Central Administrative Tribunal - Allahabad
Anil Kumar Sahu vs General Managar, N Rly on 16 May, 2019
Reserved
(On 08.05.2019)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH,
ALLAHABAD
Dated: This the 16th day of May, 2019
Original Application No 330/00027/2012
Hon'ble Ms. Ajanta Dayalan, Member - A
Hon'ble Mr. Rakesh Sagar Jain, Member - J
Anil Kumar Sahu son of Shri Ram Pyare Sahu a/a 32 years Resident of 249 B,
Adarsh Nagar, J.K. Colony, Jarjmaju, Kanpur-208010.
. . .Applicant
By Adv: Sri Ashish Srivastava
VERSUS
1. Union of India through General Manager, Northern Railway, Baroda House,
New Delhi.
2. Senior Divisional Personnel Officer, Office of the Divisional Railway
Manager, Northern Railway, New Delhi.
3. Senior Crew Controller/L.R. Northern Railway, Ghaziabad.
4. Senior Divisional Medical Officer, Ghaziabad.
. . . Respondents
By Adv: Sri Anil Kumar
ORDER
Delivered by Hon'ble Ms. Ajanta Dayalan, Member - A The present O.A. has been filed by the applicant Anil Kumar Sahu seeking quashing and setting aside of order dated 04.03.2011 rejecting the request of alternative appointment to the applicant. The applicant has also sought reinstatement in alternative post taking into account his disability with all consequential benefits.
2. The applicant applied for the post of Assistant Loco Pilot notified in the year 2005 through Railway Recruitment Boards. He subsequently qualified in three tier Loco Pilot examination and the prescribed medical test therefor. His medical fitness certificates for non gazetted employee dated 03.03.2005 and 16.03.2005 are at Annexure-2.
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3. On 11.01.2006, while undergoing the road/line training, the applicant suddenly fell ill with serious neurological disorder as his right hand got paralytic and he was unable to perform duty with his hands. The applicant was immediately issued sick memo from the office of respondent No. 3 to avail treatment from the office of respondent No. 4. The physical condition was serious and he was referred to All India Institute of Medical Sciences (AIIMS), New Delhi by respondent No. 4. There he was diagnosed with brain tumor and was proposed for neuro surgery for removal of the same. He was given 29th April 2006 as the date for surgery and was advised complete bed rest. But the applicant came back to his home at Kanpur. According to the applicant, due to further complications, his family members approached the State Home Minister who issued a letter dated 21.01.2006 (Annexure-3) to AIIMS) for early neuro surgery. As the applicant could not get neuro surgery expedited at AIIMS, he got the surgery done on 23.02.2006 from the private hospital at Kanpur (Annexure-4). The applicant was issued fitness certificate dated 01.09.2006 to resume duty w.e.f. 02.09.2006. According to the applicant, during this whole period he was regularly furnishing his application intimating his physical condition and for medical leave before the respondents department (Annexure-6). After receiving the fitness certificate, the applicant appeared before respondent No. 3 to allow him to resume duty who referred the matter to Chief Medical Superintendent, New Delhi for necessary action. The Chief Medical Superintendent, New Delhi sought private medical certificates (PMCs) for the period of absence. While this issue was under
consideration, the applicant again suffered serious neuro paralysis and acquired complete disability as both legs of the applicant were completely paralyzed. He again began treatment with local Kanpur doctor who advised another neuro surgery and on 24.03.2007, the applicant was again admitted in K.K. Hospital at Lucknow. After successful neuro surgery, the applicant was shifted to Excel Hospital at Kanpur where he remained under medical attendance for a long time. Fresh MRI test dated 07.08.2007 (Annexure-12) showed that paralysis of the applicant was due to excess radiation myelitis. The doctor at Sanjay Gandhi Post 3 Graduate Institute, Lucknow informed that it was a lapse in the radiation process which had burnt the neuro cells and it would take a long time for recovery. Presently, the applicant can be moved only with the help of wheel chair and with one attendant.
4. In July 2009, the applicant first time visited the office of respondent No. 3 and requested for his appointment in some other category in view of paralytic strokes and his present condition. However, the applicant was served a charge sheet dated 21.08.2009 (Annexure-13) holding him guilty of unauthorized absence from duty w.e.f. 11.01.2006 and similar other charges. It was also alleged that the applicant had never intimated to the department. The applicant has also alleged that the charge sheet was issued by an authority not competent to do so. An Inquiry Officer was appointed. The Inquiry Officer furnished its report on 29.01.2010 (Annexure-17) holding that the officer remained absent from duty since 11.01.2006 due to his medical condition. The Inquiry Officer also concluded that the applicant remained absent without proper information. On receiving the inquiry report, the applicant submitted application dated 01.02.2010 (Annexure-18) requesting for a lenient view to be taken and allow the applicant to join with light table work. The Disciplinary Authority did not pass any order on the findings of the Inquiry Officer and rather issued letter dated 04.02.2010 (Annexure-19) to the APOM, Northern Railway advising for his special medical examination due to long absence of the applicant. The applicant sent several reminders and on 06.01.2011 (Annexure-20), he was informed that his appeal has been forwarded to respondent No. 1. Thereafter, vide impugned order dated 04.03.2011 the applicant has been intimated that alternative appointment cannot be considered in his case as policy of providing alternative appointment to the medically failed empanelled Assistant Loco Pilot candidates selected through RRBs/RRCs has been discontinued in terms of Railway Board letters dated 04.09.2001 and 25.05.2009. The applicant has also referred to letter dated 03.06.2009 (Annexure-
21) issued by the Western Railway that in terms of Board's decision dated 4 25.05.2009, alternative appointment cannot be extended to such persons who, though qualified the RRB examination, could not pass the prescribed medical examination to the aforesaid category.
5. The case of the applicant is that he was a regularly appointed candidate who was charge sheeted for unauthorized absence from duty. On these charges, inquiry was held and the Inquiry Officer submitted his report. The only thing that remained was for the Disciplinary Authority to take a decision thereon. However, no decision on the said inquiry has been taken by the Disciplinary Authority as yet and he is being denied alternative appointment on the grounds of Railway Board letters dated 04.09.2001 and 25.05.2009. However, according to the applicant, none of these letters are applicable in his case as he had already passed the prescribed medical test. These Railway Board letters are relevant only where the candidates failed to pass such medical test which was not the case of applicant. The applicant has, therefore, stated that he is entitled for alternative appointment which is being denied to him. Hence, the O.A.
6. The respondents have contested the claim of the applicant. In the Counter Reply, they have stated that the applicant was in fact selected through Railway Recruitment Board, Chandigarh in 2005 against the post of Assistant Loco Pilot. The offer letter dated 10.02.2005 was issued to him, which is filed as Annexure R-
1. After passing the requisite medical examination in medical category A-1 vide medical fitness certificate dated 03.03.2005, the applicant was appointed on the said post and was sent for training vide office letter dated 16.03.2005. On being selected, the applicant had to undergo training for 39 weeks as per schedule set by the Railway Board on a fixed stipend. During this period, he developed ailment and was referred to Railway Medical Board. He was referred to AIIMS by Central Hospital (Railways) for further treatment, but the applicant did not avail the medical facilities from AIIMS as per recommendation, rather he absented himself unauthorizedly and went to his native place and underwent private medical treatment. All other trainee Assistant Loco Pilots were regularized and posted on 5 regular post on 15.02.2006, but the applicant could not be given posting due to non-completion of training period. As per extant rules, there is no provision to provide a trainee candidate an alternative post. The respondents have further averred that in the offer of appointment dated 10.02.2005 (Annexure R-1) it is provided that if the candidate is rendered incapable physically for the said post during the training, the service would be terminated without any notice. The respondents have also averred that the impugned order has been issued in reply to applicant's own letter dated 01.02.2010 requesting for giving him some light table work in view of his medical handicap. In reply, he was informed that alternative appointment cannot be considered as the policy for providing alternative employment to medically failed candidate selected through RRB has itself been discontinued vide Railway Board letter dated 25.05.2009. According to the respondents, the said circular squarely applies on applicant's case as he was paralysed while undergoing training and, therefore, he could not complete his training. The respondents have further stated that a candidate on being selected through RRB undergoes prescribed medical examination as per Railway Rules. Thereafter he is sent for training. It is on successful completion of training that the candidate is posted for independent duty. In the present case, the applicant did not complete the training and was still under the status of a trainee when he became unfit. The applicant was accordingly never posted against any regular or working post.
7. According to the respondents, the railways have their own medical infrastructure and all medical cases are dealt by the office of Chief Medical Superintendent, Delhi. As per usual practice, the cases are referred for outside treatment on the direction of medical authorities. In the present case, the applicant did not inform the railway medical authority, but only chose to remain unauthorisedly absent and underwent private medical treatment. Further, his fitness certificate dated 01.09.2006 was issued from private hospital whereas an employee can resume duty only after obtaining fitness certificate issued by the 6 railway medical authorities. The applicant was supposed to undergo treatment as per railway medical authority's recommendation; and instead of informing the complete status of referred hospital i.e. AIIMS, the applicant underwent private treatment.
8. The respondents have also averred that the applicant was absent for a long period. Therefore, Senior Divisional Medical Officer, Ghaziabad sought all medical certificates covering the absence period. As portion of the period till referring the case to AIIMS was from railway medical authorities, papers showing complete absence period including when he took treatment from private sources were required for deciding the sick period and putting him back on duty. It is a part of the regular exercise which is undertaken before the authority takes any decision.
9. The respondents department has also averred that the matter regarding competency of authority to issue charge sheet has never been challenged by the applicant earlier. Further, the applicant was only a trainee and was drawing stipend. Without informing the railway authorities, he went back to his native place and obtained private medical treatment. He also remained unauthorisedly absent from training. Accordingly, for unauthorisedly absence, disciplinary proceedings were initiated. However, the applicant cannot be provided alternative appointment as per Railway Board's circular dated 25.05.2009 which has been further clarified vide letter dated 28.07.2010.
10. In view of all above, the respondents have concluded that against the railway medical authority advice, the applicant went back to his native place and obtained private medical treatment. He did not complete his training and remained unauthorisedly absent. As such, he was not appointed to any regular post and was issued a charge sheet for his unauthorized absence. He cannot be given alternative appointment as the policy of alternative employment itself has been dispensed with by the Railway Board vide their orders dated 25.05.2009 and 28.07.2010. The O.A. is devoid of merit and needs to be dismissed. 7
11. We have heard counsel for both the parties and have gone through the pleadings available on record. We have also given our thoughtful consideration to the entire matter.
12. We find that the basic facts of the case are not in dispute. The applicant was initially selected for the post of Assistant Loco Pilot through Railway Recruitment Board. He was also found medically fit at that time and then was undergoing training. During training, he suffered from a paralytic stroke on 11.01.2006 and was immediately referred to railway medical authorities who in turn referred his case to AIIMS, New Delhi. At AIIMS, he was diagnosed with brain tumor and was recommended for brain surgery. He was given the date of 29.04.2006 for surgery and was advised complete bed rest. However, the applicant did not go by the advice of railway medical authority or AIIMS. Instead, he chose to go back to his native place at Kanpur on his own. He made some efforts to get an early date for surgery at AIIMS but this was not through the respondents department. He chose to continue to be at his native place and consulted local doctor and later underwent surgery on 22.02.2006 from private hospital. Thereafter, he obtained a fitness certificate on 01.09.2006 from the private doctor only. As per applicant's own submission, the applicant appeared before the respondent No. 3 only after this fitness certificate in September 2006. But this fitness certificate being from private medical practitioner was not acceptable in the respondents department and hence the applicant was referred to Chief Medical Superintendent, New Delhi for taking necessary action for joining of the applicant. The Chief Medical Superintendent, New Delhi asked to be provided with all private medical certificates for considering the complete period of absence. Before the railway medical authorities could take final decision on the long absence of applicant, he again suffered from neurological paralysis and acquired complete disability as his both legs were completely paralysed. He again obtained medical treatment from private medical sources and underwent another surgery on 24.03.2007-again from private medical source. Thereafter, he visited the office of 8 respondent No. 3 only in July 2009 and sought alternative employment due to his medical condition. His case was referred for sympathetic consideration by the respondents department to Headquarters. In reply thereof, the impugned letter has been issued stating that the policy of alternative employment has been dispensed with by the Railway Board by their orders dated 04.09.2001 and 25.05.2009.
13. We find that the respondents have enclosed complete text of offer of appointment at Annexure R-1. They have also referred to it repeatedly. The respondents have stated that the offer of appointment clearly stipulates that the successful completion of training was a must for his appointment against regular post. They have also stated that a medical examination was not excluded at the end of training. They are relying on clauses 6, 11 and 15 of this offer. Most importantly they have relied upon clause wherein it is specifically provided that in case during his training he is found medically unfit, his services would be terminated without any notice. As the applicant never completed his training period and became medically unfit during the training period itself, his services were liable to be terminated without any notice.
14. Regarding charge sheet, we do not find much force in the argument of applicant's counsel that the charge sheet was not issued by the competent authority. The respondents department has stated that this point was not raised by the applicant earlier. If the applicant was aggrieved by this, he should have raised this point before the competent authority or the next higher authority. Having failed to do so, this argument at this stage does not carry much force.
15. Regarding argument of applicant's counsel that the Disciplinary Authority has not taken any decision on the charge sheet issued to him, the matter was argued at bar. On our specific query as to why such decision has not been taken, learned counsel for the respondents stated that the issue of charge sheet was a misconception. This was because the applicant was not yet a railway servant. He 9 was only a trainee and was only drawing stipend. He was not in receipt of any pay and allowances. It was only after completion of training, that he was to be appointed as a regular railway employee. Hence, it was not mandated to take a decision in the matter. Instead, as the applicant was only a trainee and he had not completed his training, he was simply not posted as a regular employee. We do agree with the respondents view in this regard that the offer of appointment makes it abundantly clear that the applicant was not yet the railway employee. He was to be given a regular posting only on completion of training which he did not complete. He was not drawing pay and allowances but was drawing only a stipend as per Annexures relied upon by the applicant himself. A complete perusal of offer of appointment makes it abundantly clear that completion of training was a pre-requisite condition for regular appointment as Assistant Loco Pilot. As the applicant did not complete the training, he was not entitled for regular appointment.
16. As regards alternative appointment sought by the applicant, we find that the policy itself has been dispensed with by the Railway Recruitment Board in respect of R.R.B. empanelled candidates found medically unfit. The applicant's contention is that this circular is not applicable to him as it is for "medically unfit candidates empanelled by RRBs and RRCs in Group 'C' and 'D' posts". His contention is that he was found medically fit vide medical certificates dated 03.03.2005 and 16.03.2005 (Annexure-2). We do not believe that a person should be medically fit only on the date of his medical examination and not thereafter. Medical fitness is a pre requisite for public employment. Medical examination conducted at one point of time is only a part of the whole process. It cannot be limited to a particular date or one particular examination only. In the instant case, the offer of appointment makes the medical fitness and completion of training as pre-requisite for regular appointment. In the instant case, the applicant did not complete the training and was not medically fit when he would have completed his training. As such, he was RRB empanelled candidate and was not found medically fit. Hence, 10 he cannot be said not to be covered under the policy. To our mind, he is covered under this policy and is not entitled for alternative employment. Even otherwise, if for the sake of argument we agree that this policy should include such cases where the candidate is found medically fit initially, still same will not benefit him as he has not completed the training and he was not yet a regular employee. Hence, we are of the clear view that the applicant is not entitled for alternative employment in view of Railway Board letters of 25.05.2009 and 28.07.2010.
17. In view of all the above, we find the O.A. to be devoid of merit and same is dismissed. No cost.
(Rakesh Sagar Jain) (Ajanta Dayalan)
Member - J Member - A
/M.M/