Calcutta High Court (Appellete Side)
Union Of India & Others vs Somnath Ray on 11 October, 2023
11.10.2023
rpan/17
WPCT 86 of 2023
Union of India & Others
- Versus -
Somnath Ray
Mr. Pulakesh Bajpayee,
Mr. Pradip Kumar Kundu
... for the Petitioners.
Mr. Ashok Chakraborty,
Mr. Ujjal Ray,
Mr. Arpa Chakraborty,
... for the Respondents.
The present writ petition has been preferred
challenging an order dated 22 nd November, 2022
passed in an original application, being O.A./ 350/
01755/ 2022.
Shorn of unnecessary details, the facts are that
while the applicant/respondent herein was working as
Constable in the Railway Protection Force in the Grade
Pay of Rs.2,400/-, which was further enhanced to
Rs.2,800/- on account of MACP scheme, he was sent
for a medical examination whereupon it was diagnosed
that he was suffering from 'Surgically intervened post
implant removed, old case of fracture olecranon right
side with stiffness of right elbow' and it was opined
that his medical condition is not fit for his present job
as Constable. Accordingly, by an office order dated
31st August, 2022 he was recommended for
appointment to a lower grade post of Carpenter - II in
the medical department in Grade Pay of Rs.2,400/-
with all medical precautions as advised by the Medical
Board since suitable alternative post was not available.
Aggrieved thereby, the respondent submitted a
representation on 8th September, 2022 stating inter
alia that he was not willing to join the said post of
Carpenter - II and he should be given all the rightful
entitlements in terms of Para 1303 and 1304 of the
Indian Railway Establishment Manual Volume - I (in
short, IREM). Such prayer was, however, regretted by
a memo dated 30th September, 2022. Challenging the
memoranda dated 31st August, 2022 and 30th
September, 2022, the respondent approached the
learned Tribunal.
Mr. Bajpayee, learned advocate appearing for the
petitioners submits that the learned Tribunal did not
adjudicate the dispute in its proper perspective. The
respondent was offered the post of Carpenter - II in the
Grade Pay of Rs.2,400/- with all pay protection as per
admissible rules in view of his disability but he refused
to join. Upon such refusal, he cannot turn back and
insist that his case needs re-examination so that he
can be absorbed in a suitable vacancy equivalent to
the scale of pay enjoyed by him prior his medical
unfitness. Such issue was glossed over by the learned
Tribunal and no finding was returned on the said
issue. Such infirmity in the order warrants interference
in the present writ petition.
Per contra, Mr. Ray, learned advocate appearing
for the respondent submits that clause 1303 of the
IREM confers a right upon the respondent to be
adjusted against or absorbed in a suitable alternative
post and clause 1304 provides for placement in allied
categories and in the event he cannot be immediately
adjusted he may be kept in a special supernumerary
post in the grade in which he was working on regular
basis before being declared medically unfit. In view
thereof, the respondent cannot be compelled to join a
lower grade post, as offered by the petitioners. Placing
reliance upon an unreported judgment of this Court in
the case of Bikash Roy Vs. Union of India & Anr. passed
in WPCT 56 of 2021, he submits that a meaningful
reading of the provisions of the IREM leaves no doubt
that the service of a Railway servant, who fails in his
vision test, should not be dispensed or reduced in rank
but he is to be shifted to some other post with same
pay scale and service benefits irrespective of having
accepted the lower grade post without prejudice to his
rights. The photocopy of the original application, as
produced by Mr. Ray, be kept on record.
He argues that considering the remarks
incorporated in column - 6 in the memo dated 31 st
August, 2022, the learned Tribunal arrived at a finding
that the job of a Carpenter involving flexibility of the
right elbow and use of right upper arm and lower arm
post may not be an appropriate alternative
employment for the respondent.
Heard the learned advocates appearing for the
respective parties and considered the materials on
record.
We do not find any reason to interfere with the
observation of the learned Tribunal that the order
dated 30th September, 2022 by which the respondent's
prayer for re-examination was rejected, was a cryptic
one and the same has, accordingly, been rightly set
aside. The provisions of IREM, as placed before us,
need to be considered together and not in isolation. A
composite reading of the same reveals that a person
declared medically unfit cannot be placed in a lower
grade post. It is the obligation of the authorities not to
downgrade him but to adjust and absorb him in a
suitable alternative post in the grade in which he was
working on regular basis before being declared
medically unfit. The provisions further reveal that in
the event such post is not available, the employee
must be kept on a special supernumerary post in the
grade in which he was working on regular basis before
being declared medically unfit. In the said conspectus,
the learned Tribunal rightly directed that alternative
employment should be searched out and be offered to
the respondent within a specified period and that till
such time, as per the provisions of the RBE No. 89 /
99, the respondent should not be deprived of his
rightful entitlements.
The learned Tribunal, upon dealing with all the
factual issues arrived at specific findings and we do
not find any error, least to say any patent error of law
in the order impugned and the same does not suffer
from any substantial failure of justice or any manifest
injustice warranting interference of this Court.
Accordingly, the writ petition, being WPCT 86 of
2023 is dismissed.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties, upon
compliance of all requisite formalities.
(Rai Chattopadhyay, J.) (Tapabrata Chakraborty, J.)
