Allowed

Mukesh Kharera v. UOI and Ors.

Rajasthan HC16 May 2024CW/5038/2000

Case brief

AI extract

What is this about?

The High Court allowed a writ petition where the petitioner, a railway employee injured during duty, was shown absent and denied salary for specific periods. The Court quashed the impugned orders and directed salary release, holding that the employee was unfit throughout the period despite the Railways' contradictory administrative classification based on the choice of hospital.

What did the court decide?

Impugned orders dated 04.10.2000 quashed; respondents directed to release due salary for periods 06.02.2000 to 27.02.2000 and 14.03.2000 to 04.09.2000.

Mukesh Kharera Vs UOI and Ors. — Pension and Retirement Benefits | Rajasthan HC (2024)

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1. HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 5038/2000

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Mukesh Kharera son of Shri Lal Singh Kharera, aged about 29 years, permanent resident of Quarter No. 2018-B, Hazari Bagh, Railway Colony, Ajmer (Rajasthan).

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----Petitioner

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Versus

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The Union of India, through its General Manager, W. Rly. Church Gate, Mumbai.

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The Senior Divisional Medical Officer (Out-door), Western Railway, Kota (Rajasthan).

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----Respondents

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For Petitioner(s) : Mr. Arihant Samdaria for Mr. Sunil Samdaria For Respondent(s) : Ms. Nidhi Khandelwal

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HON'BLE MR. JUSTICE SAMEER JAIN Order

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REPORTABLE

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Reserved on 06/03/2024

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Pronounced on 16/05/2024

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

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“(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.

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

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(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.”

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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

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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.

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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.

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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.

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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 the prayers so advanced, entitling the petitioner for payment of salary for the subsisting period as noted above.

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Per contra , learned counsel for the respondents submitted 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 correct in the eyes of the law

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and therefore, calls for no interference. In support of the said contention, learned counsel for the respondents submitted that though it is an undisputed fact that the petitioner suffered certain injuries while on duty and was thereafter attended by the Railway Hospital, yet on 29.02.2000, the petitioner was advised by the Railway/respondent authorities to undergo further treatment at the Railway appointed hospital i.e. Jagjivan Ram Hospital, Mumbai. However, the petitioner did not do so and rather, undertook treatment at M.B.S Hospital, Kota (Government Hospital), which is violative of Chapter V of the Railway Manual of 2000, which postulates that if an employee refuses to report without consent of the Medical Officer and/or absents himself accordingly for medical treatment as advised, then a certificate to the effect of ‘discharged for non-attendance’ shall be issued qua the said employee. Therefore, as the petitioner underwent treatment in Government Hospital in Kota, as opposed to the Railway sanctioned/referred hospital in Mumbai, the order impugned was passed. In light of the aforesaid, learned counsel for the respondents prayed for the dismissal of the instant petition.

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Heard and considered the arguments advanced by learned counsel for both the sides and scanned through the record of the petition.

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Upon an assiduous scrutiny of the record of the instant petition, the following noteworthy factual stipulations, which shall have a direct bearing on the adjudication of the lis before this Court, have emerged namely:-

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8.1 That in the Year 1997, the petitioner was appointed as a ‘Constable’ in the respondent-Railway Protection Force.

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8.2 That on 31.12.1999, the petitioner met with an accident while on duty in the Bombay-Jammu Tavi Express and as a result, suffered a fracture in his right-leg.

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8.3 That from 01.01.2000 to 06.01.2000, the petitioner was admitted in M.B.S Hospital Kota, as is reflected vide Annexure-1.

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8.4 That on 18.01.2000, the petitioner’s injury was examined by the Railway Hospital, which categorized the same to be ‘gambhir’ i.e. grievous, as is reflected vide Annexure-2.

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8.5 That on 18.01.2000 itself, a sick certificate was issued by the Medical Officer of Railways and the petitioner was declared unfit for a period of 2 months w.e.f. 01.01.2000, as is reflected vide Annexure-3.

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8.6 That on 05.02.2000, the petitioner again visited the Railway Hospital for check-up of his right-leg, where he was referred to M.B.S Hospital Kota for further treatment, as is reflected vide Annexure-4.

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8.7 That on 29.02.2000, a continuation sick certificate was issued by the Medical Officer of the Railways and resultantly, the petitioner was declared further unfit from 25.02.2000 to 15.04.2000, as is reflected vide Annexure-5.

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8.8 That on 29.03.2000, the petitioner was advised to undergo surgery on his right-leg by M.B.S Hospital, Kota.

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8.9 That on 30.03.2000, despite being injured, the petitioner was removed from the sick list on the premise that the petitioner did not follow the instructions qua treatment of his leg at Jagjivan Ram Hospital in Mumbai and rather, underwent treatment at

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M.B.S. Hospital in Kota itself. The said removal and the assigned reasons thereof, are reflected vide Annexure-7.

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8.10 That on 10.04.2000, the petitioner got himself admitted at M.B.S. Hospital Kota to undergo operation of his right-leg, as is reflected vide Annexure-9.

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8.11 That on 20.04.2000, the petitioner was operated at M.B.S. Hospital Kota, as is reflected vide Annexure-9.

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8.12 That on 20.05.2000, the petitioner was discharged from M.B.S. Hospital Kota, as is also reflected vide Annexure-9.

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8.13 That post surgery, vide Annexures-11 and 12 dated 01.05.2000 and 02.06.2000, the petitioner was advised to rest for a period of 2 months until 01.07.2000.

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8.14 That on 04.09.2000, vide Annexure-13, the petitioner was declared fit for joining/resuming duties from 05.09.2000.

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8.15 That on 19.09.2000, vide Annexure 15, the petitioner was referred to Jagjivan Ram Hospital, Mumbai for obtaining the ‘Fit Certificate’.

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8.16 That on 29.09.2000, the petitioner was declared ‘Fit for Original Duty’ by Jagjivan Ram Hospital Mumbai, as is reflected vide Annexure-16.

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8.17 That on 04.10.2000, vide Annexures 17 and 18, impugned orders were passed by the respondents whereby the petitioner was shown absent as IOD from 06.02.2000 to 27.02.2000 and 14.03.2000 to 04.09.2000 and consequently, directions were issued to withhold the petitioner’s salary for the said specified period.

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Having taken note of the said factual matrix, this Court deems it appropriate to delineate that the cause and controversy

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before this Court is of a short compass, which can be defined by the actions of the respondents whereby the petitioner’s salary for the specified period was withheld, despite an admitted injury on the person of the petitioner, for the sole reason that the petitioner underwent treatment at M.B.S. Hospital Kota, which is a Government Hospital, as opposed to the hospital advised/recommended by the Railways i.e. Jagjivan Ram Hospital, Mumbai.

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In the aforesaid background, this Court deems it appropriate to allow the instant petition for the following reasons, namely:10.1 That a bare perusal of the petitioner’s treatment history, as is placed on record, demonstrates that the petitioner was unfit to join duty from 01.01.2000 to 04.09.2000 and as such, he could not have been shown absent as IOD by the respondents.

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10.2 That whilst initially seeking treatment, the petitioner duly visited the Railway Hospital for his check-up wherein his injury was assessed to be grievous and as a result, the petitioner was referred to M.B.S. Hospital Kota by the respondents themselves for further treatment. Therefore, the stance of the respondents that the petitioner got himself treated at M.B.S. Hospital Kota instead of Jagjivan Ram Hospital Mumbai is absolutely misconceived inasmuch as the petitioner was referred to the former hospital by the respondents themselves. In this regard, reliance can be placed upon Annexure-4.

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10.3 That the grounds adopted by the respondents for removing the petitioner from the sick list, insofar as they pertained to the seeking of treatment at Kota as opposed to

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Mumbai, cannot be countenanced for the following reasons, namely:-

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a. That refusal for treatment at a particular hospital has no nexus with the fitness of the petitioner.

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b. That M.B.S. Hospital Kota is an established Government Hospital and a perusal of the treatment records thereof, clearly demonstrate that the petitioner was unfit from 01.01.2000 to 04.09.2000.

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c. That at the time when the petitioner was injured and sought immediate and first-hand treatment, looking to the medically ascertained grievousness of the injury, it would have been bothersome and fatiguing for the petitioner to travel all the way to Mumbai for his treatment. Accordingly, the decision to seek treatment at M.B.S Hospital Kota was bonafide in nature.

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d. That in addition to the foregoing reasons, it is also to be kept in mind that it is an admitted and/or undisputed position that the petitioner’s injury was inflicted during the very course of employment/duty.

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10.4 That if in the opinion of the respondents the petitioner was fit during the intervening period, then there was absolutely no necessity for the respondents to have sent the petitioner to Jagjivan Ram Hospital Mumbai for obtaining a ‘fit’ certificate vide Annexure-15. The very fact that the petitioner was asked to obtain the said ‘fit’ certificate from Mumbai necessarily implies that the prior to 04.09.2000, the petitioner was unfit and thereby, negates the contention of the respondents that the petitioner was fit before 04.09.2000.

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Accordingly, in light of the foregoing observations, the instant petition is allowed.

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As a result, the impugned orders dated 04.10.2000, marked as Annexures 17 and 18 are quashed and set aside.

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Consequently, the respondents are directed to release the due salary/emoluments for the period subsisting between 06.02.2000 to 27.02.2000 and 14.03.2000 to 04.09.2000, in favour of the petitioner. Additionally, consequential relief, if any, be also given to the petitioner.

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Pending applications, if any, stand disposed of.

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(SAMEER JAIN),J

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JKP/5

Mukesh Kharera v. UOI and Ors.

Case brief

What is this about?

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Mukesh Kharera v. UOI and Ors.

Case brief

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