE RECORD
BEARING HOSPITAL NO.9803591 DATED 16.05.1998 ISSUED BY THE SREE
CHITRA TRIBUNAL INSTITUTE FOR MEDICAL SERVICES AND TECHNOLOGY,
TRIVANDRUM.
EXT.R3: TRUE COPY OF THE PRESCRIPTION MEMO NO.670 DATED
26.08.1998 MAINTAINED BY RAILWAY HEALTH UNIT, KOTTAYAM.
EXT.R4: TRUE COPY OF THE LETTER NO.J/MD/43/1/6 DATED 26.03.2001.
EXT.R5: TRUE COPY OF THE OFFICE ORDER O.O. NO.21/2006/WP DATED
02.02.2006.
/True Copy/
P.A. to Judge.
rv
ANTONY DOMINIC
&
DAMA SESHADRI NAIDU, JJ.
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W.P.(C) No. 15871 of 2010
------------------------------------
Dated this the 25th day of August, 2014.
JUDGMENT
Antony Dominic,J.
This writ petition is filed by the respondent in O.A. No. 49 of 2009 challenging the order dated 05.02.2010 passed by the Central Administrative Tribunal, Ernakulam. The respondent was a clerk in the Palakkad Division of Southern Railway. She became paraplegia due to spinal compression of spinal cord. She, therefore, made Annexure 4 application dated 02.02.2002 enclosing a medical certificate issued by a medical board of the Medical College Hospital, Kottayam, stating that she has been declared as medically unfit in all cases and stating that she desired to retire voluntarily. She also requested that her daughter Kumari Reshma Babu, aged 7 years may be considered for appointment on compassionate grounds.
2. Her application was eventually accepted and Annexure A5 order dated 15.02.2002 was issued by the Divisional Office of the Southern Railway terminating her from service from 15.02.2002. She was granted admissible invalid pension and the other benefits also. In the year 2009, she filed O.A. No. 49 of 2009 seeking the benefit of Section 47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995 and reinstatement in service. By Ext.P7 W.P.(C). No. 15871/2010 -2- order, the said OA was allowed by the Tribunal and she was ordered to be reinstated in service from the afternoon of 15.02.2002 and to give all consequential benefits. It is aggrieved by this order of the Tribunal that this writ petition is filed.
3. We heard the learned counsel for the petitioners and the learned counsel appearing for the respondent.
4. The learned counsel for the petitioners contended that despite the fact that Section 47 of the Act was in force and the rights that are created in favour of the disabled, this is a case where the respondent herself had voluntarily applied for retirement from service and at the request of the respondent her services were terminated with effect from 15.02.2002. It is stated that in such a case, the Tribunal could not have ordered her reinstatement as done in the impugned order. Though this argument of the counsel would sound attractive at the first blush, on a thorough examination, we are unable to accept it, particularly in the light of the principles laid down by the Apex Court in Bhagwan Dass v. Punjab Seb [2008 (1) SCC 579], which was rendered following the judgment in Kumal Singh v. Union of India [2003 (4) SCC 524].
5. Bagawan Dass (supra) was also a case where a disabled employee was retired from service on his own request. Subsequently, he had sought reinstatement in service relying on the provisions contained in Section 47 of the Act. This claim was examined by the Apex Court and it was held that W.P.(C). No. 15871/2010 -3- from 07.02.1996 when the Act was implemented, the disabled employee had the rights created under Section 47 of the Act to his advantage. According to the Apex Court, those advantages could not have been denied to a disabled employee, even if he had expressed his desire to retire from service on account of the disablement suffered. It was on that basis the Apex Court granted relief in that case.
6. Coming to the facts of the case of the respondent herein, she is also a similarly situated person and the Railway ought to have extended the benefit to her when she suffered the disability. It was not done and it was therefore that she had to make the application which led to her termination from service. Therefore, as held by the Apex Court in Bagawan Dass's case, the Railway could not take advantage of such an application made by a disabled employee under compelling circumstances arising out of the disablement. Viewed in that manner, we cannot find fault with the Tribunal for allowing OA. We do not find any illegality in the order of the Tribunal.
This writ petition is accordingly dismissed.
sd/- ANTONY DOMINIC, JUDGE.
sd/- DAMA SESHADRI NAIDU, JUDGE.
rv