## IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT: ## THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938 OP (CAT).No. 321 of 2016 (Z) ----------------------------- OA 391/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 3.2.2016 ## PETITIONERS/RESPONDENTS IN OA: ------------------------------ 1. GENERAL MANAGER, SOUTHERN RAILWAY CHENNAI 600 003. ## 2. DIVISIONAL RAILWAY MANAGER SOUTHERN RAILAY, TRIVANDRUM DIVISION, TRIVANDRUM 695 014. ## 3. SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM 695 014. ## 4. SENIOR DIVISIONAL MEDICAL OFFICER SOUTHERN RAILWAY, ERNAKULAM JUNCTION, ERNAKULAM 682 016. ## BY ADV. SRI.TOJAN J.VATHIKULAM,SC,RAILWAYS ## RESPONDENT(S)/APPLICANT IN THE O.A: ----------------------------------- ## P. HAMSA S/O.KUNJUMUHAMMED, RETIRED POINTSMAN -I (SNP)/ SOUTHERN RAILWAY/ERNAKULAM, RESIDING AT :PUTHIRICKAL HOUSE, NEAR THEKKEPARAMBU, ELAMKUNNAPUZHA, VYPPIN, ERNAKULAM. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 17-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP (CAT).No. 321 of 2016 (Z) ## ----------------------------- ## APPENDIX ## EXHIBITS & ANNEXURES ----------------------------------------- ## P1 TRUE COPY OF THE OA NO. 391/13 ON THE FILES OF THE CENTRAL ADMINISTRIATVE TRIBUNAL, ERNAKULAM BENCH P2 TREU COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN OA NO.391/2013 ON THE FILES OF THE CENTRAL ADMINISTRATIGE TRIBUNAL, ERNAKULAM P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANTS OA NO. 391/2013 P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS IN OA NO. 391/2013 P5 TRUE COPY OF THE ORDER DATED 3RD FEBRUARY 2016 IN OA NO. 391/2013 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH A1A PHOTOCOPY OF THE ORDER DATED 27.7.2012 A2A PHOTOCOPY OF THE REPRESENTATION DATED 6.9.2012 A3A PHOTOCOPY OF THE ORDER DATED 31.10.2012 ISSUED BY R1 A4A PHOTOCOPY OF THE ORDER DATED 4.1.2006 ISSUED BY R4 A5PHOTOCOPIES OF THE SCAN REPORTS DATED 4.1.2006 AND 11.1.2006 A6A PHOTOCOPY OF THE DISCHARGE SUMMARY DATED 16.1.2006 A7A PHOTOCOPY OF THE ORDER DATED 15.5.2006 A8A PHOTOCOPY OF THE CERTIFICATE DATED 16.5.2006 A9PHOTOCOPIES OF THE PRESCRIPTION MEMOS DATED 3.8.2006 AND 4.8.2006 A10A PHOTOCOPY OF THE ORDER DATED 10.8.2006 A11A PHOTOCOPY OF THE CERTIFICATE DATED 11.8.2006 ISSUED BY R4 A12A PHOTOCOPY OF THE LETTER DATED 7.12.2016 ISSUED BY R4 OP (CAT).No. 321 of 2016 (Z) --------------------- -2- A13A PHOTOCOPY OF THE RAILWAY BOARD LETTER DATED 14.6.2006 A14A PHOTOCOPY OF THE OFFICE MEMORANDUM ORDER DATED 30.3.2007 A15A PHOTOCOPY OF THE LETTER DATED 1.8.2009 A16A PHOTOCOPY OF THE ORDER DATED 31.10.2012 ISSUED BY R1 A17A PHOTOCOPY OF THE REPLY DATED 27.8.2009 A18PHOTOCOPIES OF THE CERTIFICATES SHOWING THE EDUCATIONAL QUALIFICATION A19THE PHOTOCOPIES OF THE CERTIFICATES DATED 25.4.1986 APRIL 2005 AND 11.6.2012 A20A PHOTOCOPY OF THE SAFETY RELATED RETIREMENT SCHEME DATED 2.1.2004 FOR DRIVERS AND GANGMAN A21A PHOTOCOPY OF THE ORDER DATED 11.9.2010 ISSUED BY RAILWAY BOARD. //True copy// P.S to Judge ## **P.R.RAMACHANDRA MENON & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - OP(CAT). 321 of 2016 - - - - - - - - - - - - - - - - Dated 17[th ] December, 2016 - - - - - - - - - - - - - - - - - - - - - - - - **'CR'** ## **JUDGMENT** ## P.R.Ramachandra Menon, J. 1.Challenge is against the correctness and sustainability of the order dated 3.2.2016 passed by the Tribunal in O.A.391 of 2013 granting the benefit of medical decategorization with effect from the date of illness, ie, 4.1.2006 and directing to give all consequential benefits, including consideration of the ward of the applicant for compassionate appointment. 2.The respondent/applicant was working as 'Pointsman' in the services of Railways, and pursuant to a stroke sustained by him on 4.1.2006, he was admitted in a private hospital, from where he was referred to the Railway hospital, where the treatment was continued. It is stated that the Railways **OP(CAT).321/16** 2 extended all the benefits to him, accommodating him in a post of lesser duties and responsibilities. 3.In the meanwhile, the applicant had submitted an application, seeking the benefit of 'compassionate appointment' for his ward, which was considered and rejected. The reason for rejection was that he did not have left over service of 'five' years, so as to be given the benefit of compassionate appointment to his ward. Contending that the date of birth in the service records was not correct, the applicant approached the Tribunal by filing O.A.454/2011 to effect correction of the date of birth. The prayer with regard to the date of birth was declined by the Tribunal and Annexure-A1 order was passed, whereby the respondent/applicant was permitted to submit a representation with regard to the relaxation in the requisite extent of service of 'five' years for compassionate appointment, and also **OP(CAT).321/16** 3 for moulding the relief to be considered and dealt with by the Department. 4.Pursuant to the above verdict, the matter was considered and it came to be rejected. This made the respondent to have it challenged by filing O.A.391 of 2013 before the Tribunal. The claim was considered by the Department and found that the applicant was not entitled to have the benefit. In such circumstances, '14.12.2006' was reckoned as the date on which the applicant was medically de-categorized. According to the applicant, the illness started from the date on which he was incapacitated. Even though the actual date of medical de-categorisation was later (14.12.2006), it had to be reckoned from the initial date; according to the applicant. The issue as to the actual date which was to be reckoned had come up before the Full Bench of the Tribunal in O.A.929/2010 and as per the order dated 31.01.2012, it was answered in the **OP(CAT).321/16** 4 ## following lines : “The next question is as to the date from which benefits under the Act shall become available to a person with disabilities. Necessarily, declaration by a competent Medical Authority, of any kind of disability, is posterior to a person's acquiring disabilities. In variably, it is only after administering necessary medical treatment to the individual suffering from any kind of the specified disability, that the extent of disability that would remain permanently with the person would be ascertained. Generally. Such a certificate would be effective from the date of issue of the certificate. However, if there be any other date/period reflected in the medical certificate as to the date/period from which the disabilities persist, obviously, it would be such a date/period as so reflected that would be reckoned. Reference made to the Full Bench is answered accordingly.” 5.Placing reliance on the said verdict, the Tribunal proceeded to extend the benefit to the applicant as well. But then, it was submitted by the Department that the said verdict has already been challenged before this Court. Interim order as sought, has already been obtained, by virtue of which no reliance could be placed on it (see paragraph 2(bottom) and 3(top) of Ext.P5 order). Despite granting an opportunity, the order was never **OP(CAT).321/16** 5 placed before the Tribunal. After hearing both the sides, the Tribunal observed that, if at all the verdict passed by the Full Bench had already been intercepted by this Court, no benefit could be extended therefrom. Since it was not proved to be so, the law declared by the Full Bench was followed and the benefit was moulded, granting relief to the applicant in the following terms : “In the light of the above discussion, the respondents are directed to treat the applicant as medically de-categorised w.e.f 4.1.2006. The relevant records in relation to the medical de-categorization of the applicant shall be corrected within two months from the date of receipt of a copy of this order and the applicant shall be given all consequential benefits including the consideration of his war's request for appointment on compassionate grounds in terms of the provisions of Annexure-A13 Railway Board letter. Ordered accordingly.” It is against the said finding, that this Original Petition has been filed by the Department. 6.When the matter came up for consideration on 16.12.2016, this Court asked the learned **OP(CAT).321/16** **==> picture [7 x 9] intentionally omitted <==** Standing Counsel whether the OP stated as filed against the order passed by the Full Bench of the Central Administrative Tribunal before this Court had attained finality. It was stated that no materials were available, when this Court asked the Registry to get instructions; pursuant to which the outcome has been brought on record. It is seen that OP(CAT).3808 of 2012 was filed by the Railways against the order dated 27.02.2012 passed by the CAT in O.A.929 of 2010. That OP had already been finalized by another bench of this Court, declining interference and dismissing the same. It is seen from the discussion in paragraph 8 of the said judgment, that the legal question raised by the Tribunal as to the actual date to be reckoned was referred to Full Bench as per order dated 11.10.2011 (Ext.P5 therein). The question referred was whether for the purpose of Medical de-categorization and alternative employment, a person could be considered as **OP(CAT).321/16** 7 having acquired medical disability from the date on which he suffered the injury or whether the benefits should be limited to the date on which he is actually certified to be medically disabled. The said question was answered by the Full Bench of the Tribunal as per order dated 31.01.2012 (Ext.P6 therein); relevant portion of which has already been extracted by us in paragraph 4 above. After answering the reference, the matter (O.A.929/2010) was sent back by the Full Bench. It was accordingly, that the factual position was analyzed and applying the law declared by the Full Bench, a decision was recorded by the Tribunal on 27.02.2012 in O.A.929/2010 (Ext.P7 in O.P.(CAT).3808/2012 deciding the issue against the Department/Railways. The challenge raised by the Railways before this Court in O.P.(CAT). 3808/2012 was found as devoid of any merit and the Original Petition was dismissed as per judgment dated 31.08.2015. In such **OP(CAT).321/16** 8 circumstances, there is no tenable ground to draw any distinction and we are fully in agreement with the view taken in O.P(CAT). 3808/2012. 7.Ext.P5 verdict was passed by the Tribunal only on 3.2.2016; where as the issue, which was pending consideration before this Court in O.P (CAT).3808/2012 had already been finalized about one year back, ie, on 31.8.2015, dismissing the OP filed by the Department. The petitioners 1 and 3 herein, General Manager and the Senior Divisional Personnel Officer of the Railways, were the petitioners 1 and 2 in O.P(CAT).3808 of 2012; though the learned Standing Counsel is different. Despite the fact that they were well aware of the fate of the proceedings in OP(CAT).3808/2012 which came to be finalized on 31.8.2015, it was never brought to the notice of the Tribunal, when the present case (O.A.No.391/2013) was finalized as per Ext.P5 judgment on 3.2.2016. ## **OP(CAT).321/16** 9 More disturbing aspect to be noted is that petitioners have not revealed the actual position even before this Court, in the present Original Petition. Nowhere in the OP, have they mentioned about the number of the case which was pending here or as to the finality arrived at. This means, there is a serious error on the part of the petitioners in not divulging the actual facts and figures. Such a deliberate conduct cannot but be deprecated in the strongest possible words and it is liable to be dealt with seriously. It may even amount to Contempt of Court by virtue of the observations made by the Apex Court in Dhananjay Sharma v. State of Haryana and Others (AIR 1995 SC 1795). - 8.In the above circumstances, we find that there is absolutely no merit in the Original Petition. It is dismissed with a cost of Rs.25,000/- to be paid to the Kerala Mediation and Conciliation Centre within one month; **OP(CAT).321/16** 10 failing which it will be open to the Registrar General to issue necessary certificate to the beneficiaries, so as to enable them to get the amount realized. With regard to the further steps to be pursued against the officers concerned, we reluctantly refrain from doing so, based on the submissions made by the learned Standing Counsel but for alerting them that no such course/conduct shall be pursued hereafter, which is an abuse of the process of Court. A copy of this judgment shall be forwarded by the Registry to the Director, Kerala State Mediation and Conciliation Centre for information. ## **Sd/P.R.RAMACHANDRA MENON Judge** **Sd/A.M.BABU Judge** Mrcs/17.12.2016 //True copy// P.S to Judge