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Phiroze Sorabji Parekh Vs. B.M. Kaul and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMisc. Petition. No. 48 L of 1970
Judge
Reported in(1973)ILLJ344Bom
ActsConstitution of India - Article 226; Indian Railway Establishment Manual - Rules 2006(8), 2609 and 2610
AppellantPhiroze Sorabji Parekh
RespondentB.M. Kaul and anr.
Excerpt:
.....incapacitated railway servant could only be effectively made once. ' 8. the rule 2609 relates to alternative employment to the suitable :the relevant parts of sub-rules (i) and (iii) of this rule provide :(i) the alternative post to be offered to a railway servant should be the best available for which he is suited, to ensure that the loss in emolument is a minimum. the low level of emoluments should not, however, deter officers concerned from issuing an offer if nothing better is available. the petitioner's case that he was not satisfied by that absorption order appears to be true. having regard to his having been absorbed in the second new post, the petitioner was enjoying promotion in still higher post with better emoluments from may, 1969, till june, 1970. the advantage of the..........should the railway servant be posted to an alternative appointment until he has accepted the post. a railway servant is at liberty to refuse an offer of alternative appointment ... he will continue to remain eligible for other alternative offers of appointment till his leave expires and efforts to find such appointments should, therefore, continue throughout the currency of his leave.' 10. now, having regard to the above scheme for absorption of incapacitated railway servant in alternative employment, it is clear that the further employment of the railway servant must be in the post which he unequivocally consents to accept. the offer of post must ordinarily be in writing. apparently, the consent of the railway servant must be conscious consent and with his knowledge that he had.....
Judgment:

1. In this petition under Art. 226 of the Constitution the petitioner who is employed in the Western Railway of the Government of India has challenged the order dated May 5, 1970, reverting the petitioner who was officiating as head clerk in the scale of Rs. 210-380 to the post of a clerk in the scale of Rs. 110-180 with effect from May 4, 1970. The relevant facts are as follows :

2. The petitioner was absorbed in railway service as Guard Grade 'C' on December 19, 1955. He was confirmed in that post on February 7, 1956. He had to give what is described as vision test from time to time. He failed in that test in January, 1965. He was accordingly declared unfit to hold the post of a guard on January 8, 1965. In that post the grade of salary was Rs. 130-225 with running allowance and the petitioner's remuneration in January, 1965, was basic monthly salary of Rs. 166 with running allowance of Rs. 75. The petitioner was entitled to be re-employed and absorbed in the alternative employment as medically incapacitated staff in accordance with the Rules in Chapter XXVI of the Indian Railway Establishment Manual. The petitioner's case was examined by De-categorisation Committee and he was declared to be fit to hold four different kinds of posts which are mentioned in paragraph 5 of the petition. The petitioner's case is that the matter of absorption of the petitioner into employment was delayed for five months unjustifiably. The petitioner accordingly by an application dated May 18, 1965, requested that he should be absorbed in any suitable category 'by which my monthly pay would not be affected', 'and for the time being I may be offered a job of a clerk in the scale of Rs. 110-180(A) till other vacancies exist'. The petitioner's case is that he never desired to be absorbed into the post of a clerk in the above scale of pay permanently and he was liable to be absorbed and re-employed in service so that the emoluments payable to him were not less than what he was in fact earning in January, 1965. There is no dispute between the parties that at that date the petitioner was earning Rs. 166.40 by way of basic salary and Rs. 75 by way of running allowance aggregating in all to Rs. 241.40. In response to the petitioner's above application, the Divisional Personnel Officer issued order dated June 8, 1965, stating that the petitioner was absorbed as clerk in scale of Rs. 110-180. The petitioner's case is that as a result of the above order the petitioner's emoluments were reduced from Rs. 384.60 to Rs. 297.40 per month. The petitioner protested against that order in writing with a request that he may be appointed to a post where his emoluments would not be adversely affected. He, however, began to work in the above post under protest. It appears that in connection with the petitioner's absorption in the above post certain correspondence passed between the higher authorities departmentally and ultimately by another order dated October 11, 1967, the petitioner was absorbed in service in the scale of Rs. 130-300. By the order it was directed that the petitioner would receive Rs. 232 per month with immediate effect. His fixation of pay in the above scale was made with the concurrence of Divisional Accounts Officer. The petitioner was in the employment of the railway in accordance with the above administrative absorption order continuously till the issuance of the impugned order dated May 5, 1970. Certain facts about this intervening period are mentioned in paragraphs 12 to 21 of the petition which do not require to be reproduced here. It is sufficient to state that the petitioner earned two annual increments and in fact from May, 1969, was promoted to the post of head clerk in the scale of Rs. 210-380 and at the date of the impugned order his emoluments aggregated to Rs. 491.10 per month as detailed in paragraph 23 of the petition. The result of the impugned order was that as from the date of the impugned order the petitioner would receive the total emoluments of Rs. 364.10 as detailed in the same paragraph of the petition. The petitioner has challenged the above impugned order on various grounds as contained in paragraphs 24 to 41 of the petition. The reasons for the above impugned reversion order are stated in paragraph 22 of the affidavit in reply in the following words :

'...... I deny that the petitioner's absorption in the grade of Rs. 130-300(A) was substantive. I say that under Rule 2609 of the Indian Railway Establishment Manual, the de-categorised staff are to be absorbed only once. I say that the petitioner's reabsorption in the grade of Rs. 130-300(A) by the Divisional Superintendent's Office was not in accordance with the said Rules and as such, the petitioner's said re-absorption was set aside by the said Head Quarters Office.'

3. Now, in connection with the submission made in this paragraph reliance has been strongly placed on behalf of the respondents on the scheme in Chapter XXVI of the Railway Establishment Manual in respect of the absorptions of medically incapacitated staff in alternative employment and particularly on clause (8) of Rule 2606. Reliance has strongly been placed on behalf of the petitioner on the above scheme and particularly on the clause (i) of Rule 2609 and the Rule 2610.

4. The arguments advanced on behalf of the petitioner at the hearing of this petition may be summarised as follows : An absolute right of absorption is alternative employment has been created under the scheme of the above Chapter in favour of medically incapacitated staff. The right conferred was 'that such employment must be of suitable nature and of reasonable emoluments having regard to the emoluments previously drawn' by the petitioner. The post to be offered to the petitioner was liable to be accepted and or rejected by the petitioner. This right was created in favour of the petitioner by the provisions in Rule 2610. The submission was that the first absorption order dated June 8, 1965, related to a post which the petitioner never accepted consciously. The petitioner continued to work in that post on the footing that it was offered to him temporarily so that the administration was going to absorb the petitioner in appropriate suitable post with emoluments equal to his previous post at a later date. In fact, as appeared from the departmental note made by the Divisional Personnel Officer and quoted in paragraph 9 of the petition, the administration was conscious of this fact. In the result, by the second valid absorption order dated October 11, 1967, the petitioner was absorbed and re-employed in the railway service in accordance with the scheme in the above chapter for the first time. That absorption order was legal and binding on the administration and was not liable to be treated as invalid and not binding as had been done by the impugned order of reversion.

5. The argument of behalf of the respondents was that the scheme of the above Chapter was that the order absorbing medically incapacitated railway servant could only be effectively made once. There was no provision in the scheme of the Chapter to enable making of second absorption order. The order of absorption dated June 8, 1965 was validly made. The petitioner having continued in the employment of the administration under that absorption order was not entitled to the behalf of the second absorption order dated October 11, 1967. The submission was that the second absorption order was not justified and was contrary to the scheme of the Chapter. That order was accordingly liable to be treated as invalid and not existing. The order of reversion dated May 5, 1970, was the consequence of the first order of absorption dated June 8, 1965, and accordingly valid.

6. Now, in connection with these rival contentions, it is necessary to notice that (there is no dispute that) under Rule 2601 the petitioner as medically incapacitated employee of the railway was entitled to be absorbed in alternative employment by the railway administration as expeditiously as possible. Under the rule, such employment must be 'of suitable nature and no reasonable emoluments having regard to the emoluments previously drawn' by the petitioner. The Rule 2605 states :

'Alternative employment must be found in the case of permanent and temporary railway servants. * * *'.

7. The Rule 2606 provides for steps to be taken for finding alternative employment. The sub-rule (2) directs preparation of a list of vacancies 'in the categories for which the medically incapacitated railway servant has been found suitable' and a post with emoluments as near as possible to his earlier emoluments will be offered to him. The sub-rule (8) of this Rule provides :

'A medically incapacitated railway servant who is permanent will be appointed substantively to the alternative post subject to his suitability. His further chances of promotion thereafter will be in accordance with the normal channels of promotion, and he will not be entitled to consideration for out-of-turn promotions merely because of his absorption in the post as a consequence of medical incapacitation.'

8. The Rule 2609 relates to alternative employment to the suitable : The relevant parts of sub-rules (i) and (iii) of this Rule provide :

'(i) The alternative post to be offered to a railway servant should be the best available for which he is suited, to ensure that the loss in emolument is a minimum. The low level of emoluments should not, however, deter officers concerned from issuing an offer if nothing better is available. The railway servant must be given an opportunity to choose for himself whether he should accept the offer whether he should accept the offer or reject it.' '(III) ..... an alternative appointment will be considered 'suitable' if the emoluments of the same are at level not more than about 25 per cent below his previous emoluments ..... In the case of running staff, the former emoluments for the purpose of comparison will be basic pay plus 40 per cent of such pay. The figure of 25 per cent is in the nature of a guide and not a rigid rule .......'

9. The Rule 2601 relates to offer of alternative employment to be in writing and provides :

'The alternative employment must be offered in writing, stating the scale of pay and the rate of pay at which it is proposed to re-absorb him, in service. On no account should the Railway servant be posted to an alternative appointment until he has accepted the post. A railway servant is at liberty to refuse an offer of alternative appointment ... He will continue to remain eligible for other alternative offers of appointment till his leave expires and efforts to find such appointments should, therefore, continue throughout the currency of his leave.'

10. Now, having regard to the above scheme for absorption of incapacitated railway servant in alternative employment, it is clear that the further employment of the railway servant must be in the post which he unequivocally consents to accept. The offer of post must ordinarily be in writing. Apparently, the consent of the railway servant must be conscious consent and with his knowledge that he had liberty to refuse the offer made to him. The offer must be made to him within the leave period and in respect of the post for which emoluments are as near as possible to his earlier emoluments. The offer must be made reasonably expeditiously so that he does not suffer merely because of his medical incapacity. There is no doubt that his appointment in the alternative post must always be made substantively and his further promotions would be in accordance with the normal rules regarding promotions from the post to which he is substantively appointed. In this case there can be no dispute that the petitioner was never made any offer in writing regarding post he occupied under the first absorption order dated June 8, 1965. Having regard to the contents of the petitioner's application dated May 18, 1965, it is clear that the fact that he had not been made any offers for the period of 5 months had made him anxious and that his application was that he should be temporarily absorbed in some post so that he may not suffer financially. In the last part of his application he mentioned that he should be absorbed 'for the time being' in some job till other vacancies came into existence. I have no doubt that in response to this application the first order of absorption dated June 8, 1965, was issued. The result of that order was that the petitioner commenced receiving emoluments of Rs. 232 in the new post. The petitioner's case that he was not satisfied by that absorption order appears to be true. It is difficult to hold that the petitioner accepted the post given to him in consequence of the above absorption order as required under Rule 2610. The petitioner was willing to accept that post temporarily as he had stated by his application dated May 18, 1965. The result of the above situation was that ultimately the second order of absorption dated October 11, 1967, was issued. The petitioner was retained in the employment of railway administration from the date of that order in the higher post carrying higher emoluments and was given two annual increments. Having regard to his having been absorbed in the second new post, the petitioner was enjoying promotion in still higher post with better emoluments from May, 1969, till June, 1970. The advantage of the above absorption order and promotions were taken away from the petitioner by the impugned order of reversion to the post fixed by the first absorption order dated June 8, 1965. Now, it appears to me that the scheme of the above Chapter did not entitle the administration to wipe off the effect of the second absorption order dated October 11, 1967, by resorting to administrative powers. The administration was estopped, after having absorbed the petitioner into service in accordance with the second absorption order, from contending that the order was invalid and not binding on the administration. The petitioner was absorbed in pursuance of that order also substantively and permanently and acquired rights of service in accordance with that order. The effect of that order could not be nullified by administrative order made on May 5, 1970. It also appears to me that the second absorption order was justifiably made, because the petitioner had not agreed to accept his absorption in service under the first order dated June 8, 1965, as binding on him at any time. The petitioner had always thought the arrangement resulting from the first absorption order was temporary and so accepted by him and the administration. The petitioner continued to be employed as if under a temporary arrangement under the first absorption order dated June 8, 1965. As the petitioner had not accepted that order in accordance with the scheme in Rule 2610, the order was not binding on either side. Merely because under sub rule (8) of Rule 2006 an absorption order must be for appointment substantively, the administration was not deprived of powers to make the order of absorption dated October 11, 1967. Having regard to the facts and circumstances of the case, the first order was not validly made. This is so because the petitioner was not willing to accept appointment to the post mentioned in the first order except on temporary basis. The petitioner had a choice under Rule 2610 to refuse to accept it upon being informed that the order was permanent and not for temporary purposes. The petitioner was not given that information and continued to be employed under the first order only as if that was a temporary arrangement.

11. The result of the above discussion is that the impugned order of reversion of the petitioner on the footing that the first order of absorption was binding on his is invalid and liable to be set aside. Under the circumstances, the order dated May 5, 1970, is set aside. The respondents are directed to decide all other matters relating to the rank, seniority and pay of the petitioner on the footing, that the second absorption order was valid and binding. The respondents will pay costs.


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