Central Administrative Tribunal - Delhi
Sudhir Kumar vs Govt. Of Nctd on 18 July, 2019
Central Administrative Tribunal
Principal Bench
OA No.4467/2017
Orders Reserved on 29.05.2019
Pronounced on:18.07.2019
Hon'ble Mr. Pradeep Kumar, Member (A)
Sudhir Kumar, aged 50 years,
Teacher TGT NSc
S/o late Shri Vidhya Sagar,
Res-H.No.96, Budh Pur,
P.O. Alipur, Delhi.
-Applicant
(By Advocate Shri S.K. Azad)
-Versus-
Govt. of NCTD and Ors. through:
1. Director of Education,
NW ABL Block,
Shalimar Bagh, Delhi.
2. Asstt. Director of Education (Vig)
Old Secretariat Delhi
3. Principal/In-charge/HOS
GBSSS No.-2 Adarsh Nagar
Delhi-110033.
-Respondents
(By Advocate Shri Anuj Kumar Sharma)
ORDER
The applicant was appointed in the year 1998, without availing any benefits under the Visually Handicapped (VH) category. He was posted as Trained Graduate Teacher (TGT) in GBSS, Azad Pur, village. He developed vision problem in the year 2 (OA No.4467/17) 2011 and was under treatment at Guru Nanak Eye Centre (GNEC), Maharaja Ranjit Singh Marg, Government of National Capital Territory of Delhi, New Delhi. GNEC issued a certificate on 18.02.2012 to the applicant which indicates that he has 75% permanent low vision disability. Accordingly, the respondent- department sanctioned transport allowance at double the normal rate, i.e. Rs.7200/- per month + DA w.e.f. 22.02.2012.
2. In due course, a complaint was received by the respondent- department on 20.02.2014 about the disability certificate issued by GNEC. A fact finding enquiry was conducted. The Enquiry Officer (EO) submitted a report on 24.01.2015, which reads as under:
"Complaintant Sh. Virender Kumar Yadav has also submitted his version though denied about making the complaint technically. Another complainant Sh. Santosh Kumar Rongta did not appear before the u/s for the reasons best known to him despite issuing memorandum to him as per annexure at C/48 but delivered on phone that stringent action should have taken against Mr. Sudhir Kumar TGT N. Sc. for obtaining such fake certificate. It shall be worth mentioning has that both the complaintants are blind/visually impaired.
In order to meet the principle of natural justice, a letter vide no. 2373 dt. 18/06/2014 was forwarded to the Director, Guru Nank Eye Centre, Maulana Azad Medical College, G. NCT of Delhi. Reg. Verification/Authentication of Medically Handicapped Certificate in r/o Mr. Sudhir Kr. TGT N. Sci. but instead of verifying or authenticating the certificate a letter vide no. Med/Prt/XII/MRD/GNEC/2014- 15/5251 dt. 08/07/14, received by the U/s to direct the candidate Sh. Sudhir Kumar, TGT N.Sc. to appear before the Spl. Medical Board on Dt. 6/8/2014 at 10.30 A.M. & same was conveyed to Sh. Sudhir Kr. TGT N. Sc. as per 3 (OA No.4467/17) annexure at C/49 but he denied to appear before any such board as per annexure submitted by him at C/55.
In view of the above, it has become quite vivid that neither Mr. Sudhir Kumar TGT N.Sc. of GBSSS Dhakka Delhi is cooperating in the conduct of inquiry & Nor the Director of Guru Nanak Eye Centre New Delhi is verifying/Authenticating the 75% Blindness Certificate issued to Sh. Sudhir Kumar N.Sc. Hence, it is clear that the fact that Something is wrong at the bottom & high level Inquiry may be recommended to Unearth the actuality/truth."
3. Accordingly clarifications were asked from GNEC. The GNEC sent a letter on 01.08.2015 to the respondent-department wherein a report of medical examination was also enclosed. This report indicates that the applicant appeared for medical examination on 27.07.2015. However, the report also contains the following remarks:
"Candidate is not cooperative for subjective testing of vision. Objectively, he appears to be no worse than 6/36 in the R/E which is the better eye. Hence handicap turns out to be 40%."
4. Thereafter the respondent-department issued a letter to Deputy Director/Directorate of Education on 05.08.2016 with the following directions:
"i. A new request may be sent to hospital to re-examine Sh. Sudhir Kumar Sharma, TGT (N. Science) subjectively and report back about his disability.
ii. A warning to Sh. Sudhir Kumar Sharma be issued that he failed to get himself examined subjectively by Medical Board and resisted in subjective examination.4
(OA No.4467/17) iii. In the meantime all the benefits which he is getting due to his disability from the Department be stopped till the outcome of medical board."
5. In compliance thereof, the transport allowance which was being paid at double the normal rates was reduced to normal rates, i.e., Rs.3600/- per month + DA w.e.f. September, 2016. The applicant was also issued a warning letter on 23.09.2016 along with direction to get himself medially re-examined. The applicant made certain representations to the department to review this decision. However, on his request not being accepted, he filed the instant OA on 11.12.2017, seeking the following relief:
"The Hon'ble Tribunal may graciously be pleased to allow this OA and quash and set aside the respondent's impugned order dated 23.09.2016 and 05.08.2016, stopping the benefit of handicapped transport allowance of applicant w.e.f. 9/2016 @ Rs. 3600/- P.M. from Sept/2016 on wards till date."
Certain other reliefs are also sought.
6. The respondents opposed the OA. It was pleaded that efforts for re-medical examination were continued. However, GNEC advised on 16.12.2017 to get the applicant examined at some other hospital. The respondent-department requested Deen Dayal Upadhayaya (DDU) hospital on 03.01.2018 to conduct medical examination. The DDU hospital reported on 16.02.2018 that the applicant was examined in the Eye Department on 11.01.2018 and was directed to re-appear before 5 (OA No.4467/17) an Eye Board. However, he did not appear. The applicant was in turn advised on 01.03.2018 to appear before the Eye Board of DDU hospital. However, the applicant made the following request on 13.03.2018:
"Most humbly this it to hearing in your kind notice that my medical re-examination of eyes had already been done in Gurunanak Eye Centre New Delhi and I have already been declared above 40% disabled in the report dated 27.07.2015.
Since the matter is under subjudice under Hon'ble CAT New Delhi & next date of hearing is 11.04.2018, I should not be compelled to undergo further re-examination till the outcome of the court decision.
I humbly request you to kindly restore all my benefits including TA without further delay and oblige."
6.1 Once these efforts for medical re-examination did not succeed, the respondent-department had also issued a disciplinary charge-sheet to the applicant on 18.07.2018 which contains three articles of charge.
7. The matter has been heard at length. The case of the applicant is that he is a visually challenged person and even if his vision disability is taken to be 40% he is still entitled to get the transport allowance at double the normal rates. The sequence of the medical certificate issued by the GNEC hospital, which initially indicated the disability to be 75% and which was subsequently reported to be 40% but with the remark that the applicant is not cooperating in the medical examination, does raise doubt, which needs to be set at rest, and especially so as 6 (OA No.4467/17) there was a complaint (para 2 supra), whereafter disability got reduced from 75% to 40% (para 3 supra).
8. Under such circumstances it was incumbent upon applicant to submit himself for medical re-examination which was initially ordered from GNEC and subsequently at another hospital, namely, DDU hospital. It is for some unexplained reasons that the applicant has been refusing to submit himself for medical re-examination. The pleadings by the applicant, that he is only being harassed, cannot be accepted. He was paid transport allowance at double the normal rates as per the initial certification. However, when the same came under question, efforts were made to establish the facts by way of re-examination in which the applicant did not cooperate at both hospitals. The allowance was reduced only after efforts for re-medical failed.
Accordingly, pleadings by the applicant, of harassment, cannot be accepted. It follows that the action by the respondent department to pay transport allowance at normal rates was in order.
9. The plea of the applicant that his case is presently sub judice before the Tribunal and accordingly he cannot submit himself for medical re-examination is ab initio fallacious and needs to be rejected. It appears to be a ploy not to submit himself for medical re-examination.
7
(OA No.4467/17)
10. In view of the foregoing, the OA is without merit and the same is dismissed. There shall be no order as to costs.
11. This, however, does not preclude the respondent- department to pay the transport allowance as per the extant instructions, as per the medical re-examination report as and when the same becomes available. This will be taking effect from date of this re-examination. The respondent-department continues to have liberty to take appropriate action, as deemed fit, in respect of the charge-sheet already issued, as per merits, evidence and its evaluation.
(Pradeep Kumar) Member (A) 'San.'