No. 93008852 W/M Yad Ram vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1217 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was initially appointed as a Washerman in the BSF on 10.11.1993. According to the petitioner, he has been serving the Force with all sincerity and to the satisfaction of all concerned. On 30.09.2002 while serving in 1st BN, the petitioner became sick due to pain in both legs and was admitted in unit MI Room from where the petitioner was referred to General Surgeon, MJN Hospital, Cooch Bihar. The petitioner was examined in the said Hospital and was further referred to SSKM Hospital Kolkata on 21.10.2002. On 1.11.2002, he was given the movement order by the Commandant of the said Battalion to proceed to SSKM Hospital along with one attendant Constable Sh. Biju Mathur. The petitioner was admitted in SSKM Hospital on 5.11.2002. The petitioner was examined by CMO, HQ, Kolkata on 8.11.2002 and was referred to the Commandant (Medical) FHQ R.K. Puram, New Delhi for his treatment from AIIMS, New Delhi. In furtherance to the direction issued on 8.11.2002, the petitioner was given the movement order and he reported at R.K. Puram, New Delhi. After having gone to Sardarjung Hospital, the petitioner was finally referred to AIIMS, New Delhi for investigation and treatment. He received treatment for quite some time and after a long treatment on 21.8.2003, the petitioner was directed to follow up after two months and was referred back to his unit. The Commandant of 1st BN BSF vide order dated 7.1.2004 regularised the whole period w.e.f. 30.09.02 to 21.8.03 by way of granting different types of leave including 283 days Extra Ordinary Leave. This action of the respondents is questioned by the petitioner in the present writ petition as according to the petitioner, in terms of the Leave Rules, the petitioner was entitled to Hospital Leave and the respondents could not, thus, regularise the leave under other heads to the disadvantage of the petitioner.

2. The claim of the petitioner is refuted by the respondents on the ground that on 08.11.2002 the petitioner was transferred to FHQ MI Room, R.K. Puram from where he took the treatment for his ailment of pain in both legs from All India Institute of Medical Sciences (AIIMS) and reported back to FHQ MI Room on 21.08.2003. Again he was referred to AIIMS for follow up treatment with effect from 17.10.2003 to 19.01.2004. The ailment of the petitioner was not attributable to Government duties and hence, the period of hospitalization of the petitioner was later on regularized, treating one day hospitalization (on 11.11.2002) as two days HPL and 283 days hospitalization (from 12.11.2002 to 21.8.2003) as extraordinary leave as the petitioner was left with no other leave. Another leave of 95 days from 17.10.2003 to 19.1.2004 was regularized by granting 95 days extraordinary leave. It is also stated that regularization of leave lies in the discretion of the concerned authorities and such regularization in the manner stated was valid, legal and does not call for any interference.

3. It is not in dispute that the petitioner was appointed as a Washerman on 10.11.1993. At the time of his entry into the service, he was subjected to medical tests and was found fit in all respects. The petitioner served the force without any problem for a period of 9 years when he complained of pain in the legs. It is also not in dispute that he was treated at various places and was ultimately referred to AIIMS for proper diagnosis and treatment, where he was treated for all the aforesaid periods. The first reason stated by the respondents that the disease of the petitioner was not attributable or even aggravated by service, is without any merit. The Medical Board had recorded its findings, the copy of which has been placed on record as Annexure 'R3'. While giving the entire history of the illness of the petitioner, it has been specifically noticed that the petitioner had experienced pain and heaviness in legs for the first time in the month of June 2002 and thereafter his treatment commenced. He did not go to AIIMS of his own, but was referred to by the concerned authorities. The Medical Board proceedings even contain remarks of a Specialist wherein it was specifically recorded that no apparent abnormality was seen, joints were normal and there was muscular tenderness over the calf muscles of both legs. The petitioner was ordered to be placed in low medical category.

4. It will be relevant to refer to Medical Board proceedings which reads as under:

The Board having No. 93008852 W/M Yad Ram, of 01st Bn BSF, area of the opinion that he is a case of "PERIPHERAL VASCULAR DISEASE" and is considered unfit to remain in category SHAPE-I.

2. Was the disability contracted in service?

Yes

3. Was it contracted in circumstances over which he had no control ?

Yes

4. Is it directly attributable to conditions of service?

NO

5. If so by what specific conditions?

NA

6. If not directly attributable to service was it aggravated there by and if so by what specific condition?

Stress & Strain

7. Medical category Recommended?

S1H1A3(L)(P)P1E1

8. Percentage of disability

NA

5. A bare reading of the above columns show that no medical authority had traced the disease of the petitioner as 'Constitutional' or had even remotely suggested that it existed or could be related to the period prior to the petitioner joining the Service. It is stated that the disability was contracted during service and it was contracted in circumstances over which the petitioner had no control. It is also stated that even if the disease was not directly attributable to service, it could be aggravated by stress and strain. Once these questions were answered in favor of the petitioner, we are unable to understand as to why the disease could not be said to be 'attributable' or at least 'aggravated' by Border Security Force. In fact, the learned Counsel appearing for the respondents fairly did not press this issue any further.

6. There is also no dispute to the fact that the Central Civil Services (Leave) Rules (for short 'CCS Rules') are applicable to the Force and in fact, nothing contrary was even argued. Rule 46 of the said CCS Rules reads as under:

46. Hospital Leave.- (1) The authority competent to grant leave may grant hospital leave to -

(a) Class IV Government servant, and

(b) such Class III Government servants whose duties involve the handling of dangerous machinery, explosive materials, poisonous drugs and the like, or the performance of hazardous tasks while under medical treatment in a hospital or otherwise, for illness or injury if such illness or injury is directly due to risks incurred in the course of their official duties.

(2) Hospital leave shall be granted on the production of    medical certificate from an Authorised Medical Attendant.
 

(3) Hospital leave may be granted for such period as the authority granting it may consider necessary, on leave; salary
  

(i)equal to leave salary while on earned leave, for the first 120 days of any period of such leave; and
 

(ii)equal to leave salary during half pay leave, for the remaining period of any such leave.
 

(4) Hospital leave shall not be debited against the leave account and may be combined with any other kind of leave which may be admissible; provided the total period of leave after such combination, does not exceed 28 months.
 

(5) (a) In the case of a person to whom the Workmen's Compensation Act, 1923 (8 of 1923) applies, the amount of leave salary payable under this rule shall be reduced, by the amount of compensation payable under Clause (d) of Sub-section (1) of Section 4 of the said Act.

(b) In the case of a person to whom the Employees' State Insurance Act, 1948 (34 of 1948) applies, the amount of leave salary payable under this rule shall be reduced by the amount of benefit payable under the said Act for the corresponding period.

7. Learned Counsel appearing for the respondents while relying upon the circular of the Government of India, Ministry of Home Affairs, Directorate General, Border Security Force dated 25.03.1998 argued that the administrative authority can grant leave of any kind due and it is not necessary for them to grant hospital leave. This argument is without any substance in as much as this circular relates to procedure for undertaking journey under Medical Attendance Rules. Secondly, it clarifies the implications of the said rules and no way deals with the question with which the Court is concerned in the facts and circumstances of the case. It is stated that the period of absence from duty has to be regularized by the competent authority by granting leave of any kind due. It is not relatable or has any apparent interpretative clarification to Rule 46 of the CCS Leave Rules. Class IV employees, to which class the petitioner belongs, is specifically covered under Rule 46 (1) (a) and carries no restrictions. The discretion vested in the authority has to be exercised fairly and in accordance with settled administrative norms. Mere refusal to exercise discretion is no ground for declining relief to a party. The authorities are expected to apply their minds and if they wish to exercise discretion in rejecting the request of an employee (a Member of the Force), some plausible reason has to be provided so as to enable any competent authority to examine the correctness of the said order. In the order treating the leave of the petitioner as 'extraordinary leave', which obviously works to the disadvantage of the petitioner, no reason much less any cogent ground has been stated, which could be sustained by the Court in exercise of its power of judicial review of administrative actions.

8. In view of the above discussion, we allow this petition and set aside the order dated 7.1.2004 and direct the respondents to consider the application of the petitioner for grant of hospital leave in terms of Rule 46 of the CCS (Leave) Rules. The parties are left to bear their own costs.