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1989 Supreme(Cal) 154
High Court Of Calcutta
Monoranjan Mallick
AYODHYA TEWARI - Appellant
Versus
UNION OF INDIA - Respondent
Constitutional Writ Jurisdiction 4720 Of 1987
Decided On : 03/30/1989
A railway servant declared medically unfit for his current position is entitled to alternative employment under Rule 2604 of the Railway Establishment Manual. The railway administration must make all reasonable efforts to find a suitable alternative post for the employee within a reasonable time frame, not exceeding one year from the date of medical unfitness.
Headnote:
MEDICAL FITNESS - RAILWAY SERVANT - ALTERNATIVE EMPLOYMENT - RAILWAY ESTABLISHMENT MANUAL, CHAPTER XVI, RULE 2604 - INTERPRETATION - A railway servant declared medically unfit for his current position is entitled to alternative employment under Rule 2604 of the Railway Establishment Manual. The railway administration must make all reasonable efforts to find a suitable alternative post for the employee within a reasonable time frame, not exceeding one year from the date of medical unfitness.
Fact of the Case:
The petitioner, a Senior Rakshak in the Eastern Railway, was declared medically unfit for his position due to an eye condition. He was granted six months of leave and was asked to appeal to the Chief Medical Officer for reconsideration. However, no alternative employment was provided to him despite his repeated requests.
Finding of the Court:
The court found that the railway administration had violated the provisions of the Railway Establishment Manual and the petitioner's fundamental right to livelihood under Article 21 of the Constitution by failing to provide him with an alternative employment within a reasonable time frame.
Issues: 1. Whether the railway administration is obligated to provide alternative employment to a railway servant declared medically unfit for his current position? 2. Whether the railway administration's failure to provide alternative employment to the petitioner violated his fundamental right to livelihood under Article 21 of the Constitution?
Ratio Decidendi: The court held that Rule 2604 of the Railway Establishment Manual imposes a duty on the railway administration to find a suitable alternative post for a railway servant declared medically unfit for his current position. This duty must be discharged within a reasonable time frame, not exceeding one year from the date of medical unfitness. The court further held that the railway administration's failure to provide alternative employment to the petitioner for more than three years violated his fundamental right to livelihood under Article 21 of the Constitution.
Final Decision: The court allowed the writ petition and directed the railway administration to provide the petitioner with an alternative post suitable to him within two months from the date of communication of the order. The court also directed the railway administration to pay the petitioner his salary from the date of expiry of one year from the date of medical unfitness, after regularizing his absence through a suitable leave order.
( 1 ) THE Court: This Writ petition has been filed by Ayodhya Tewari who is a Senior Rakshak which post has now been redesignated as Nayek. It is stated by the petitioner as follows: the petitioner had been discharging his duties as Rakshak and senior Rakshak, Eastern Railway at various places including Asansol and Ondal and he continued to his post till 26th April, 1985 when he felt some eye trouble. In view of such eye trouble he got himself treated by the Divisional Medical Officer, Asansol. In course of such treatment the petitioner had to be operated upon. Consequent upon successful operation of the petitioner's eye the petitioner was declared fit by the concerned Divisional Medical Officer, Eastern Railway, Ondal under his Order No. H/ex/udl, dated 4. 12. 1985 on the basis of a special medical examination. By the said order, dated 4. 12. 1985 the petitioner was declared medically unfit in category EI and EII but the petitioner was found fit in category CI. By the said order, dated 4. 12. 1985 the petitioner was further asked to prefer an appeal to the Chief Medical Officer, Eastern Railway, Calcutta for reconsideration of such ending, if the petitioner so desired. A copy of the order is annexed as Annexure 'a'. From the said Medical Certificate it will appear further that the petitioner was declared medically fit in category CI and as such there was no/or could not be any impediment in allowing the petitioner to work as Senior Rakshak. After he was so declared medically fit by thy Divisional Medical Officer, Eastern Railway, Ondal, the petitioner made a representation to the Company Commandant, C-II Railway Protection Force, Ondal on 19. 12. 1985 praying for permission to join. However, the petitioner in the representation requested the concerned Company Commandant to regularise the matter in respect of the petitioner's duties with effect from 16. 12. 1985 and also to arrange for payment of his salaries. A Medical Certificate issued by the Divisional Officer was also annexed with the said representation but the petitioner was not allowed to join. He thereafter made several representations before the Company Commandant and to other superior officers to know the fact. As all these representations did not found any favour with the present respondents and the petitioner has not been allowed to join his duties and the petitioner has been obliged to move this Court for necessary reliefs as the respondents concerned have illegally refused to permit him to join his duties and is also withholding the payment of the salary. It is also contended that not only the respondent authorities have violated the provisions of the Indian Railway Manual but also violated his fundamental right guaranteed under Article 21 of the Constitution as by taking away his livelihood which is the only means of his subsistence the respondents have contravened the provisions of Article 21 of the Constitution.
( 2 ) AN affidavit-in-opposition has been filed on behalf of the respondents Nos. 1, 2 and 5 by B. Mohan, the respondent No. 5.
( 3 ) IT is contended by the Respondent that as the petitioner has been declared fit in category-CI the respondents could not permit him to join his duty as Senior Rakshak, that under the relevant Railway Establishment Manual the petitioner was entitled to suitable alternative post for which series of correspondence were made by the respondents upto 1988 but no alternative appointment could be given to the present Writ petitioner for no fault of the present respondents.
( 4 ) ON considering the provisions of Chapter XVI of the Indian Railway Establishment Manual, I am of the view that when the vision test of the petitioner was declared as CI category then admittedly the Writ petitioner has to be declared medically unfit for the post of Senior Rakshak but he being a permanent Railway servant the provisions of Rule 2604 of the Manual is attracted. The relevant portion of the Manual is reproduced below:
