State Of Mah. Thr. The Secty., And ... vs Harishchandra Gajanan Dhande
2017 Latest Caselaw 2789 Bom

 0606WP4663.11-Judgment                                                                         1/6


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                     WRIT PETITION NO.    4663   OF    2011

 PETITIONERS :-                 1. State of Maharashtra, through the Secretary,
                                   Ministry of Health, Mantralaya, Mumbai-32. 
                                2. The   Superintendent,   Government   Medical
                                   College & Hospital, Nagpur. 
                                3. The   Dean,   Government   Medical   College   &
                                   Hospital, Nagpur. 
                                4. The   Director,   Health   Services,   Maharashtra
                                   State, Mantralaya, Mumbai-32. 

                                         ...VERSUS... 

 RESPONDENT :-                        Harishchandra   Gajanan   Dhande,   R/o   Zade
                                      Plot,   Futala   Ward,   Bhadrawati,   Disst.
                                      Chandrapur. 

 ---------------------------------------------------------------------------------------------------
         Mr.K.L.Dharmadhikari, Asstt.Govt.Pleader for the petitioners.
                                 None for the respondent. 
 ---------------------------------------------------------------------------------------------------


                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    ARUN  D. UPADHYE
                                                                     ,   JJ.

DATED : 06.06.2017

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

By this writ petition, the State of Maharashtra and others

have challenged the order of the Maharashtra Administrative Tribunal

dated 15/07/2010, as far as it directs the petitioners to pay full back

wages to the respondent from the date of his termination till he was

reinstated.

0606WP4663.11-Judgment 2/6

2. In pursuance of an advertisement issued by the Dean of

the Government Medical College and Hospital, the respondent applied

for the post of ward-attendant that was reserved for the physically

challenged candidates. The respondent suffered hearing impairment

and according to him, the physical disability was more than 40%. The

respondent was selected and appointed on the post of ward-attendant

by the order dated 02/06/2005. As per the appointment order, the

petitioner was required to join the duties within a period of seven days

after producing the disability certificate from the competent medical

board. The respondent did not produce the medical certificate from the

competent medical board and submitted a certificate issued by the Civil

Surgeon, Nagpur. As per the said certificate, the disability of the

respondent was more than 60%. The respondent joined the duties on

09/06/2005 and the petitioners got the respondent examined through

the Medical Board at the Government Medical College and Hospital,

Nagpur. The Board found that the disability suffered by the respondent

was only to the extent of 35%. Since the minimum disability suffered

by a candidate applying for the post for 'physically disabled' was 40%,

the petitioners terminated the services of the respondent. After the

respondent received the order of termination, he made a representation

to the petitioners seeking his re-examination by an expert medical

board, as there was a conflict of opinion in regard to the percentage of

the disability in the two certificates, one produced by him and the other

0606WP4663.11-Judgment 3/6

secured by the petitioners. The representation of the respondent was

not considered by the petitioners and hence the respondent filed the

original application before the Maharashtra Administrative Tribunal.

During the pendency of the matter before the Maharashtra

Administrative Tribunal, the respondent was directed to be examined by

a panel of ENT specialists. The panel of ENT specialists examined the

respondent on 31/01/2010 and 01/02/2010 and reported that the

percentage of hearing disability of the respondent was between 40% to

50%. The tribunal relied on the report of the panel of ENT specialists

and directed the petitioners to reinstate the respondent in service with

full back wages. The part of the order that directs the petitioners to pay

back wages to the respondent is challenged by the petitioners in the

instant petition.

3. Shri Dharmadhikari, the learned Assistant Government

Pleader appearing for the petitioners, submitted that the tribunal was

not justified in directing the petitioners to pay full back wages to the

respondent. It is submitted that though the respondent was directed to

produce the disability certificate issued by a competent medical board

while joining the duties, the respondent had not produced such a

certificate and had tendered a certificate issued by the Civil Surgeon,

Nagpur. It is submitted that the percentage of disability suffered by the

respondent was found to be 35% by the duly constituted medical board

0606WP4663.11-Judgment 4/6

at Nagpur. It is submitted that the action of the petitioners is just and

proper and is based on the report of the medical board that had

examined the respondent after he joined his duties. It is stated that

there is no averment in the original application that after his

termination, the respondent was not gainfully employed.

4. On hearing the learned Assistant Government Pleader and

on a perusal of the impugned order as also the original application and

the documents annexed to the petition, it appears that the tribunal was

not justified in directing the petitioners to pay full back wages to the

respondent, on his reinstatement. Though the appointment order

mentioned that the respondent was required to produce the disability

certificate issued by a competent medical board, the respondent did not

secure a certificate from the competent medical board and obtained a

certificate from the Civil Surgeon, Nagpur that showed the disability of

the respondent to the extent of 60%. The petitioners rightly examined

the respondent through the medical board and since it was noticed that

the disability of the respondent was only 35%, which was below the

minimum requirement of 40%, the services of the respondent were

terminated. Since the panel of ENT specialists found during the

pendency of the original application that the respondent suffers from

disability between 40% to 50%, the tribunal rightly directed the

reinstatement of the respondent in service. The tribunal was however

0606WP4663.11-Judgment 5/6

not justified in directing the petitioners to pay hundred per cent back

wages to the respondent. There is no averment in the original

application that after his termination from service, the respondent was

not gainfully employed. Also, the respondent had admittedly not

worked as a ward-attendant from the date of his termination till he was

reinstated in service. The principle of "no work-no pay" could be

partially applied to the facts of the case. In our view, both the parties

were partially at fault. Though the respondent was required to submit a

certificate issued by the competent medical board, he did not do so and

submitted a certificate issued by the Civil Surgeon, Nagpur. Though

there was no fault in the action on the part of the petitioners in

terminating the services of the respondent, after the medical board

found that the disability suffered by the respondent was less than 40%,

the petitioners committed a mistake in not referring the case of the

respondent to the panel of ENT specialists when there was a variance in

the report of the medical board and the civil surgeon. When the reports

of the civil surgeon and the medical board were contradictory, as per

the request of the respondent the petitioners ought to have referred the

respondent to a panel of ENT specialists, as was subsequently done in

pursuance of the order of the Maharashtra Administrative Tribunal. In

the facts and circumstances of the case and in the interest of justice, it

would be necessary to grant some back wages to the respondent as the

respondent was not totally at fault and the report of the medical board

0606WP4663.11-Judgment 6/6

that was constituted during the pendency of the proceedings before the

Maharashtra Administrative Tribunal had opined that the disability

suffered by the respondent is between 40% to 50%. In our view, ends

of justice would be met if the petitioners are directed to pay 40% back

wages to the respondent from the date of his termination till the date of

his reinstatement in service.

5. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The part of the order of the Maharashtra Administrative

Tribunal, Nagpur that directs the petitioners to reinstate the respondent

in service, is confirmed. The part of the order of the Maharashtra

Administrative Tribunal, Nagpur that directs the petitioner to pay

hundred per cent back wages to the respondent stands modified. The

petitioners are directed to pay 40% back wages to the respondent

within three months. Rule is made absolute in the aforesaid terms with

no order as to costs.

                        JUDGE                                              JUDGE 


 KHUNTE