Judgment:
1. Applicant is a retired Loco Pilot (Goods) (PB2+ GP Rs.4200) of Southern Railway, Palghat Division. He voluntarily retired from service on 1.4.08. His grievance is that the respondents, in an arbitrary manner, treated the period of his service from 21.12.2007 to 31.3.2008 as leave on average pay whereas it should have been treated as duty as per existing rules.
2. Brief facts are that the applicant as a Loco Pilot (Goods) was required to have fitness in "Aye One" (A-1) medical classification throughout as per Para 514 of Indian Railway Medical Manual (IRMM). The said para is as under:-
"(1) In order to ensure the continuous ability of Railway employees in class A-1, A-2, A-3, B-1and B-2 to discharge their duties with safety, they will be required to appear for re-examination at the following stated intervals throughout their service.
(A) Category A-1, A-2 and A-3:-
(i) At the termination of every period of four years, calculated from the date of appointment, until they attain the age of 45 years, and then every two years until the age of 55 years and then thereafter annually, until the conclusion of their service.
(ii) If an employee in Medical Category-A has been periodically examined at any time within two years prior to his attaining the age of 45, the next medical examination should be held two years from the date of the last medical examination and subsequent medical examinations every two years until 55 years and then annually thereafter until retirement. If however such an employee has been medically examined at any time earlier than two years prior to his attaining the age of 45 years, his next medical examination should be held on the date he attains the age of 45 and subsequent medical examinations every two years thereafter."
3. In terms of Para 524 of IRMM, the time taken by the examining authority to come to a decision in the matter is also to be treated as duty. The said provision is as under:-
"524. Treatment of the period of absence of Railway employees sent for periodical medical re-examination:-
The period for which an employee is absent from duty for periodical medical re-examination may be treated as below:-
(i) Time spent in journey to and from the actual medical examination may be treated as duty.
(ii) Time taken by the examining medical authority to come to a decision in the matter may be treated as duty. In case where the examining authority is not quite sure of the decision to be taken, he makes a reference to the Chief Medical Director and the first decision in this case is given after reference to the C.M.D. In such cases, the period up to the announcement of the decision may be treated as duty.
Note: Periodical Examination of an employee should invariably be completed in 3 days. If a Railway doctor is not able to come to a conclusion within a period of 3 days, the entire period required for the doctor to come to a conclusion of the P.M.S. should be treated s duty. However it will not include the time taken by the employee to procure spectacles or any willful delay by the employee.
(Bd.'s No.86/H/5/11 dated 07/12/90)
(iii) Time taken by the employee to equip himself with spectacles, trusses, etc, or with any other equipment without when he/she is not considered fit for duty should be debited to the leave account of the employee concerned. This period will be from the time the examining authority recommends that artificial aids are necessary till the the time the employee obtains such aids and is certified fit for duty by the competent authority. In respect of spectacles, the time upto to five days spent by employee to equip himself with spectacles for the first time or to change his existing spectacles should be treated as duty. General Managers are empowered to review and consider cases on merit beyond the stipulated period of 5 days.
(Bd.'s No.85/H/5/10 dated 12/14-08-86 and 99/H/5/10 dt.12/08/1999)
(iv) In the event of his/her being declared unfit, an employee may appeal to the Chief Medical Director against the examining authority's decision within a period of seven days from the date of adverse report by the examining authority. If the Chief Medical Director, on appeal, confirms the decision of the of the first examining authority, the period of waiting from the moment of being declared unfit till the verdict of the C.M.D. would be debited to the employees leave account. If, on the other hand, the Chief Medical Director over-rules the decision of the first examining authority, such period of waiting should be treated as duty, provided the employee concerned has preferred an appeal within a week from the time the result of the original medical examination is communicated to him. It is also necessary that the appellate authority should decide the appeal within three weeks from the time the appeal is preferred.
(v) In cases where the immediate supervisor or an officer is not available to allow an employee with a fit certificate to join his/her duty on return from periodical medical examination the time taken by such administrative delay may be treated as duty."
4. The applicant was subjected to various tests and he was directed to appear on various dates though no treatment was given except for treatment for control of his sugar level. He was later referred to Railway Hospital, Perambur on 9.1.2008 and the competent authority found him not fit in Aye One (A-1) but fit in Aye Two (A-2) and below but he was not issued with any certificate to that effect. He has, therefore, been frequenting the hospital for that purpose. The respondents also paid him the salary for the aforesaid period of medical examination as if he was on duty. As the applicant was kept in a state of uncertainty for long without certifying him to be fit or unfit, he sought voluntary retirement and it was accepted w.e.f. 1.4.2008. According to the applicant, he was under the bonafide belief that the entireperiod from 21.12.2007 to 31.3.2008 would be treated as duty. Contrary to his belief, later he came to know that the said period was treated as leave which resulted in shortage of his leave encashment.
5. Aggrieved by the aforesaid action of the respondents, he submitted a representation dated 25.8.2009 to the second respondent, followed by another representation dated 16.10.2011 (Annexures A-5 and A-6). Since there was no response, he sought information under RTI as to how the aforesaid period was treated and in reply, he was informed that it was treated as leave on average pay. He has, therefore, filed this OA seeking the following reliefs:-
a) Call for the records leading to the issue of A7 and A8 and quash the same in so far as they treat the period 21.12.2007 to 31.3.2008 as leave on average pay;
b) Declare that the applicant is entitled to have the period from 21.12.2007 to 31.3.08 (both days inclusive) treated as duty, with all consequential benefits arising there from and direct the respondents accordingly.
c) Direct the respondents to pay the applicant his pay and allowances as if he was on duty for the period from 21.12.07 to 31.03.08 duly drawing the annual increment due on 01.09.07, with all consequential arrears of pay and allowances arising therefrom;
d) Direct the respondents to pay interest at the rate of 12% per annum on the arrears of leave encashment as above to be calculated for the period from 01.07.2008 till the date of full and final settlement of the same;
e) Award costs of and incidental to this application;
f) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
6. Learned counsel for the applicant has submitted that the applicant's case is squarely covered by an earlier order in OA No.295/2008 - P.R.Sivadasan Vs. UOI and Others, decided on 12.03.2009. In the said OA, applicant therein was serving as a Shunting Master, Palghat Division. As on 14.06.2007, he had attained the age of 55 years and in terms of Para 514 of IRMM, he was subjected to check up for the purpose of medical categorization. On the directions of the respondents, he presented himself before the medical authorities on 14.06.2007 but no final decision was taken by the medical authorities. He was due for his annual increment in the pay scale of Rs.5000-8000 with effect from 01.09.2007 and his pay as on that date was Rs.5300/-. Even though he was not allowed to work as he did not get medical certificate, the respondents granted him the annual increment w.e.f. 01.09.2007 and accordingly he got the pay for September 2001. Subsequently, he preferred an application for VRS w.e.f. 01.01.2008 and it was granted to him with effect from that date. But the respondents while working out the terminal benefits payable to him took only Rs.5300 as his basic pay in the pay scale of Rs.5000-8000. His contention was that as on the date of his retirement, his pay should have been reckoned as Rs.5450/- including the annual increment already granted to him as of 01.09.2007 as he was entitled to the same and the respondents should not have withdrawn it. He has also contended that the period from 14.06.07 onwards till the date of his retirement should be treated as as covered under the provisions of Para 524 of IRMM treating the entire period as of duty since the applicant was under medical examination for confirming his categorization. This Tribunal had allowed the OA. The relevant portion is reproduced hereunder:-
15. "Further communication dated 24.07.2008 (Annexure R-1) speaks for itself wherein the medical authorities have opined as to treatment of the period as of duty or otherwise of the applicant in respect of this period. The said communication goes to prove that it is stage managed and it is a clear after thought as is rightly argued by the counsel for applicant.
16. In view of the above, I have no hesitation to hold that respondents are at fault in not conducting on time the medical examination for medical de-categorization and it is because of their negligence the applicant was kept out of duty. As such, as per Para 524, the entire period is to be treated only as of duty and as such the applicant does become eligible for grant of annual increment which fell due on 01.09.2007.
17. In view of the discussions OA succeeds. Annexure A-5 order dated 24.01.2008 is quashed in so far as it specifies the last pay as Rs.5300/-. It is held that the applicant is entitled to grant of increment as of 01.09.2007 and his pay shall be fixed at Rs.5450/- in the scale of pay of Rs.5000-8000 and the applicant is entitled to pay and allowances at that rate for the period from 01.09.2007 till the date of his retirement. The terminal benefits due to the applicant from 01.01.2008 shall be calculated on the basis of his basic pay at rs.5450/- and all the dues of pay and allowances and other terminal benefits including pension, gratuity, leave encashment etc shall be worked out and paid to the applicant within two months from the date of receipt of a copy of this order."
7. The respondents in their reply have submitted that this is the second round of litigation by the applicant. Earlier, he had filed OA No.1037/11 before this Tribunal to treat his voluntary retirement from service as the one under the "Safety Related Retirement Scheme" with all benefits emanating there from, including the benefit of consideration for appointment to one of his wards. The present OA has been filed requesting to pay him his pay and allowances as if he was on duty for the period from 21.12.2007 to 31.03.2008 with all consequential benefits. Further, they have submitted that while working as Loco Pilot, he was directed for periodical medical examination for assessing his medical fitness in class 'Aye One' and he underwent the tests on 21.12.2007. On 22.12.2007 itself he was found unfit in class 'Aye One' but fit in 'Aye Two' and below since he was found to have "Non Proferative Diabetic Retinopathy" in both eyes. Though he was advised to take a special medical examination for absorption in alternative post after medical de-categorization, he pleaded with the medical authorities to keep him in the sick list to enable him to retire voluntarily as a running staff and to derive better pensionary benefits. Accordingly, he submitted R-2 application dated 10.01.2008 for voluntary retirement from service due to "family problems" duly forwarded by his immediate superior on 10.01.2008 itself. He was, therefore, kept under sick list from 21.12.2007 till his voluntary retirement was accepted on 19.03.2008 and the Annexure R-1 certificate dated 31.03.2008 was issued to him by the respondents certifying that he was sick and under treatment from 21.12.2007 to 30.03.2008. Further, according to the said certificate, he was discharged from sick list due to acceptance of voluntary retirement as per Sr.DPO/PGT L.No.J/P 509/V/J/M2188 dated 19.3.2008. Thereafter, according to them, his services were terminated w.e.f. 01.04.2008. Since he was continued to be in the sick list during the period from 21.12.2007 to 31.03.2008, the said period was debited to his leave account and regularized as "Leave on Average Pay". They denied his contention that he was not aware about his medical de-categorization as he himself has contended that on 09.01.2008, the competent authority found him unfit and on knowing about it, he applied for voluntary retirement on 10.01.2008 itself. Even though, as admitted by the applicant himself, when he was referred to Railway Hospital at Perambur on 09.01.2008, he refused to go there as he was not interested for his re-deployment on medical de-categorization. Their further contention is that the applicant's attempt is to put the entire blame upon the Railway Administration to derive undue benefits dehorse the rules. It was on his own interest that he had been allowed to remain in sick list from 21.12.2007 to 30.03.2008 as the terminal benefits for running staff were much higher than the benefits admissible if he had got absorbed in alternate appointment as the table shows below:-
| Details of payment | As a running staff | As non-running staff | Difference |
| Pension | Rs.12,695/- | Rs.8,550/- | Rs.4,145/- |
| DCRG | Rs.4,61,076/- | Rs.3,06,432/- | Rs.1,54,644/- |
| Commutation value | Rs.6,32,756/- | Rs.3,56,145/- | Rs.2,76,611/- |
| Leave salary | Rs.1,74,098/- | Rs.1,39,809/- | Rs.34,289/- |
9. I have heard learned counsel for the applicant as well as learned counsel for thee respondents and perused the documents. In my considered view, the facts as stated by the applicant are distorted, misleading and wrong. It is evident from the records that the applicant was declared unfit in "Aye One" category on 22.12.2007. In any case, the applicant himself admits that the competent authority referred him to Railway Hospital, Perambur on 09.01.2008 as he was found fit in "Aye Two" category and below and he could be re-deployed after special medical examination. But he refused to go there. On the contrary on 10.01.2008 itself, he submitted his application for voluntary retirement and it was accepted w.e.f. 01.04.2008. He also managed to remain in sick list till his application for retirement was accepted w.e.f. 01.04.2008 vide the respondents' letter dated 19.03.2008. In fact, the respondents have allowed him have better financial benefits on his voluntary retirement as Running Staff itself without compelling him to be posted against any suitable alternative post. The applicant did not protest at all against respondents' action for treating the period from 21.12.2007 to 30.03.2008 as leave on average pay when he got them all the documents including pension calculation sheet vide respondents' letter dated 20.05.2008. His first alleged representation against it has been made only on 25.08.2009 and the next one only on 16.10.2011.There is no acknowledgment regarding their receipts by the respondents. Therefore, there cannot be any dispute with regard to the contention of the respondents that these documents were created for the purpose of bringing this OA within the prescribed limitation period.
10. In the above facts and circumstances, I am of the considered view that the applicant has not stated true facts of his case in this OA. Rather, he distorted the facts to get undue financial advantage from the respondents. His effort in this OA is to put the respondents in defence and discredit them when they actually helped him to get better financial benefits on his voluntary retirement. Hence I dismiss this OA both on merit as well as on limitation. Since the applicant is a retired person, I refrain from imposing any cost upon him.