Employer-caused medical absence must count as duty and qualifying service for pensionary benefits.

The applicant, appointed as a Safaiwala in Northern Railway on 16.06.1977, superannuated on 31.07.2017. After suffering serious injuries in a road accident on 15.04.2012, he remained under medical treatment and allegedly sought to resume duty in October 2013, but was not permitted to join without a medical fitness certificate.

During contempt proceedings arising from an earlier OA, he was directed to obtain medical clearance, declared fit for light duty on 01.05.2017, and resumed service on 19.05.2017.

The respondents treated the period from 24.08.2012 to 29.04.2017 as “Leave Without Pay” by orders dated 25.07.2018 and 10.05.2021. The applicant challenged this treatment, contending that the absence resulted from the respondents’ failure to arrange a proper medical examination or constitute a Medical Board.

He also disputed the reduction of his last pay from ₹32,000 to ₹30,200, the computation of only 29 years’ qualifying service, and the denial of pensionary, retiral and third financial upgradation benefits under the MACP Scheme.

The applicant had earlier approached the Tribunal in O.A. No. 240/2017 and O.A. No. 1446/2020, in which directions were issued for consideration of his representations and passing of reasoned orders. He alleged that the order dated 10.05.2021 failed to address all his claims and was not a speaking order.

1. Whether the period from 24.08.2012 to 29.04.2017 was rightly treated as “Leave Without Pay”, or whether it was required to be treated as duty/qualifying service in view of the applicant’s medical condition and the respondents’ failure to facilitate his medical examination?

2. Whether the respondents were justified in reducing the applicant’s last pay from ₹32,000 to ₹30,200 on the basis of alleged absence and withholding of increments?

3. Whether the applicant’s qualifying service, pension, gratuity, commutation and other retiral benefits were correctly calculated after excluding the disputed period?

4. Whether the applicant was entitled to reconsideration of his claim for third financial upgradation under the MACP Scheme?

5. Whether the orders dated 25.07.2018 and 10.05.2021 were passed by the competent authority and complied with the requirement of a reasoned and speaking order?

The Tribunal applied the principle that pension and gratuity are earned rights and constitute “property” which cannot be taken away except by authority of law, relying on State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, and D.S. Nakara v. Union of India, (1983) 1 SCC 305.

It applied the doctrine that an authority cannot take advantage of its own wrong—commodum ex injuria sua nemo habere debet—as reaffirmed in Kusheshwar Prasad Singh v. State of Bihar, (2007) 11 SCC 447.

The Tribunal further relied on the principle that “no work, no pay” does not apply where an employee was willing to work but was prevented by the employer, referring to Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324.

Rule 37 of the Railway Services (Pension) Rules, 1993 was applied for the proposition that extraordinary leave granted on medical grounds counts as qualifying service, while paragraph 11 of the MACP Scheme includes all kinds of leave within “regular service”.

The Railway Board Circulars dated 02.01.1971 and 06.02.2009 were relied upon to hold that scrutiny of leave accounts at retirement should ordinarily be confined to the last three years.

The requirement that administrative orders affecting rights must contain reasons was drawn from Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496.

The Tribunal found that the applicant’s absence was attributable to the respondents’ failure to arrange the required medical assessment and constitute a Medical Board, rather than to any deliberate abandonment of duty by the applicant.

Consequently, the respondents could not classify the resulting period as “Leave Without Pay” and thereafter rely on that classification to deny increments, qualifying service and pensionary benefits.

The Tribunal held that the principles against taking advantage of one’s own wrong and against applying “no work, no pay” in cases of employer-caused exclusion operated in the applicant’s favour.

Alternatively, even if the period were treated as leave, the Tribunal held that medical extraordinary leave was countable as qualifying service under Rule 37 and as regular service under paragraph 11 of the MACP Scheme.

The reduction of the last pay to ₹30,200 was also held unsustainable because the respondents had reopened an earlier period of absence at the stage of retirement, contrary to the Railway Board’s instructions limiting scrutiny of leave accounts to the last three years.

The Tribunal relied on the coordinate decision in Gokul Chand Koslia v. Union of India, O.A. No. 956/2017, which had been upheld by the Delhi High Court.

The respondents’ reliance on the applicant’s status as a “screened employee” could affect only the limited pre-screening period and could not justify exclusion of the 2012–2017 medical-absence period.

Since the denial of third MACP was based on the erroneous exclusion of that period, the claim had to be reconsidered afresh.

The Tribunal also found the impugned orders procedurally defective because the order dated 10.05.2021 did not address all the applicant’s claims and was not a proper speaking order.

The Tribunal quashed the orders dated 25.07.2018 and 10.05.2021 insofar as they treated the period from 24.08.2012 to 29.04.2017 as “Leave Without Pay”.

The respondents were directed to treat the entire period as duty/qualifying service for annual increments, pension, gratuity and financial upgradation.

They were further directed to refix the applicant’s last pay at ₹32,000 with Grade Pay of ₹2,000, recompute his qualifying service and retiral benefits, and refix his pension accordingly.

His claim for third financial upgradation under the MACP Scheme was to be reconsidered on merits through a speaking order, treating the disputed period as regular service.

Consequential arrears were ordered to be paid with interest at 6% per annum, escalating to 9% per annum for delay beyond three months from receipt of the certified order.