Considering the nature of the matter, the main writ petition itself is taken up for disposal.
2. Mr.D.Baskar, learned counsel is present on behalf of the writ petitioner. Mr.V.G.Sureshkumar, learned standing counsel for the respondents has filed a counter affidavit dated 24.09.2016 in the main writ petition itself. It is also submitted that the writ petitioner is now 57 years and he is due to retire shortly.
3. The main writ petitioner is serving as Head Constable in Railway Protection Force (RPF). As per the terms of the Indian Railways Medical Manual Rules (hereinafter referred to as Rules), every employee has to undergo periodical medical re-examination (PME) and as such, the writ petitioner was sent for periodical medical re-examination, as is evident from his fitness certificate dated 22.02.2012. The writ petitioner was so sent for periodical re-examination on 09.11.2011 and at the medical re-examination, he was found to have bilateral hydocoele with paraumbilical hernia and was advised to undergo surgery for Meshplasty + Omphalectomy + Bilateral TVSE. Therefore, he was under sick leave from 10.11.2011 to 21.02.2012 (In IO, wrongly mentioned as 19.11.2011). On 22.02.2012, he re-joined duty.
4. The short question that arises in the writ petition is whether the period from 10.11.2011 to 21.02.2012 should be treated as "on duty" or not. The respondents, particularly the 4th respondent, vide order dated 07.06.2012 refused to treat the above said period as "on duty" by relying on Rule 511 of the applicable Railway Rules. Consequent to such order of the 4th respondent, the 2nd respondent passed the impugned order dated 19.06.2012 stating that the PME / sick period from 10.11.2011 to 21.02.2012 cannot be treated as "On Duty". These orders of the 4th and 2nd respondent dated 07.06.2012 and 19.06.2012 respectively have been called in question in the main writ petition.
5. The counter affidavit filed on behalf of the 2nd respondent has been perused. It is seen that it is a reiteration of the impugned order made by the 4th respondent. It merely reiterate that Rule 511 of the relevant Rules will apply. The substantial contention of the writ petitioner that Section 524 alone would apply to a case of this nature as he was sent by the employer for periodical re-examination (medical) has not been dealt with.
6. The learned counsel for the writ petitioner has taken me through both the Rules, namely Rules 511 & 524, particularly 524 (i) & (ii) would be relevant and would be applicable to the instant case and it can be usefully extracted. The same reads as follows :
524. Treatment of the period of absence of Railway employees sent for periodical medical re-re-examination :
The period for which an employee is absent from duty for periodical medical re-examinatio 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 i nthe matter may be treated as duty. In case where the examining authority is not quite sure of hte 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.
(iii) ......................................
(iv) ......................................
(v) .......................................
7. To buttress his case, the writ petitioner would draw my attention to a Circular issued by the Government of India, Ministry of Railways (Railway Board). This circular is dated 27.06.2012 and bears Ref.No.2002/H/JCM/DC. The same reads as follows -
In reference to boards letter No.2001/H/JCM/DC, dt.14.5.2001, it is reiterated that the cases sent for PME be disposed of expeditiously. The priority should be given while examining them so that OME time iskept to the bearest minimum and ithas to be monitored by senior officers at Divisional Zone level. It was however further decided that the days spent on account of delay on administrative grounds will be treated as duty.
8. A plain reading of the relevant Rules and the circular make the position very clear. Therefore, there is no doubt in my mind that the PME period from 09.11.2011 (In IO it has been wrongly mentioned as 19.11.2011 ) to 21.02.2012 should be treated as "on duty" for the writ petitioner. Hence, the impugned orders passed by the 4th and 2nd respondent dated 07.06.2012 and 19.06.2012 (bearing Ref.No.HQ/MD/141/I and M/XP/420/12) respectively are set aside.
9. In the result, this writ petition is allowed. No costs. The 2nd respondent is directed to treat the PME period of the writ petitioner from 09.11.2011 to 21.02.2012 as period "on duty". Consequently, connected Miscellaneous Petition is closed.
23.02.2017 rgr To
1. The Chief Security Commissioner Railway Protectio Force, Southern Railway, 6th Floor/MMC, Chennai 600 003.
2.The Senior Divisional Security Commissioner, Railway Protection Force, Southern Railway, 6th Floor/MMC, Chennai 600 003.
3.The Chief Medical Director, Southern Railway, 4th Floor / MMC, Chennai 600 003.
4.The Senior Divisional Medical Officer, Southern Railway Head Quarters Hospital, Perambur, Chennai 600 023.
M.SUNDAR, J.
rgr W.P.No.18792 of 2014 23.02.2017 http://www.judis.nic.in