Central Administrative Tribunal - Ernakulam
K Rajendraprasad vs M/O Railways on 23 January, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00140/2016
Wednesday, this the 23rd day of January, 2019
CORAM:
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Hon'ble Mr. Ashish Kalia, Judicial Member
K. Rajendraprasad, aged 66 years,
S/o. Kinjiraman, Retd Head Ticket Examiner,
Southern Railway, Residing at Thiruvathira,
Cherukunnam, Varkala - 695 141. ..... Applicant
(By Advocate : M/s. Varkey & Martin)
Versus
1. Union of India, represented by the General Manager,
South Railway, Chennai - 600 003.
2. The Divisional Personnel Officer, Southern Railway,
Trivandrum - 695 014. ..... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
This application having been heard on 10.01.2019 the Tribunal on
23.01.2019 delivered the following:
ORDER
Hon'ble Mr. Ashish Kalia, Judicial Member -
The relief claimed by the applicants are as under:
"I) Declare that the denial of the rights and protection available to the applicant under Section 47 of the Disabilities Act, amended chapter XIII of Indian Railway Establishment Manual and other relevant orders, is unjust, illegal and unconstitutional and; quash Annexure A3 order.
II) Declare that the applicant is entitled to the benefits available under the rules cited in sub para (a) above with effect from 8.4.1998 similar to A11 orders passed in the case of V. Mohanan, with all consequential benefits including pensionary benefits and; direct the respondents accordingly.
III) Award costs of and incidental to this application.2
VI) Grant such other relief, which this Honourable Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case are that the applicant while working as C&W Fitter, Grade II/Quilon in the scale of Rs. 4000-6000/- was grievously injured while on duty on 8.4.1998. He was under prolonged treatment for fractures in inter capsular neck of Femur right side and injury to hip joint etc. from 9.4.1998 to 4.1.1999. The applicant was later declared medically unfit in class B-1 and fit in Class B-2 below for sedentary job. He was forced to go on 6 months compulsory leave (LAP) from 21.1.1999 to 20.7.1999. However, no sedentary job was provided on expiry of 6 months leave and the applicant was on loss of pay from 21.7.1999. Due to indigency, the applicant was in need of any alternative appointment. So he had then accepted the absorption as Ticket Collector in scale Rs. 3050- 4500/- with effect from 6.1.2000. Later applicant was promoted as Traveling Ticket Examiner and further as Head Ticket Examiner. Applicant retired as Head Ticket Collector. Applicant made a representation for granting him the benefits of the protection and rights available to him under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [hereinafter referred to as the PWD Act, 1995]. Since the same was pending consideration with the respondents, the applicant filed OA No. 180/927/2014 which was disposed of by this Tribunal vide order dated 8.7.2015 directing the respondents to consider his representation in the light of Annexure R1 order. However, the 1 st respondent without application of mind rejected the representation of the 3 applicant vide order dated 21.12.2015. Aggrieved the applicant has filed the present OA.
3. Notices were issued to the respondents. They entered appearance through Shri Sunil Jacob Jose. Respondents in their reply statement contended that the prayer made in the OA is hit by delay, acquiescence and estoppal. It is pointed out that the prayer for grant of benefits as permissible under the PWD Act is made by the applicant only in 2014 whereas he was medically de-categorized w.e.f. 20.1.1999. Moreover, he had retired from service on 31.8.2010. The respondents have considered his representation and rejected it vide Annexure A3. Respondents submitted that as per Annexure A2 in respect of cases in which the disabled/medically decategorized employees on or after 7.2.1996 and up to 28.4.1999 were absorbed in alternate employee in accordance with the earlier scheme in grades lower than grades held by them on regular basis at the time of disablement/medical decategorization, may be reviewed on representation received in this regard and the matter may be decided at the level of the General Manager. However, applicant has not submitted any representation to the authorities in this regard while he was in service. Applicant has not submitted any reasons for the inordinate delay in approaching the respondents for reviewing of his case. The applicant was given offer of alternate appointment to the above post and he had accepted the same without any demur. The alleged representation dated 10.3.2010 is non- existent as he had not produced a copy of the same to establish his claim. The representation of the applicant was disposed of negatively by the 4 General Manager, Southern Railway due to the inordinate and un-explained delay in claiming the benefits while he was in service as per Railway Board's order. Respondents pray for dismissing the OA.
4. Heard Shri Martin G. Thottan learned counsel appearing for the applicant and learned Standing Counsel for the respondents. Perused the records.
5. The short question to be decided in this case is whether the applicant's case come within the purview of PWD Act, 1995 at this belated stage ?
6. The applicant was grievously injured while on duty on 8.4.1998. He was under prolonged treatment for fractures from 9.4.1998 to 4.1.1999 and later declared medically unfit in class B-1 and fit in Class B-2 below for sedentary job. Applicant was also forced to go on 6 months compulsory leave (LAP) from 21.1.1999 to 20.7.1999. Since no sedentary job was provided on expiry of 6 months leave, applicant was on loss of pay from 21.7.1999 and due to indigency he was in need of any alternative appointment. Accordingly, the applicant accepted absorption as Ticket Collector in the scale of Rs. 3050-4500/- with effect from 6.1.2000. Later applicant was promoted as Traveling Ticket Examiner and further as Head Ticket Examiner. Applicant retired as Head Ticket Collector. However, at a belated stage he came to know that under the PWD Act, 1995 he was not placed on a supernumerary post from the date of acquiring a disability till posting in the alternative post and his leave was debited to the full extent 5 and he was not paid wages. His pay and grade was also not protected in accordance with the above rules. Therefore, applicant made a representation for granting him the benefits of the protection and rights available to him under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The respondents have rejected the representation on the ground of delay and laches. In this regard it is necessary to quote the relevant portion of the judgment of the apex court in M.R Gupta v. Union of India - (1995) 5 SCC 628:-
"The Tribunal misdirected itself when it treated the appellant's claim as "one time action" meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules."
7. If the pay and grade of the applicant is protected it will have an impact on fixation of his pension. Therefore, the judgment of the apex court in M.R Gupta's case (supra) shall apply in the instant case as there is loss of pay in the case of the applicant as his pay and grade was not protected as provided under the PWD Act and if once it is protected it shall have a continuing cause which shall affect his pension as well.
8. That being so the Original Application is allowed. Annexure A3 impugned order is quashed. The respondents are directed to grant the applicant the benefits of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with all consequential benefits including pensionary benefits. The aforesaid exercise shall be 6 completed within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
(ASHISH KALIA) (E.K. BHARAT BHUSHAN)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
"SA"
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Original Application No. 180/00140/2016
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the order dated 8.7.2015 in OA No.
927/2014 passed by this Hon'ble Tribunal.
Annexure A2 - True copy of the Railway Board's letter No.
E(NG)I/2004/RE-3/9 dated 31.5.2005.
Annexure A3 - True copy of the order No. P(S)353/111/Court
Case/Misc/TVC dt. 21.12.15 issued by the 1st
respondent.
Annexure A4 - True copy of the medical certificate dated 4.1.1999
issued by the Medical College Hospital,
Trivandrum.
Annexure A5 - True copy of the memorandum No.
V/P579/IV/Vol.III dated 22.2.1999 issued by the 2nd respondent.
Annexure A6 - True copy of the extract OO No.47/2002/TC dated 12.12.2002 issued by the 2nd respondent.
Annexure A7 - True copy of the order No. 10/2010/TC dated 3.3.2010 issued by the 2nd respondent.
Annexure A8 - True copy of applicant's appeal representation dated 1.2.2014 addressed to the Divisional Railway Manager, Trivandrum.
Annexure A9 - True copy of the Medical Certificate dated 13.9.2014 issued by Dr. K. Sreekumar of Kumar Clinic, Kilikoloor, Kollam.
Annexure A10 - True extract of Section 47 of the Persons with Disabilities Act, 1995.
Annexure A11 - True copy of letter No. V/P.612/III/TC dated 29.12.2009/4.1.2010 issued by the 2nd respondent. RESPONDENTS' ANNEXURES Nil
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