ORDER
R. Ganesan, Member (A)
1. The applicant working as Junior Engineer in the Southern Railway has sought for the following relief:
To direct the respondents to retire the applicant on the medical grounds pursuant to the report of the medical board and in terms of the proceedings No. M/MD:141/I dated 18.4.2006 and pay the applicant pension and other terminal benefits and ass such other order or orders as may be deemed fit.
2. The applicant joined Southern Railway as khalasi on 25.11.1980 and got promotion subsequently, he is currently working as Junior Engineer in the Engineering Workshop, Arakonam. According to him he belongs to Konda Reddy community which is a Scheduled Tribe as per the Constitution of ST orders 1950. He obtained the community certificate on 1.6.98 from the Tahsildhar Office. He states that several of his close relatives including his brother and son also possess the community certificates issued by the Competent Authority. By order dated 12.8.8S the Collector, Chengalpet cancelled his community certificate without holding proper inquiry. This order was challenged by the applicant by filing Writ Petition No. 13257/88 and on 14.7.1998 Madras High Court allowed the same by setting aside the order of the Collector and giving opportunity to the authorities to proceed afresh. More than eight years after the said order of remand, the District Level Vigilance Committee, Thiruvallur summoned the applicant for inquiry on 11.9.2006. As the applicant was undergoing treatment in the Railway Hospital, he could not attend the inquiry. The applicant’s wife who had gone to seek postponement of inquiry was compelled to answer certain question and based on the replies given by her, the committee concluded the inquiry on 11.9.2006 itself without giving opportunity to the applicant to appear and substantiate his community.
3. On the basis of such one sided inquiry the District Level Vigilance Committee by order dated 4.11.2006, cancelled the applicant’s community certificate. The said order stated that an appeal could be filed before the State Level Scrutiny Committee within a period of 30 days. Accordingly the applicant has preferred an appeal to the State Level Scrutiny Committee on 9.12.2006 and the same is still pending. By way of abundant caution the applicant also filed Writ Petition No. 48821/2006 before Hon’ble Madras High Court seeking directions that no action should be taken on the basis of the proceedings of the District Level Vigilance Committee till the outcome of the appeal before the State Level Scrutiny Committee is known. The Hon’ble High Court has admitted the writ petition and granted necessary interim orders. The said writ petition is still pending.
4. The applicant further contended that in August 2004, he was admitted in Railway Hospital, Perambur for treatment of urinary infection as he was suffering from high diabetes. He was undergoing constant treatment for renal failure including periodical dialysis and due to failure of treatment his eye sight is also affected completely. The respondents referred him for examination by medical board. Accordingly the medical board by report dated 6.2.2006 declared him unfit for further service in all classes. Accepting the report of medical board by proceedings dated 18.4.2006, CMS, Railway Hospital, Egmore, Chennai declared the applicant unfit for further service and also recorded that the applicant accepted the report and does not propose to appeal against the said decision. According to him if a person is found unfit for further service on medical examination and the medical report is accepted, the administration is bound to release pension and other benefits admissible to him. Instead of doing this, the applicant was issued with order dated 15.6.2006 by the 2nd respondent in which it was informed that supernumerary post has been created in order to accommodate the applicant who can avail leave in accordance with rules applicable to the said post.
5. This order further stated that the applicant’s pay and allowances will be drawn on the same stage and in the same scale in which he was drawing at the time of medical unfitness. The applicant questioned the decision of the respondents in creating supernumerary post for him instead of medically invalidating him. The respondents have not paid him the salary from January 2006 and his representation with all relevant documents regarding medical unfitness for granting pension and other terminal benefits have not borne fruit.
6. The applicant contended that the respondents have not acted in accordance with Para 1302 of Chapter XIII of IREM. Further Rules 55 and 62 of Railway Servant Pension Rules confirm the action to be taken by the respondents in the context of medical invalidation. The cancellation of the community certificate by District Level Vigilance Committee cannot stand in the way of medical invalidation w.e.f. 6.2.2006 or at least from 18.4.2006 on which date the applicant was declared unfit for all classes of service, and while the community certificate was cancelled by the District Level Vigilance Committee by proceedings dated 4.11.2006 which is not final as the applicant has appealed before the State Level Committee on 9.12.2006 and in the Writ Petition No. 48811/2006, the Hon’ble High Court of Madras has directed that no action should be taken against him on the basis of District Level Vigilance Committee report. Hence the applicant contended that the respondents are not justified in depriving him of medical invalidation with all consequential benefits. Hence the O.A.
7. Respondents have filed their reply denying the averments made in the O.A. According to them it is the case of bogus community certificate which resulted in termination of applicant from service. The applicant’s prayer for service benefits (settlement) and appointment to his ward on compassionate ground on medical invalidation grounds is no more prevailing as he was terminated from service w.e.f. 6.12.2006. They stated that the applicant was appointed as khalasi on 25.11.80 against ST quota. He earned several promotions on the basis of reservation extended to ST. The applicant had mentioned his community as Hindu – Konda Reddy ST, which is classified as at the time of his initial appointment in the application and in support of his claim he submitted community certificate issued by Tasildhar, Tiruttani Arising out of a complaint about his community status the respondents referred the above community certificate for verification to the authorities concerned. On verification, the District Collector, Kanchipuram gave his report that the applicant does not belong to Hindu Konda Reddi Community (ST). Thereafter the applicant filed Writ Petition No. 13257/98 before the Hon’ble High Court of Madras, the Hon’ble High Court directed the District Administration to hold one more fresh inquiry regarding applicant’s community certificate. The matter was inquired into by the Competent Authority of District Level Scrutiny Committee, Thiruvallur and after proper scrutiny the DLVC, headed by District Collector, Thiruvallur declared the applicant Shri R. Mohanvel does not belong to Hindu Konda Reddi Community (ST) and also countermanded the community certificate by order dated 4.11.2006. When the scrutiny committee’s findings revealed that the applicant does not belong to ST community based on which he secured employment, the applicant has no moral claim to continue in the employment and in accordance with Railway Board’s instructions dated 24/28.9.1999 which was issued on the basis of order of the Hon’ble Apex Court in Laveti Giri case in C.A. No. 4545 of 1995 AIR 1995 SC 1506 communicated by CPO/MAS vide letter dated 29.11.1999, the applicant’s service was terminated without notice on 6.12.2006.
8. The respondents added that the applicant did not receive the order of termination but also did not turn up for duty from 6.12.2006 which clearly indicates that he is well aware of the position. Subsequently his wife has received the termination order copy at the office on 3.4.2007. The applicant has already challenged the findings of the DLVC s order dated 4.11.2006 in the Hon’ble High Court of Madras in which the respondents have also filed their counter. The respondents further contended that the applicant had wilfully concealed that he was terminated from service and thus he has not approached the Tribunal with clean hands. As the writ petition before the Hon’ble High Court is still pending, they pleaded for dismissal of the O.A.
9. We have heard the Counsel for the applicant and the Counsel for the respondents and perused the relevant records carefully.
10. The learned Counsel for the applicant submitted that the applicant’s health is in a very bad condition and he is taking treatment in the Railway Hospital, Perambur and after having been medically declared unfit for service in all classes, instead of granting him invalidation pension the respondents have issued the termination order on the basis of DLVC s report cancelling the community certificate that too during the appeal period of 30 days and hence the order of termination issued by the respondents cannot be sustained in law and under the circumstances the applicant has to be allowed to stay in the supernumerary post vide order dated 15,6.2006 until the respondents decided the case of medical invalidation.
11. The Counsel for the respondents questioned applicant’s right for continuation in service in view of the fact that his community certificate has been cancelled because of which he has no locus standi to continue in the service keeping in view of the fact that he was recruited under the ST quota and action taken by the respondents in accordance with the order of the Railway Board dated 29.11.99 which itself is based on the decision of the Hon’ble Apex Court is strictly in accordance with law and keeping in view the facts and circumstances of the case the applicant cannot seek any relief.
12. It is noticed that the applicant’s community was cancelled by the District Level Vigilance Committee by order dated 4.11.2006 and while so doing the committee also gave opportunity to the applicant to appeal before the State Level Scrutiny Committee within 30 days from the date of receipt of a copy of the said order. From the order produced by the respondents themselves, we find that the order has been signed on 7.11.2006 and the applicant stated that the same was received by him only in middle of December 2006 though he could not produce any proof to this effect. However, assuming that the order dated 4.11.2006 cancelling the community certificate was signed on 7.11.2006 and despatched thereafter the applicant had 30 days at least from 7.11.2006 and during this appeal period the respondents should have awaited the next move of the applicant. Instead of doing so, the respondents have chosen to terminate the applicant’s services by order dated 6.12.2006 which has been established by RL dated 7.12.2006. Thus the respondents have failed to give the grace time meant for appeal against the order to the State Level Scrutiny Committee by the applicant and to that extent the respondents have erred by being hasty when they issued the order of termination dated 6.12.06.
13. Apart from this, it is seen that the respondents have also created supernumerary post by their order dated 15.6.2006 vide their communication as under:
I. In terms of Rly. Bd’s Letters. CPO/MAS letter quoted under reference. One supernumerary post in scale Rs. 5000-8000 is created in favour of Sri R. Mohanavel JE.Gr.II with effect from 18.4.2006 i.e. from the date of Medical unfitness in all classes.
II. Sri. R. Mohanavel, JE.Gr.II who has been declared medically unfit in all classes vide CMS/MAS Certificate No. ABCE 46/2006/0716 dated 18.4.2006 forwarded under Letter No. M/M0141/I dated 18.4.2006 & MDC No. 460419 dated 18.4.2006 w.e.f. 18.4.2006, is ceased to perform the duties of the post of JE.Gr.II he is holding from the date he declared medically unfit in all classes.
III Sri R. Mohanavel, JE.Gr.II who borne on supernumerary post on medically unfit in all classes can avail leave on own as due in accordance with the provisions of the rule.
IV His pay should be drawn at the rate of pay scale and in the same designation in which he had been medically unfit in all classes.
Sd/-
(D. Gopi)
Asst. Personnel Officer
for Dy. Chief Engineer.
(Emphasis added)
The applicant submitted that the respondents have not settled the dues from January 2006 and thus continued even after placing him in the supernumerary post by order dated 5,6.2006. Keeping in view the facts and circumstances of the case and also the applicant has submitted in Para 4(F) of the O.A. that he had filed Writ Petition No. 48821/2006 before die Hon’ble High Court of Madras seeking direction that no action should be taken on the basis of proceedings of the DLVC till the outcome of the State Level Scrutiny Committee is known and obtained necessary interim order, the respondents should have awaited the decision of SLSC. Thus, we find that the respondents have neither considered the applicant’s right of appeal within the stipulated time of 30 days after receipt of DLVC’s report nor acted on the interim injunction of Hon’ble High Court of Madras to await the result of the SLCC before taking a decision on the State Level Committee’s findings of cancellation of the community certificate of the applicant and terminated his service.
14. The learned Counsel for the applicant referred to the decisions in S. Rajendran v. Depputy Commissioner of Police, Crime and Traffic, Madurai and Anr. ; order dated 16.2.2006 and K. Ravichandran v. MTCL represented by its Chairman-cum-Managing Director, Chennai, (2004) 2 MLJ 601 order dated 25.3.2004. In the order of Hon’ble High Court of Madras dated 16.2.2006 cited supra, disabled employee must be accommodated in the department and if there is no vacancy he may be accommodated in supernumerary post with pay and allowances. In the instant case the applicant has been accommodated in a supernumerary post but placed on leave because he was disqualified medically for all classes of service and a decision on invalidation on medical report was being processed keeping the fact of service record also in view. In the second order of Hon’ble High Court of Madras dated 25.3.2004, relied on by the applicant, it is held that it is not necessary that disability should be acquired while performing the work and it is sufficient that disability is acquired while in employment. The respondents have not disputed the disability and keeping in view this aspect, they had created supernumerary (sic). Obviously they were fully aware that the applicant was awaiting the result of community status, they accommodated the applicant in the supernumerary post and put him on leave because of the disqualification of the applicant in all classes of service. Though we are unable to find the reliance of the applicant on these decisions supporting the applicant’s case, we are in agreement with the following other decisions cited by the learned Counsel for the applicant.
15. W.A. No. 1005 of 2006 order dated 7.8.2006 in Deputy G.M., Union Bank of India and Anr. v. M. Ravi Kumar and Ors. in which Their Lordships have observed as under:
4. We are amazed as to the urgency shown by the appellant Bank in terminating the services of the first respondent without even waiting for the outcome of the decision to be rendered by the State Level Caste Scrutiny Committee. It is also seen from the records that the first respondent had been working in the bank since the year 1983 and he had worked for more than two decades. Even the order of termination passed by the appellants Bank had not given any opportunity to the first respondent and it placed reliance solely on the cancellation of the Community Certificate dated 20.11.1980 by the third respondent District Level Vigilance Commission vide an order dated 13.9.2005. When the very subject matter of the said order was under an appeal and in the fitness of things, the appellants ought to have waited for the outcome of the decision to be rendered by the State Level Scrutiny Committee.
5. In the light of the above, we find no merits in the appeal filed by the appellants and the same shall stand dismissed. However, mere will be no order as to costs. Consequently M.P. is closed.
(Emphasis added)
In K. Manivannan v. Chairman and Managing Director, Chennai Port Trust, Chennai W.P. No. 1451 of 2006 order dated 6.4.2006 Hon’ble High Court, it is held as under:
5. I have considered the submissions made by the learned Counsel for the petitioner as well as the learned Counsel for the respondent. It is not in dispute that the order dated 30.11.2005 issued by the three member District Level Vigilance Committee was served on the petitioner as well as on the respondent only 6.1.2006. Admittedly, 30 days time is given to the petitioner to file an appeal against the order of the District Level Vigilance Committee. The impugned order of termination is passed on 19.1.2006 i.e. within 15 days from the date of service of the order of the District Level Vigilance Committee. It is well settled in law that appeal is a continuation of the original proceedings.
6. The learned Counsel for the petitioner produced the appeal memo dated 20.3.2006 filed before the State Level Vigilance Committee and, therefore, the said order of the District Level Vigilance Committee has not become final. Under such circumstances, the impugned order of termination dated 19.1.2006 solely passed on the basis of cancellation of the Community Certificate by the District Level Vigilance Committee dated 30.11.2005, signed on 20.12.2005 served on the petitioner as welt as the respondent on 6.1.2006 is unsustainable as it is passed before the expiry period for filing appeal. Hence, the writ petition is allowed with the following direction.
The respondent is directed to reinstate the petitioner in service. The petitioner’s salary and other benefits payable from 19.1.2006 till the date of reinstatement shall be subject to the orders to be passed by the State Level Caste Scrutiny Committee and if the State Level Caste Scrutiny Committee pass orders in favour of the petitioner, the petitioner will be entitled to get the backwages and other benefits during the period in which he was kept out of employment. The respondent is directed to reinstate the petitioner in service within a period of one week from the date of receipt of a copy of this order.
(Emphasis added)
16. Applying the ratio of Hon’ble High Court of Madras cited supra and also keeping in view the facts and circumstances of the case, the respondents have erred in issuing the termination order during the period of appeal against the decision of the District Level Vigilance Committee to the State Level Scrutiny Committee and in not complying with Hon’ble High Court of Madras directions in W.P. No. 48821/2006 grating interim stay. Hence the order of termination No. 74/2006 dated 6.12.2006 is set aside. The applicant has to be kept in the supernumerary post in accordance with the order of the respondents dated 15.6.2006, pending final decision of State Level Scrutiny Committee and the respondents should pay the dues entitled to the applicant from January 2006 within thirty days of receipt of a copy of this order. However, the respondents are at liberty to take appropriate action in accordance with extent orders and law after the receipt of State Level Scrutiny Committee’s report and in accordance with the directions of Hon’ble High Court in the W.P. No. 48821/2006. The O.A. is disposed of as above. No costs.