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Appeal No. LBR‑461 of 1983, decided on 15th January, 1984.

‑‑ Vol I, para. 510 (a) (iv)‑Retirement benefit‑Not within discre tion of Railway Administration ‑ Fireman incapacitated‑Offered post of Shedman but not accepted‑Allowing retirement benefit to such employee, held, not within discretion of Administration ‑Order refusing retirement benefit set aside by Labour Appellate Tribunal‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38 (3).

Syed Muhammad Iqbal for Appellant.

Muhammad Ramzan Butt for Respondent.

Date of hearing : 11th January, 1984.

The appeal captioned above challenges the decision, dated 17th July, 1983 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, dismissing the grievance petition of the appellant.

2. The appellant was Fireman F. H. G. On 9th May, 1981 he met with an accident while on duty and lost his right eye‑vision. He was declared fit for category C. 1 by the Medical Board and was offered the post of Shedman in category C.1 in Scale No. 8 but he refused. His demand that besides pay of Shedman 55 % running allowance which he was getting as Fireman be allowed was rejected. He requested for being declared invalid for service and claimed retirement benefits, which were refused. His claim is that he is entitled to invalid retirement benefits. The learned lower Court has observed that as the appellant was offered a better post of Shedman in Scale No. 8, whereas as Fireman the appellant was in Scale No. 5 and as his demand of 55% running allowance could not be legally accepted, he was rightly refused the benefits of retirement on the basis of invalidated service. It has also been held that it is the option of the respondent to allow or disallow retirement declaring him unfit for service. This is wrong that the Railway has the option to declare an employee invalid for service and to grant him retirement benefits. Para. 510 (a) (iv) of Personnel Manual, Volume I is relevant to the case. For ready reference the same is reproduced below :‑

"After deciding which post an employee who is incapacitated for service in a class can be considered for and the rate of pay therein which can be given to him, he will be asked to apply for the same. If he does not apply, he will be granted leave due preparatory to retirement and if, during that period, no better post can be found for him without detriment to the legitimate claims of other staff, he will be retired on the expiry of that leave and granted retiring benefits under the rules. If, however, such an employee refuses to accept a suitable post which may be offered to him and retires with less than 15 years' service, it shall be open to the Administra tion to hold that he is not eligible for gratuity/ special contribution."

From the above it is clear that a person who is incapacitated for service in any class by accident, can be transferred to other class for which he is eligible and when such a post is found for him, he has to apply for it. If he does not apply, he is sent on L. P. R. and is granted retirement benefits. The words "will be retired" show that it is not the option of the Railway to grant or refuse to grant retirement benefits. If the word 'may' instead of 'will' had been used, of course there could have been some scope to say that it was the discretion of Railway to retire or not to retire the employee. The second part of clause (iv) is not applicable to the appellant as he had more than and not less than 15 years' service. The appellant did not apply for the post of Shedman and rather refused to accept it when it was offered to him so was necessarily to be sent on L. P. R. and then retired, if during L. P. R. no such better post became available that could be accepted by the appellant. He is thus, according to para. 510 (a) (iv), entitled to be given benefits of retirement on the basis of being incapacitated for service. No other point has been argued before me.

3. As a result, the appeal is accepted and the appellant is directed to be given benefits of retirement according to para. 510 (a), clause (iv) of the Personnel Manual, Volume I from the date he refused to accept the post of Shedman in category C.‑1.

A. B.

Appeal accepted.

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