N. Loganathan vs Commissioner, Thiruvottiyur Municipality

Ramanuiam, J.—This is an unfortunate case where an employee of a Municipality was kept at bay for nearly seven years without permitting him to join duty.

The Petitioner herein was working as a Bill Collector in Thiruvottiyur Municipality. He applied for medical leave for a period of one month along with a medical certificate to and avail of the leave even though he did. not receive any communication, from the Municipality sanctioning the medical leave applied for After the expiry of the leave applied for the Petitioner reported for duty. But the Municipality did not allow him to join duty, but wanted him to appear for medical examination as regards his fitness to join duty on 5th December 1976 to the Surgeon, Second District, Government Stanley Hospital, Madras. Since 5th December 1976 happened to be a holiday, he was actually examined medically by the said doctor on 16th December 1976, Thereafter, the Petitioner was not informed of the result of the Medical examination. The doctor who examined the Petitioner in the Government Stanley Hospital has reported to the municipality that the Petitioner is not fit for duty and he is to be permanently invalidated . However as the Petitioner was insisting on joining duty the Municipal Commissioner wrote to the Superintendent Government General Hospital informing about the medical opinion given by the doctor in the Government Stanley Hospital and the necessity for examining the Petitioner by a Medical Board. In pursuance of the said communication dated 31st October 1979, a Medical Board was constituted by the Dean, Government General Hospital, and it examined the Petitioner on two date 16th November, 1979 and 24th November, 1979. Thereafter, the Medical Board sent a report to the municipality stating that the Petitioner is fit enough to join duty. Thereafter by a communication dated 29th July, 1980, the Municipal Commissioner sought clarification from the Director of Medical Education on the report given by the Medical Board. In that letter, the report given by the Surgeon, Second District Government Stanley Hospital, Madras, and the report given by the Medical Board constituted by the Dean, Madras General Hospital, have been referred to and practically, a third opinion has been sought from the Director of Medical Education. A copy of this letter has also been sent to the Petitioner.

Thereafter, it appears that the Municipal Commissioner wanted to file an appeal against the report of the Medical Board. But the Government appears to have expressed as opinion that no appeal is necessary as the opinion of the Medical Board which has invalidated the Petitioner can be accepted and the opinion of the second Medical Board cannot be deemed to be valid. The Government in giving that view, seems to have proceeded on the basis that even the first medical opinion was given by a Medical Board, ignoring the fact that it was not by a Medical Board but it was by a doctor, the Surgeon, Second District, Government Stanley Hospital and that there was only one medical examination by the Medical Board. Based on the opinion said to have been given by the Government, the Municipal Commissioner has passed the impugned order, dated 8th March, 1982 compulsory retiring the Petitioner from service on medical ground with effect from 23rd December, 1976. The absence from duty up to the date of compulsory retirement has been ordered to be treated as leave to which the Petitioner is eligible, The Petitioner has filed the above writ petition for the issue of a writ of certiorarified mandamus to quash the order of the Municipal Commissioner, the first Respondent, dated 8th March, 1981 and to direct the Respondents to reinstate the Petitioner.

As evident from the facts set out above, the impugned order, dated 8th March, 1982 passed by the first Respondent compulsory retiring the Petitioner from service is with effect from 23rd December 1976. It is well established that an order of dismissal or termination of service by compulsory retirement cannot be passed so as to have a retrospective effect. This legal position cannot be disputed. Therefore, the impugned order so far as it, takes effect from 23rd December, 1976, cannot legally be upheld . The question then is whether the impugned order, dated 8th August, 1982, can he effective in feature.

As already stated, it is seen from the impugned that the basis for compulsory retiring the Petitioner that the basis for compulsory retiring the Petitioner from service is the Respondent by the Surgeon, Second District, Government Stanley Hospital, Madras, who has opined that the Petitioner is not fit for duty and that he is to be permanently invalidated. However from the facts set out the Municipal Commissioner was not satisfied with the opinion of the Surgeon Second District, Government, Stanley Hospital, and therefore he wanted as opinion from the Medical Board constituted by the Dean of the Madras General Hospital,. The Medical Board has, in fact, found after examining the Petitioner on two dates 16th November, 1979 and 24th November, 1979 that the Petitioner is fit enough to join duty. Since that opinion is in favour of the Petitioner, the Respondent who passed the impugned order has chosen to ignore the same. It must be remembered that the second opinion was sought by the municipality from the Medical Board not at the instance of the Petitioner but at its own instance, for, it wanted to have a second opinion on the question of Petitioner''s fitness to join duty. The Medical Board in this case is said to have consisted three doctors in the General Hospital and it was constituted by the Dean and they have given a medical report to the effect that the Petitioner is fit enough to join duty. While there are two opinions which the municipality itself obtained, it is not open to the municipality to ignore the report of the Medical Board and to rely on the initial medical report given by a single doctor, the Surgeon Second District Government Stanley Hospital. Normally, the medical report of a Medical Board can be taken to override the opinion given by one doctor. As a matter of fact, the Impugned order not only does not refer to the report of the Medical Board but it does not also give any reason as to why the report given by the Medical Board was not acceptable to the Municipality. The mere fact that the report is in favour of the Petitioner cannot be a ground for the municipality to ignore the same when an opinion from the Medical Board was sought by the municipality, itself and not at the instance of the Petitioner. When there are two opinions, one by a single doctor and the other by a Medical Board consisting of three doctors in the General Hospital, the report of the Medical Board should be taken to be conclusive. Therefore, the Respondent Municipal Commissioner has erred in relying on the original medical report given by the Surgeon Second District,. Government Stanley Hospital, Madras, which is contrary to the later opinion given by the Medical Board consisting of three doctors in the General Hospital who have given a unanimous report that the Petitioner is fit enough to join duty. Hence the order passed by the Municipal Commissioner compulsory retiring the Petitioner cannot legally be sustained.

In this view of the matter, the impugned order is quashed. The result of quashing the impugned order is that the Petitioner should be taken to continue in service. Hence no direction is necessary for reinstatement. The writ petition is allowed. The Petitioner will be entitled to his costs from the first Respondent.