Central Administrative Tribunal - Ernakulam
Fancy Babu vs The General Manager Southern Railway Hq ... on 21 June, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00439/2019
Tuesday, this the 21st day of June 2022
CORAM:
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Fancy Babu,
Aged 52 years,
W/o.Babu Thomas,
Ex-Office Superintendent, Divisional Office,
Southern Railway, Palghat.
Residing at Muttathupadam House,
Gandhi Nagar P.O., Kottayam - 686 008. ...Applicant
(By Advocate Mr.Martin G Thottan)
versus
1. Union of India represented by General Manager,
Southern Railway, Park Town P.O.,
Chennai - 600 003.
2. Senior Divisional Personal Officer,
Southern Railway, Palghat Division,
Palghat - 678 002.
3. Senior Divisional Finance Manager,
Southern Railway, Palghat Division,
Palghat - 678 002.
4. Senior Divisional Personal Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 695 014. ...Respondents
(By Advocate Mr.O.M.Shalina)
This application having been heard on 8 th June 2022, the Tribunal on
21st June 2022 delivered the following :
ORDER
The applicant has filed this O.A seeking the following reliefs :
(i) Call for the records leading to the issuance of Annexure A-4 and quash the same to extent it treat the period from 29.02.2016 to 30.12.2017 as 'no work no pay'.-2-
(ii) Call for the records leading to issuance of Annexure A-6 and quash the same to the extent only 24 years of qualifying service is reckoned for pensionary benefits.
(iii) Declare that the applicant is entitled to get full salary and admissible allowance for the period from 07.02.2015 to 30.12.2017 with due annual increment and direct the respondents accordingly with all consequential benefits including revision of retirement benefits.
(iv) Declare that the applicant is eligible for leave salary for 300 days and direct the respondents accordingly.
(v) Direct the respondents to sanction and disburse commutation of pension to which the applicant is eligible.
(vi) Award costs of and incidental to this application.
(vii) Grant such other relief which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(It appears that during the pendency of the O.A the relief at Sl.No.(v) above directing the respondents to sanction and disburse commutation of pension has been granted by the respondents.)
2. The application has been filed for quashing the Office Order at Annexure A-4 along with Pension Payment Order (PPO) at Annexure A-6, both to certain extents. The main facts of the case are as follows :
The applicant is a former Office Superintendent of the office of the 2nd respondent, Senior Divisional Personnel Officer (SDPO), Southern Railway, Palghat Division. While working as a Senior Clerk under the 2 nd respondent, the applicant, during maternity leave, acquired a disability due to paraplegia, resulting in lower body paralysis on 24.04.1998. Later she was found medically unfit for all classes of employment and her services were terminated by the 2nd respondent with effect from 15.02.2002 on -3- request. She was also granted invalid pension. Being a incapacitated and secluded since 24.04.1998, she was not aware of her rights and protection granted under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as PWD Act for short). She also submits that neither did the 2 nd respondent invoke the provisions of PWD Act to help her but on the other hand prevailed upon her to seek retirement and invalid pension. Much later when she was made aware of the PWD Act (in April, 2008) she made a representation to take her back in service. When she got no response, she filed O.A.No.49/2009 before this Tribunal challenging her termination. The O.A was allowed by the order dated 05.02.2010 relying on various Hon'ble Apex Court decisions relating to treatment of persons with disabilities. A direction was given to the respondents in the O.A to reinstate her with effect from 15.02.2002 and also to place her on a supernumerary post with effect from the date when she had contracted paraplegia ie., 24.04.1998, and, further, to give her all consequential benefits within three months. The respondents, however, challenged the order of the Tribunal by filing W.P.(C) No.15871/2010 before the Hon'ble High Court of Kerala. The W.P.(C) was dismissed by the Hon'ble High Court in its judgment dated 25.08.2014. Subsequent to the judgment, the applicant was reinstated in the office of the 2 nd respondent with effect from 15.02.2002 and she was placed on a supernumerary post with effect from 24.04.1998. However, she was also asked to remit back the terminal benefits and invalid pension which had been drawn. She was also directed to report at the office of the 2 nd respondent daily and mark attendance. She then reported her inability to physically attend the office at Palghat daily to mark attendance. She also prayed for adjusting her dues to -4- Railways from the salary payable to her from 24.04.1998. It is submitted that the respondents agreed only to set off her dues as requested but kept insisting on her marking attendance daily at Palghat Office. As her attendance at the Palghat Office was not exempted, she also submits that the 2nd respondent then issued a Pay Fixation Statement (at Annexure A-1) wherein it was indicated in the remarks column that payment of salary to her has been made only upto 06.02.2015 as per the date of Office Letter addressed to her advising her to report at Palghat. However, she was also paid her arrears of pay after deduction of dues amounting to a net amount of Rs.26,11,023/-.
3. It is thus submitted by the applicant that the 2 nd respondent has refused to pay salary after 06.02.2015. She was insisted upon to attend the office physically and sign the attendance register daily. As it was physically incapable for her to do so due to paraplegia (lower body paralysis), she filed an M.A.No.180/119/2015 in the earlier O.A.No.49/2009 before this Tribunal. After hearing both sides in the M.A, this Tribunal ordered that a Railway Medical Officer would examine her at her residence and submit a report on her physical and mental health, including her ability to attend office. The report was then submitted to this Tribunal and after considering the Report and hearing both sides, the Tribunal passed an order on 29.02.2016 in M.A.No.180/119/2015 of O.A.No.49/2009. In the order the Tribunal reproduced the entire medical report which clearly indicated that the applicant was in no position to physically attend the office. The Order of the Tribunal in M.A 180/119/2015 dated 29.02.2016 is produced at Annexure A-2. The applicant submits in this O.A that she is not averse to -5- the Order. However, the respondents again challenged the Order (at Annexure A-2) in the Hon'ble High Court of Kerala by filing O.P.(CAT) No.182/2016. This then resulted in a very detailed judgment passed by the Hon'ble High Court on 03.10.2016 dismissing the said O.P.(CAT). This was, in turn, challenged by the respondents before the Hon'ble Supreme Court in Civil Appeal No.196765/2017 arising out of S.L.P.No.3727/2017. The Hon'ble Supreme Court disposed of the Appeal by order dated 24.11.2017; a copy of the order has been produced at Annexure A-3. It is submitted in this O.A that the Hon'ble Supreme Court did not disapprove or set aside the Annexure A-2 order and, hence the applicant is eligible for all service benefits upto her final termination from service the order regarding which, was passed by the respondents vide the impugned Annexure A-4 order dated 29.12.2017. In this office order produced at Annexure A-4 the respondents in the case of the applicant have treated the intervening period from the date of order of the Tribunal in M.A.No.180/119/2015 ie., 29.02.2016 to the date of termination of her service ie., 30.12.2017 as a 'no work no pay' period and further ordered that she will draw pension from 31.12.2017. However, there is no mention in the order about non payment of salary for the period 07.02.2015 to 28.02.2016.
4. The applicant had submitted a representation against Annexure A-4 office order. She submits that in view of the Hon'ble Supreme Court decision at Annexure A-3 she cannot be denied salary from 07.02.2015 as the respondents have done. The respondents have issued a PPO No.0605224367, the impugned document at Annexure A-6, where the date of appointment of the applicant is shown as 13.09.1990 and date of -6- cessation is 30.12.2017. She submits that the qualifying service however is shown as 24 years instead of 27 years in the PPO. Her pension is shown as Rs.10,400/- with 125% Dearness Relief, which was later revised as Rs.26,728/- plus dearness relief without commutation. No leave salary is given and commutation of pension was subject to outcome of medical examination.
5. The applicant is aggrieved by the impugned order at Annexure A-4 and the PPO at Annexure A-6. As per the impugned order dated 29.12.2017 at Annexure A-4 the service of the applicant is to stand terminated with effect from 30.12.2017. It has also been indicated that the intervening period from the date of order of the Tribunal in M.A.No.180/119/2015 ie., 29.02.2016 to the date of termination of her service ie., 30.12.2017 is to be treated as 'no work no pay'. Accordingly it is indicated that the applicant will draw pension from 31.12.2017. The applicant submits that the order of this Tribunal dated 29.02.2016 in M.A.No.180/119/2015 in O.A.No.49/2009 had directed the respondents as follows in paragraphs 8 and 9 :
"8. This Tribunal in view of medical condition as certified by the Senior Divisional Medical Officer of the Railway Hospital, Palghat, direct that the applicant shall not be required to report to office for receipt of her salary and associated benefits. This is treated as a special case and it shall not be treated as a precedent.
9. However, in view of the fact that the disability was not acquired in the course of performance of duties, the applicant, having completed 25 years of service is required to examine acceptance of voluntary retirement with pension as she is entitled to get full benefits particularly in view of her restoration of service which gives her the benefit of service for computation of pension."
(emphasis supplied) -7-
6. Further, when the matter went up to Hon'ble Supreme Court in Civil Appeal No.19765/2017 the Hon'ble Court had taken notice of paragraph 9 above and directed as follows :
" ....The above order dated 29th February 2016 of the Tribunal has not been challenged by the respondent. The challenge to the said order was before the High Court by the appellants. However, on not being convinced instead of merely rejecting the plea of the appellants, the High Court has made several observations which are wholly uncalled for and do not flow from the correct interpretation of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. All that Section 47 prohibits is that an employee should not be discriminated against or punished in any manner only on the ground of disability. The said provision does not in any manner prohibit the employer from retiring an employee who is unable to perform the function allotted to him/her.
In view of above, the respondent has no further rights beyond the right of pension, in case she is retired, and beyond the salary, if she is allowed to continue in service.
The dues of the respondent, if not already paid, may accordingly be worked out within three months from today. We make it clear that it will be open to the appellants to take any further action in the light of above observation.
xxxxxxxxx The appeal is accordingly disposed of."
(emphasis supplied)
7. It is the submission of the applicant that the Hon'ble Supreme Court has not disapproved or set aside the order of the Tribunal passed in M.A.No.180/119/2015 at Annexure A-2. On the other hand, the Hon'ble Supreme Court has endorsed paragraph 9 thereof about the retirement of the applicant. It is submitted that the applicant is eligible for all service benefits upto her date of termination/retirement from service by the impugned Annexure A-4 order. Thus, treating the period from the date of the order of -8- the Tribunal in M.A.No.180/119/2015 ie., 29.02.2016 to her date of termination from service ie., 30.12.2017 as a 'no work no pay' period is unsustainable. It is submitted that the applicant is entitled for the salary from 06.02.2015 to till 30.12.2017. It is submitted that the judgment of the Hon'ble Supreme Court has simply endorsed paragraph 9 of the Annexure A-2 order about retirement of the applicant, having completed 25 years of service and she is thus entitled to get full benefits on retirement. The appellants (Railways) were only authorized to take further action in that regard, making it clear that the respondent (the applicant herein) has no further right beyond pension if retired and beyond salary if allowed to continue. Since she was allowed to continue in service till 30.12.2017 and granted invalid pension from 31.12.2017 as per Annexure A-4 order and Annexure A-6 PPO, no salary can be denied to her till that date. There was no restriction in pension thereafter. It is further submitted that no work was assigned to the applicant who was placed on a supernumerary post, with retrospective effect from 24.04.1998 and, hence, to treat the period as 'no work no pay' basis is also not correct. She is entitled not just to the salary for the period from 07.02.2015 to 30.12.2017 but also to the annual increment, which is to be worked out in continuation of Annexure A-1 pay fixation statement. Her pension, DCRG and other terminal benefits should thus be worked out on the basis of the final salary so arrived at by reckoning the total qualifying service of 27 years instead of qualifying service of 24 years as shown in the PPO. In any case the qualifying service of 24 years shown in Annexure A-6 PPO is wrong since the very same PPO shows her date of appointment as 13.09.1990 and date of cessation as 30.12.2017, which clearly means 27 years of qualifying service has to be counted while -9- working out DCRG. Further, no leave salary has also been granted even though she has not availed any leave during SNP period from 24.04.1998. Thus, she is also eligible for 300 days of leave salary.
8. The respondents have filed a reply statement wherein they have, at the outset, submitted that as per the direction of the Tribunal passed on the date of admission of this O.A on 25.06.2019, the applicant had been directed for attending a medical examination at the Divisional Railway Hospital/Trivandrum on 18.07.2019. The medical authority has since certified her fit for commutation of pension. Accordingly, her pension has been commuted and a sum of Rs.4,33,206/- has been arranged for payment in her favour, as per letter of authority produced at Annexure R-1. Further, as a full background to the case, the respondents have also submitted that after the Tribunal had allowed O.A.No.49/2009 on 05.02.2010 and after the dismissal of W.P.(C) No.15871/2010 by the Hon'ble High Court as per judgment dated 25.08.2014, it was in compliance with the order of the Tribunal that the applicant had been reinstated in service as per order dated 16.02.2015 produced at Annexure R-2. This order was passed directing her to report for duty immediately. A corrigendum to Annexure R-2 letter was issued on 19.02.2015 and is produced at Annexure R-3. Thus, as per these orders at Annexure R-2/Annexure R-3, the 2nd respondent, SDPO, Palghat had directed the applicant to report to the office immediately as well as to remit all the settlement dues so far drawn by her. In reply to these directions the applicant submitted Annexure R-4 dated 24.02.2015 in which she has submitted that she is not in a position to report in person to office due to her disability (paraplegia) and, hence, she was reporting back only -10- through the letter. Further, she submitted that she could not remit the amounts demanded due to extreme indigency as she was not receving any payment after 03.12.1998. Hence, she prayed that the amount be adjusted from the amount due to her as salary and other allowances with effect from 24.04.1998, the date on which she acquired disability. Further, she made it clear in the letter that she would not draw any pension from the next month onwards and requested to cancel the PPO. She also prayed that all the salary and other dues, as directed in the order of the Tribunal in O.A.No.49/2009, should be paid to her.
9. However, the respondents after considering her request as brought out above issued a letter to her on 27.04.2015, produced at Annexure R-5. This is reproduced below :
" With reference to your letter referred to above, it is to advise you that neither the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 nor the Chapter XIII of Indian Railway Establishment Manual (Vol.I) which govern the creation of special supernumerary post and absorption of medically decategorized staff provide for dispensing with the requirement of reporting to office in person by employees kept on special supernumerary post. As such your request to treat you reporting through letter is against the provisions of the above Act or the rules made under the said Act as provided in Chapter XIII of Indian Railway Establishment Manual.
It is to advise you further that as per para - 1305 of the IREM which has been incorporated in terms of provisions of Disability Act, 1995 provides that the Railway servants who are declared unfit even for the lowest medical category may be absorbed in a post/category identified as suitable for employment of physically handicapped persons.
As regards your request for offsetting the dues payable to Railway against the arrears due to you, the same will be considered.-11-
In view of the above rule provision you are required to report to this office".
However, it is submitted that the applicant preferred to file M.A.No.180/119/2015 in O.A.No.49/2009 seeking implementation of the order of the Tribunal. The necessary details in this regard along with the subsequent order of the Hon'ble Supreme Court in Civil Appeal No.19765/2015 arising out of S.L.P.No.3727/2017 were brought out in the previous paragraphs while outlining the applicant's case. The respondents submission is that not withstanding all these developments, all that the Section 47 of the PWD Act, 1995 prohibits is that an employee should not be discriminated or punished in any manner only on the ground of disability. It is submitted that the said provision does not in any manner prohibit an employer from retiring an employee who is unable to perform the functions allotted to him/her. The Hon'ble Supreme Court in its orders brought out earlier had also observed that the respondent (the applicant in this O.A) had no further rights beyond the right of pension, in case she is retired, and beyond the salary, if she is allowed to continue in service. Further the Hon'ble Supreme Court had also allowed the appellant (Railways) to take any further action in the light of these observations. Hence, since the applicant had expressed her unwillingness to report for duty vide her Annexure R-4 letter dated 24.02.2015, her services were terminated with effect from 30.12.2017 vide the impugned order at Annexure A-4, in the light of the orders of the Hon'ble Supreme Court. Even though the Tribunal, as per paragraph 8 of Annexure A-2 order dated 29.02.2016, had directed that the applicant shall not be required to report to office for receipt of her salary and associated benefits, the order of the -12- Hon'ble Supreme Court is binding and has an over-riding effect on Annexure A-2 order. Thus, the intervening period from the date of order of the Tribunal in M.A.No.180/119/2015 ie., 29.02.2016 to the date of termination of her service ie., 30.12.2017, was treated as a 'no work no pay' period as clearly stated in Annexure A-4 order terminating her services. Further, inspite of the fact that the Tribunal had under paragraph 8 of its order dated 29.02.2016 mentioned that the applicant shall not be required to report to office for receipt of her salary and associated benefits, it was also indicated in the same order in paragraph 9 that the applicant was required to examine acceptance of voluntary retirement since the disability was not acquired in the course of performance of duties. This direction of the Tribunal has not been challenged by the applicant as is evident from the observation made by the Hon'ble Supreme Court in its Annexure A-3 order. On the other hand the applicant vide Annexure R-4 letter dated 24.02.2015 had expressed her unwillingness to report for duty and hence the respondents are fully justified in treating the period between 29.02.2016 and 30.12.2017 as a 'no work no pay'.
10. The respondents have submitted that though the applicant was reinstated in service in February, 2015 as per the order of the Tribunal in O.A.No.49/2009, she did not report for duty even for a single day. Thus, she is not eligible to receive any salary or any other benefit for the period from February 2015 to 28.02.2016 as well and that the period was also required to be counted as a 'no work no pay' period. In other words, it is submitted that the order of the Hon'ble Supreme Court makes it clear in its observations relating to provisions of Section 47 of the PWD Act, 1995 that -13- the said provision does not in any manner prohibits the employer from retiring an employee who is unable to perform the function allotted to him/her. It is a fact that the applicant, even though she was reinstated in service as per Annexure R-2 order issued in February, 2015, did not report for duty. Thus, she has not worked during the period from February 2015 to 30.12.2017. Hence, the Railways have decided to treat the entire period as 'no work no pay'. They have also been advise on legal grounds that, in case, back wages were paid till the date of termination/retirement of the applicant in December 2017, then the observation made by the Hon'ble Supreme Court would become meaningless, in view of the fact that she had not reported for duty and has not worked. Thus the entire period from February 2015 to 30.12.2017 has had to be treated as a 'no work no pay' period in regard to the applicant.
11. The respondents submit that the applicant has sought to quash Annexure A-6 PPO for the reason that instead of 27 years of qualifying service only 24 years of qualifying service had been reckoned for pensionary benefits. The respondents submit that the applicant was appointed to Railway service as Clerk on 13.09.1990 and that her services were initially terminated on 15.02.2002. She had only 11 years of qualifying service between 13.09.1990 and 15.02.2002. Later, after the order of the Tribunal in O.A.No.49/2009 was implemented, her services were extended until they were finally terminated on 30.12.2017. However, the period between 16.02.2015 and 30.12.2017 had been treated as 'no work no pay' in the light of Hon'ble Supreme Court judgment at Annexure A-3. It is submitted that during the period from 13.09.1990 to 30.12.2017 the -14- applicant has got a total of 3 years, 4 months and 20 days of non qualifying service and considering the said non qualifying service, the applicant in effect has only 23 years, 10 months and 27 days of qualifying service which was treated as 24 years of qualifying service. Hence the pensionary benefits have been calculated accordingly. Thus, Annexure A-6 PPO has been prepared according to the rules and there is no basis for seeking quashing of the same. In addition, the applicant has sought to be declared eligible for 300 days leave salary. It is submitted that as per the Leave Rules, a Railway employee is eligible for 30 days of leave on average pay per year. The employee can accumulate leave upto the extent of 300 days during his entire service beyond which the same will lapse. When the employee is terminated from service he can encash the leave at his credit limited to 300 days. However, these rules are applicable to employees who have physically attended their work spots and executed the work allocated to them. In the case of the applicant, however, it is different, because she had neither attended the work spot nor had any work been allocated to her. She was not required to report to office as a special case by the orders of the Tribunal in M.A.No.180/119/2015. Thus, it is submitted that leave, being a privilege to employees granted as a permission to stay away from the work, the very fact that the applicant herself was abstaining from reporting to office implies that the question of granting leave does not arise. Further, even while allowing the applicant to abstain from office, the Tribunal had allowed the same only for receipt of her salary and associated benefits. Leave salary is not an associated benefit like Dearness Allowance, House Rent Allowance, City Compensatory Allowance etc., which are the associated benefits of a salary, which accrues with salary. It is thus -15- submitted that leave, being a privilege granted to employees who attend office, the applicant having not attended office or executed any work leave cannot be credited to her account. Thus, no leave salary can be paid to her in the absence of any leave at her credit.
12. The respondents submit that the decision taken by them is in fact fully tenable and within the parameters of the order of the Hon'ble Supreme Court, as well as paragraph 9 of the Annexure A-2 order of this Tribunal. As per paragraph 9 of the Annexure A-2 order the applicant was asked to examine acceptance of voluntary retirement, since the disability was not acquired in the course of performance of duties. This direction of the Tribunal was never challenged by the applicant as is evident from the observations made by the Hon'ble Supreme Court in Annexure A-3 order. Even the direction of the Tribunal in Annexure A-2 order that the applicant shall not be required to report to the office for receipt of salary and associated benefits has now been overruled by the Hon'ble Supreme Court through Annexure A-3 order. Hence, in view of Annexure A-3 order she is not eligible for any salary and attendant benefits for the period she has not worked. The reason why the qualifying service in her case has been worked out to only 24 years has already been detailed earlier. Hence the Pension, DCRG and other terminal benefits paid to the applicant does not require any further revision.
13. I have considered these contentions and have also heard Mr.Martin.G.Thottan, learned counsel for the applicant and Mrs.O.M.Shalina, learned counsel for the respondents. From the repetitive -16- details and rival interpretations which have been submitted by both sides in the OA, it is necessary to arrive at a clear understanding of the matters at issue. In this I am guided by the directions and observations in the Order of the Hon'ble Supreme Court, brought out earlier. The relevant issues which have to be taken into consideration have been highlighted in the Order. The first point to note is that the Hon'ble Supreme Court's order at Annexure A- 3 makes it clear that there is no bar under the Section 47 of the PWD Act, 1995 for an employer to retire an employee who is unable to perform the function allotted to him/her. Next, the Hon'ble Supreme Court also clearly directed that the respondent (applicant in this O.A) has no further rights beyond the right of pension, in case she is retired and beyond salary, if she is allowed to continue in service. The respondents have taken a decision not to allow her to continue in service and thus they do not appear to have gone beyond the direction of the Hon'ble Supreme Court in terminating her service with effect from 30.12.2017. The issue herein is, however, not so much the order of termination/grant of pension or the date of termination but what is to be done with the apparent 'intervening' period from 07.02.2015 to 30.12.2017, where the applicant claims that she was still on the rolls of the Railways and, therefore, is entitled to pay and other allowances. In this matter the order of the Tribunal in M.A 180/49/2015 in O.A 49/2009 was only that the applicant shall not be required to report to office for receipt of salary and associated benefits. It was also indicated by the Tribunal that this is a special case and that the applicant having completed 25 years of service was also required to examine acceptance of voluntary retirement with pension. No dates were mentioned and it was an order passed on 29.02.2016. The order of the Hon'ble Supreme Court has -17- highlighted the observation of the Tribunal regarding the requirement of the applicant in the O.A to accept voluntary retirement pending completed certain years of service. No specified date was given to the respondents in the O.A to consider about when this was to be considered. It was noted that the applicant in the O.A had not contested or challenged the Order of the Tribunal. The Hon'ble Supreme Court only stated that the dues of the applicant if not already paid may be worked out and paid to her and it would be open to the appellants (respondent in the O.A) to take any further action in the light of their observations including that she has no further rights beyond the right of pension if she is retired and beyond the salary if she is allowed to continue in service.
14. It is also to be noted that there appears no way that the respondents could have adjusted her in another post, as has been suggested by the applicant in her rejoinder because there was no question of her reporting for duty in any post when she is not medically fit to do so. Hence, when the IREM and the relevant Rules do not allow absorption for such a person and for any duties being given to her, there appears to be no alternative but to treat the period as 'no work no pay'. It is rather convoluted argument that is entered by the applicant in the rejoinder, that, because she was not given any duty she should be paid salary. There could be no way that the respondents could give her any duty given her condition. Overall, therefore, I do not think that the applicant has been, in any way, maltreated or discriminated or that the respondents have shown malafide or have interfered with natural justice in her case, once the orders of the Courts were passed and implemented. A supernumerary post can only be arranged in -18- case the person concerned continues to work for the Railways but surely cannot be given when the person has no ability to perform any duty at all for the Railways. Thus, treating the entire period as 'no work no pay' is justified.
15. In light of the above, I do not find that the treatment of the period from the date the applicant was directed to attend the office and she made it clear that she will not be able to attend ie., from 07.02.2015 to the date of her termination of service 30.12.2017 as 'no work no pay' amounts to being in any way against the orders of the Hon'ble Supreme Court. Nor can it be considered malafide or against the principles of natural justice. The respondents had the right to consider the fact that the applicant was not physically present and not in a position to do any work at all in making their decision. The IREM does not envisaged the creation of a special supernumerary post dispensing with the requirement of reporting to office in person by employees. Even otherwise, the PWD Act, 1995, which has been incorporated in para 1305 of the IREM, provides that the Railway servants who are declared unfit even for the lowest medical category may be absorbed in a post/category identified as suitable for employment of physically handicapped persons. In this case the applicant is not able to do even the basic duties owing to her paralysis. Hence the period has been rightly treated as 'no work no pay'. The respondents have thus given the applicant the maximum benefits and consideration (albeit with a push from this Tribunal and from the Hon'ble High Court) and it cannot be accepted in the given facts and circumstances to direct them to do anything more than what has already been done.
-19-
16. The applicant is at present drawing disability pension as per her due from 31.12.2017. Other relief sought by her like leave salary, increments etc., cannot also be paid once this period is allowed to be treated as 'no work no pay'. Hence, she is not entitled to the relief that has been claimed. While there can be considerable sympathy for the plight of the applicant, it is also a relevant point for consideration that the serious medical set back that she suffered was never contracted during her official duties. There were issues during the time of her maternity leave which cannot perhaps be attributable directly to performance of her duties as Senior Clerk. Thus, on this ground also her prayer for relief cannot be justified.
17. It is already noted that the relief at the array at Sl.No.(v) to sanction and disburse commutation of pension to which she is eligible has already been granted. Except for this relief, which has already been granted, I do not find that a case has been made for grant of any of the other relief due to the reasons indicated above. The O.A is therefore dismissed. No order as to costs.
(Dated this the 21st day of June 2022) K.V.EAPEN ADMINISTRATIVE MEMBER asp -20- List of Annexures in O.A.No.180/00439/2019
1. Annexure A-1 - A copy of the pay fixation statement of the applicant.
2. Annexure A-2 - A copy of the order dated 29.02.2016 in M.A.No.180/119/2015 in O.A.No.49/2009.
3. Annexure A-3 - A copy of the order dated 24.11.2017 in S.L.P.(C) No.3727/2017 (Civil Appeal No.19765/2017).
4. Annexure A-4 - A copy of the office order No.J/PB3/2017 dated 29.12.2017.
5. Annexure A-5 - A copy of the representation dated 24.01.2018 submitted by the applicant.
6. Annexure A-6 - A copy of the PPO No.0605224367 dated nil issued by 3rd respondent enclosed with the slip showing PF, DCRG & GIS paid.
7. Annexure A-7 - A copy of the letter No.J/P.626/Settle/VI/12/2017 dated 15.02.2019.
8. Annexure A-8 - A copy of the letter No.J/P.626/Settle/VI/12/2017 dated 11.03.2019.
9. Annexure R-1 - A copy of the Letter of Authority dated 26.07.2019 of Senior Divisional Finance Manager, Palakkad.
10. Annexure R-2 - A copy of the Letter dated 16.02.2015 of Senior Divisional Personnel Officer, Southern Railway, Palakkad.
11. Annexure R-3 - A copy of the Letter dated 19.02.2015 of Senior Divisional Personnel Officer, Southern Railway, Palakkad.
12. Annexure R-4 - A copy of the Letter dated 24.02.2015 of the applicant.
13. Annexure R-5 - A copy of the Letter dated 27.04.2015 of Senior Divisional Personnel Officer, Southern Railway, Palakkad.
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