Jogi Sainath vs Union Of India & Anr.

PER: JUSTICE S. SUJATHA, MEMBER (J)

This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

Facts in brief are that the applicant who was working as Assistant Loco Pilot at Hospet in Hubballi Division of South Western Railway remained absent from duty for about 70 days from 13.04.2019 to 30.06.2019 for which he was issued with a major penalty charge sheet and imposed with a penalty of removal from service on 20.012020. The appeal preferred by him was dismissed as time barred by the Appellate Authority on 22.03.2022, hence, he preferred a Revision Petition and the Revising Authority was pleased to order for his reinstatement in the lowest grade of Assistant Loco Pilot with loss of seniority by order dated 24.06.2022. Further to that, the applicant was subjected to medical examination on 24.08.2022 and again in September/October, 2022, but no further action has been taken to reinstate him into service based on the orders of the Revising Authority. Hence, this OA.

Learned counsel Shri K. Shivakumar representing the applicant submitted that the disciplinary action initiated against the applicant has reached its finality with the orders of the Revising Authority, as such, the 2^nd respondent is bound to comply the same. When the applicant was subjected to medical examination pursuant to the orders passed by the Revising Authority, the result of the medical examination should have been disclosed. On the contrary, a show cause notice has been issued to the applicant stating that he has been declared as unfit in Aye One (A1) in the initial medical examination but the said details were not furnished even under the RTI. This is contrary to the second para of the same show cause notice wherein it is stated that the applicant was certified earlier as fit in Aye One medical classification by the very same medical authorities. This show cause notice has been issued to initiate disciplinary action against the applicant without furnishing the relevant documents that too when no action has been taken to reinstate the applicant on completion of the earlier disciplinary proceedings. The applicant cannot be subjected to further disciplinary action referring to the Lasik Eye Surgery mentioned in the show cause notice, however, the applicant had submitted the representation dated 27.06.2023 requesting the railway administration to consider his case for alternative category appointment as considered in respect of medical de-categorization of staff. The same ought to have been considered by the respondents favourably, but no such consideration has taken place till date. Hence, seeks for interference of this Tribunal.

Learned counsel Shri S. Sugumaran representing the respondents submitted that if the applicant is found medically unfit for Aye One category, absorption in alternative post is governed by

We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.

It is not in dispute that the disciplinary action initiated against the applicant has reached its logical conclusion by the order passed by the Revising Authority dated 24.06.2022 (Annexure A4) whereby the punishment of ‘removal from service’ has been reduced to ‘reinstate of charged employee in lowest grade as Assistant Loco Pilot with loss of seniority’. The intervening period from the date of removal from service to date of reinstatement shall be treated as Dies non as per the said order. Admittedly, the railway administration has not sought for any review of the order seeking modification pursuant to the medical examination report of the applicant as the applicant is unfit for appointment in Aye One medical category for the post of Assistant Loco Pilot. It is astounding to see that the railway administration has issued the show cause notice dated 31.03.2023 to show cause as to why disciplinary action should not be initiated against the applicant for giving wrong declaration that he has not undergone any eye surgery. It is not proper on the part of the administration to issue such show cause notice when the applicant has not been reinstated in terms of the order of the Revising Authority. Be that as it may, as admitted by the respondents in the reply statement, if the applicant is found medically unfit for Aye One category, absorption in alternative post is governed by Para 1303 of IREM (Volume 1) read with Railway Board’s letter dated 29.04.1999, which requires the employee to be considered for alternative appointment only if found fit in lower category and if a suitable vacancy exist and the matter has already been referred to the competent authority for consideration. If so, a decision has to be taken by the respondent authorities for considering the applicant for alternative appointment, but on the contrary, initiation of another disciplinary proceedings issuing show cause notice is wholly unfair and illegal. Indefinitely the applicant cannot be made to wait, subjecting him to another round of disciplinary action. Hence, we pass the following: