Madras High Court
S.Elango vs Tamil Nadu State Transport on 24 July, 2023
W.P(MD)No.7387 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE BATTU DEVANAND
W.P.(MD)No.7387 of 2016
and W.M.P(MD)No.6215 of 2016
S.Elango ...Petitioner
Vs.
1.Tamil Nadu State Transport
Corporation (Madurai) Ltd.,
Represented by its Managing Director,
Madurai.
2.The General Manager,
Tamil Nadu State Transport
Corporation (Madurai) Ltd.,
Madurai Region,
Madurai.
3.Govt.Rajaji Hospital,
Represented by its Dean,
Madurai – 625 020
4.Government Eye Hospital and Regional
Eye Research Institution,
Egmore, Chennai – 600 008. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, seeking for the issuance of Writ of Certiorari calling for
1
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W.P(MD)No.7387 of 2016
the records relating to the proceedings of the 2nd respondent in
Admn/A4/11495/2015 dated 19.03.2016 and quash the same.
For Petitioner : Mr. A.Rahul
For R3 : Mr.P.Subbaraj
Special Government Pleader
For R1 & R2 : Mr.N.Rajsekar
for Mr.J.Senthil Kumaraiah
ORDER
This Writ Petition has been filed seeking a Writ of
Certiorari to quash the proceedings of the 2nd respondent in
Admn/A4/11495/2015 dated 19.03.2016
2. The case of the petitioner is that since 08.03.1993, he
served as Driver in the respondent Corporation. While the petitioner
on duty, he suffered with colour vision defect in his eyes and he was
referred to the medical board of the third respondent hospital by the
second respondent. The medical board sent a report dated
16.02.1999. Based on the said report, the petitioner was terminated
from services on medical grounds. Thereafter, the petitioner was re-
appointed as Helper.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.7387 of 2016
3. While that being so, the impugned order was passed
stating that the second respondent referred the petitioner to the third
respondent hospital to ascertain the physical fitness and percentage
of disability to work as Driver or Conductor. It is relevant to state
that the Medical Board of the third respondent Hospital has already
certified that the petitioner was unfit for the post of Driver. Despite
the same, the second respondent has passed the impugned order
referring the petitioner again to the medical board. Aggrieved by the
same, the petitioner is before this Court.
4. The learned counsel for the petitioner has relied on the
order passed by this Court in W.P(MD)No.20528 of 2016, dated
01.11.2016, wherein this Court dealt it with the similar issue and set
aside the impugned order.
5. Heard the learned counsel for the petitioner, the learned
Special Government Pleader appearing for the third respondent and
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W.P(MD)No.7387 of 2016
the learned counsel appearing for the respondents 1 and 2.
6. The learned counsel for the petitioner would rely upon Rules
575 and 576 of Tamil Nadu Medical Board, under which a person cannot
be referred to second medical opinion without the permission of the
Government and same are extracted here-under:
“575.Appeal to a Medical Board: Subject to provisions of the
paragraphs 490b and 568 above an appeal to a medical board against a
Medical Officer's certificate should be allowed only at the request of
Head of the Department and subject to the approval of the Director of
Health Services and Family Planning / Director of Medical Education.
576.Appeal to a second Medical Board: There should no right
of appeal from a Medical Board as it is not always possible to improve
on the original Board, and as if it would be difficult to declare even if a
second board is constituted, that the second Board is better than the first
and should therefore carry more weight. But, if the Government are
satisfied on the evidence produced to them of the possibility of an error
of judgment in the decision of the first Board, it would be open to
Government to allow an appeal to a second Board”.
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W.P(MD)No.7387 of 2016
7. It is not the case of the second respondent that they have
obtained permission from the Government to refer the petitioner to the
opinion of the second medical board. Reference to the opinion of the
second medical board itself is illegal as at that point of time, the second
respondent had not obtained the permission from the Government. There
is not even an indication reflecting reasons, as to what propelled the
administration to refer the petitioner for second medical opinion. In other
words, whether the report suffered from any infirmity or whether it was
suspicious or it suffered from non-consideration of materials etc.
8.The learned counsel for the petitioner has contended that
driving a person to repeated opinions of the Medical Board without
passing any final order is illegal.
9. Accordingly, the impugned order directing the petitioner to
subject himself for the opinion of the Medical Board of the third
respondent is hereby set aside.
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W.P(MD)No.7387 of 2016
10. The respondents 1 and 2 are directed to act upon the
opinion of the First Medical Board and treat him as a person under
disability and to provide all the benefits which are available to him under
Section 47(1) of Persons with Disability (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1985.
11.The respondents 1 and 2 are also directed to provide the
petitioner with alternative employment with pay protection within a
period of two weeks from the date of receipt of a copy of this order.
12.Since the impugned order is quashed, the petitioner is at
liberty to give a representation to the respondents 1 and 2 seeking back
wages, if any. The respondents 1 and 2 will consider the same and pass
orders on merits and in accordance with law, within a period of two
weeks from the date of receipt of the representation.
13. Accordingly, this writ petition is allowed on the above
terms.
14. No costs.
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W.P(MD)No.7387 of 2016
15. Consequently, connected Miscellaneous Petition is closed.
24.07.2023
Index : Yes / No
NCC : Yes / No
CM
To,
1.Tamil Nadu State Transport
Corporation (Madurai) Ltd.,
Represented by its Managing Director,
Madurai.
2.The General Manager,
Tamil Nadu State Transport
Corporation (Madurai) Ltd.,
Madurai Region,
Madurai.
3.Govt.Rajaji Hospital,
Represented by its Dean,
Madurai – 625 020
4.Government Eye Hospital and Regional
Eye Research Institution,
Egmore, Chennai – 600 008.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.7387 of 2016
BATTU DEVANAND, J.
CM
W.P.(MD)No.7387 of 2016
and W.M.P(MD)No.6215 of 2016
24.07.2023
https://www.mhc.tn.gov.in/judis
