Central Administrative Tribunal - Mumbai
Nazia F M Shaikh C Rly vs M/O Railways on 6 December, 2018
'1 | i \%\ l 1 OA No-.749/2017 A CENTRAL ADMINISTRATIVE TRIBUNAL Mumax BENCH , Mvmm .
=mm>wlmiI ORIGINAL APPLICATION N0.7A9/2017
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Dated this the 06"day of December, 2018 CORAM?,§QH"BLET§§RI R.n; sINGg,.MeMa§3 (J;
Smt.Nazia F.M. Shaikh, aged 57 years wife of Shri F.M. Shaikh, Chief Office Superintendent, Office of the Chief Workshop Manager, Central Railway, Parel (East), Mumbaim4000l2. § Residing at D--30l, Shubham Complex, ??%!%?
Tower, Vijay Nagar, Tisgaon, Amrai, Police Ckauki, Kalyan (East), Distt. Thane (M.S.) 421306.
Applicant 53% (Advocate Shri FEAW Khan ) Versus
1. The Union of India through, Railway Board, Rail Bhavan, New Delhi~ll001l.
2. The General Manager, '55 3 Central Railway, Head Quarter Office, Mumbai.CSMT--4000Ol.
3. Chief Personnel Officer, Central Railway, CSMT, Mumbai Pin.4000Ol.
4. Chief Works Manager, Central Railway, Parel Workshop, Dr.B.R. Ambedkar Road, Parel (Est), Mumbai~400012.
3%
5. Chief Medical Superintendent (CMS), Divisional Railway Hospital, R C.Rly. Kalyan, Diett. Thane (M.S.) 421301.
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Respondents
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2 OA No.7-49/2017 i
(Advocate Shri R.R. Shetfiy )
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This OA has been filed by the applicant under 3 8 Section 19 of the Administrative Tribunals Act, 1985 i seeking for the following reliefs:~ 3 8 "(a) The Hon'ble Tribunal will be i nn graciously placed to call for the records and proceedings in respect of the impugned letters dated 28.04.2017 (Exhibit No.A~l) and 03.07.2017 (Exhibit No.A--3) issued by the Respondent hMu4 enni letter cfimxmi 28.06.20l7 (Exhibit No.A--2) issued by Respondent No.3 and after going through legality and validity of 8 the same quash and set aside the same. 8
(b). The Hon'ble Tribunal will be pleased to hold and' declare that the applicant is entitled ix: Hospital .Leave for tins entire period of sickness from 28/07/2016 to 24/l2/2016 and direct the Respondents to sanction the Hospital Leave in her favour with =m n| 1= all the consequential benefits as_per rules.
(c). lime Hon'ble@ Tribunal. will ins graciously 5 pass such other and further Order as deem ift 5 in the facts and circumstances of the case in the interest of justice.
(d). Any other and further reliefs which the Hon'ble Tribunal may deem proper may be granted with costs." sn mnAiwmni i PF.'
2. The Applicant contends that on being selected she joined Railway service under Respondent lkrél as Junior Clerk/Time Keeper CH1 24.02.1979 and presently holding the post of Chief Office E?
3Superintendent (COS) in the office of Respondent No.4 i.e. Chief Workshop Manager, Central Railway, Parcel P?
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R 3 OAN0749/2017 Workshop, Parel, Mumbai. The applicant met with an R accident on 28.07.2016 (on duty) when she slipped in the ladies toilet enmi suffered with ani injury and R fracture to her right leg. The "Injured on Duty" Memo R dated 28.07.2016 (Annexure ARS) was issued by the In"
charge, Senior Section Engineer, Parel workshop after lin mui= enquiry and after obtaining signatures of two R' witnesses and directed the applicant to take medical treatment at Sr. Divisional Medical Officer, Central em n mn i R Railway, (Health Unit), Parel. It is stated that Sr. Divisional Medical Officer, Central Railway, Perel i imnwni after giving medical treatment referred the applicant to the Medical Director, Central Railway Zonal Hospital, Byculla for further treatment. She was R admitted.cn1'the same date anui she was under redical treatment at Central Railway Zonal Hospital, Byculla 5 s as &n1 Indore Patient :finnn 28.07.2016 ix) 16.08.2016 '£3E where she Emmi undergone iorthopedic surgery ill her i right leg on 08.08.2016. The applicant was redirected E to the Chief Medical Superintendent, (CMS) Divisional R Hospital, Kalyan for further medical treatment since R Sr.DMO, Parel falls under administrative jurisdiction ?
of the {ERR Central Railway, Kalyan alongwith Sick Certificate M8&9B No.C560972 dated 28.08.2016, showing time period chi sickness :fimwn 28.07.2016 to *"-"~*>»-- »~......,_.~~==:.11;>;jj;§jj_'_j1:;;"'{;<;;r.j.j'<"§3-35555:"""""" "; ..,__,,_,.,__,(,.,,,_-_-_--~ ?.:-iii-I-7/IRIER-WI"?"=*""'§"""""5R'='='='1§ 3 -'-'='-'-===-='\"~"""*'~";"'*<g""""*'r~'.I R 4 OA No.'749/2017 iem m ri:
RI 26.08.2016 (Anneuxre A--7).
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3. The applicant further contends that the CMS, Central Railway, Kalyan, after giving further im treatment, made her fit and issued Fitness Certificate No.C566835 dated 24.12.2016 covering entire jperiod cxf sickness 'from. 28.07.2016 "to 24.12.2016 which are annexed at (Annexure A--8 and A-9 R 'Us the (NU respectively. Thereafter, tins applicant submitted.en1 application dated 23.12.2016 (Annexure emnmi mmi A--10) ix) Respondent No.4 enwi requested therein for sanction of entire period of her sickness as Hospital Leave followed by another application dated 25.02.2017 (Annexure A--11). She resumed her duties on 27.12.2016. It is; stated tied: Respondent Eh>m4 vide i letter dated 04.03.2017 intimated the applicant that R E R the reply dated 20.02.2017 stands good. The aforesaid R letter dated 20.02.2017 is an internal correspondence R frmn the Chief Cfifice Superintendent E~2 Section to =1nm .= i SSE/PF 6; Parel Workshop vide vunrs1 Respondent No.4 R had rejected the claim of the applicant stating that she is not entitled to the Hospital Leave as per IREC (Indian Railway Establishment Code) 554 (1) of Chapter' 5 Hospital Leave. The applicant submitted another application dated 20.03.2017 (Annexure AHI4), A R stating therein that three other employees were \/ ___:_____:>______'_____'____ ______ ______ _P_"___ ......,._.. __ ______ 3§_,:._:;§?-1%-fi?;.==?v<§;,~;_-_.;§'.-.§;.:_E_5.;.;.;.;_-_. \§ i-EEEEE-----,1=55553------==:,=1;5_-Q?-$¢:=zé7§?€_ ----..--gv-_-.:==:.1-ggvzgé--v.:r?:v§- _ § _ ,3; 3' .... ..
3 5 OA No.749/2017R sanctioned the Hospital Leave under similar R circumstances and requested for similar treatment to her also.
4. The applicant contends that the lmespondent R No.4 has rejected her claim on the following grounds:--
(a). as per IREC 554 the illness or injury is not directly due to risk incurred in the course of official duties. R R
(b). There .is run endorsement (IE I.O.D./Hospital Leave on the Fit certificate by the Railway Hospital. :.:;a.:
5. The applicant further contends that she has submitted.au1 application dated 02.06.2017 (Annexure--
A~15) requesting Respondent No.4 that she had fallen on the slippery and oily surface of office toilet and the Hospital Leave has been granted in all such cases R and she has quoted an example of Miss Lalita K. More, OS of Matunga Workshop of Central Railway to whom the hospital leave was sanctiomai for the entire period 'L R of sickness by Chief Works Manager, Central Railway, i Matunda letter No.MTN/E2/IOD/03/comp dated 02.04.2015 (Annexure A--16)' in the similar circumstances.
However, the aforesaid representation dated R :1=m m%m>:
02.06.2017 was forwarded to Respondent No.3 who has Iim m m nmi rejected the same on the grounds that the injury is R _._ ._. _. _ ._. . . . . . , _ _ , ._ . . . . _ . . . . . . .... . .. . . . . . . . . . .. E -»----------->/----------v----=».-.--.-.----.-.-.-.:;%-;.:-====;>..$;__$ --------/.::-52-*'-:=.-:'_<,'-'-:-.-:'_; --------- --xt-IE........... \\.§\.. kz .... "E /2 % é {N ,,,,, __ '1 6 OA No.749/2017 R R not <iue ix) direct .risk 1J1 the course cm? official R duties vide his letter dated 28.06.2017. Hence, this OA.
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6. The respondents have filed the Counter Reply R disputing anui opposing the CldiH1(IE the applicant in im m the OA. The respondents have contended that the issue R iii question relates in) the applicant inns is working R in the office of the .respondents as Chief Office Emmet Superintendent at time Chief Workshop Manager Office Parel, i.e. the office of the Respondent No.4, R R allegedly' slipped euui fell 111 the "toilet en: 11:00 a.m. cni 28.07.2016 and suffered Rfiijl a fracture in R her right leg. They" have stated that question of hospital leave does not arise as this is the case of no injury on duty memo was made in her favour at the R time of incident neither Health Unit, Parel kept the applicant under IOD sick or made any remarks regarding hospital leave jU1 M8&9R certificate dated R 24.12.2016 Rfifllfil was issued kg; Senior Medical R Officer, Kalyan covering sick period w.e.f.
R 28.07.2016 to 24.12.2016 as such treating the period as hospital leave does not arise. Further, the R applicant has submitted. 40% disability certificate Imam:
issued kn; the Orthopedic Surgeon, Central Hospital, Ulhasnagar, District Thane on 16.05.2015 (Annexure R-
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2) after ea period cxf 36 years cm? being (H1 duty R enabling her to claim exemption from professional tax R R amd double transportation allowance. Since Inn: case teams does run; fit. within time ambit cxf para. 554 cxf the Indian. Railway IEstablishment. Code ems such. hospital 'E?
leave cannot ins granted as anus did run; suffer from any illness or injury directly due to risk incurred R :U1 the course cnf official duty but luni only slipped R in. the Ibathroomi_iMoreover, the Ibenefit granted. to Smt. More ir;;n1 direct violation of gmnmi 554 of the IRCE and hence the same cannot be extended to the R applicant. They have prayed that the OA may be R dismissed with costs. They have denied that toilet was slippery and oily. I R> %
7. They have stated that at the time of injury, SSE ll} charge immediatelyc sent Iher ix; Health. Unit Parel for treatment and after giving treatment they Rimnm R referred the applicant to the Medical Director, R Central Railway Zonal Hospital, Hyculla for further treatment. It is stated that statement of the i mlmiik applicant. that. SSE ill charge jprepared. IOD IMHM3 on R 28.07.2016 and sent to Health Unit, Parel for sm m ri treatment is wrong; As per rule any employee who imwnmi suffers injury while cni duty while performing assigned vmuflo the snug: inmcharge send.iflua employee R _ _____ ____ huh "4/H _ ____=__: I I _ .. , . ,_ , _ ,_ ___ , . ., . .. ,_ ... g-'-»-1i-:\----q<*\*'-';&*'~~§'~g~'»<<:;;>\~'\"& §' R} x? Q \€ 'E, ._ emmmi 8 OA N-0.749/2017 to health cnmi; for first aid.aflrnm; with proper IOD report nentioning ijmm: this injury iae avoidable or unavoidable. The lnedical Officer" has the jpower 'to R decide to keep the employee under IOD sick or not. In summit R R the present case, applicant who is a class~III .;:.a R railway employee working in Nmnisterial category as Chief OS and she does not come under Workman's Compensation Act. It is stated that Matunga Workshop has sanctioned hospital leave in similar case of Smt. Lalita.1More =as iii that. case iRr. LWKL Matunga. kept 2oz::
employee in IOD sick and in the case of the applicant R Sr. Medical Officer had not given any remarks regarding hospital leave and therefore as per rule the applicant is not eligible for hospital leave.
8. In the Rejoinder the. applicant has reiterated time averments made ;n1 the cue and denied R the contents raised in the Counter Reply. It is submitted kn; the learned counsel ifimt the applicant R that the Inecharge Senior Section Engineer of Parel R Workshop is the person on the spot who has certified on the basis of proper enquiry and obtaining witness of two co--employees who were working with the R applicant and come to the conclusion that the applicant had suffered injury on duty and issued the necessary" IOD imam; accordingly. It iee stated. that t E i . . R > | iR "Pi % iii?9 OA No.'749/2017
contention cxf the respondents that ndnisterial category does run; come under Workman's Compensation Act and ii; not eligible for time hospital leave is misplaced. All the employees working in the workshop are governed by the factories Act as well as Workmen's Compensation Act and the provision of hospital leave is provided in the Rule 554 of Indian Railways 1Establishment lfianual iii applicable ix: the applicant. Moreover, the contention of the respondents that no injury on duty memo was made in the applicant's favour at the time of incident is not correct and it can be seen from the IOD memo dated 28.07.2016 annexed at (Annexure A-5) that the memo was prepared on the date of injury i.e. on 28.07.2016 itself. However, IU1 terms cu? para 554 cxf IRE! the hospital leave jifi granted to adj. classes (M5 Railway Servants (Except Gazetted Officer) which they are 3 under medical treatment for injuries sustained on duty and enmni the facts that Tina injuries were the result (IE carelessness cn1 the pert cxf employee is also immaterial as such the applicant is covered under Para 554 of IREM and is entitled for the Hospital leave.
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9. I have gone through the OA along with ill?
Annexure A-1 to A--l6.
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10 OA No.749/2017
10. II have also gone through the Reply filed on 8 behalf of the respondents along with Annexure R~l and R-2.
11" I have heard. the learned counsel for the 3&1'?
applicant and the learned counsel for the respondents and. carefully' considered time facts, circumstances, fil law points and rival contentions in the case.
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12. Learned counsel for the applicant relied 14%???
upon the judgment of I--Ion'ble Supreme Court in the case of Union of India & Another vs. Surendra Pandey reported in (2015) 12 SCC 625 wherein the I--lon'ble m;:.; :. a.:£ Supupre Court has observed that:--
8"I7. In Jujhar Singh case this Court was dealing with the question whether the respondents inn: had nmu: with ea road accident in his native place and sustained grievous injury' resulting ;n: permanent disability was entitled to disability _pension. The respondent in that case had upon recovery from the injury continued in military service and superannuated with normal. sermdrma pension. Disabilit§*_pension was however declined to him despite 5%?
representation although it was admitted that during his tenure in the army he had 5 suffered a permanent disability. This Court held that although the respondent was entitled ix; claim service pension ins would rnu:.be entitled tx>.any deniability pension a in the absence of a nexus between the disability' and the act fllf omission or commission resulting in the injury suffered Q by him. Inasmuch as the respondent had sustained the injury and consequent 3 disability when he was on annual leave that § txxn in his hometown in as road accident, he was inn: entitled to inn; disability pension as time disability' was run: attributable to military service, observed this Court. What is important to note is that the Court declined relief' of disability' pension in "'- ~-~»as N - - - - E-°=' s ">1r:m.me*a:':a'i:1:;:sf'~<¥o>~ v ; / 3' ~r L :.;a;:
E' 11 OANo.7-49/2017 54 that case in the absence of any casual connection between the "injury/disability"
enmi "military" service". That, .however, is not the position in the case at hand. There is a reasonable nexus and casual connection 2 between the disability and the military service +of time respondent: at time relevant time. He was authorised to perform a journey commencing 25.03.1997 and the accident that led tmn his =disability' occurred amithin two days .from tdme commencement' of time journey from thmmui on 25.03.l997. The proximity in point tn? time between time homeward journey e that started from Jammu and the date when he met with the accident as also the distance between the place from where the journey was 8 started and the place to which he was travelling would given rise to a reasonable inference that time anthorised journey had not ended when he met with the incident. The case may have been different if the respondent lmmi reached time destination i eaii engaged in some activity, unrelated to military service and in the course of such 8 activity met with an accident resulting in a disability. a
18. Tn Jujhar Singh case the accident occurred in his hometown causing a disability having no casual connection with the military service of the claimant. The present is not a case of that type. We are inclined ire the present case ix: accept the respondent's version that he had not reached thee destination when lme on .27.03.l99? imet with time accident tfimm: caused at disability to him. We therefore see no reason to interfere with the order passed by the Tribunal, nc> matter' for reasons different from those recorded by the Tribunal. l9. Thee appeal accordingly' fails and is, hereby, dismissed. no costs." 8
13. Learned counsel for the applicant has also a placed reliance upon the judgment of Hon'ble Supreme Court in the case of Daya Kishan Joshi & Anothe vs. 8 Dynemech Systems Private Limited reported in (2018) 8 ll SCC 642 wherein the Hon'ble Supupre Court has 8 8 observed that:~ "l5. English courts have also held that i eaii 8 8 *""-~?~"-"""""W?""""" "\3?""'""'""" <""""~'*'*""'e\""*.?E?.""[' e\""**="'§ H""*%'¥13'§>5 """"Z?'?"§§'"§§§"'§§'"§'$"5---.. } 12 OA No.749./2017 injuries to employees on their way back home fall within those 'arising out of employment. " In Lawrence v. George Matthews____Lt(;1,. [(l929) Ll KB l], time deceased inns employed as a commercial traveller by coal merchants, who paid him a commission for all orders obtained for them. While on his way home on his motorcycle after completing a trip, he was struck fatally infra falling tree which was blown down by a gale. ln_proceedings for compensation, the Court of Appeal held by a majority that the accident arose out of the employment of' the deceased on the ground that the deceased"s employment brought him to a smmnz which, owing to time existence of' the tree, fund a guality' that resulted .ne danger. The fact that the tree fell due to forces of nature was immaterial, as the immediate cause of the accident was the falling of the tree.
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l6. Indian Courts have also expounded upon the phrase 'arising out of and in the 8 course of employment' in great detail. l6.l. In the case of BliSJILhflcmddngvs .Agmm(ATR l964 SC l99, para l2) "l2. Under Section 3(l) tn? the Act the injury must be caused to the workman by an accident arising out of and in the course cd7.his employment. [Mme question, when <does ant employment .begin aumi when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the "down tool" signal is given or" when the workman leaves the actual workshop where he is working. There is a notional extension as both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of ea given case. .An employment may end or may begin not only when the employee begins to work or leaves this tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employer to use only a particular means of transport extends the area, of the field of employment to the course of the said transport. Though at the beginning the word "duty" has been strictly' construed, time later {decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if .-.-._-;_=_-.;;_1==-.-=-.-=-- -.-==::\-\<€sg'4§§§""""""" ._.._._\.::.. 5 Q \ i eaii 13 OA No.749/2017 § the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deals with a transport service operating over a large area _like Bombay; They' are, therefore, cm? little assistance, except insofar as they laid down the principles of general application. Indeed, some of' the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to traverse public streets and other public places. The problem that now arises before us .is at novel one and is .not covered by authority."
l 6.2. The case of Mackinnon Machenzis & Co. (P) Ltd. v.Ibm@hnWL@mmnnm1IBmm. is also relevant to understand time meaning clf 'arising tum: of employment'. Ramaswami,J., delivering the judgment .fior a three rhmmme Bench (H? this Court, held:(SCC_p.6ll, para5) 8 "5...The words 'arising out of 11$ employment' are understodd to mean that i "during' the course of' the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in time duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered". In other words, there must be a causal relationship .between the accident and the employment. The expression "arising' out cm? employment"
is again not confined to the mere nature of the employment. The expression applies to employment as such ---- Us its nature, iim; conditions, .its obligations anmi its incidents. If'l3/ reason cmf any e of those factors the workman is brought within the zone cm? special danger the injury would be one which arises "out of employment". To gnu: it differently' if the accident had occurred on account of a risk which is an incident of the employment, tflme claim imur compensation, must succeed, unless of course the 8 workman has exposed himself to an added peril by his own imprudent act "
l6.3. This Court in ESI Corpn. v. Francis De 2 Costa, laid cmnni three rminciples tin? the claimants to _prove before they' can claim 'L compensation under Section 2 (8) of the Empl oyees ' Stats,,,1nsu1'm1c§,yj-rot , i 9 4 8 :
"29....(l) there was an accident, (2) ..... . . . . . . . ._€?.___.::_.g:._. \.x_.T_.§ ...... .1 .... ix i 14 OA No.749/2017 i eaii i the accident had a causal connection with the employment and (3) the accident must have been suffered in course of. employment."
As Section 2(8) of that Act is in pari materia with Section 3(l) of the the Act, these principles are relevant for cases under the latter. 8 l6.4. Again, in the case of Lhumiofhmfiav, 8 Summdmrlmndgg this Court has explained the principle tat notional extension of employment giving examples as under: 8 "l2. It was also _pointed out by Lord Denning in the aforesaid case of R, v,+1§§y,atyiona1Insurm1ce Commr. , ex p Michael that the extension of the meaning of the phrase "in the course of his employment"
has taken place in some cases but in all those cases, the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was "reasonably incidental"
Do employment, may lme extended even to cases smile éfil employee is zmmmz on an errand by the employer outside the factory premises. But ;n1 such cases, it must be shown that he was doing something incidental tmn his employment. There may also be cmses mmere an employee has to go out of his work place .ne the usual course tn? his employment. Lathann C.J. iii South i%aitlanct.Railways Pty. Iid.vglmnee observed tmmm: when the workmen on a lmmztmmz in course of their i employment had to gm: for short time to get some cool water to drink so as to enable them to continue to work without e??
which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they' went out for water."
(emphasis supplied) l7. The aforementioned observations are reiterated by this Court in a number of subsequent judgments, including in the case of Mf=?l1i!lSarkar "K15/Iabish [(2014) 14 scc 21) J. l8. From the aforementioned, it is clear that tflme_presence of'tfime deceased cm the road in question was incidental to his _. .. ...,_§.......§ X' S; x 3} \ xi $9 $.%.§z?§ €&§:_§?;_.§ W'/fix §\\}c}.\§ lgfiys if 2, Né Q > 15 OA No.749/2017 employment as a sales engineer. as he had to go tmn the Emmi: Honda factory tm> conduct a filter test, he was merely doing what was 8 required =df ids: as ant employee» Thus, .his accidental death on the way back after completing' his work falls squarely within Section 3t}! of the Act.
19. Having regard to the facts and 8circumstances of the case on hand, it needs to be concluded that the accident arose out 3 of employment inasmuch as the very nature of the employment of the deceased made it necessary for him to be there. By recording the aforementioned finding on the first issue, time matter' _me returned tmv the Commissioner under the-2hm:.for deciding the 8 remaining issues framed by him.
20. The appeal is disposed of. No 1amnr1 8 costs."
Findings
14. The respondents have contended that the 1u 1 1 :n&mr 8 issue iii question relates tmn the applicant, who is working in the office of the respondents as Chief Office Superintendent at time Chief Workshop Nmnager
-e e Office, Parel under Respondent No.4. She slipped and 1 :mnmnr1 fell iil the toilet en; 11:00 a.m. (me 28.07.2016 and suffered with a fracture in her right leg. It is also 8 stated that question of hospital leave does not arise as this is the case of no injury on duty whereas, it is submitted by the learned counsel for the applicant 8 .18 that the In--charge Senior Section Engineer of Parel .18 i 8 Workshop is the person on the spot who has certified 8 on the basis of proper enquiry and obtaining witness of two co--employees, who were working with the 8 applicant and come to the conclusion that the 8 2 / i . . . . . . .. . . . . . .. .. .. . - »- -- e -. e1 ==ee"tvas'e'mes-m"isex--aw'"es'e'eve"*ee>eame~-t1--
4. 16 OA No.749/2017applicant had suffered injury on duty and issued the necessary IOD memo accordingly. Further, the applicant has submitted. 40% disability certificate 54%???
issued kg? the Orthopedic Surgeon, Central Hospital, Ulhasnagar, District Thane on l6.05.20l5 (Annexure R-
2). after E1 period axf 36' years cflf being cni duty Q Q enabling her to claim exemption from professional tax wast':
and double transportation allowance. A perusal of the 3%???
relief sought claimed by the applicant shows that the applicant does not claim any relief relating to the exemption. :Emmn professional tuna and double i E' i transportation allowance jJ1 the present (Mi as such I'?
there is run necessity ix: go into firms issue ill the present OA. The respondents have stated that her case does not fit within the ambit of para 554 of the ?? 15 Indian. Railway IEstablishment Code ans such. hospital leave cannot ins granted as zflna did {KHZ suffer from any illness or injury directly due to risk incurred ;n1 the course (Hf official duty but luni only slipped iii the Ibathrocmi whereas time respondents themselves admitted in the counter reply that the applicant is a class III railway employee as znnfli the Rule 554 is Q applicable on the applicant. The relevant portion of the aforesaid rule reads as under:-- 3 ".554. Hospital leave.m{l) Hospital leave may . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . .. . ... ... ................. » - - ~- ..... ....... a 1 s2*;sn*-ns<"~2*"- sis is is 1% L 17 OA N0-.749/2017 1%?
be granted to railway servants other than in Group A or Group B, while under medical treatment for illness or injuries if such illness of injury is directly due to risks incurred in the course of official 8 duties.
ii (2) Hospital leave shall be granted on production of medical certificate from an i rhii Authorised Medical Attendant.
(3) a) Hospital leave may be granted for such period as the authority granting it may consider necessary on leave salary- 3 E'?
(i) equal tx: leave salary while ani leave on average pay for the first 120 days of' any 3 period of such leave; and
(ii) equal to leave salary" during half' pay leave for the remaining" period. of any such 9 leave.
Kb) The amount of hospital leave which may be granted by the General Managers to railway servants is unlimited.
(4) Hospital leave shall not be debited against the leave account and may be combined with any other kind of leave which may be admissible, provided the total period of leave, after such combination, does not exceed 28 months."
15. The applicant has admitted the 3'???
injury/fracture vnuni while (nu duty she luni gone to R the bath room being maintained by the Respondents. In 3 imp! view of the law laid down by the Hon'ble Apex Court in Daya Kishan Jbshi (Supra), I am of the considered ? 155 opinion "that time presence <df time applicant iii the 5 bath room of the office on that day was incidental to 111%:
E' her employment under the respondents. The Respondents contentions that applicants illness/injury is not due 55 Q
ix) risk incurred ii1 the course cnf official duty is ." »=................................ -- T \* € 1 "W1 xxxx-Ixvflv'?)v§§'{{§?'fi1€$::?_1z§:-jgyg \ 3' 3 2% "E 'Z ----W .2-gal?-X-\3=::=:-:
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18 OA N0.749/2017 wrong and misconceived.
16. .As regards time benefit granted inn Smt.More the respondents have stated that firms has been dpne in direct violation of para 554 of the IRCE and 4|
4| hence, the same cannot be extended to the applicant.
They have also denied that toilet was slippery and oily. They have stated that Matunga Workshop has sanctioned. hospital leave in similar case cfif Smi.
Lalita.]More ias iii that case Sir. IWKL Matunga. kept 1%:
3employee in IOD sick whereas in the case of the ?
applicant EH2. Medical Officer run; given rug: remarks regarding" hospital .leave enni therefore -as gnu? rule 14%???
the applicant. is not eligible for hospital leave.
These are adj. the technical terms. Since the respondents_claim to be Model Employers, they should not deny the relief asked for by the applicant. For the failure on.tfiua part of the respondents for performing their duty, the applicant should not be made to suffer.
Moreover, it::ha the duty of the respondent to issue necessary IOD memo as the applicant had suffered injury on duty. The applicant has specifically stated in para 4.3 of the OA that IOD Memo dated 28.07.2016 (Annexure Zkfifl was issued kn? the: Inecharge Senior Section Engineer, Parel Workshop after obtaining signatures of two witnesses as such the applicant is 2 i/ 34%?
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19 OA N0.749/2017 Q
fully entitled for grant of hospital leave. Moreover I
4'
the contention cm? the respondents that run injury on E
duty nmmn:"was made lll the applicant's iknmnn? at the
time of incident is not at all correct. Further, the
CMS, Central Railway, Kalyan in ins; case papers and ix nmnm i
Fitness Certificate No.C566835 dated 24.12.2016
(Annexure A~8 and A*9) respectively covered the
entire jperiod cxf sickness from. 28.07.2016 to E'?
24.l2.20l6 as :mnfi1 the applicant is; fully eligible
im nmxinmxi
for the grant of hospital leave.
17. In view of the above, I have given my anxious ixnmnwmxi 5 consideration tr>"Uma case and II consider ii; fit to rixm nmxi allow this OA. Accordingly, the OA is allowed and the impugned letters dated 28.04.2017 (Annexure A61), letter dated 28.06.2017 (Annexure A--2) and 03.07.2017 (Annexure zram are hereby quashed aumi set aside. The Q respondents are directed to issue necessary orders sanctioning the hospital leave to the applicant within eight weeks from the date of receipt of a certified copy of this order. The applicant shall be entitled for P?
8
consequential benefits in accordance with relevant
rules anui instructions cni the subject. lhu order as to
costs. _ 4 Q
(R.N. Singh)
Member (J)
Elk/WI)
kl '<§\\"=»*
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