Bombay High Court
Ram Mohan Mansaram Sharma vs The Mineral Exploration ... on 9 October, 2015
Bench: B.P. Dharmadhikari
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
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
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
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
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.
The 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
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.
Thus, 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
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
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
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
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
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
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.
