1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1735 OF 2010 Union of India & Anr. ...Petitioners Versus Awadhesh Kumar K. ...Respondent ...... Mr.Suresh Kumar for Petitioners. Mr.Rahul G.Walia for Respondent. ...... CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ. DATED:- MARCH 15, 2010. P.C. 1. Heard Counsel for the parties. 2. The Petitioners proceeded against the Respondent on the allegation that it was a case of malingering which according to the Oxford English Dictionary is “pretend to be ill in order to avoid work”. This charge is a serious charge for which the Respondent ought to have been proceeded by way of departmental action. Nevertheless, the Tribunal considering the material on record has opined that if the Applicant was psychologically unfit, as a medical condition, its exact parameters have not been spelt out in the Medical Board’s report. Further, as a matter of fact, the Medical 2 Board has not given the finding that the Applicant was psychologically unfit. In other words, the basis on which the Petitioners proceeded against the Respondent has not been established from the record. Keeping in mind this position, the Tribunal has quashed and set aside the order of termination and ordered reinstatement of the Respondent in service. The Tribunal has, however, observed that the Petitioners may reinstate the Respondent as an Assistant Driver (Assistant Loco Pilot) or in some alternate post subject to examination by the Medical Board. The grievance of the Petitioners completely overlooks their own policy stated in Indian Railway Medical Manual which provides that where such malingering is suspected, the Administration shall ensure that the person does not get any attractive alternate employment but only an unattractive post like Office Clerk. As a matter of fact, going by the finding of fact recorded by the Tribunal, the allegation of malingering has not been established from the record. In such a situation, the Respondent deserves to be reinstated with full back wages. However, the Tribunal has permitted the Petitioners to reinstate the Respondent either as an Assistant Driver (Assistant Loco Pilot) or in some alternate post, subject to examination by the Medical Board and to be paid only 50% of emoluments as back wages. Significantly, the Respondent has not questioned the 3 correctness of the approach of the Tribunal and is willing to even accept the appointment on the post of Office Clerk. 3. We are in agreement with the submission made by the Counsel for the Respondent that as back as on 5th April 2005, the Respondent in the representation made to the Chief Medical Director had invited attention of the Authorities to Para 512(2) sub-note (ii) of IREM 2000 Edition, to which we have made reference hitherto. Inspite of that, the Petitioners chose to terminate the Respondent instead of accommodating the Respondent in the alternate employment. 4. In the circumstances, we find no tangible reason to interfere with the conclusion reached by the Tribunal of granting relief to the Respondent of reinstatement either on the post of Assistant Driver (Assistant Loco Pilot) or in some alternate employment, subject to examination by the Medical Board as also to grant 50% of the back wages for the relevant period which is from 2005 onwards. Hence, dismissed. (R.M.SAVANT, J.) (A.M.KHANWILKAR, J.)