GENERAL MANAGER, SOUTH EASTERN RAILWAY Vs. CHINTAMANI ACHARYA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 4th July, 2003, passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as the 'Tribunal) in O.A. No.73 of 2001 in which the Tribunal has directed the petitioners to consider the case of Swarnalata Acharya, D/o Chintamani Acharya for providing her a compassionate appointment.

(2.) THE facts and circumstances giving rise to the present writ petition are that opposite party No.1, Chintamani Acharya, while working as Diesel Engine Driver, South Eastern Railways, remained sick for a prolonged period. The Medical Superintendent of South Eastern Railway on several occasions certified that the opposite party No.1 should not be given heavy work and should be allowed to do/deal with comparatively lighter work. Because of his illness opposite party No.1 applied to the Railway authorities for voluntary retirement on the ground of ill health with three months prior notice. Accordingly, he was allowed to go on voluntary retirement with effect from 24.6.1996. After such retirement, since he did not get payment of retiral benefit in time, he approached the Tribunal by filing O.A. No.132/97 for appropriate relief and, only after filing of the O.A., the pensionary benefits were given to him. Since the said pensionary benefits were not in accordance with new pay scale, which came into force with effect from 01.01.1996 the petitioner approached the Tribunal in O.A. No.179 of 1998. While disposing of O.A. No.179 of 1998 the Tribunal directed the departmental authorities to make payment of the differential arrear amounts and the terminal benefits to the opposite party No.1 within a period of fifteen days from the date of the order, if not already paid. Opposite Party No.1 also filed Misc. Application No.78/2000 seeking a direction to the respondents for disposal of his representations wherein he had prayed for considering the case of his son for compassionate appointment. This prayer of the opposite party No.1 was rejected by the Tribunal by its order dated 03.08.2000 passed in O.A. No.179 of 1998 on the ground that the applicant had retired from service by serving notice for voluntary retirement and he had neither died while in service nor retired on invalidation ground. Thereafter, opposite party No.1 filed O.A. No.73/01, seeking a direction from the Tribunal to consider his application for appointment of his daughter on compassionate ground, which was allowed with the above direction.

(3.) MR . K.K. Jena, learned counsel appearing on behalf of the respondent No.1, contended that the opposite party No.1 virtually had become incapacitated to discharge his duty in the Railways service because of his prolonged sickness. For such reason, only he applied for premature retirement voluntarily. Prolonged illness of the opposite party No.1 is supported by the Medical Certificates issued by the Medical Superintendent of South Eastern Railways, Khurda Road. On several occasions, the Medical Superintendent had certified that the applicant should not be given heavy work an should be allowed to do/deal with comparatively lighter work. Therefore, it cannot be said that the case of the opposite party No.1 is not covered by the circumstances enumerated in Establishment Sl. No.120/1983 which deals with compassionate appointment. Referring to paragraph 6 of the counter affidavit, it was further contended that the Tribunal disposed of O.A. No.179 of 1998 without considering as to whether applicants son or daughter was entitled for compassionate appointment and left the said issue open. Hence, the O.A. No.73 of 2001 is not barred by the principle of res judicata/constructive res judicata. Therefore, the writ petition should be dismissed.