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2010 Supreme(Mad) 2239
High Court of Judicature at Madras
K. CHANDRU
K. Meenal
Versus
Appointing Authority, DDMS, Headquarters, ATNK & K Area, Island Grounds, Chennai & Others
W.P.No.13962 of 2009 & M.P.Nos.1 and 2 of 2009
Decided On : 08-06-2010
For the Petitioner:C. Umashankar, Advocate.
For the Respondents: G. Jeganathan, CGSC.
The central legal point established in the judgment is that the termination of an employee on the grounds of medical unfitness must comply with the provisions of the Disabilities Act, particularly Section 47, which prohibits discrimination in government employment based on disability.
Headnote:
Termination - Medical Unfitness - Disabilities Act - Section 47
Fact of the Case:
The petitioner's services were terminated on the ground of medical unfitness due to partial blindness. The petitioner challenged the termination, contending that it was against the provisions of the Disabilities Act.
Finding of the Court:
The court found that the petitioner's termination was not in compliance with Section 47 of the Disabilities Act, which prohibits dispensing with or reducing an employee's rank due to disability without providing alternative employment.
Issues: The main issue was whether the petitioner's termination was in violation of the Disabilities Act, particularly Section 47.
Ratio Decidendi: The court relied on the provisions of the Disabilities Act, specifically Section 47, and the interpretation of similar provisions in the judgment of Bhagwan Dass v. Punjab State Electricity Board (2008) 1 SCC 579 to conclude that the petitioner's termination was not justified.
Final Decision: The writ petition was allowed, the impugned order was set aside, and the respondents were directed to adhere to the provisions of the Disabilities Act, particularly Section 47, and act accordingly.
1. The petitioner has come forward to challenge the order dated 05.05.2004 passed by the first respondent, wherein and by which her services were terminated on the ground that the Medical Board in its examination on 18.09.2003 was of the opinion that her eyesight is unfit for any job.
2. In the writ petition, notice of motion was ordered on 22.07.2009. Subsequently, after the formation of the Armed Forces Tribunal, the matter was transferred to the Tribunal. But however, the Tribunal has sent back the matter to this Court stating that it is not a matter covered by the provisions of Armed Forces Tribunal Act. However, without going into the controversies raised, this Court decided to hear the matter and directed the counsel for the respondents to file a counter.
3. Accordingly, Mr.G.Jehanathan, learned Central Government Standing Counsel filed a counter affidavit dated 20.10.2009.
4. The facts leading to the termination of the petitioner are as follows:
The petitioner was selected for appointment to the post of Ward Sahayika in the Military Hospital by an order dated 18.07.2001. She was asked to produce a medical certificate as a pre-condition. The petitioner produced a medical certificate dated 19.07.2001 stating that she does not suffer from any weakness, infirmity for discharging the duties of a Ward Sahayika. Subsequently, an appointment order dated 14.08.2001 was given to the petitioner. It was prescribed that she will be on probation for a period of two years from the date of appointment. After joining duty, she applied for leave from 06.09.2002 to 15.09.2002. Thereafter, she applied for extraordinary leave on medical certificate with effect from 16.09.2002 to 28.02.2003 as she was suffering from TB Meningitis. Even after the expiry of the leave, she did not join duty and remained absent till 31.05.2003. She reported for duty on 01.06.2003 without any fitness certificate and it was also observed that she was partially blind and was unable to perform her duties.
5. The petitioner was directed to appear before a Standing Medical Board at Government Kasturba Hospital for Women and Children, Chennai -5. The Medical Board found that she was unfit for any job. But however the petitioner was not satisfied and requested for another eye test by any other specialist. Though she was directed to produce a fitness certificate from any other authorised eye specialist, she could not do so. Therefore, her services were terminated on medical grounds with effect from 05.05.2004.
6. The petitioner preferred a writ petition being W.P.No.7872 of 2007 before this Court. The prayer in the writ petition was to consider her representation dated 15.09.2006. This Court declined to entertain the writ petition wherein she sought for a second examination by a Medical Board. This Court gave liberty to the petitioner to challenge the order of termination. Hence, the present writ petition.
7. The petitioner contended that her termination was against the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short Disabilities Act) more particularly it was against Section 47 of the Act. The petitioner also contended that since the third respondent had denied the existence of a provision to render a second medical opinion, she herself got examined by M/s.Jothi Eye Hospital and got a certificate that she has capable of performing the duties attached to the post held by her.
8. In the counter affidavit filed by the respondents, there is no denial with reference to the application of the Disabilities Act. But it was contended that the petitioner with her present eyesight cannot perform the duties attached to the post of Ward Sahayika which includes assisting the Medical Officer, guiding patients, to accompany female patients for movement inside the hospital, washing injection vials and vessels, assisting the bed patients for changing the bed posture for prevention of bedsores
