K.Meenal v. Appointing Authority, DDMS, Headquarters, ATNK & K Area, Island Grounds, Chennai 600 009.
Case at a glance
Outcome
Set aside
The impugned order stands set aside
Provisions considered
Key paragraphs
- Para 1212. In this context, it is necessary to refer to the judgment ofthe Supreme Court in Bhagwan Dass v. Punjab State Electricity Boardreported in (2008) 1 SCC 579. The following passages found inparagraphs, 2 and 17 to 19 may be usefully extracted below: "2. This…
- Para 1313. In the light of the above, the writ petition will standallowed. The impugned order stands set aside. No costs. Consequently, connected miscellaneous petitions are closed. https://hcservices.ecourts.gov.in/hcservices/
- Para 1414. The respondents are hereby directed to adhere to theprovisions of the Disabilities Act 1995, more particularly Section 47and act accordingly. The respondents are also directed to implementthe order of this Court within a period of 8 weeks from the date ofreceipt of a copy…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08.06.2010CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.13962 of 2009 andM.P.Nos.1 and 2 of 2009K.Meenal ..Petitioner Vs1.Appointing Authority, DDMS, Headquarters, ATNK & K Area, Island Grounds, Chennai 600 009.
The Commanding Officer, Military Hospital, St.Thomas Mount, Chennai – 600 016.
The Chairman, The Central Government Employees Standing Medical Board, Government Kasturba Gandhi Hospital for Women and Children, Chennai – 600 005. ..RespondentsPRAYER:-Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a Writ of certiorarified mandamus, callfor the entire records pertaining to order dated 05.05.2004(Termination Order) passed by the 1st respondent herein in450/K/Meenal/Civ Est. and quash the same and further direct thepetitioner to re-induct in the post of Ward Sahayika with allemoluments and arrears of salary and other eligible benefits to thepetitioner which the petitioner is entitled to ever since the dateof termination i.e. 05.05.2004.For Petitioner : Mr.C.UmashankarFor Respondents : Mr.G.Jeganathan, CGSC https://hcservices.ecourts.gov.in/hcservices/
O R D E RThe petitioner has come forward to challenge the order dated05.05.2004 passed by the first respondent, wherein and by which herservices were terminated on the ground that the Medical Board in itsexamination on 18.09.2003 was of the opinion that her eyesight isunfit for any job.2. In the writ petition, notice of motion was ordered on22.07.2009. Subsequently, after the formation of the Armed ForcesTribunal, the matter was transferred to the Tribunal. But however, the Tribunal has sent back the matter to this Court stating that it isnot a matter covered by the provisions of Armed Forces Tribunal Act. However, without going into the controversies raised, this Courtdecided to hear the matter and directed the counsel for therespondents to file a counter. 3. Accordingly, Mr.G.Jehanathan, learned Central GovernmentStanding Counsel filed a counter affidavit dated 20.10.2009.
The facts leading to the termination of the petitioner are asfollows: The petitioner was selected for appointment to the post of WardSahayika in the Military Hospital by an order dated 18.07.2001. Shewas asked to produce a medical certificate as a pre-condition. Thepetitioner produced a medical certificate dated 19.07.2001 statingthat she does not suffer from any weakness, infirmity for dischargingthe duties of a Ward Sahayika. Subsequently, an appointment orderdated 14.08.2001 was given to the petitioner. It was prescribed thatshe will be on probation for a period of two years from the date ofappointment. After joining duty, she applied for leave from06.09.2002 to 15.09.2002. Thereafter, she applied for extraordinaryleave on medical certificate with effect from 16.09.2002 to28.02.2003 as she was suffering from TB Meningitis. Even after theexpiry of the leave, she did not join duty and remained absent till31.05.2003. She reported for duty on 01.06.2003 without any fitnesscertificate and it was also observed that she was partially blind andwas unable to perform her duties.
The petitioner was directed to appear before a StandingMedical Board at Government Kasturba Hospital for Women and Children, Chennai -5. The Medical Board found that she was unfit for any job. But however the petitioner was not satisfied and requested foranother eye test by any other specialist. Though she was directed toproduce a fitness certificate from any other authorised eyespecialist, she could not do so. Therefore, her services wereterminated on medical grounds with effect from 05.05.2004. https://hcservices.ecourts.gov.in/hcservices/
The petitioner preferred a writ petition being W.P.No.7872 of2007 before this Court. The prayer in the writ petition was toconsider her representation dated 15.09.2006. This Court declined toentertain the writ petition wherein she sought for a secondexamination by a Medical Board. This Court gave liberty to thepetitioner to challenge the order of termination. Hence, the presentwrit petition.
The petitioner contended that her termination was against theprovisions of Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act, 1995(for short Disabilities Act) more particularly it was against Section47 of the Act. The petitioner also contended that since the thirdrespondent had denied the existence of a provision to render a secondmedical opinion, she herself got examined by M/s.Jothi Eye Hospitaland got a certificate that she has capable of performing the dutiesattached to the post held by her.
In the counter affidavit filed by the respondents, there is nodenial with reference to the application of the Disabilities Act. Butit was contended that the petitioner with her present eyesight cannotperform the duties attached to the post of Ward Sahayika whichincludes assisting the Medical Officer, guiding patients, toaccompany female patients for movement inside the hospital, washinginjection vials and vessels, assisting the bed patients for changingthe bed posture for prevention of bedsores with trolleys andstretchers, and receipt and distribution of food to patients.
Though there is no lack of bonafides in respondents 1 and 2 inholding that the petitioner is not fit to discharge the duties of Ward Sahayika, it has to be examined whether the petitioner isentitled to get relief in terms of Section 47 of Disabilities Act. Section 47 of the Disabilities Act reads as follows:-"47. Non-discrimination in Government employment:- (1)No establishment shall dispense with, or reduce inrank, an employee who acquires a disability during hisservice: Provided that, if an employee, after acquiringdisability is not suitable for the post he was holding, could be shifted to some other post with the same payscale and service benefits: Provided further that if it is not possible to adjustthe employee against any post, he may be kept on asupernumerary post until a suitable post is availableor he attains the age of superannuation, whichever isearlier. https://hcservices.ecourts.gov.in/hcservices/ (2)No promotion shall be denied to a person merely onthe ground of his disability: Provided that the appropriate Government may, havingregard to the type of work carried on in anyestablishment, by notification and subject to suchconditions, if any, as may be specified in suchnotification, exempt any establishment from theprovisions of this section. "10. The Central Government, having regard to the type of workcarried on, has exempted all categories of post of combatantpersonnel of the Armed Forces from the provisions of Section 47, vide Government of India, Ministry of Social Justice and Empowerment, Notification No.16-27/2001-N 1.1 dated 28th March 2002.
But, the said exemption cannot be made applicable to the caseof the petitioner who was not involved in any combatant duty as shehold a civilian post in the Armed Force. Therefore, the Act willapply in its full vigour to persons like the petitioner who areholding civil posts. The respondents have not kept in mind thestatutory provision while discharging the petitioner from service ongrounds of medical unfitness. Though in the present case, therespondents are of the opinion that she cannot discharge the dutiesof a Ward Sahayika she could be employed in some other alternativeduty after giving appropriate pay protection.
In this context, it is necessary to refer to the judgment ofthe Supreme Court in Bhagwan Dass v. Punjab State Electricity Boardreported in (2008) 1 SCC 579. The following passages found inparagraphs, 2 and 17 to 19 may be usefully extracted below: "2. This case highlights the highly insensitive andapathetic attitude harboured by some of us, living anormal healthy life, towards those unfortunatefellowmen who fell victim to some incapacitatingdisability. The facts of the case reveal that officersof the Punjab State Electricity Board were quite awareof the statutory rights of Appellant 1 and theircorresponding obligation yet they denied him his lawfuldues by means that can only be called disingenuous.17. From the materials brought before the court by noneother than the respondent Board it is manifest thatnotwithstanding the clear and definite legislativemandate some officers of the Board took the view thatit was not right to continue a blind, useless man onthe Board’s rolls and to pay him monthly salary inreturn of no service.
They accordingly persuaded eachother that the appellant had himself asked forretirement from service and, therefore, he was not https://hcservices.ecourts.gov.in/hcservices/ entitled to the protection of the Act. The onlymaterial on the basis of which the officers of the Board took the stand that the appellant had himselfmade a request for retirement on medical grounds washis letter dated 17-7-1996. The letter was written whena charge-sheet was issued to him and in the letter hewas trying to explain his absence from duty. In thisletter he requested to be retired but at the same timeasked that his wife should be given a suitable job inhis place. In our view it is impossible to read thatletter as a voluntary offer for retirement. 18. Appellant 1 was a Class IV employee, a lineman. Hecompletely lost his vision. He was not aware of anyprotection that the law afforded him and apparentlybelieved that the blindness would cause him to lose hisjob, the source of livelihood of his family.
Theenormous mental pressure under which he would have beenat that time is not difficult to imagine. In thosecircumstances it was the duty of the superior officersto explain to him the correct legal position and totell him about his legal rights. Instead of doing thatthey threw him out of service by picking up a sentencefrom his letter, completely out of context. The actionof the officers concerned of the Board, to our mind, was deprecable.19. We understand that the officers concerned wereacting in what they believed to be the best interestsof the Board. Still under the old mindset it wouldappear to them just not right that the Board shouldspend good money on someone who was no longer of anyuse. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty-bound to follow the law and it was not open to them toallow their bias to defeat the lawful rights of thedisabled employee.
From the larger point of view theofficers failed to realise that the disabled too areequal citizens of the country and have as much share inits resources as any other citizen. The denial of theirrights would not only be unjust and unfair to them andtheir families but would create larger and graverproblems for the society at large. What the law permitsto them is no charity or largesse but their right asequal citizens of the country. "
Operative part
In the light of the above, the writ petition will standallowed. The impugned order stands set aside. No costs. Consequently, connected miscellaneous petitions are closed. https://hcservices.ecourts.gov.in/hcservices/
The respondents are hereby directed to adhere to theprovisions of the Disabilities Act 1995, more particularly Section 47and act accordingly. The respondents are also directed to implementthe order of this Court within a period of 8 weeks from the date ofreceipt of a copy of this order. sd/-Asst. Registrar/True copy/ Sub. Asst. RegistrarsvkiTo1.The Appointing Authority, DDMS, Headquarters, ATNK & K Area, Island Grounds, Chennai 600 009.2.The Commanding Officer, Military Hospital, St.Thomas Mount, Chennai – 600 016.3.The Chairman, The Central Government Employees Standing Medical Board, Government Kasturba Gandhi Hospital for Women and Children, Chennai – 600 005. + 1 c.c. to Mr. G. Jehanathan, CGSC. S.R.No.40513.+ 1 c.c. to Mr. Umashankar, Advocate. S.R.No.40260.W.P.No.13962 of 2009GV (CO)GSK 15.06.2010.
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The impugned order stands set aside
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Armed Forces Tribunal Act; Disabilities Act, 1995.
Which court decided this case, and when?
Madras High Court, on 02 Nov 2009. The bench was K CHANDRU.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.