Central Administrative Tribunal - Kolkata
Mrinal Kanti Ghosh vs Eastern Railway on 8 May, 2023
» OA 871/2020 es -- CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH ee ee t KOLKATA Log Se FR A Tr OS pad | ' aad Brenig Ke Z 0.A./350/00871/2020 L nen eee Date of hearing : 08.05.2023 Coram: Hon'ble Mr. Manish Garg, Judicial Member Hon'ble Mr. Anindo Majumdar, Administrative Member In the matter of : Mrinal Kanti Ghosh, working as CBC/BDC, Eastern Railway, and residing at 61/1, Nasra Para Lane, Police Station- Ranaghat, District- Nadia, Pin- 741201. .... Applicant -Vs- 1. Union of India, service through the General Manager, Eastern Railway, having office at 3, Fairlie Place, Kolkata-700001. 2. The Divisional Manager, Eastern Railway, Howrah Division, Howrah-711101. 3. Chief Personnel Officer, Eastern Railway, Fairlie Place, Kolkata-700001. 4. The Senior Divisional Manager, Eastern Railway, Howrah Division, Howrah-711101. 5. The Senior Divisional Commercial Manager, Eastern Railway, Howrah Division, Howrah-711101. 6. The Station Manager, Konnagar Railway Station, District- Hooghly, Pin-712235. 7. The Booking Supervisor, Konnagar Railway Station, District- Hooghly, Pin-712235. secseseeees Respondents For The Applicant(s): Mr. S. Roy, Counsel Mr. S. Roy, Counsel For The Respondent(s): Mr. D. Chowdhury, Counsel CA 2 OA 871/2020 ORDER (ORAL)
Per: Hon'ble Manish Garg, Judicial Member The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"8.1 Set aside and/or quash impugned Speaking order dated 03.09.2020 as issued by the Divisional Railways Manager, Eastern Railway, Howrah being respondent no. 2 of the instant original application.
8.2 To pass a direction or directions upon the respondent authorities to allow the prayer of the applicant for declaring him Hurt-on-Duty in view of the fact that he had met with the accident during nis period of job at the time of performing his office designated duties with all consequential benefits as permissible to him under the law, as mentioned in those representations;
83 Show cause in terms of prayer 8.1 and 8.2 and after hearing the cause make the rules absolute;
84 Adirection as to costs of the proceedings to the applicant;
85 Any further order or orders, direction or directions as the Hon'ble Tribunal may deem fit and proper for the ends of justice."
2. For the sake of clarity, facts in the case are delineated and discussed hereinunder :
The applicant while working as Sr. Booking Clerk at Konnagore, Eastern Railway, was spared/deputed vide SM/KOG's letter dated 18.09.2004 to collect Railway materials from the Stores of Material Manager, Eastern Railway, Howrah Depot. On 23.09.2004, the applicant, on his way to collect those materials from the Printing and Stationary office at Howrah, met with a fatal road accident. He was admitted at B.R. Singh Hospital of Eastern Railway at Sealdah, Kolkata initially and subsequently to AIIMS, Delhi. After recovering partially, the applicant resumed his office from 01.08.2008. By a letter dated 23.10.2010, the Chief Health Director of the Railway Orthopedic Hospital at Howrah wrote to the Senior Divisional Operational Manager, Howrah stating that though the applicant was referred as Hurt-on-Duty staff, the same could aan?3 . OA 871/2020
not be granted. On 15.01.2013, respondent no. 3 issued a letter regularising the sick leave period of the applicant and asking the Chief Medical Officer to clarify whether the applicant can be granted Special Disability Leave. The applicant was informed that he is not entitled to Hurt-on-Duty or Special Disability Leave vide letter dated 23.09.2013. Being aggrieved with such letter, the applicant approached this Tribunal vide OA no. 1025 of 2017, which was disposed of vide order dated 14.02.2020 with a direction upon the respondents to give a personal hearing to the applicant. In compliance to the directions of this Tribunal, the respondents gave 2 personal hearing to the }applicant and issued the impugned speaking order dated 03.09.2020, rejecting the claim of the applicant. Challenging the said speaking order, the applicant approached this Tribunal by way of present original application.
2.1 Learned Counsel for the applicant urges that the action on the part of the respondents as well as the impugned speaking order is contrary to their own rule position, and, therefore is liable to be set aside. It is also stated that the said order has been passed on the basis of the hypothetical assumption and insistence on the police report and other documents. The respondents have wrongfully shifted the onus to produce the same, more so in the light of the facts and circumstances when the applicant was himself lying in the pool of blood there was no occasion to lodge an FIR.
Learned Counsel for the applicant places reliance on rule 554 of the Indian Railway Establishment Code Vol. I, which is reproduced as under :-
"554. Hospital Leave:
(1) Hospital leave may be granted to railway servants other than in Group A or Group B, while under medical treatment for illness or injuries if such illness or injury is directly due to risks incurred in the course of official duties.
(2) Hospital leave shall be granted on production of medical certificate from an Authorised Medical Attendant. 4) 4 OA 871/2020 (3) (a) Hospital leave may be granted for such period as the authority granting it may consider necessary on leave salary-
(i) equal to leave salary while on leave on average pay for the first 120 days of any period of such leave;
(ii) equal to leave salary during half pay leave for the remaining period of any such leave.
(b) 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 he 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."
3. Per contra, Learned Counsel for the respondents vehemently opposes grant of relief in the present OA in as much as he contends that the accident occurred when the applicant was not on duty. It is only when the allowances have to be accorded in accordance with the rule position, when the applicant is found while in duty/in the course of his employment, and, therefore, the case has been dealt with as per Rule 552 and 553 of Indian Railway Establishment Code Vol. I, which is reproduced as under :-
"552, Special disability leave for injury intentionally inflicted--(1) The authority competent to grant leave may grant special disability leave to a railway servant (whether permanent or temporary) who is disabled by injury intentionally inflicted or caused in or in consequence of due performance of his official duty or in consequence of his official position.
(2) Such leave shall not be granted unless the disability manifested itself within three months of the occurrence to which it is attributed, and the person disabled acted with due promptitude in bringing it to notice. Provided that the authority competent to grant leave, if it is satisfied as to the cause of the disability, may permit leave to be granted in cases where the disability manifested itself more than three months after the occurrence of its cause.
(3) The period of leave granted shall be such as is certified by the Authorised Medical Attendant of the Railway servant concerned to be necessary. It shall not be extended except on the certificate of that authority and shall in no case exceed 24 months.
(4) Such leave may be combined with leave of any other kind.
(5) Such leave may be granted more than once if the disability is aggravated or reproduced in similar circumstances at a later date, but not more than 24 months of such leave shall be granted in consequence of any one disability.
(6) Special disability leave shall be counted as duty in calculating service for pension and shall not except the leave granted under proviso to clause (b) of sub-rule (7) be debited against the leave account.
(7) Leave salary during such leave shall--
(a) for the first 120 days of any period of such leave, including a period of such seave granted under sub-rule (5) be equal to leave salary while on leave on average pay; and
(b) for the remaining period of any such leave, be equal to leave salary during half pay leave:
a "Av?5 OA 871/2020
Provided that a railway servant may, at his option, be allowed leave salary as in sub-rule (a) for period exceeding 120 days and in that even the period of such leave shall be debited to his half pay leave account.
(8) In the case of a person to whom the Workmen's Compensation Act, 1923 (18 of 1923) applies, the amount of leave salary payable under this Rule shall be reduced by the amount of compensation payable under section 4(1){d) of the said Act.
(9) The provisions of this Rule apply to a railway servant disabled in consequence of service with a military force, if he is discharged as unfit for further military service, but is not completely and permanently incapacitated for further civil service and to a railway servant not so discharged who suffers a disability which is certified by a medical board to be directly attributable to his service with a military force; but in either case, any period of leave granted to such a person under military rules in respect of that disability shall be reckoned as leave granted under this Rule for the purpose of calculating the period admissible.
553, Special disability leave for accidental injury.--(1) The provisions of rule 552 shall apply also to a railway servant, whether permanent or temporary, who is disabled by injury accident incurred in, or in consequence of due performance of his official duties or in consequence of his official position, or by illness incurred in the performance of any particular duty which has the effect of increasing his liability to illness or injury beyond the ordinary risk attaching to the post which he holds.
(2) The grant of special disability leave in such case shall be subject to the further conditions:--
(i) that the disability if due to disease must be certified by the Authorised Medical Attendant of the railway servant concerned to be directly due to the performance of the particular duty;
(ii) that if the Railway servant has contracted such disability during service otherwise than with a military force, it must be in the opinion of the authority competent to sanction leave, exceptional in character; and
(iii) that the period of absence recommended by the Authorised Medical Attendant may be covered in part by leave under this rulz and part by any other kind of leave, and that the amount of special disability leave granted on average pay shall not exceed 120 days."
He would further lay emphasis that the police report is mandatory, however, there is nothing on record to show the same. No further arguments and points have been urged.
3.1 He places reliance upon the following paragraphs of his reply :-
"6.12) The said OA 1025/2017 as filed by the applicant seeking relief for regularizing the whole period of Leave as Special Disability Leave and declaring "Hurt on Duty" cannot be considered for the following reasons.-
(i) For the purpose of initiating "HOD" there was no issuance of "GA-3" Memo.
(ii) The case has been dealt according to Para-552 of IREC, Vol.-I.
(iii) No Police Report is available and also piace af accident is not mentioned in the report of B.R. Singh Hospital/Sealdah.
(iv) According to Chief Health Director, Howrah had certified that the case is not a "HOD" case.
(v) Joint Inspection was held and the said Inspection Report has distinctly claimed that the case was not "HOD").
a ane 6 OA 871/2020
(vi) Whole the sick period against the applicant ie. on & from 23.09.2004 upto 30.07.2008 has been treated after issuance of G-8 Memo as Leave on Average Pay, Half Leave of Average Pay, Leave not Due (LND) and Leave without Pay."
3.2 Learned Counsel for the respondents rely upon the averments made in the reply, has contended as under :-
"e. That the G-8 Memo was issued on 24.09.2004 by Station Manager, Konnagore, for necessary treatment of the Railway Employees/the applicant, but no GA-3 Memo was issued. That in case of general treatment of a Railway Employee in Railway Hospital G-8 Memo is required, whereas GA-3 Memo is issued in case of accident for issuance of "Hurt on Duty".
fi} That the Applicant concerned was referred by B.R. Singh Hospital to Orthopaedic Hospital at Howrah on 25.09.2004 due to applicant's Orthopaedical treatment. The period from 25.09.2004 to 28.10.2004 was regularized in favour of the Applicant as 14 days Leave on Average Pay (LAP) and rest 20 days as Half Leave Average Pay (HLAP), ie. treated as sick. The applicant concerned was granted a total of 360 days on & from 29.10.2004 to 23.10.2005 (All staff are granted a maximum of 360 days in their entire service career) as "leave not due.".
g. That as the applicant concerned remained sick even after 23.10.2005, he did not earn leave for the period of his absence from 24.10.2005 to 31.07.2008, and was therefore treated as Leave without Pay. The applicant Sri Ghosh resumed his duty on 01.08.2008 as Senior Booking Clerk under Station Manager/Konnagore.
h. The Chief Health Director/Orthopaedic Hospital, Howrah, Eastern Railway had informed the Railway Administration that the matter of accident of the applicant was raised in the DRM/PNM and a through enquiry was done by a three men committee. who reported vide their report dated 15.10.2012 that Medical. authority i.e. B.R.S.H/Sealdah considered the injury as RTA, but no police report was available what is mandatory in case of RTA. In absence of Police report, as reported by the Committee it was not treated as "Hurt on Duty" case (Annexure R-1).
i, For granting and regularizing of whole sick period as "Hurt on Duty" some criteria are to be maintained according to Para-522 IREC Vol.-1. The instant case does not fulfil the said criteria as there is no Police Report and place of accident is not mentioned. (Annexure-R/2) j. The said OA 1025/2017 as filed by the applicant seeking relief for regularizing the whole period of Leave as Special Disability Leave and declaring "Hurt on Duty" cannot be considered for the following reasons i. For the purpose of initiating "HCD" there was no issuance of "GA-3" Memo.
ii. The case has been dealt according to Para-552 of IREC Vol-1.
iii. No Police Report is available and also place of accident is not mentioned in the report of B.R. Singh Hospital/Sealdah.
iv. That Chief Health Director, Howrah had certified that the case is not a "HOD" case based on available record. (Annexure-R/3).
v. That Joint Inspection was held and the said Inspection Report has distinctly claimed that the case was not "HOD" (Annexure R/4).
vi, That the period on & from 23.09.2004 upto 30.07.2008 has been treated after issuance of G-8 Memo as Leave on Average Pay, Half Leave of Average Pay, Leave not Due {LND) and Leave without Pay(LWP)."
3.3. Healso refers to an earlier reply filed by the erstwhile Counsel, wherein it was stated as under :-
TOON 7 OA 871/2020 "6.2) The applicant Sri Mrinal Kanti Ghosh while working as Sr. Booking Clerk at Konnagore, Eastern Railway, was spared/deputed vide SM/KOG's Letter No.245/SM/KOG, dated 18.09.2004 to collect Railway Materials from the Stores of Material Manager, Eastern Railway, Howrah Depot.
6.3) As per attendance Register maintained by Station Manager/Konnagore, Eastern 'Railway it is found from the Attendance Column against the applicant that the applicant was present on his duty on 23.09.2004, the material date on which the applicant as demanded in the said OA 871/202, of his Sparing date by his Office in charge to take delivery of the Railway Materials.
6.4) It has been reported by B.R. Singh Hospital at Sealdah of Eastern Railway that the applicant got admitted in B.R. Singh Hospital on 23.09.2004 due to sustained Road Traffic accident in collision between Bus and Auto Rickshaw.
6.5) As per Indian Railway Medical Code whenever, there is a fatal injury due to Road accident or otherwise Police Verification Report, the place of incident where the injury took place was not mentioned or clarify which is required as mandatory report or document for distinguishing "Hurt on Duty" matter or otherwise.
6.6) G-8 Memo was issued on 24.09.2004 by Station Manager, Konnagore, for necessary treatment of the Railway Employees, herein the applicant, in place GA-3 Memo.
6.7) It is clear from the part of the Station Manager that in case of general treatment of a Railway Employee in Railway Hospital or Health Unit for verification and 'Identification of Railway Staff, where GA-3 Memo is issued in case of fatal accident for issuance of "Hurt on Duty" Certificate by the Medical Authority when and where it is relevant.
6.8) The Applicant concerned was referred by B.R. Singh Hospital to Orthopaedic Hospital at Howrah on 25.09.2004 due to applicant's Orthopaedically treatment. The period from 25.09.2004 to 28.10.2004 was regularized in favour of the Applicant as 14 days Leave on Average Pay (LAP) and rest 20 days as Half Leave Average Pay (HLAP), ie. treated as sick. The applicant concerned was granted 360 days on & from 29.10.2004 to 23.10.2005 leave not due on half average pay leave based on his appeal.
6.9) As the applicant concerned remained sick afterwards 23.10.2005 and he had not earned leave against his records, the whole period of his absence from 24.10.2005 to 31.07.2008 was treated as Leave without Pay. The applicant Sri Ghosh resumed his duty on 01.08.2008 at Station Manager/Konnagore Office.
6.10) The Chief Health Director/Orthopaedic Hospital, Howrah, Eastern Railway had informed the Railway Administration that the matter of accident of the applicant was raised in the DRM/PNM and a through enquiry was done and found that there were some procedural incompleteness and thus granting for "Hurt on Duty" could not be made (Copy enclosed and marked as Annexure R-1). However, Memo of GA-3 was never issued to initiate the case as "Hurt on Duty"."
Learned Counsel for the respondents submits that the speaking order has been rightly passed and dealt with in detail in consonance with the rule position. No other point have been raised by the respective counsel for the parties.
4, Analysis :-
oye 8 OA 871/2020
4.1 Examining the issue, we would highlight the rule position pertaining to the respondents, more particularly Rule 552 and 553 of Indian Railway Establishment Code Vol. I, which has been cited hereinabove.
Further, the contention herein pertains to Rule 554 of Indian Railway Establishment Code Vol. I, i-e., the hospital leave which has also been cited hereinabove.
4.2 The main contention of the respondents to deny the claim of the applicant is only that there is no verification about the veracity of the accident in as much as in terms of rule 554 of the Indian Railway Establishment Code | Vol. I, it has not been proved on record whether the said accident has occurred in the course of the employment as nothing has come on record to prove that in terms of Rule 554, if such injuries is directly due to risk incurred in the course of the official duty.
4.3 Learned Counsel for the respondents would vehemently argue and urge this Tribunal that even though there was an inspection report (annexed at R/4), there is a clear stipulation that in absence of any police verification, the veracity as well as the mode and manner of the accident has not been proved that such incident in fact occurred in course of the official duty. To the contrary, Learned Counsel for the respondents does not dispute the admitted position that the applicant was sent on official duty. He was sent to Government Hospital. Further, he was referred to another Government Hospital namely Central Hospital, Northern Railway, Delhi, thereafter he was also referred to AIIMS. It is also not disputed that G-8 was issued in favour of the applicant. Further, the following letter dated 25.09.2004 can be seen from the records :-
Ane 3g OA 8713/2020 It is also noticeable from the letter of Chief Health Director, Orthopedic {emphasis supplied) "Sri Divisional Operation Manager, Eastern Riv. AWH, SUB-HOD of Mrinal Kanti Ghosh, 8p. BE/KOG REF (T) RUMUSRZPNM MINUTES /2Q06/HWHAIO® QOet (06 (itern No.0&} (2) COM/CL/ROG/O4-23.09.04 By BS/Kog To SROMO/BRSH/SDAH (3) MD/BRSH/ERLY/SDAH/25-09-04 to MD/Orthopaedic Hospital/HWH MR Ghosh working ax senior BR. C under the administrative contre! of SM/B89G met with serious accident while on ralheay duty on 23.09.04. He was admitted at BR. Singh Hospital an the authority of G-8 issued by BS./KOG, Although B.5,/K0G vide his letter as per ref No. 2 had written to the senior DMO/RRSH/SDAH for treating the patient on HOD but however the same could not be granted. The matter was raised in the DRM {PNM by SECY/BANDEL BRANCH. A Chread bare enquiry has been done and it has been taken note of that due to procedural jacompleteness, the required process for HOD could not be initiated. Therefore 8M/KOG may please be advised to issue GA-3 form to MD/BRSH /SDAH/EASTERN RAILWAY by filing all the columms so that the process for HOD can be initieted hy the competent authority. This is in compliance of the advise of DRM ATWH.,
2) GS/ERMU/KOL
3) MD/BRSH/SDAH/E,.RLY Sd/-Hiegible 2R4070 {DR AK SAHA) Citef Health Director ORTHOPADEIC HOSPITAL/HWH"
44 learned Counsel for the respondents vehemently relies on the decision rendered in Regional Director, ES Corporation ys Francis De Costa And OOO) 10 OA 8771/2020 Ann, reported in £993 SCC Supl (4) 100, more par teularly para 2, 5 and 14 {iv}, which is reproduced as under :-
"2. In determining whether @ given accident occurred in the course of emplayee's employment, the factual pocture as a whole must bé leaked at, ane any approach based on fallacious concept that any one factor is conclusive must be rejected. The facts are of crucial yaportance, and the addition to ar subtraction af one factor in a given sttiattion may tilt the balance, whereas in another situation the addition or subtraction of the same factor may make no difference. This, however, does not Indicate that there are no "principles in the fight of which a court can decide whether an employee was acting in the. course or arising out af his employment at the material time when the aceldent had occurred. feb. By
5. The doctrine of coming in and going from werkplace is subject tc reasonable extension. [fis common knowledge that the home ts the employee's base fram which it is his duty to start for work. When an employee travels by direct route from his home to the place oF work but jor that he has no eccasion te traverse the way though private/public road way is the marmal or agreed or accustomed route to reach the workplace, he must be treated to be travelling in the course of his employment as incidental to join the duty or leaving the werk place. [$4 D-E]} .
14 De hors the Ihaman Right and Constitutional goal, the march of jurisprudence emphasises that the law did nat remain static but kept pace with the changing secial demands to secure secioseconomic Justice te workman, [54-B]"
: Examining the factual position, Principal Bench of this Tribunal in OA td no. 363/2017 decided on 11.04.2017 in Rajiv Kumar Azad vs, Union of India & Ors., the Principal Bench held as under -
"tt is not disputed thet injury hus been caused. The facts reveal that applicant was unconscious fer long. The applicant was intially adn nitted in BoP. Singh Hospital and thereajter referred to ALILMS.
The denial is based an notion that there was ne palice report and therefore accident did net eccur in course of employment. Such a presumption is fiyper technical and without cory slibstance. Imposition of a pre conditien for a police report to draw an inference in every case of accident to establish that the accident occurred in course of emplayment wauld be too remote. The rules do not contemplate nor mandates lodging of an FIR. In the facts of the present case, it is surprising i note that, how an unconscious person lying in pool of bleed can ledge an FIR for such incident and expecting the same would be iniwonan. Drawing such a presumption runs not only contrary to the rule position bur also inconsistent with letter aod spirit to the Rule pasition in the facts of present case. The accident had occurred is a fact. The manner in whieh it had eceurred is a circumstance. There 8 a He ine, Res ipsa Lequitu he thing speaks for itse in the present facts, itis not disputed that accident has occurred from the very nature af can aecident or injury in the absenve of direct evidence it would establish that the iicident had occurred which in any cirownsteatce would a prudent person came to a conclusian that such accident would have occurred.11 OA 871/2020
Viewed from the another angle, the legal position regarding the evidentiary value of a First Information Report was stated and reiterated by the Apex Court in the case of Baldev Singh & Another Vs. State of Punjab - AIR 1996 SC 372. In paragraph 10 of the said judgment, it has been observed as under:
"State briefly, FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an "encyclopaedia" of the occurrence. It may not be even necessary to catalogue the overact acts therein. Non mentioning of some facts or vague reference to some others are not fatal."
This has also been further reiterated by the Apex Court in the case of CMagesh Vs. State of Karnataka - (2010) 5 SCC 645. In paragraph 26 of the said judgment, it has been observed as under:
"lt is settled law on the point that FIR is not a substantive piece of evidence. However the FIR cannot be given a complete gc-by since it can be used to corroborate the evidence of the person lodging the same. In the judgment of this Court titled Baldev Singh vs. State of Punjab reported in (1990) 4 SCC 692, it was held that as far as the evidentiary value of the FIR is concerned it can only be used to for corroboration of its maker, but the FIR can not be used as substantial evidence or CrlA.Nos.1028-1029 of 2008 ....(contd.) corroborating a statement of third party."
In fact, in a recent judgment of the Apex Court in the case of Anita Sharma and Others Vs. The New India Assurance Company Limited - (Civil Appeal Nos.4010- 4011/2020 dated 08.12.2020), in paragraph 22, it has been held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicabie in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. A somewhat similar situation arose in Duicina Fernandes v. Joaquim Xavier Cruz wherein this Court reiterated that:
"7. It would hardly need a mention that the plea of negligence on the part of the first 'respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530: (2009) 5 SCC (Civ) 189:(2010) 1 SCC (Cri) 1101])."
In this view of the matter, it is clear that the records maintained, even in the cases where police investigation, during the course of their investigation cannot really be considered as substantive evidence and cannot be taken as proof in the facts of a particular case. The reliance, therefore, placed upon by respondents on the documents ie,.police report which is stated to be essential record of the prosecution cannot be a determinative factor or actual proof of the occurrence of the accident.
Furthermore, the requirement of producing a Medical Certificate or the Post-mortem Report or a Death Certificate is obviously to establish the injuries or the death. The production of First Information Report is only for the purpose of notifying in the Claims about the occurrence of the accident and to evidence that it is recorded in the police Station.
As already highlighted above that, there is no provision either under the Railway Rules which indicate that the police records are to be considered as a formal proof of occurrence of the accident.
ane? | 12 OA 871/2020 The way in which the Rules are framed indicates that that the intent of the legislature was to basically ensure that a victim of a motor vehicle accident should be put to the least amount of difficulty in securing compensation and the entire duty to ascertain the facts relating to the accident would lie on the respondent themselves.
To say the least, the onus of establishing the accident that it did not occur during course of employment is on railway authorities. Once in the present case the applicant had discharged his initial burden as evident in facts of the case as highlighted above, the respondents cannot deny the fact that in as much as the applicant had undergone for long treatment in government hospitals what all was required to be done was just to gather full information of the accident, ascertain and verify the factum of the the accident and confirm the same. it is not disputed that the applicant went on official duty. There is nothing on record to show that the applicant has made a false representation or had taken undue benefit involving a case of misconduct.
This salutary and solemn duty cast on the Respondents cannot be suggestive to the insist upon any police report and it cannot shirk this responsibility cast on them statutorily by simply asking for the documents of the prosecution, such as the FIR, Statements and the Charge sheet and contend that they had proved or disproved the occurrence of the accident."
Furthermore, in the given facts and circumstances no independent evidence is forthcoming from the respondents authorities. except for the instructions to prove the contrary. Even lodging or not lodging FIR cannot be said that the accident has not occurred in the course of the employment. Hence, as already highlighted above, since the Chief Health Director had already advised to issue GA-3, the stand adopted by the respondents in their reply, inter alia, to the effect that for the purpose of initiating HOD there was no issuance of GA-3, this itself is contrary to the advice of the Chief Health Director which has not been acted upon by the respondent authority for the reasons best known to them.
6. Conclusion:
6.1 In view of the above, the impugned speaking order dated 03.09.2020, issued by respondent no. 2 is quashed and set aside. Respondent authorities are directed to pass appropriate orders as per the rule position in terms of Rule 554 Indian Railway Establishment Code Vol. I for declaring the applicant Hurt-on-Duty in the light of the medical evidence by issuing necessary GA-3 or any other formalities. The said office order be passed by the competent Rn ae, 13 OA 871/2020 respondent authority within a period of 08 (eight) weeks from the date of receipt of certified copy of this order.
6.2 Needless to say, in the event the respondents fail to comply with the aforesaid direction within a period of 08 weeks, the applicant shall be entitled to interest of 8% in the GPF from the date of expiry of 08 weeks from the date of actual! period.
6.3. With these directions, OA stands allowed. No order as to costs.
(Anindo Majumdar) (Manish Garg) Administrative Member Judicial Member sl