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Judgment
O R D E R
By Hon’ble Mr. Mohan Pyare, Member (Administrative):
Shri Rakesh Kumar Dixit and Shri Nand Lal Yadav, learned counsel for the applicant and Shri Vimal Kumar Rai, learned counsel for the respondents are present.
By means of this OA, the applicant has sought the following reliefs :
“(i)To issue a writ, order or direction in the nature of certiorari to quash the order dated 28.11.2022 passed by the respondent no.3.
(ii)To issue a writ, order or direction in the nature of mandamus commanding the respondents to provide the alternative job to the applicant, other benefits and to Re-Medical Examination may be done by the Board of Doctors.
(iii)To issue any other suitable writ, order or direction as this Hon'ble Tribunal deemed fit and proper under the facts and circumstances of the case.
(iv)Award the costs of the original application in favour of the applicant.”
The brief facts of the case are that the applicant was appointed under Sport Quota on the post of Helper/Khalasi on 17.02.2000 in Group ‘D’ and was promoted for the post of ASM through Limited Departmental Competitive Examination (LDCE) in the year 2008. At the time of initial selection, he was found fit for Medical Category B-I and at the time of promotion through LDCE, he was found fit for Medical Category A-2. The applicant has worked more than 12 years and between 2008 to 2020 the applicant was sent for periodical medical examination and was found fit for performing the duty. On 09.09.2021, when he was examined, it was not disclosed whether the applicant was fit or unfit for the post on which he is working. The applicant requested for re-medical examination by the Board of Doctors through an application on 26.07.2022 which was rejected by the authorities concerned. One Mr. Suraj Kumar Sr. Assistant Loco Pilot who was not found fit under the category for the post he was performing, was given alternative job. The applicant was ordered by Senior DOM for not performing the duty of Dy. Station Superintendent for alleged malingering under IRMM para 512 (2) sub note (ii). The applicant has submitted a representation to General Manger on 02.11.2022, which is still pending. The applicant was kept on Leave without Pay from 16.02.2022 to 28.11.2022 without considering for alternative job.
We have heard the submission of learned counsel for the parties.
Learned counsel for the applicant has submitted that the applicant has completed more than 14 years of service as ASM/Dy. Station Superintendent and was not found fit for medical category but he was not provided any opportunity of re-medical examination. The applicant was kept on Leave without Pay during the period without being de-categorised. The opportunity was not provided to the applicant for alternative job and hence on the basis of above submission he requested to quash the order dated 28.11.2022 and direct the respondents to order re-medical examination by Board of Doctors and to provide him alternative job.
Learned counsel for the respondents has opposed the prayer through detailed counter affidavit and has submitted that the applicant was sent for medical examination and in medical examination the Doctors found that he is patient of Diabetes mellitus since three years controlled with medicine. He was found malingering for colour vision. Hence, the applicant was declared unfit under Para 512 (2) sub note (ii) of IRMM. As the act of malingering by the employee is deliberate and he is not a fit case for consideration of alternative job. The competent authority has passed correct order of retirement of applicant with immediate effect. It is also submitted that Shri Suraj Kumar was provided alternative job by the competent authority in accordance with existing rules.
Through their rejoinder affidavit, the learned counsel for the applicant submitted that the Appellate Authority has illegally and arbitrarily rejected the appeal of the applicant without any rhyme and reason. The findings of the medical officer is contrary to the opinion of Doctors of AIIMS, New Delhi and as such it is necessary that the medical examination of the applicant have to be done by the higher medical authority i.e. AIIMS, New Delhi. In the similar case, the East Central Railway, Mugalsarai has preferred to get an opinion from the AIIMS, New Delhi.
In OA No.1381 of 2016, this Tribunal has directed the respondents to arrange for re-medical test for the applicant. The applicant has not committed any act of malingering and fully co-operated in medical examination. The respondents should have given alternative job to the applicant as per his medical condition. Subsequently, the respondents have referred the case for re-medical examination and again concluded that the applicant is a case of malingering and unfit according to Para 512 (2) sub note (ii) of IRMM.
We have considered the rival submission and verified the documents available in this OA.
The relevant portion of the Para 512 (2) sub note (ii) of IRMM is reproduced as below :-
“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 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 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."
The applicant has mainly relied upon the OA No.1381 of 2016 which was decided on 03.11.2016 by this Tribunal by giving a direction to the competent authority for re-medical test of the applicant from their own hospital of choice except the Allahabad Division. In another OA No.1405 of 2017, this Tribunal have directed the competent authority to arrange for re-medical test of the applicant from a hospital other than the hospital where the previous medical test was conducted on the applicant.
A Writ Petition No.12975 of 2017 was filed before the Hon’ble High Court of Rajasthan against the dismissal of OA by the CAT Jaipur Bench for similar issues and the applicant was found Defective Color Vision in medical examination by an independent Center and on that basis the applicant was granted relief for alternative job.
In this OA, the limited issue before this Tribunal is whether the medical rule of Indian Railway provides opportunity for re-medical examination and if yes from which institution this re-medical test needs to be conducted. On the basis of the three judgments cited by the learned counsel for the applicant, it is clear that Court/Tribunal have come to the conclusion that re-medical examination from an independent institute is preferable and have accordingly ordered the respondents for re-medical test. We find that the present OA is also similar to that and needs to be treated similarly.
In the light of above discussions, this OA is liable to be allowed and is accordingly allowed. The order dated 28.11.2022 is set aside. The respondents are directed to refer the case of the applicant to Rajendra Prasad Institute for Ophthalmic Sciences, New Delhi for medical examination within three months from the date of receipt of certified copy of this order and take appropriate action based on the outcome of the report from the Rajendra Prasad Institute for Ophthalmic Sciences, New Delhi. No order as to costs.
All MAs pending in this O.A. also stand disposed off.