Dtc vs Kamal Kumar
2009 Latest Caselaw 5275 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Writ Petition (Civil) No.13922/2009

%                              Date of Decision: 17.12.2009

DTC                                                             .... Petitioner
                               Through Mrs.Avnish Ahlawat, Advocate.

                                        Versus

Kamal Kumar                                                    .... Respondent
                               Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                   YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                      NO
3.     Whether the judgment should be reported in                  NO
       the Digest?


ANIL KUMAR, J.

*

CM No.15840/2009

Allowed subject to all just exceptions.

Application is disposed of.

W.P (C) No.13922/2009

The petitioner has challenged the order dated 16th July, 2009

passed by the Central Administrative Tribunal, principal Bench, New

Delhi in T.A No.454/2009 titled Kamal Kumar v. Government of NCT of

Delhi & Anr directing the petitioner to send the respondent for medical

examination by the Board at AIIMS and on the basis of their opinion

directing the petitioner to process the case of the respondent for

appointment as driver in DTC.

Pursuant to the order passed by the Tribunal, a medical board

was constituted on the request of Deputy Manager (Personnel) of the

petitioner contained in his letter dated 30th July, 2009 bearing No.PLD-

III (Dr./DSSSB/Court Case)/2009/2844. The medical board has given

the following opinion:-

"All the papers concerning the case including the discharge summary of the patient from GTB Hospital, Shahdara (of his initial operation in 2004), Medical Board reports of the DTC, the reports of patient‟s examination at GTB Hospital, RML Hospital, Hedgewar Hospital, St. Stephen Hospital, Max Hospital and Surgery Unit-III OPD at AIIMS as well as his petition before the Central Administrative Tribunal and the orders of the Hon‟ble Tribunal were examined in detail. The patient was interviewed and examined in detail by all the signatories to this report. The reports and films of the ultrasound of the abdomen as well as the CT scan of the abdomen which the patient has been advised during the course of his work up were also examined.

After perusal of the records as mentioned above and the examination of the patient we are of a unanimous opinion that patient has no incisional Hernia in his abdominal wound. The wound is nicely healed and there is no clinical or investigative evidence of Hernia at present.

We are shocked at the attitude of the authorities in the DTC medical board who have consistently rejected him despite specialists in a number of reputed and prestigious government as well as private hospitals repeatedly stating that he has no incisional Hernia. We sincerely hope that

the matter will be finally settled after this medical board and Mr.Kamal Kumar will be given his due. We appreciate the dogged persistence of Mr.Kamal Kumar to continue to fight to get justice. We hope that he will finally get justice after this report."

From the opinion given by the medical board of All India Institute

of Medical Sciences after considering the report of respondent‟s

examination at GTB Hospital, RML Hospital, Hedgewar Hospital,

St.Stephens Hospital, Max Hospital and Surgery Unit III OPD at AIIMS

and the other reports and films of the ultrasound and his examination

done, the unanimous opinion is that the respondent had no incisional

Hernia in his abdomen and the wound has been nicely healed and there

is no clinical or investigative evidence of Hernia at present.

Despite the medical opinion given by All India Institute of Medical

Sciences medical board constituted pursuant to the order of the

Tribunal, it has again been contended by the petitioner that the case of

the respondent is of an Exploratory Laprotomy done for traumatic

Jejunal perforation operated in February, 2004 with mild diverticulation

in epigestrtic region leading to initial stage of Incisional Hernia. In the

circumstances, it is contended that post operative scar are more prone

to develop bulge or diverticulae being weak in the abdominal wall make

the respondent more prone to be the victim of disease as he would have

to drive a heavy vehicle and in the circumstances it is contended that

his medical condition would worsen and this will not be conducive for

the functioning of the petitioner and in the circumstances the petitioner

is entitled for declining appointment to respondent as a driver.

This cannot be disputed that pursuant to order dated 16th July,

2009, the medical board was constituted by All India Institute of

Medical Sciences. The petitioner did not dispute the order dated 16th

July, 2009 whereby the medical board of AIIMS was directed to be

constituted in view of the opinion of the medical board of the DTC and

other hospitals. Therefore, the petitioner accepted the impugned order

and acted upon it without any reservations.

After the case of the respondent had been referred to the medical

board of All India Institute of Medical Sciences it has considered not

only the physical condition of the respondent but has also considered

the medical reports of the medical board of DTC and other hospitals

and has categorically held that the respondent has no incisional Hernia

and his wound has healed nicely and there is no clinical or investigative

evidence of Hernia. While forming this opinion the medical board of the

premier institute of this country has not only rejected impliedly the

report of the medical board of DTC and other hospitals but has

categorically stated that they are shocked at the attitude of the

authorities in the DTC medical board who have consistently rejected the

respondent despite the contrary opinion by a number of reputed and

prestigious Government as well as private hospitals repeatedly holding

that the respondent does not have any incisional Hernia. It is on

account of this attitude of the petitioner, which is also not approved by

this Court after hearing the learned counsel for the petitioner, the

medical board of All India Institute of Medical Sciences has stated it is

hoped that now the matter will be finally settled and respondent will get

his due. Despite this categorical assertion by the medical board, the

petitioner has again tried to deny the respondent appointment as a

driver.

The petition apparently is a sheer abuse of process of law, and

the attempt by the petitioner to persistently discredit the opinion of the

reputed hospitals and doggedly reiterate the opinion of their medical

board which has been adversely commented by an independent medical

board cannot be approved by this Court. After accepting the order of the

Tribunal and acting upon it, the petitioner cannot seek to assail the

said order merely because the medical report of the medical board is

not found favourable by the petitioner.

In the circumstances, the petition is a sheer abuse of the process

of law and does not require interference by this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India. The writ

petition is, therefore, dismissed.

ANIL KUMAR, J.

December 17, 2009                                     VIPIN SANGHI, J.
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