Shri G.L. Chowdhary vs Union Of India & Others
2009 Latest Caselaw 2685 Del

*              HIGH COURT OF DELHI : NEW DELHI

                Judgment reserved on : July 09, 2009
                Judgment delivered on : July 17, 2009

+                Writ Petition (C) No. 2680/1995

      Shri G.L. Chowdhary                ...  Petitioner
                 Through: Mr. P.P. Khurana, Senior Counsel with
                          Mr. Amit Anand, Mr.Birender Singh and
                          Mr. Gaurav Tondon, Advocates.

                                  versus

      Union of India & Others        ...  Respondents
                      Through: Mr. Jagat Arora and Mr.Rajat Arora,
                               Advocate.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be reported
       in the Digest?

SUNIL GAUR, J.

1. Petitioner was an Assistant Manager with the Respondent

no.2-Corporation and vide impugned order (Annexure-I), he was

pre-maturely retired on medical grounds with effect from 31st July,

1995. Respondent No.2 - Corporation had done so on the basis of

recommendations of the Medical Board, as contained in Annexure

R-2, and the disabilities noted by the Medical Board are as under:-

W.P.(C ) No. 2680/1995 Page 1 "1. Residual right sided Hemiparesis with defective functioning of his right Upper and Lower Limb.

2. Shortening of his right leg for about 2-1/2 inches.

He is however, able to move around and level walk with the help of a stick. He has also acquired the skills in writing with his left handed is able to write adequately well. His mental and intellectual functions are normal."

2. The aforesaid recommendations of the Medical Board were

approved by the Competent Authority with the following

remarks:-

"In view of his physical and skeletal disabilities he will not be able to perform the duties involving climbing to the tankers or negotiating spiral stairs."

3. Upon receiving the impugned order (Annexure-I), Petitioner

had made Representation (Annexure K) on the basis of a Medical

Certificate issued by a private hospital to show that the Petitioner

is fit to perform his duties, but to no avail.

4. In this petition, quashing of the order compulsorily retiring

the Petitioner on medical grounds, is assailed by asserting that

the Petitioner was not heard before taking the impugned decision

and on the ground that the impugned action of the Respondent in

pre-maturely retiring the Petitioner is bad in law as the Petitioner

was fit to perform his duties after he has resumed his duties in

the year 1993.

W.P.(C ) No. 2680/1995 Page 2

5. In the counter affidavit filed by the Respondent to this

petition, it has been stated by the Respondents that after

assuming of duty by Petitioner on 18th December 1991, he was

unable to perform his duties effectively and that the Medical

Board was constituted under the Indian Oil Corporation

Employees Pre-Mature Retirement Scheme. The stand of the

Respondent is that the Pre-Mature Retirement Scheme on Medical

Grounds (Annexure R-1) has been introduced in November 1989

for effective functioning of the Respondent No. 2 -Corporation and

the employees under the scheme are Pre-Maturely Retired on

Medical Grounds and they are adequately compensated in terms

of money. It is pointed out that under the aforesaid Scheme

(Annexure R-1), no employee, who is medically fit, is to be put on

light duty and the Petitioner has been given ex-gratia payment of

Rs.3,10,452/-, which has been accepted by the Petitioner.

6. Counsel for the parties have been heard and the material on

record has been perused.

7. Counsel for the Petitioner had drawn attention of this court

to the Section 47 of "The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995", which reads as under:-

"47. Non-discrimination in Government employment. - (1) No establishment shall dispense

W.P.(C ) No. 2680/1995 Page 3 with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier."

8. On behalf of the Petitioner, reliance has been placed upon a

decision of this court in the case of "O.P. Sharma vs. Delhi

Transport Corporation & Anr.", 125 (2005) DLT 742, to contend

that the aforesaid Act would apply to the pending proceedings.

The pertinent observations made in this regard in the aforesaid

decision are as under:-

"It would therefore appear that where by an enactment, beneficial measures are introduced, a litigant is entitled to avail of its benefits, certainly in pending proceedings. In the present case, the DTC, an instrumentality of the State, and admittedly bound by Article 14, was under an obligation to behave in a non-discriminatory and non-arbitrary manner. During the pendency of litigation, the Act was brought into force; it gave statutory shape to the principle of non-discrimination at the work place. Hence, its application cannot be construed as retrospective application of a later law."

W.P.(C ) No. 2680/1995 Page 4

9. On the other hand, counsel for Respondent has justified the

impugned order by submitting that under the provisions of the

aforesaid Scheme (Annexure R-1), there is no requirement of

giving any opportunity of hearing before acting upon the

recommendations of the Medical Board and the recommendation

of the Medical Board cannot be assailed by relying upon a medical

certificate of private hospital. Reliance has been placed upon a

decision reported in 1993 Labour and Industrial Cases 1995,

wherein it has been declared by the Apex Court that deciding of

medical fitness in writ jurisdiction by the High Court against the

opinion of a specialist doctor is not proper.

10. In the case of "Kanshi Ram Sharma vs. Union of India", 2002

(4) SLR 292, it has been held that there is no mandate under the

Pre-Mature Retirement Scheme of the Corporation that a

medically unfit employee must be offered a job in a lower

category.

11. In the case of "Umesh Chakravarti vs. Union of India", 2000

(87) FLR 246, it has been held by this court that the opinion of

the Medical Board constituted by the Appointing Authority would

be relevant and not the opinion of other hospital or doctor.

12. In the case of "Union of India & Others vs. Flight Cadet

Ashish Rai", AIR 2006 SC 1243, the true import of the power of

W.P.(C ) No. 2680/1995 Page 5 judicial review has been highlighted by the Apex Court in the

following words:-

"There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:

(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety."

13. After having considered the factual background of this case

and the aforesaid legal position, this court is of the considered

view that the Pre-Mature Retirement Scheme on Medical Grounds

(Annexure R-1) of the Respondent No. 2 - Corporation needs to be

re-considered and ought to be suitably amended in the light of

"The Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995", as this court in the case W.P.(C ) No. 2680/1995 Page 6 of O.P. Sharma (Supra) has laid down in explicit terms that the

provisions of the aforesaid Act (with special reference to section

47 thereof) would apply to the pending proceedings and the

objections of retrospective operation of the aforesaid Act stands

already repelled.

14. In "Union of India (UOI) and Anr. Vs. S.B. Vohra and

Ors.", reported in AIR 2004 SC 1402, the Apex Court has held

as under:-

"The High Court, however, should not ordinarily issue a writ of or in the nature of mandamus and ought to refer the matter back to the Central/State Government with suitable directions pointing out the irrelevant factors which are required to be excluded in taking the decision and the relevant factors which are required to be considered therefore. The statutory duties should be allowed to be performed by the statutory authorities at the first instance."

15. In the light of the aforesaid position, this petition is partly

allowed with liberty to the Petitioner to make a comprehensive

Representation while claiming benefit of the provisions of "The

Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995", to Respondent No. 2 within four

weeks from today and Respondent No. 2 is directed to consider

the Petitioner's Representation and to pass a speaking order

W.P.(C ) No. 2680/1995 Page 7 therein within twelve weeks of the receiving of the Petitioner's

Representation. Opportunity of personal hearing, if sought by the

Petitioner, be provided to him by the Competent Authority before

deciding Petitioner's Representation.

16. This petition stands disposed of in the aforesaid terms.

17. No costs.

                                                  SUNIL GAUR, J

July 17, 2009
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W.P.(C ) No. 2680/1995                                         Page 8