Delhi High Court
Employee State Insurance ... vs Dr. Dinesh Kumar Yadav on 21 August, 2019
$~62.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 21.08.2019
% W.P.(C) 9050/2019
EMPLOYEE STATE INSURANCE CORPORATION..... Petitioner
Through: Mr. V.K. Singh with Ms. Prachi
Singh and Ms. Nisha Hans, Advs.
versus
DR. DINESH KUMAR YADAV ..... Respondent
Through: Mr. Yaspal Rangi, Adv.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
VIPIN SANGHI, J. (ORAL)
C.M. No. 37365/2019
1. Exemption allowed, subject to all just exceptions. The application
stands disposed of.
CAV No. 840/2019
2. Learned counsel for the respondent caveator has appeared. The
caveat is, accordingly, discharged.
W.P.(C) 9050/2019 & C.M. Nos. 37363, 37364/2019
3. The petitioner assails the order dated 11.01.2019 passed by the
Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal)
in O.A. No. 2204/2017. The Tribunal has allowed the said Original
Application preferred by the respondent. In the said Original Application,
the respondent had assailed the denial of permission by the petitioner to the
respondent to join the post graduate medical course for which he had been
declared successful.
4. The respondent is a qualified MBBS Doctor. He joined the petitioner
on 15.09.2009 as IMO in Grade II. Upon the completion of his probation,
he was confirmed in the year 2011. He was desirous of acquiring higher
educational qualification i.e. post graduate medical degree to enhance his
knowledge and professional skills which would have a direct bearing on
discharge of his duties with the petitioner. He applied for, and was granted
provisional permission to appear in the NEET-PG-2017, which is a
nationally held competitive examination for admission to such courses. The
said permission/ NOC was granted to the respondent on 16/21.11.2016.
While granting the said permission, the respondent was instructed that he
would not join the course without proper prior permission of the Competent
Authority i.e. (Hqrs. Office). The petitioner was declared successful in the
NEET-PG-2017 held in December, 2016. The result was declared in April
2017. In the meantime, the respondent was transferred to ESIC Hospital
Gurugram (Haryana) vide order dated 07.04.2017. Consequently, he applied
for study leave to DG, ESI Corporation on 18.05.2017. He also brought to
the notice of the petitioner, the NOC granted to him to appear in the
aforesaid examination. After he sent a reminder, he was informed that his
request for study leave to undergo the post graduate medical course has been
rejected. On 24.05.2017, the respondent was informed that ESIC hospital
(Gurugram) was having 22 GDMOs (Regular) and, as per the instructions,
only 4% of the doctors could be sanctioned study leave at any point of time.
Thus, only one doctor could be spared for study leave. It was stated that
one Dr. Rashi Gupta - Insurance Medical Officer Grade I had already been
granted EOL for study leave from 07.10.2014 to 06.10.2017, and keeping in
view the 4% limit, the respondent could not be granted study leave. The
respondent obtained information under the Right to Information Act, and
was informed that the ESIC hospital (Gurugram) had 22 GDMOs and 16
specialists. Thus, the total number of doctors available worked out to 38,
and applying the 4% limit, two doctors could be granted study leave. Thus,
the respondent claimed that he too could be granted study leave, apart from
Dr. Rashi Gupta, who was already on study leave. Since the petitioner did
not oblige, the respondent preferred the Original Application.
5. The impugned order shows that the only aspect raised by the
petitioner at the hearing of the Original Application was with regard to the
percentage of doctors who could be granted study leave, and also the actual
number of doctors serving in ESIC hospital (Gurugram). Since the Tribunal
came to the conclusion that there were in all 38 doctors available at ESIC
hospital (Gurugram), applying the four percent limit, the Tribunal allowed
the Original Application of the respondent as two doctors could be spared
for study leave. The Tribunal also noticed that in several other ESIC
hospitals, 4% limit has been applied on total number of doctors working as
GDMOs and specialists.
6. Learned counsel for the petitioner does not really find fault with the
analysis of the Tribunal. The submission of learned counsel for the
petitioner is that a vigilance complaint had been received against the
respondent on 30.03.2016 that he was running a coaching centre for doctors
known as Team Motivation at Gautam Nagar, New Delhi. His submission is
that the petitioner has issued a charge sheet to the respondent and, thus, he
cannot be allowed to proceed on study leave. Learned counsel for the
petitioner does not dispute the position that no such plea was raised by the
petitioner in its reply before the Tribunal.
7. The petitioner has placed on record the complaint dated 30.03.2016
along with an application for filing the additional documents i.e. C.M. No.
37364/2019. Firstly, since the said plea was never raised before the
Tribunal, we are not inclined to entertain the same, as it is a fact based plea.
Secondly, raising of the said plea, at this stage, shows that the alleged
vigilance complaint was not a reason for denial of permission to the
respondent to proceed on study leave. The only reason given by the
petitioner was that only 1 doctor could be granted study leave by applying
the 4% limit, since there were only 22 GDMOs in ESIC hospital
(Gurugram). It is evident that the said complaint was made on 30.03.2016,
whereas the respondent was granted the NOC to appear in the All-India
Competitive Examination on 16-21/11/2016 i.e. nearly 8 months after the
making of the said complaint. If the said complaint were to come in the way
of the respondent, he would not have been granted the NOC to appear in the
competitive examination in the first place. The charge sheet, which is
claimed to have been issued to the respondent has been issued only on
30.01.2019 i.e. well after the passing of the impugned order dated
11.01.2019 by the Tribunal. Thus, it appears to us that the issuance of the
charge sheet has been timed deliberately to prevent the respondent from
enjoying the fruits of the impugned order.
8. Lastly learned counsel for the petitioner submits that the posts for
which the study leave is sought by the respondent, namely post graduate in
pharmacology would not be to the advantage of the petitioner organization.
Pertinently, this was not even stated as a ground while rejecting the
respondent's request for permission to proceed for study leave for the post
graduate course. This was not even taken as a ground taken before the
Tribunal. Therefore, we are of the view that the same has been taken as an
after thought.
9. We find no merit in this petition. Dismissed.
10. However, we make it clear that we have not gone into the merits of
the allegations made against the respondent, and it shall be open to the
petitioner to proceed in that regard independently.
VIPIN SANGHI, J.
RAJNISH BHATNAGAR, J.
AUGUST 21, 2019
N.Khanna
