Central Administrative Tribunal - Kolkata
Somnath Ray vs Eastern Railway on 22 November, 2022
i OA 1755/2022. ee es CENTRAL ADMINISTRATIVE TRIBUNAL ba KOLKATA BENCH, KOLKATA 0.4./350/01755/2022 - Date of Order: 22.11.2022 | ~ Coram: Hon'ble Mr. Jdayesh V. Bhairavia, Judicial Member _ Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member In the matter of : Somnath Ray, son of Late Ashok Kumar Roy, aged about 51 years, EX. Head Constable, residing at 103/17 Nabalia Para Road, Kolkata-700008. a. Applicant Vs. 1. Union of india, service through the General Manager, Eastern Railway, Fairlie - Place, Kolkata- 700001, 2. Principal Chief Persannel Officer, Eastern Railway, Fairlie Place, Kalkata-7GO001. 3. Sr. Divisional Personnel Officer, Malda Division, Eastern Railway, PO + PS- Malda, District- Maida. 2 . . OA 1755/2022 4, Divisional _ Security Commissioner, Eastern Railway, PO+PS-Malda, District-Malda. nanan Respondents For The Applicant(s): Mr. A. Chakraborty, Counsel For The Respondent(s): Mr. 8. Paul, Counsel ORDER (ORAL) »
Per: Hon'ble Dr, (Ms.) Nandita Chatterjee, Administrative Member Agarieved at rejection of his prayer to be accommodated in a desk related job in the backdrop of his medical de-categorization, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"i) Office order n0. E/WLiMed-Linfit/Palicy/Pt-l doted 31.08.2022 issued by respondent no. 3 in respect.of the applicant cannot be sustained in the eye of law and same moy be quashed,
ii) Office order dated 30.09.2022 by which decision of the competent authority was communicated to the applicant carmot be sustained and same may be quashed."
2. Heard Learned counsel for both sides.
Examined documents and pleadings on record. This matter Is taken up for disposal at the admission stage.
3. Learned Counsel for the applicant would submit that the applicant was ~ working as Head Constable in the Railway Protection Force, and, that he was -
3 OA 1755/2022pasted in IT Cell/MLDT/Eastern Railway in the grade pay of Rs. 2400/- enhanced to Rs. 2800/- in terms of MACP, That,on 29.03.2022, when the applicant was sent for medical examination, he was diagnosed to be suffering from "surgically intervened past implant removed, old case of fracture olecranin right side with stiffness of right elbow". That, despite such diagnosis, the applicant was recommended to be posted as Carpentertl in the grade pay of Rs. 2400/- (annexed at Annexure-A/2 to the OA). That, the applicant, vide his communication dated 08.09.2022(annexed at Annexure-A/3 to the OA),-had expressed his unwillingness to resume his duties as Carpenter-ll and, had, instead, prayed for any other desk related job. The authorities, however, communicated their regret vide orders dated 30.09.2022 (annexed at Annexure-A/3 to the OA), aggrieved with which, the applicant has approached this Tribunal praying for the abovementioned rellef.
A, During hearing, Learned Counsel for the applicant would refer to RBE No. 89/99 {annexed at Annexure-A/4 to the OA) wherein guidelines had been laid down for absorption of disabled/medically decategorised staff in alternative employment and would urge that, as the applicant is unable to perform the duties of Carpenter, and, in the event the applicant cannot be accommodated in a suitable alternate post, he may be retained ina supernumerary post in a grade in which he was working on regular basis before his medical decategorisation.
Learned Counsel for the applicant would also cite the judgment rendered in Kunal Singh vs, Union of india & Anr. 2003 SCC (L&S} 482 in support. In Kunal Wad a 4 OA 1755/2022 -
Singh{supra}, the petitioner therein was a Constable in the Special Service Bureau {SSB} who was invalidated from service without any invalid/disability pension. in the case of the respondent. Railway administration however, there is a conscious scheme contained in RBE 89/99 which specifically provides for alternative | employment.
5. Per contra, Learned Counsel for the respondents would vociferously argue that it is not the case of the applicant that he was not permitted to work or function by the respondent Railways, but that it is he who had expressed his unwillingness to perform the duties of Carpenter-Hl as per his own representation at Annexure-A/3, and, that, his prayer was rejected after due consideration on | behalf of the competent authority.
Learned Counsel would also aver that RBE No. 89/99 had culminated as a welfare scheme after prolonged deliberations to assist, the regular railway employees who had acquired medical disabilities during their service, $0 as to prevent them from economic hardships and to provide them with alternate employment.
6. Having heard the rival contentions, and having perused the material on record this Tribunal would infer from Annexure-A/2 to the OA, that the applicant.
was diagnosed as under :-
'He is suffering from "Surgically intervened past implant removed, old case of fracture olecranon right side with stiffness of right elbow". -
His medical candhion is nat fit in his present job as Ha. Constable/RPF due to disease from which he has been suffering. He is fit for jab which does not invalve lifting of heavy weight 5 | OA 1755/2022 using both upper limbs and fire arms duties. Duties with fire arm may be detrimental to himself er others. The employee should perform sedentary nature of job.
He is fit in Medical Category Bee One (B1) as per visual standard."
it is disclosed from the above nated diagnosis is that the applicant has been advised not to lift heavy weight using both upper limbs, and, that he reported an ald history of fracture olecranon in the right side with stiffness of the right elbow. Such diagnosis leads to the logical conclusion that, a Carpenter-i's job involving flexibility of the right elbow and use of right upper arm and lower arm for a right- handed person, may not be the appropriate alternative employment as in the case of the applicant, despite the Committee's recommendations thereon.
ye The authorities, in their communication at Annexure-A/3 to the OA, have not indicated any reason while conveying their regret to the applicant's prayer. In this context, the Hon'ble Apex Court, while adjudicating in the matter of Rakeshbhai Jayantilal Patel vs. State of Gujarat in R/Special Civil Application No. 16195 of 2020, had ruled as follows _ "Wf the administrative officers having a duty to act judicially are required to set forth in writing the mental processes of reasoning which have led them to the decision, it would tog large extent help to ensure performance of the duty to act judicially and exclude arbitrariness and caprice in the discharge of their functions. The public should nat be deprived of this anly safeguard.
4, Anather reason of equal cogency which weighs with us in spelling out the necessity for giving reasons is based on the power of judicial review which is possessed by the High Court under Article 226 and the. Supreme Court under Article 32. The High Court under Article 226 and the Supreme Court under Article 32 have the power ta quash by certiorari a quasi-
judicial order mode by an administrative officer and this power of review exercisable by issue of certiorarl can be effectively exercised only if the order is a speaking order and reasons are given in support of it. if no reasons are given, it would not be.possible for the High court ar the Suprente Court exercising its power af judicial review to examine whether the administrative afficer has made any error of law in making the order. it would be the easiest thing for an administrative officer to avoid judicial scrutiny and correction by omitting to give reasons in support of his order. The High Court and the Supreme Court would be powerless to interfere so as to keep the administrative officer within the limits of 6. OA 1755/2022 ~ * the Jaw. The result would be that the power of judicial review would be stultified and ne 'redress. being available to the citizen, there would be insidious encouragement to C/SCA/16195/2020 ORDER arbitrariness and caprice. The power of judicial review is a necessary concomitant of the rule of law and if judicial review is to be made an effective instrument for maintenance of the rule of law, it is necessary that administrative officers discharging quasijudicial functions must be required to give reasons in support of their orders so that they can be subject to judicial scrutiny and correction, 14, In view of the aforesaid settled legal position, by no stretch of imagination, it con be suid that the impugned order passed by respondent no. | would satisfy any of the criteria prescribed in the aforesaid decisions as te impugned arder an face of it, is not a speaking and reasoned order and therefore, without gairig into the merits of the case, the impugned order dated 23.12.2020 passed by respondent nai js required to quashed end set aside by _ femanding the matter back ta respondent no.1 to pass a reasoned speaking order keeping in "mind the aforesaid legal position." a Further, the ratio contained in the Hor'ble Apex Court's decision. in Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota vs. Shukla and Brothers [(2010) 4 SCC 785} and Union of india & Ors. vs, Essel Mining & Industries Ltd. & Anr, [{2005} 6 SCC 675] also highlight that reasons form the very backbone of any order, bereft of which, an order is "meaningless.
Hence, reasons being the sine qua non of any order, whether affirmative or otherwise, the cryptic regret order dated 30.09.2022 Is hereby quashed and set aside,
8. The respondents are hereby directed to ascertain a sultable alternative employment in the case of the instant applicant, and particularly in the manner laid down in para 1306 of RBE No. 89/99.
In the process of searching for a suitable alternative employment for the applicant herein, the provisions of para 1301 that "A Railway servant who foils in a vision test or otherwise by virtue of disability acquired during service becomes physically incapabie of performing the duties of the post which he occupies should (a = 7 . OA 1755/2022 _ _ not be dispensed with or reduced in rank, but should be shifted to same other post with the some pay.scale and service benefits" is to be adhered to. The authorities should also refer to para 1304 which states as under s~ *Railway administrations should take care to ensure thot the alternative employment offered is anly in posts which the staff can adequately fill and as far as possible should broadly be in allied categories where their background and experience in earlier posts could be utilized."
%. Such alternative employment should be ascertained and offered to the applicant concerned within a period of 2 months from the date of receipt of a -
copy of this order.
Till such time that an alternative appointment is made available to him as per the provisions of RBE No. 89/99, the applicant should not be deprived of his rightful entitlements, failing which the provisions of para 1303 would apply.
10. With these directions, the instant OA stands disposed of. There will be no orders as to casts, .
ne cond .
a (Dr. Nandita Chatterjee) (Jayesh V. Bhairavia) Administrative Member . Judicial Member al :