Central Administrative Tribunal - Ahmedabad
Mannu Kumar vs Western Railway on 10 June, 2025
::1 :: O.A.No.35/2025
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O.A. No.35/2025
CORAM : Hon'ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
Reserved On : 08.05.2025
Pronounced On : 10 .06.2025
Mannu Kumar,
Male, aged about 26yeas,
Son of Shri Narayan Sharma,
Occupation: Trackman,
Bhavnagar Division
(Now retired on charges of malingering)
Ahmedabad
Residing at: Village Sabnima,
Post office Sabnima,
P.S. Athmalgola,
Patna -803 212
...........Applicant
(By Advocate: Mr.Rahul Sharma)
Versus
1. Principal Chief Medical Director,
Western Railways,
Headquarters, Churchgate,
Mumbai-400 020.
2. Divisional Railway Manager,
Bhavnagar Division,
Bhavnagar Para,
Bhavnagar - 364 003.
3. Chief Medical Superintendent,
Bhavnagar Division,
BhavnagarPara Bhavnagar - 364 003.
4. Assistant Divisional Engineer (P-way),
Botad Railway Station,
Botad - 364 710.
.....Respondents
(By Advocate: Mr.H.D.Shukla)
::2 :: O.A.No.35/2025
ORDER
Per : Hon'ble Shri Jayesh V Bhairavia, Member (J)
In the instant OA, the applicant being aggrieved with the letter dated 01.01.2025 (Annexure A/1) whereby the Office of the respondent No.1, i.e., Principal Chief Medical Director (in short 'PCMD'), Headquarter Western Railway conveyed to MD-JRH- MMCT about approval accorded by the PCMD in respect of recommendation of Medical Board held on 07.10.2024 in the case of the applicant herein that 'Members of the Medical Board after careful examination of Shri Mannu Kumar, declared that he is 'malingering' in view of his inconsistent response to visual acuity test and all other Ahmedabad tests performed are within the normal limit hence recommended that he is unfit in all medical categories'. Accordingly, the applicant has been declared unfit under Para 512(2) sub note (ii) of IRMM 2000 by the PCMD, which was also communicated to Chief Medical Superintendent (CMS, BVP), Bhavnagar, Western Railway i.e., respondent No.3 herein (Annexure-A1), consequent to it, the said respondent no.3 issued certificate and order dated 06.02.2025 (Annexure A/2 and A/3) to retire the applicant with immediate effect and adherence to it Order dated 07.02.2025 (Annexure-A/13) issued by the Assistant Divisional Engineer (P-way), i.e., respondent No.4 herein, whereby retiring the applicant with immediate effect, the applicant herein has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs:-
"A. This Hon'ble Tribunal be pleased to quash and set aside the impugned Order dated 07.02.2025, of Respondent No.4 (Annexure 'A/l3'), the impugned Letter dated 01.01.2025 of Respondent No. 1 (Annexure 'A/l'), Medical Certificate dated 06.01.2025 (Annexure 'A/2') of Respondent No.3 and Office Note dated 06.01.2025 (Annexure 'A/3') of Respondent No.3, and further direct the Respondents to allow the applicant to continue in service and discharge his normal duties;
B. Direct Respondent No.2 to pay to the applicant, all financial benefits that have been withheld from him due ::3 :: O.A.No.35/2025 to the applicant undergoing the medical examination/tests for malingering;
C. This Hon'ble Tribunal be pleased to grant such other relief as deemed fit in the interest of justice."
2. Brief facts of the case are as under:-
2.1 The applicant was appointed in the service of Indian Railway as Trackman (TMT-IV) vide order dated 24.06.2019 (Annexure-A4). Accordingly, he joined the service as Trackman on 23.07.2019 at Dhola Junction, Bhavnagar District, Gujarat, Western Railway.
2.2 On 12.10.2022, while the applicant was on duty, he Ahmedabad slipped and fell from the Kalubhar Bridge, near Dhola Junction and was seriously injured. Consequently, his right elbow was fractured and also sustained injuries in both the eyes.
2.3 On 04.11.2022, for further treatment, the applicant was referred to Jagjivan Ram Railway Hospital, Mumbai (hereinafter referred to as 'JRH, Mumbai'). There, he underwent surgery for the injury of fracture to his right elbow. He was sanctioned sick leave for being "Injured On Duty" (IOD) from 12.10.2022 to 07.02.2023. After the expiry of the said "sick leave", he was assigned light duties for about three months from 08.02.2023.
2.4 It is stated that in the month of May, 2023, since the applicant was conveyed that only the Chief Medical Supervisor has the power to sanction "Light Duty" and that in his absence; "Light Duty" could not be recommended by anyone else and it was informed that CMS probably on leave for a longer period, therefore, the applicant here proceeded on sick leave for about a month.::4 :: O.A.No.35/2025
2.5 It is stated that the applicant was declared "Fit" for duty by the Divisional Railway Hospital, Bhavnagar on 19.06.2023 (Annexure-A/5). Thereafter, he joined regular duties and he was discharging his duties normally.
2.6 It is stated that before the applicant met with an accident, he had submitted his transfer application from Dhola to Wadhwan City in Bhavnagar Division on 'his own' request. He had submitted the said request on 05.01.2024 because transfer to Wadhwan City would have brought him closer to Ahmedabad and applicant can save his time while travelling to his home town. Ahmedabad 2.7 It is stated that after his transfer, the Assistant Divisional Engineer (P-way), Botad, i.e, respondent No.4 herein is his appointing authority.
2.8 On 31.03.2024, the applicant was sent for Pre-Medical Examination (PME) at the Divisional Railway Hospital, Bhavnagar, in the routine course, as part of the Medical re-examination of personnel after every four years' of service from the date of recruitment as per Para 514 of Indian Railway Manual. In this regard, it is stated that the applicant was as such not referred for medical examination because he was facing any difficulty in discharging of his duties. It is reiterated that reference for medical check-up was infact a part of medical examination schedule of the employees of the Indian Railways (Annexure A/6 Colly. refer).
2.9 Further, it is stated that he was as such, doing his normal duties and had also not made any request for any change of his department/posting.
2.10 It is stated that on 05.04.2023, the applicant was referred to an Ophthalmologist at the Divisional Railway ::5 :: O.A.No.35/2025 Hospital, Bhavnagar, where his vision was tested by the 'Landolt C method'. His Distant Vision was recorded as 3/60, while his near vision was diagnosed to be Normal (Annexure A/6 Colly. refer).
2.11 Thereafter, at the end of routine medical check-up, he was referred to JRH, Mumbai for vision test on 06.04.2023. There, he was examined on 08.04.2023 and as per the medical report, the applicant "appeared" to be malingering for vision defects. The doctors of JRH, Mumbai advised for 'counseling' and further medical check-up after such counseling (Annexure-A7 refer). Ahmedabad 2.12 It is stated that despite the advice given by JRH, Mumbai, no counseling was offered to him at Bhavnagar, and a medical check-up was conducted straightaway.
Thus, if the applicant was facing any psychological barrier to his vision, he did not get opportunity to have the same corrected.
2.13 The applicant was again examined at Divisional Railway Hospital, Bhavnagar on 23.04.2024 by Divisional Medical Committee and had opined that he is fit in Cey Two (C2) category. It was also recommended that since the length of service of the applicant was less than six years', he was required to be dealt with as per Recruitment Rules (Annex.-A/8 refer).
2.14 To decide upon the applicant's fitness to do his duties, he was examined on 22.08.2024 by the Divisional Medical Committee (DMC), Bhavnagar. The said DMC gave contradictory findings, which raise the important issue of whether the applicant was actually feigning illness. Subsequently, it was recommended to refer the ::6 :: O.A.No.35/2025 applicant to Medical Board at JRH, Mumbai vide Medical report dated 22.08.2024 (Annexure-A/9 refer).
2.15 Between 08.10.2024 to 20.10.2024, the applicant was examined by the Medical Board at JRH, Mumbai and had carried out various medical tests (Annexure-A/10 Colly. refer).
2.16 Thereafter, the Principal Chief Medical Director (PCMD), Western Railway, Mumbai i.e. respondent No.1 herein addressed a letter dated 01.01.2025 to MD-JRH-Mumbai City and a copy of the same had been marked to CMS- BVP i.e., respondent No.3 (Annexure-A1) herein Ahmedabad declared that the applicant was a malingering which is impugned in the present OA.
2.17 Pursuant to the advice of the respondent No.1, the respondent No.3 herein vide letter dated 06.01.2025 (Annexure-A/12 refer) conveyed to respondent No.4 to take further action in the case of the applicant as per the provisions of Para 512(2) of the IRMM.
2.18 Accordingly, the respondent No.4 issued an order dated 07.02.2025 (Annexure-A/13 refer) whereby the applicant had been ordered to be retired from service on the ground of malingering with immediate effect. Hence, this OA.
3. Learned counsel for the applicant, Mr.Rahul Sharma mainly argued as under:-
3. l Though the applicant may be having an adverse medical condition, he cannot be called a malingerer.
3.2 There is a vast difference between having an adverse medical condition and malingering. Malingering inherently involves an element of deception - a deception to fake an illness for the purpose to secure an ::7 :: O.A.No.35/2025 alternative lucrative post. When there has been no deception, there can be no malingering.
3.3 All medical test reports, available with the applicant, consistently showed that his distant vision was adversely affected while his near vision is normal.
3.4 The applicant is doing his normal duty and after the initial period of recovery, following the accident, had not asked for any softer duty or any other "lucrative"
posting. Except during the period of recovery, the applicant had been doing his duties normally. There is no effort on his part to seek a more "lucrative" posting. Ahmedabad There had been no effort on the part of the applicant to seek any undue advantage due to his injury.
3.5 The applicant submitted that the impugned letter dated 01.01.2025 issued by the respondent No.1 (Annexure- Al) is not a reasoned order. No paper reports of the medical examination conducted by the Medical Board had been cited in the Order.
This makes it difficult for the applicant to challenge the same on merits.
3.6 Counsel for the applicant further submitted that although the medical authorities at Bhavnagar had been advised by the JRH, Mumbai, to provide psychological counseling to the applicant, no such counseling was actually provided. As a result, the applicant was placed at a disadvantage.
3.7 Counsel further submitted that it is an undisputed fact that the applicant sustained an injury during the course of his employment. Therefore, dispensing with his ::8 :: O.A.No.35/2025 services would be in direct violation of Section 20(4) of the Rights of Persons with Disabilities Act, 2016.
3.8 The impugned order dated 07.02.2025, issued by Respondent No. 4 with the approval of the Competent Authority, suffers from a clear lack of application of mind. As per the established procedure, the medical authorities (Respondent Nos. 1 and 3) are only empowered to make a recommendation regarding the retirement of a railway employee on the ground of malingering. It is incumbent upon the concerned administrative authority to apply its independent mind Ahmedabad to all relevant facts and circumstances pertaining to the employee before taking a final decision. In particular, when invoking retirement on the ground of malingering, the administrative authority must assess whether the employee was indeed feigning illness to secure a more favourable or less demanding posting.
In the absence of such a finding, the preconditions laid down under Paragraph 512 of the Indian Railway Medical Manual (IRMM) are not fulfilled.
3.9 The allegation of malingering carries a serious stigma, as it implies that the employee is dishonestly simulating illness for personal gain. Given the stigmatic nature of such a charge, the principles of natural justice demand that the employee be afforded an opportunity to defend himself. Therefore, any decision to retire an employee on this ground, without providing such an opportunity or initiating a formal disciplinary proceeding, would be in violation of Article 311(2) of the Constitution of India.
::9 :: O.A.No.35/20253.10 The impugned retirement order dated 07.02.2025 does not reflect any independent evaluation or application of mind by the administrative authorities. Rather, it appears to be a mechanical reproduction of the recommendations made by Respondent Nos. 1 and 3. Such an unreasoned and summary order, lacking any indication of a conscious and considered decision- making process, cannot withstand judicial scrutiny. The competent authority is legally bound to exercise independent judgment, and the impugned order must bear evidence of such application of mind in order to be legally sustainable.
Ahmedabad 3.11 In support of claim of the applicant, learned counsel for the applicant has placed reliance on the decision of the Hon'ble Supreme Court in the case of Kunal Singh vs. Union of India and another, reported in (2003) 4 SCC 524.
4. Per contra, respondents have filed their reply denying the claim of the applicant.
5. Counsel for the respondents mainly argued as under:-
5.1 The applicant joined the service of Indian Railway in July, 2019 as a Trackman (TM-IV). In October, 2022, while doing his duty, he felled from the railway bridge (Kalubhar Bridge, Dhola) and fractured his right elbow.
He also suffered serious injuries to his head, particularly, his eyes and his distant vision was diminished. Thereafter, on 04.11.2022, he was referred to JRH, Mumbai for further treatment. There, he underwent surgery for the fracture to his right elbow. His sick leave for being "Injured on Duty" (IOD) from 12.10.2022 to 07.02.2023 was sanctioned. For the said period, he had ::10 :: O.A.No.35/2025 received full salary and allowances. It is required to mention that for the three months, he was assigned light duties and thereafter, he was declared 'fit' for duty on 19.06.2023.
5.2 On 31.03.2024, he was sent for Pre-Medical Examination (PME) at the Divisional Railway Hospital, Bhavnagar, in the routine course, as part of the medical re-examination of personnel after every four years' of service from the date of recruitment for A-1, A-2, and A-3 medical categories, as per Para 514 of the Indian Railway Medical Manual.
Ahmedabad The applicant herein was sent for his routine PME at DRH, BVP for Aye-Three medical category (His original medical category is Bee-One for trackman but he was utilized as gatekeeper in medical category Aye- Three). During the PME on 01.04.2024, his vision was recorded as 3/60 and his near vision was found normal. He was referred to Ophthalmologist at DRH-BVP for expert opinion. Same vision was also recorded by the Ophthalmologist.
Thereafter, he was referred to JRH-Mumbai for second opinion of Ophthalmologist. On 08.04.2024, he was examined by Ophthalmologist of JRH and opined that "VA claimed by employee did not correlate with clinical findings and employee appears to be malingering for vision. He also advised for counseling and recheck vision and after counseling, the case may be decided accordingly.
5.3 Counsel for the respondents further submitted that DMC done on 22.08.2024 recommended that "His case of subnormal vision in both eyes even with correction. He is ::11 :: O.A.No.35/2025 unfit for present Job as Trackman in Bee-One medical category. He is also unfit for any medical category as per his present visual condition because his length of service is less than six years. Employee appears to be malingering for vision as per Ophthalmologist of MD/JRH (Annexure-R2).
5.4 It is submitted that aforesaid recommendation was approved by CMS and forwarded to PCMD by remarking "because his malingering has neither became proved nor disproved, PCMD opinion is required for medical board at higher center/JRH." That Medical examination done at Ahmedabad JRH by doctors committee appointed by PCMD between 08.10.2024 to 14.10.2024 in which detail psychiatric evaluation was also done which was reported as normal. The Board recommended held on 07.10.2024 that "He is malingering in view of his inconsistent response to visual acuity test and all other tests performed are within normal limits hence recommended that he is unfit in all medical categories" he had been declared unfit under Para 512 (2) sub note (ii) of IRMM( Annexure-R3).
5.5 It is submitted that Respondent no.1 (PCMD) vide letter dated 01.01.2025 approved the findings of medical board held on 07.10.2024 at JRH/MMCT which recommended that after careful examination of said Shri Mannu Kumar has been declared that he is malingering in view of his inconsistence response to visual acutely test and all other tests performed are within normal limits hence recommended that he is unfit in all medical categories. He had been declared unfit under para 512 (2) sub note
(ii) of IRMM.
::12 :: O.A.No.35/2025Thereafter, respondent no.03 vide office Note dated 06.01.2025 advised respondent no.4 to take further action as per the provision of Para 512(2) of IRMM. Accordingly, a Memorandum dated 07.02.2025 has been issued to retire the applicant with immediate effect. It is therefore submitted that all necessary investigation was done at JRH/MMCT during Medical board and applicant has been declared malingering, thus, the impugned order which is just and proper and the applicant is not entitled for any relief sought for in the OA.
6. We have heard learned counsels for the parties and perused the Ahmedabad pleadings available on record.
7. It is not in dispute that the applicant, while discharging his duties as a Trackman in October 2022, fell from the Kalubhar Railway Bridge (Dhola) and sustained a fracture in his right elbow, along with serious injuries to his hand. He also reported diminished distance vision. In this regard, the applicant received treatment at Jagjivan Ram Hospital (JRH), Mumbai, including surgery on his right elbow. Pursuant thereto, he was granted sanctioned sick leave from 12.10.2022 to 07.02.2023, during which he received full salary and allowances. Following this period, he was assigned light duties for three months.
Upon being declared medically 'fit', the applicant was taken back on duty on 19.06.2023.
7.1 Subsequently, as part of the routine Periodical Medical Examination (PME) conducted every four years under Para 514 of the Indian Railway Medical Manual (IRMM), the applicant was referred for PME on 31.03.2024 at Divisional Railway Hospital (DRH), Bhavnagar, under the Aye-Three medical category. (It ::13 :: O.A.No.35/2025 may be noted that although the original medical category for a Trackman is Bee-One, the applicant had been utilized in the post of Gatekeeper under the Aye-Three category.) 7.2 During the PME conducted on 01.04.2024 at DRH Bhavnagar, it was found that his distance vision was 3/60 while his near vision was normal. He was accordingly referred to an Ophthalmologist at DRH, Bhavnagar, for expert opinion, who confirmed the same findings.
7.3 Thereafter, the applicant was referred to JRH, Mumbai, Ahmedabad for a second expert opinion. On 08.04.2024, the Ophthalmologist at JRH, Mumbai, examined the applicant and opined that the "visual acuity claimed by the employee does not correlate with the clinical findings and the employee appears to be malingering for vision. Accordingly, the said Ophthalmologist of JRH, Mumbai had advised to the CMS, Bhavnagar, Western Railway that the applicant be given counseling at their end and thereafter his vision be rechecked. Accordingly, a final decision to be taken post-counseling (Annexure A/7 refer).
It can be seen that though as per the advised by the Ophthalmologist of JRH, Mumbai dated 08.04.2024, the applicant was required to be given counseling by the office of CMS, Bhavnagar, Western Railway but, undisputedly, the said advise/recommendation in the case of the applicant has not been followed and no opportunity in this regard whatsoever was given to the applicant herein.
::14 :: O.A.No.35/20257.4 It emerges from the records that after receipt of the above opinion/recommendation from JRH, Mumbai dated 08.04.2024, without granting opportunity of counseling to the applicant, as advised above, straightway the applicant was sent for medical examination at the Divisional Railway Hospital, Bhavnagar on 23.04.2024, by a Divisional Medical Committee.
After medical examination of the applicant was done on 23.4.2024, the said DMC had opined/advised as under that the applicant is 'unfit for Bee One as mark job (Trackman/Engg) & Fit for Cey two (C2) category only as Ahmedabad per his present visual condition. As the length of service of the applicant is less than six years, the case of the applicant is required to be dealt with as per Recruitment Rules' (Annexure A/8 refer).
It can be seen that the said Divisional Medical Committee in their opinion/recommendations dated 23.04.2024 has not stated or opined/suspect that applicant is 'malingering'. Rather, the applicant has been found 'fit' under Cey Two (C2) medical category by the said DMC.
7.5 Further, it is noticed that office of respondent no.3, i.e., CMS, Bhavnagar, again constituted Divisional Medical Committee to examine the applicant's fitness to do his duties, accordingly, the DMC met on 22.08.2024 in the chamber of CMS, Bhavnagar, Western Railway and by examining the applicant herein the said DMC recorded their conclusion and recommendations in column Nos.18 and 19 of its report dated 22.08.2024, which reads as under:-
::15 :: O.A.No.35/2025Conclusion (with disability/sickness & His present job) A case of subnormal distant vision in both eyes. Visi improved even with correction. As per ophthal opinion of MD/JRH there is a chance of malingering.
Recommendation : (Regarding change of occ decategorisation, investigation);
Members of the Divisional Medical Committee after and thorough exam of the case concluded that he is subnormal distant vision in both eyes even with correc is unfit for present job as trackman in Bee one category. He is also unfit for any medical category a present visual condition because his length of servic than six years. Employee appears to be malinge vision."
7.6 On receipt of the aforesaid report of DMC dated 22.08.2024, Ahmedabad the CMS, Bhavnagar, i.e., respondent no.3 herein, while approving the said opinion/recommendation had observed that 'Because his malingering has neither been proved or disproved PCMD permission is required for Medical Board at higher centre/JRH.' (Annexure A/9 refer).
7.7 It can be seen that the applicant herein was examined by the DMC held on 23.04.2024 at Divisional Railway Hospital, Bhavnagar and as per the report/advice, the applicant was found 'fit' in 'Cey Two' medical category and nothing has been alleged about malingering against the applicant whereas in the subsequent report dated 22.08.2024, DMC recorded contrary opinion that '...applicant is unfit for any medical category as per his present visual condition because his length of service is less than six years. Employee appears to be malingering for vision.' 7.8 As noted herein above, on the recommendations of DMC report dated 22.08.2024, once again the respondent No.3 had referred the applicant for examination before JRH, ::16 :: O.A.No.35/2025 Western Railway, Mumbai, there he was examined by Ophthalmologist on 8.10.2024.
7.9 Learned counsel for the applicant by referring the extract of the medical report of medical examination carried out at JRH, Mumbai, would argue that the applicant was examined at JRH, Mumbai between 08.10.2024 to 29.10.2024.
It is stated that in column No.14 of the format for reference/report dated 8.10.2024 of said JRH, Mumbai, it has been mentioned therein that 'Patient to Medical Ahmedabad Board suspected the case of Malingering'.
Further, the said test report indicates that upon examination of the vision tests, the applicant has been advised to undergo 10-2 SITA STD primetry on 14.10.2024 8.30 P.M. Accordingly, on further examination, it has been observed/advise that 'Psychiatry opinion/Counselling (No organic pathology identified) for Reduced vision in both eyes. (in this regard, Annexure A/10 Colly. Page Nos.35 to 38, including the type copy of Annexure have been referred).
Further, it is stated that vide impugned letter No.MD-WR-HQOMD/81/2024-O/o CHD/HO/WR Computer No.557844 dated 01.01.2025 (Annexure A/1 refer), the Additional Chief Medical Officer (IH) Officer of Principal Chief Medical Director (PCMD), Western Railway, Mumbai, conveyed to MD/JRH/MMCH by forwarding the copy of the said letter to CMS-BVP, which reads as under:
"Sub:- Medical examination case of Shri Manu Kumar M/126 yrs., Trackman-IV, working under SSE (P.Way)-WC, BVP Division.::17 :: O.A.No.35/2025
Ref.: 1. Your letter No.MD 216/2/8/ dt.13.11.2024
2. CMS/BVP's-E-Office file No.WR-BVP/69/2024- O/o CMS/BVP/WR, Computer No.523056 With reference to the above, PCMD has accorded approval for the recommendations of the Medical Board in the case of Shri Manu Kumar, Trackman-IV, BVP held on 7.10.2014 at JRH/MMCT:
'Recommendation of Medical Board: Members of the medical board after careful examination of Shri Mannu Kumar, declared that he is malingering in view of his inconsistent response to visual acuity test and all other tests performed are within normal limits hence recommended that he is unfit in all medical categories." He has been declared unfit under para 512(2) sub note
(ii) of I.R.M.M.2000."
(emphasis supplied) Learned counsel for the applicant by referring the Ahmedabad aforesaid impugned letter/order dated 01.01.2025 would argue that it can be seen that all the medical examination of the applicant took place at JRH, Mumbai on and after 8.10.2024 and the test reports of it also contained the said date/period of examination. However, in the impugned order dated 01.01.2025, the PCMD had categorically stated that after careful examination of the applicant, the recommendation has been rendered by the Medical Board held on 07.10.2024 at JRH, MMCT. In fact, in the case of the applicant undisputedly the applicant was examined by JRH, Mumbai for second time from 08.10.2024 onwards. Therefore, learned counsel raised serious grievance how the medical board which is stated to be held on 07.10.2024 recommend and declare the applicant that he is malingering in view of his inconsistence response to his visual acuity test. As such the acuity test took palce only after 08.10.2024. Thus, it is submitted by the counsel for the applicant that the case of the applicant has not been dealt with by the respondents with due diligence and he has been deprived of his legitimate right to continue in Railway service. The respondents have not ::18 :: O.A.No.35/2025 place on record any material to refute the said submission and reiterated that they have followed due procedure and passed the impugned order. Under the circumstances, in absence of any contrary material with regard to the discrepancy as ventilated by the learned counsel for the applicant referred herein above, we find force in the above submission of the learned counsel for the applicant.
8. Since by accepting the said approval of PCMD, Western Railway, vide impugned letter dated 01.01.2025, the respondent No.3 accorded the approval for his retirement from the Railway Ahmedabad service with immediate effect vide communication dated 06.01.2025, accordingly, consequential order retiring the applicant prematurely, the Assistant Divisional Engineer, Botad, Western Railway, issued Memorandum No.E/949/Gr.D/DTD/1/2025 dated 07.02.2025 (Annexure A/13 impugned herein) wherein it has been mentioned that 'Shri Mannu Kumar S/o Narayan TM Gr.-IV working under SSE (P.Way) WC Unit. has been examined by the MDMC and Member of Medical Board declared that 'he is malingering in view of his inconsistence response to visual acuity test and all other tests performed are within normal limits hence he is unfit in all medical categories. He has been declared unfit under Para 512(2) sub note (ii) of IRMM 2000'. The CMS- BVP has accorded approval of his retirement from the Railway service with immediate effect.', we deem it appropriate to refer and reproduced Para 512 (2) sub note (ii) of IRMM 2000, as amended, as under:-
"(ii) Malingering:
It may sometime happen that an employee belonging to an un-attractive category like trains clerk may deliberately fail in the color perception test during medical re-examination in expectation of being absorbed ::19 :: O.A.No.35/2025 in a more attractive alternate employment like goods clerk/booking clerk etc, It must be remembered that an individual, having a normal color perception retains such normalcy throughout the life unless he develops some pathological conditions of the optic nerve, In case, therefore a person is found to be color blind subsequently without having developed one of these pathological conditions, and where there is also no doubt as to the findings of earlier examination, the person concerned should be declared as a malingerer.
Where such malingering is suspected, the Administration should ensure that the person does not get any attractive alternate employment but only an unattractive post like office clerk. Obviously a decision in such cases has to be taken very judiciously. If malingering is established, he is psychologically not fit to Ahmedabad remain in service and may be declared unfit for all classes. The medical unfitness papers should carry an endorsement that "he has been declared unfit under para 512(2) sub note(ii) of I.R.M.M."
8.1 Malingering in service jurisprudence refer to a deliberate act by an employee to falsely feign illness or injury with the intention of avoiding duty. In the context of public employment, particularly in sensitive sectors such as the armed forces, police, or civil services, malingering is viewed as a serious form of misconduct. Though the term is not explicitly defined in most service rules, such conduct falls squarely within the ambit of misconduct under general clauses like "lack of devotion to duty", "misconduct", and "acts unbecoming of a government servant", as provided under Rule 3 of the CCS (Conduct) Rules, 1964.
However, it is pertinent to mention that the burden of proof lies on the employer or disciplinary authority, who must establish with cogent and credible evidence that the employee knowingly and willfully feigned illness or injury to shirk official responsibilities or a Railway ::20 :: O.A.No.35/2025 employee belonging to an unattractive category may deliberately fail in colour perception test during medical re-examination in an expectation of being absorbed in a more attractive alternative employment in the Railways.
8.2 At the same time, it cannot be ignored that employee may be having an adverse medical condition, but, he cannot be called a 'malingerer'. In this regard, learned counsel for the applicant has rightly contented that there is vast difference between having an adverse medical condition and malingering. In the case of malingering, inherently, involves an element of deception - a deception to face an Ahmedabad illness for the purpose to secure an alternative lucrative post. When there has been no deception, there can be no malingering.
8.3 In the present case, as noted herein above, undisputedly, all medical test reports consistently shows that applicant's distance vision is adversely affected with his near vision which is normal. It is also not in dispute that the applicant was doing his normal duties and after the initial period of recovery following the accident, admittedly, applicant has not asked for any softer duty or any other lucrative posting. There is no effort on his part to seek more lucrative posting or any undue advantage from his injuries. In other words, undisputedly, the applicant herein neither claims for any attractive alternative posting nor had raised any grievance in respect to his existing working to the post of Trackman.
9. Upon a meticulous examination of the medical records and the observations recorded therein, this Tribunal finds no direct or conclusive correlation between the mention of 'suggestive malingering' and the definitive conclusion drawn by the ::21 :: O.A.No.35/2025 respondents branding the applicant as a 'malingerer.' It is observed that while several ophthalmological tests have been referenced in the documents submitted, there is a conspicuous absence of any documented psychological evaluation. This omission renders the conclusion regarding the applicant's alleged psychological unfitness as questionable. While this Tribunal refrains from venturing into the merits of the expert opinion rendered by the Medical Board, recognizing the domain expertise of medical professionals, the apparent incongruity between the recorded test results and the conclusion arrived at by the respondents is a matter of concern, including the discrepancy in the date of recommendations of the Medical Ahmedabad Board dated 07.10.2024 and the medical examination of the applicant took place between 08.10.2024 to 14.10.2024.
10. At best, taking remarks of respondent no.3, i.e., CMS dated 22.08.2024, referred hereinabove, that neither the alleged malingering has been proved nor disproved as well as the different Medical reports of DMC dated 23.04.2024 and 22.08.2024, including the subsequent test report, dated 08.04.2024/14.10.2024 of JRM, Mumbai, the findings may indicate a suspected case of malingering, but certainly do not establish it conclusively. Significantly, Paragraph 512(2)(ii) of the Indian Railway Medical Manual (IRMM) prescribes the procedure to be followed in instances of suspected malingering, which mandate that administration should ensure that the person does not get any attractive alternate employment but only an un-attracted post. The applicant herein is as such working as a Trackman. The facts on record clearly warrant the invocation of the said provision in the instant case judiciously by the respondents.
::22 :: O.A.No.35/2025Therefore, at the very least, the respondents ought to have acted in accordance with the procedure outlined under Para 512(2)(ii) of the IRMM, rather than unilaterally branding the applicant as a malingerer in the absence of full procedural compliance.
11. Further, the allegation of malingering, as noted herein above, amounts to deception on the part of the Govt. servant and if the services of the Railway employee is ordered to be impugned order, in our considered view, is not in conformity with the mandate enshrined under Article 311 of the Constitution of India, if the impugned order allowed to sustain, it amounts to Ahmedabad endorse the deception on the part of applicant that too without giving him reasonable fair opportunity to establish his innocence before retiring the applicant prematurely on the alleged ground of malingering.
11.1 At this stage, it is appropriate to mention that Section 20(4) of the Rights of Persons with Disabilities (RPWD) Act, 2016, protects government employees from being dismissed or demoted if they acquire a disability during their service. It also mandates that such employees be shifted to another post with the same pay scale and benefits if they are no longer suitable for their original position. This provision ensures that disability is not a reason for termination or demotion in government employment. The said stipulation in the RPWD Act (supra) needs to be adhered to while dealing with the case of any disability sustained or acquired by the Govt. employee.
12. It is noticed that the impugned retirement order dated 07.02.2025 does not reflect any independent evaluation or application of mind by the administrative authorities. Rather, it ::23 :: O.A.No.35/2025 appears to be a mechanical reproduction of the recommendations made by Respondent Nos. 1 and 3. Such an unreasoned and summary order, lacking any indication of a conscious and considered decision-making process, cannot withstand judicial scrutiny. The competent authority is legally bound to exercise independently and judiciously in such type of cases, more particularly alleging malingering against the Railway employees, as like the applicant herein, and the impugned order must bear evidence of such application of mind in order to be legally sustainable.
13. In view of the above facts and circumstances of the case, for the Ahmedabad forgoing reasons, the decision making process in respect to the impugned order suffers from the legal infirmities and deserves to be quashed and set aside.
14. In the result, the present Original Application (OA) is allowed in the following terms:
(i) the impugned orders dated 7.2.2025 (Annexure-A/13), dated 01.01.2025 (Annexure A/1), medical certificate dated 06.01.2025 and office order/note issued by respondent no.3 dated 06.01.2025 (Annexures A/2 and A/3 respectively) are quashed;
(ii) The action apropos of the suspected malingering shall be completed as expeditious as possible but not later than 8 weeks from the date of receipt of this order, in accordance with rules applicable in this case and discussion made hereinabove.
(iii) The respondents shall also decide as to how to treat the gap between 07.02.2025 till they decide the matter as directed herein above.::24 :: O.A.No.35/2025
15. There shall be no order as to costs.
16. Pending MA(s), if any, shall stand disposed of.
(Dr. Hukum Singh Meena) ( Jayesh V.Bhairavia)
Member (A) Member (J)
/SKV/Anu/
Ahmedabad