wp2639.99 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2639 OF 1999
Ram Mohan s/o Mansaram Sharma
aged about 53 years, occupation -
Service as General Manager,
Mineral Exploration Corporation
Limited , r/o Byramji Town,
Civil Lines, Nagpur. ... PETITIONER
Versus
1. The Mineral Exploration Corporation
Limited thr. its Chairman-cum-
Managing Director, Dr. Babasaheb
Ambedkar Bhavan, Seminary Hills,
Nagpur.
2. Shri S.D. Prasad,
Chairman-cum-Managing Director,
Mineral Exploration Corporation
Limited, Seminary Hills, Nagpur.
3. Government of India,
thr. its Secretary,
Ministry of Mines, New Delhi. ... RESPONDENTS
Shri A.A. Naik, Advocate for the petitioner.
.....
CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
OCTOBER 09, 2015.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) The petitioner - an ex-General Manager with Respondent No. 1 has questioned the order of transfer dated 10.02.1997 by which he has been asked to work on equivalent post as Officer on Special Duty at Balda. Later order passed on ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 2 30.06.1999 ordering his premature retirement with effect from very same date has also been assailed.
2. Heard Shri Naik, learned counsel for the petitioner.
The counsel for respondent Nos. 1 & 2 is not present. Respondent Nos. 1 & 2 have filed their submissions in response to rule on stay on 21.07.1999. The petitioner has thereafter filed an affidavit on 02.09.2014. In that affidavit, the petitioner has pointed out that Special Case No. 39 of 2003 instituted against him on the basis of CBI inquiry has been dismissed and he has been acquitted of the offences punishable under Sections 420, 477A and 120-B of Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Respondent Nos. 1 & 2 have not filed any reply to this affidavit.
3. The learned counsel who used to represent Respondent No. 3 - Union of India has expired about three years back and Respondent No. 3 is not represented by anybody.
However, we find that no relief has been claimed against it.
4. Shri Naik, learned counsel submits that service Rules permit premature retirement of the Executives like the petitioner only in three contingencies. The first one is Inefficiency, second ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 3 one is Doubtful Integrity and third one is Medical unfitness. The impugned order does not refer to any specific ground as such.
However, from history and submissions filed on record by Respondent No. 1, the effort is to justify the impugned order dated 30.06.1999 as issued on the ground of medical unfitness. He submits that clause (iii) which deals with medical unfitness mandates certain procedural compliance and a finding of Medical Board that the General Manager like the present petitioner is unfit to work or resume duties. Here, there is no such finding. On the contrary, last finding of Medical Board declares the petitioner fit for joining duties. He adds that if respondent Nos. 1 & 2 felt that in the face of such fit certificate, the petitioner was avoiding to join the duties, it could have taken appropriate action for misconduct.
He further submits that the order of transfer dated 10.02.1997 is rendered infructuous in these facts as the petitioner crossed the age of superannuation in the year 2006. However, the order was issued with oblique motive as the petitioner did not accept the directions of Chairman-cum-Managing Director to deal with purchase transactions. Shri Naik, learned counsel submits that the petitioner has then pointed out that the complaint as filed and inquiry conducted by the CBI was for the alleged wrong practices on his part during such purchases. He has also taken us through the submissions filed by Respondent Nos. 1 & 2 while opposing ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 4 Rule on stay. These submissions filed by the respondents while passing order of Rule on stay are looked into by this Court on 22.10.1999. This Court had issued Rule on 21.07.1999 and submissions have been filed thereafter. Hence, the submissions can also be looked into as return to oppose the petition.
5. In written submissions in para 6, Respondent Nos. 1 & 2 have stated that the petitioner was absolutely fit to resume his duties as certified by Medical Board and still he remained absent on the ground of ill-health as communicated by him in his letter dated 23.06.1999. The respondents urged that this contention of the petitioner reveals that his case was examined under the category of "Medical unfitness" as defined in the amended Scheme of Premature Retirement of executives vide Annexure 'W'. They state that this rule squarely lays down that if a person is not fit to resume his duties within a period of 12 months, his case is fit for premature retirement. Accordingly, the Bord of Directors in its 134th meeting held on 20.02.1998 considered the absentism of the petitioner and directed Respondent No. 2 to take appropriate action as per Rules.
The Committee consisting of three Directors was then constituted and total eight cases were placed before that Committee. After considering the cases of eight officers including the case of the petitioner, the Committee recommended premature retirement of ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 5 the petitioner as he was not attending his duties since 10.02.1997 on medical grounds. Thereafter the impugned order came to be issued.
6. The said document at Annexure 'W' is produced by the petitioner. It is a Scheme for premature retirement of the Excutives. It allows Respondent Nos. 1 & 2 to order premature retirement if it notices medical unfitness, inefficiency or doubtful integrity of executives. The orders are to be passed by the Competent Authority viz., the Chairman-cum-Managing Director.
7. The inefficiency is required to be evaluated on the basis of Appraisal reports and if an employee is assessed poor consecutively for three years therein, his case may be deemed fit for premature retirement on the ground of inefficiency. The respondents nowhere pointed out that the petitioner was graded poor consecutively for three years prior to 30.06.1999. Similarly, an employee who gets an adverse notice consecutively for three years in his Confidential Reports, is recommended for retirement under head doubtful integrity. Again it is not the case of the respondents. As already stated supra, the respondents have specifically urged that the petitioner has been prematurely retired by the Competent Authority on the ground of medical unfitness.
::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 6The provision dealing with medical unfitness reads as under :
"Medical unfitness :
(a) If an employee has been continuously on leave on medical grounds for a period of 12 weeks (including Sundays and holidays) or he has been on leave for reasons of sickness for a total period of 120 days (including Sundays and holidays) or more during a continuous period of six months or if a person though attending duties but is found to be mentally deranged, his departmental head may forward the case to GM (P&A) who may refer him to a Medical Board for his thorough medical check-up and report after getting the approval of CMD. In respect of Heads of Divisions and General Managers, the CMD will be the competent authority to refer the cases to Medical Board for the thorough medical check-up and report -
- the disease he is suffering from;
- whether it is curable or incurable;
- whether the disease is infectious/ contagious;
- in case of curable disease whether the person is
likely to be fit to resume his normal duties within a period of 12 months;
(Emphasis added)
(b) If the person is not fit to resume his duties within a period of 12 months and in cases of employees suffering from incurable and infectious/ contagious disease or suffering from lunacy or mental derangement and whose services cannot be utilized by the Company or whose attendance is likely to pose health hazard to others as may be certified by the Medical Board, will be deemed as ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 7 fit case for premature retirement."
This sub-clause (b) has been amended on 01.04.1999 and after amendment, it reads as under :
"(b) If the person is not fit to resume his duties within a period of 12 months;
or In cases of employees suffering from incurable and infectious / contagious disease;
or suffering from lunacy;
or mental derangement and whose services cannot be utilized by the Company; or whose attendance is likely to pose health hazard to others as may be certified by the Medical Board;
will be deemed as fit case for premature retirement."
(Emphasis added)
8. Under clause (a) an employee who has been continuously on leave on medical grounds for a period of 12 weeks or on leave for reasons of sickness for a total period of 120 days or more during a continuous period of six months, his case is required to be referred to a Medical Board for his thorough medical check-
up and report after getting the approval of CMD. In case of General Managers, the CMD is specified to be a Competent Authority to refer the case to Medical Board for that purpose.
::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 8Thus, clause (a) is only about procedure and case of an individual is required to be placed before a Medical Board for thorough check-
up and report. Medical Board has to certify whether officer suffering from curable disease will be available or will not be available in 12 months next. Under clause (b), if a person is not fit to resume his duties within a period of 12 months, as certified by Medical Board, his case is deemed to be a fit case for premature retirement. The other cases specified to be fit for premature retirement cover employees suffering from incurable and infectious/ contagious disease or suffering from lunacy or mental derangement and whose services cannot be utilized by the company or whose attendance is likely to pose health hazard to others. Thus, we are not concerned with other situations looked into in clause (b). If it is shown that the petitioner was not fit to resume duties within a period of 12 months, as per last contingency in clause (a), respondent Nos. 1 & 2 could have taken the action.
9. The facts disclose that vide Office Order dated 10.02.1997, Chairman-cum-Managing Director transferred the petitioner to Balda and he was relieved immediately. He was designated as Officer on Special Duty at Balda and was entrusted the assignment of disposal of materials from Balda Stores Depot and close it at the earliest as per recommendations of the CMD. It ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 9 appears that the petitioner was on leave on 10.02.1997. On 10.04.1997, the petitioner has submitted an application pointing out that he was on Medical leave from 11.02.1997 as advised by the Doctor and he requested for release of his salary. On 22.04.1997, General Manager (P & A) informed the petitioner that his Medical leave shall be considered for sanction by the Competent Authority, after the petitioner reported at Balda and produce fitness certificate before it. It appears that the petitioner was served a communication dated 19.11.1997 as he was continously extending his leave on medical grounds. His employer, in order to confirm his sickness had decided to refer him to Medical Board and accordingly the petitioner was asked to appear before the President, Medical Board, Government Medical College, Nagpur, on 27.11.1997. The petitioner accordingly appeared before that Board.
10. The outcome of Medical examination or report of that Board is not on record. The petitioner has in para 20 of the petition has specifically pointed out this fact. In reply filed before this Court, the respondents have not dealt with this aspect.
However, it appears that on 11.08.1998, respondent Nos. 1 & 2 passed an order and sanctioned one day Earned Leave to the petitioner for 10.02.1997. 120 days sick leave came to be granted ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 10 from 11.02.1997 to 10.06.1997. Half pay sick leave was sanctioned from 11.06.1997 to 07.12.1997. 239 days EL was sanctioned from 08.12.1997 to 03.08.1998 and Extra Ordinary leave (without pay) was sanctioned for three days from 04.08.1998 to 06.08.1998.. This was as per approval given by the Competent Authority. The petitioner has given these details in para 22 of his petition and same are not in dispute. Thereafter the petitioner has made some attempts to obtain salary but was not paid the same.
The respondents have referred to 134th Meeting of Board of Directors held on 20.02.1998 in para 6 of its submissions.
However, the proceedings of 134th Meeting are not produced. In any case, this is prior to order dated 11.08.1998 mentioned supra by which the petitioner was sanctioned leave up to 06.08.1998 and his absence was regularized. The respondents mention decision taken in Board meeting held on 20.02.1998. The Committee consisting of three Directors was constituted. That Committee looked into the case of the petitioner and recommended premature retirement of the petitioner as he was not attending duty since 10.02.1997 on medical grounds. The impugned order has been passed on 30.06.1999. On 22.06.1999, the Company Secretary of respondents has sent a communication to the petitioner pointing out to him that he was declared fit for duty by the Medical Board and as he had not resumed duties till then, he was advised to ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 11 report for duty at Balda immediately. He was informed that in default, appropriate action would be initiated against him by the management. On 26.06.1999, he was informed to join at Balda and his salary would be released thereafter. All this is after a Medical Board examination of the petitioner at Nagpur on 22.04.1999. It is also after the meeting of Board of Directors dated 20.02.1998. The certificate of said Medical Board is dated 28.05.1999 and it is forwarded to the petitioner with communication dated 05.06.1999. The Medical Board which examined the petitioner on 22.04.1999 diagnosed that he was a patient of moderate hypertension and anixty nerosis. It declared him fit for duty. Thus, order dated 30.06.1999 declaring the petitioner to be medically unfit and, therefore, ordering his premature retirement needs appreciation in this background.
11. As per amended clause (b), the petitioner could have been retired as medically unfit if he was found not fit to resume his duties within a period of 12 months. Clause (iii) of Scheme for Premature Retirement of Executives points out the circumstances in which an employee can be sent to Medical Board. The petitioner was accordingly sent to Medical Board initially on 27.11.1997.
That Board declared him unfit and, therefore, only his leave up to 06.08.1998 came to be sanctioned and regularized. It was ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 12 obviously then not opined that the petitioner was unfit to resume duties within a period of next 12 months. After 27.11.1997, the petitioner has been examined by Medical Board on 22.04.1999.
This may be due to direction of Board of Directors in their meeting dated 20.02.1998. That Board also does not find that the petitioner was unfit to resume duties within a period of 12 months.
On the contrary, the said Medical Board finds the petitioner fit to join duties. Thus, on 30.06.1999 when the petitioner was prematurely retired, there was a certificate of competent medical board with Respondent Nos. 1 & 2 declaring the petitioner fit for duty.
12. Action under clause (iii)(b) is possible if the petitioner is found not fit to resume his duties within a period of 12 months.
The tense used in the said sentence is present tense and, therefore, the date on which the Medical Board and the respondents applied their mind is relevant. If on said date, Respondent Nos. 1 & 2 find that the employee like the petitioner "is" not fit to resume his duties within a period of 12 months, action under said clause (iii)(b) is possible. The fact that the employee had not reported for duties in the past 12 months, is not a relevant factor in the Scheme of said clause (iii). Here, there is no finding by any Medical Board that in the Medical examination dated 27.11.1997 or 24.02.1999, the ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 13 petitioner was not fit to resume his duties within 12 months. As such, it is apparent that the very foundation for action taken by the respondents against the petitioner is missing. If the respondents found that the petitioner was fit and was deliberately avoiding to join his duties, under Mineral Exploration Corporation Limited Discipline and Appeal Rules, disciplinary action against him could have been taken for misconduct. They have not taken any such action. Even otherwise, for a proved misconduct of said nature there is no provision in the Scheme to order premature retirement.
We, therefore, find order dated 30.06.1999 unsustainable. It is accordingly quashed and set aside.
13. As the petitioner has already crossed the age of superannuation, it is apparent that the validity or otherwise of action of the respondents in transferring him to Balda on 10.02.1997 or various grounds, raised by the petitioner to assail that transfer, are rendered irrelevant and need not be discussed in present writ petition. His leave till 06.08.1998 is already sanctioned and as per interim orders of this Court, he is also paid salary.
14. This Court had issued Rule on stay on 21.07.1997 and after receipt of reply affidavit on 22.10.1999 this Court had directed the respondents to pay to the petitioner the salary dues for ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:59:28 ::: wp2639.99 14 a period from 11.02.1997 till 03.08.1998 and to proceed to pay the amount for one month notice period. As the impugned order is set aside, it is apparent that the petitioner is entitled to reinstatement till he reached the age of superannuation. The petitioner has not pointed out that he was without any source of employment in the meanwhile. He was working on responsible post of General Manager and was declared fit to resume his duties by Medical Board in the month of April 1999 itself. In this situation, we direct that he shall be entitled to 50% of his wages for the period from 11.02.1997 till is superannuation after subtracting therefrom the amounts already paid to him. Needless to mention that benefits payable to him on his superannuation shall be recalculated accordingly and released to him within a period of next six months.
15. Thus, we partly allow the petition. The impugned order dated 30.06.1999 is quashed and set aside. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
******
*GS.
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