An employee's entitlement to salary during medical leave cannot be denied based on treatment location if the employee was unfit for duty.

ORDER :

Sameer Jain, J.

1. The instant petition is preferred under Article 226 of the Constitution of India, with the following prayers, as reproduced herein-under:-

“(a) To quash and set aside the order dated 4.10.2000 (Annexure-18) by which petitioner has been shown to be unlawfully absent as I.O.D. from 06.02.2000 to 27.02.2000 and from 14.3.2000 to 4.9.2000 and consequently quash and set aside the order dated 4.10.2000 (Annexure-17) by which payment have been ordered to be withheld for the aforesaid period.

(b) Costs of the Writ Petition may be allowed and

(c) any other relief which this Hon’ble Court deems fit & proper in facts and circumstances of the case be granted to humble petitioner from the respondents.”

2. It is submitted by learned counsel for the petitioner that the order impugned dated 04.10.2000 (Annexure-17), by way of which the payment of the petitioner’s salary for the period subsisting between 06.02.2000 to 27.02.2000 and 14.03.2000 to 04.09.2000 has been withheld, is unsustainable in the eyes of law. In this regard, learned counsel averred that the Railway Protection Force members are entitled to Hospital Leave when they undergo treatment for injuries caused by accident(s) arising out of and/or in the course of employment. During the said hospital leave, railway servants are entitled to receive salary which is either half pay or fully pay, as per the discretion exercised by the Sanctioning Authority. Moreover, during the period for which the said railway servants are unfit to resume the duties because of injury, they are categorized as IOD i.e. Injured on Duty. A person is entitled to receive half pay or full pay, as the case may be, for the period during which they remain IOD or sick.

3. However, in the facts and circumstances of the present case, it was argued that an anomalous situation has arisen, whereby even though the Railways has accepted the petitioner to be unfit for resuming duties from 01.01.2000 to 05.10.2000, yet they have taken the petitioner to be IOD and/or sick only for the following periods i.e. from 18.01.2000 to 03.02.2000, 28.02.2000 to 13.03.2000 and 05.09.2000 to 04.10.2000, thereby disentitling him of benefits/pay for the subsisting period between 06.02.2000 to 27.02.2000 and 14.03.2000 to 04.09.2000, by showing the petitioner to be absent, despite the existence of the fact that the petitioner was declared ‘fit’ for original duty only on 29.09.2000 by the Jagjivan Ram Hospital, Mumbai, referred by the respondent-Railway themselves; meaning thereby, that the petitioner was admittedly sick and unfit to perform duties from 01.01.2000 to 30.09.2000.

4. In order to substantiate upon the purported error of treating the petitioner to be ‘fit’ for the subsisting period noted above, learned counsel argued that the petitioner could not have been discharged from the sick list on 30.03.2000 and therefore, a ‘fit’ certificate could not have been issued with regards to him because the petitioner was factually sick, as is reflected on record. In this regard, learned counsel submitted that the petitioner got his leg operated on 20.04.2000 at M.B.S. Hospital Kota.

5. In this background, learned counsel conclusively argued that the impugned actions of the Railways cannot be sustained in view of the fact that the Railways itself has accepted that the petitioner was sick and unfit to perform his duties from 01.01.2000 to 05.10.2000 by way of Annexure-19. This fact further gathers strength from the certificate issued by the Jagjivan Ram Hospital i.e. Railway appointed hospital, by which the petitioner was issued ‘Fit for Original Duty’ certificate only on 30.09.2000. Therefore, the action of treating the petitioner as sick and unfit on the one hand and not as an IOD on the other hand for the same period, thus depriving him from the entitlement of leave salary for that period is arbitrary, irrational and unsustainable in the eyes of the law. Hence, it was prayed that the instant petition be allowed in terms of