Back
2005 Supreme(Guj) 454
Gujarat High Court
Judgename :Bhawani Singh, H.K.RATHOD
Ramjibhai Chamanbhai - Appellant
Versus
Union of India - Respondent
Special Civil Application 1353 of 2004
Decided On : 07/14/2005
Headnote:
Employment and Service matter – Disability during the course of employment – Petitioner was with the Railways. During the course of employment, he suffered injury, incurring disability to extent of 30%. He claimed alternative post on being declared medically unfit for D/1 category post held by him – Initially, he was appointed substitute under loco Foreman Bhavnagar Para he was granted temporary status he suffered injury and was given compensation of for loss of earning capacity – He appeared before the Screening Committee for absorption in alternative post – It was not offered since he was substitute – Permanent Railway Employees are entitled to alternative job as a matter of right whereas temporary railway servants are considered for alternative job subject to certain conditions – Petitioner was screened along with other substitutes of Mechanical department and was placed on provisional panel vide Memorandum subject to his passing medical examination and verification of character as per existing rules – Absorption could not be done since no post in the lower category like C1, C2 was available and the screening committee decided that being a substitute, no alternative job can be offered. Accordingly, it was decided to delete his name from muster roll/official records – Whether petitioner is entitled for absorption against alternative post – Held, No general principle saving the party from all mistakes of its counsel could be laid – Expression sufficient cause must receive a liberal construction, so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect of which, perhaps, cannot be ignored – If appeals brought by Government are lost for such defaults, no person is individually affected but what in the ultimate analysis. suffers is the public interest – Decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals – Law of limitation is. no doubt same for a private citizen as for governmental authorities – Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross purposes with it – In assessing what constitutes sufficient cause for purposes of Section 5. it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government – Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making – A certain amount of latitude is, therefore, not impermissible – It is rightly said that those who bear responsibility of Government must have "a little play at the joints" – particularly when he suffered accident at the age of about 26 years and today, he is 42 years old, still having many years to reach the age of superannuation, therefore, he has continuous cause of action. Contention reaised by Ms. Jani on behalf of the Railways is therefore, rejected – Petition is allowed. (Paras 14 and 15)
( 1 ) IN Delhi Development Authority v. Skipper Construction and Another reported in 2005 (3) Supreme 335, it has been observed by the Apex Court as under :"there are some cases which at times strengthen the idea that existing laws may he inadequate to grant relief to persons whom, the court feels genuinely to be entitled to relief. Courts, more particularly, this Court, will not adjure its duty to prevent violent miscarriage of justice by passing such orders as are necessary to uphold the rule of law and lift the veil of purported legality over such perfidious acts. In such cases the Court should not allow itself to be deflected by red herrings drawn across the track. It has to pass such orders as the circumstances warrant, of course within the four corners of law to secure the interest of justice and to appease its judicial conscience. The facts of the present case have some such unique features. In Miller v. Minister of Pensions (1947 (2) All ER 373), it was observed that the law would fail to protect community if it admitted fanciful possibilities to deflect the course of justice. Technicalities should not stand in the way of Courts doing substantial justice. "1. This petition is directed against the judgment of the CAT passed in OA No. 440 of 1988 dated 2. 8. 1991.
( 2 ) PETITIONER was Artisan Khalasi with the Railways. During the course of employment, he suffered injury, thereby, incurring disability to the extent of 30%. He claimed alternative post on being declared medically unfit for D/1 category post held by him. Initially, he was appointed substitute on 15. 11. 1977 under loco Foreman Bhavnagar Para. He was granted temporary status on 24. 8. 78. He suffered injury on 11. 11. 1986. He was given compensation of Rs. 26,603. 00 for loss of earning capacity. He appeared before the Screening Committee for absorption in alternative post. However, it was not offered since he was substitute. Permanent Railway Employees are entitled to alternative job as a matter of right whereas temporary railway servants are considered for alternative job subject to certain conditions. Petitioner was screened along with other substitutes of Mechanical department and was placed on provisional panel vide Memorandum dated 4. 8. 1988 subject to his passing medical examination and verification of character as per existing rules. However, absorption could not be done since no post in the lower category like C1, C2 was available and the screening committee decided that being a substitute, no alternative job can be offered. Accordingly, it was decided to delete his name from the muster roll/official records.
( 3 ) THEREFORE, question for consideration is, whether the petitioner is entitled for absorption against alternative post. It is not in dispute that the petitioner was appointed substitute Artisan Khalasi on 15. 11. 1977 and given temporary status on 24. 8. 1978. Question for examination is not the entitlement of the petitioner to benefits after discharge from service but providing of alternative employment to him after suffering of 30% disability during the course of employment. Position of substitute attaining temporary status and other workmen attaining temporary status has been examined by us in Rukhiben rupabhai v. Union of India (Special Civil application No. 15807 and 15808 of 2003 dated 11. 5. 2005]. It has been held that after attaining the temporary status, substitute or the workmen are entitled to pension and other benefits including regularization, rather, substitutes have two advantages, namely they are getting into regular employment from the stage of substitute or get temporary status. However, in this case, petitioner got temporary status on 24. 8. 1978, therefore, his consideration by the Railways for absorption in alternative post as substitute is illegal.
( 4 ) INDIAN Railways is a big organization providing employment to millions. With a view to deal with such cases, benevolent provisions, providing alt
