P. Srinivasappa vs Union of India

Mr. Mohan M. Shantanagoudar, J.—The petitioner joined the service at second respondent-Central Industrial Security Force (''CISF'' for short) as a Constable on 23-12-1988; his services were confirmed on 23-12-1989; the petitioner was deputed to work at Ministry of External Affairs, New Delhi and was posted to Indian Embassy, Mexico in the month of December 1999. On 5-10-2000, the petitioner was diagnosed with the disease called Hepatitis B+ at Mexico; he was medically examined and he started taking treatment from that day. Subsequently, in the year 2003, the petitioner was transferred to Indian Embassy, Athens, Greece. Till 10-10-2005, he continued at Athens, Greece and on which date, he made a representation to transfer him to his home town since he was suffering from the aforementioned disease. The Head of Chancery (the first Secretary) recommended his case of transfer to CISF, New Delhi and accordingly, the petitioner was transferred from Athens to Tuticorin, Tamil Nadu, India on 19-4-2006. The petitioner was granted leave for one month from the Ministry of External Affairs on 20-4-2006. However, the petitioner gave representation on 22-5-2006 praying for one year medical leave based on the medical report, inasmuch the petitioner needs treatment. By the time, he came to know that he is posted to NLC, Neyveli. On 10-8-2006, the petitioner made one more representation for re transfer from CISF Unit, NLC, Neyveli to Bangalore since his native place is within Kolar District of Karnataka State (Bangalore, being the nearer place to his native place). He made such representation with a view to continue with treatment from Expert Doctors such as Gastroenterologist, Hepatologist etc. He had been making representations for extension of leave and re transfer to Bangalore. But the leave was not extended in his favour. Neither he was granted extension of leave nor he was posted to Bangalore. Ultimately, on 4-8-2008, a charge-sheet came to be issued against him on the ground of absentism. The enquiry was conducted, wherein the petitioner remained absent. Based on the enquiry report, the Disciplinary Authority has dismissed the petitioner from service on 25-2-2009. The appeal filed by the petitioner before the Departmental Appellate Authority came to be rejected. Revision also came to be rejected. As against such orders, this writ petition is filed.

It is the contention of the petitioner although that he has been suffering from an incurable disease Hepatitis B+ and he has been taking treatment continuously; he is from Kolar District of Karnataka State and thus, he requested for transfer to Bangalore from Tamil Nadu. It is not in dispute that the petitioner has worked from 1988 till 2006 in the places wherever he is posted. As mentioned supra, he was transferred to Indian Embassy, Mexico and thereafter transferred to Indian Embassy, Athens, Greece. While working in those countries, he started suffering from the disease called Hepatitis B+. The said disease has remained uncured till this day.

Along with the writ petition, the petitioner has produced the certificate issued by the District Hospital, Kolar dated 20-2-2008 vide Annexure-K, which reads as under;

"Sri P. Srinivasappa S/o Puttappa, aged 39 years appeared before the Board of Medical Authorities of District Government Hospital, Kolar for screen medical opinion as per the directions from his department i.e. (C.I.S.F.) T.P.T., Tuticorin, T.N. After careful examination all the medical records and the health of the patient the board is of the opinion that Mr. P. Srinivasappa, aged 39 years is suffering from Chronic Hepatitis ''B'' HbSAg (+ve) compensaleaded stage and is under required constant medical care of Dr. S.S. Shankar Kumar, MD, for betterment of his health and follow of advice and continue the therapy."

(emphasis supplied)

From the aforementioned certificate, it is dear that the petitioner was examined by the Medical Authorities, District Hospital, Kolar, as per the directions issued by his Department i.e. CISF, Tuticorin, Tamil Nadu. It is certified by the Hospital that the petitioner is suffering from Chronic Hepatitis ''B'' HbSAg (+ve) compensaleaded stage. It is further certified that the petitioner requires constant medical care and therapies. As mentioned supra, the petitioner is in continuous treatment.

During the pendency of this writ petition, this Court in order to satisfy its conscience referred the petitioner to NLC Hospital, Neyveli (Hospital of the Department) based on the submission made on behalf of the respondents. At that point of time, the respondents contended before this Court that they do not want to rely on the certificate issued by the District Hospital, Kolar and they want to get the petitioner examined once again at NLC Hospital, Neyveli. Accordingly, the petitioner was referred to NLC Hospital, Neyveli. However, the Chief General Superintendent/Medical, NLC Hospital, Neyveli has clarified that the NLC General Hospital, Neyveli being secondary level hospital, has not developed the capabilities in super speciality segments like Gastroenterology and Urology and as such specialist pertaining to those areas is not available in the hospital. Accordingly, the petitioner was referred to Apollo Hospital, Chennai as per the submission of learned Advocate for the respondents. The Doctor at Apollo Hospital, Chennai has examined the petitioner and issued certificate dated 23-8-2014. The said certificate is annexed with number of reports. The certificate date 23-8-2014 issued by the Apollo Hospital reads thus:

"This is to certify that Mr. Srinivasappa has been under treatment for chronic hepatitis B infection. He has compensaleaded chronic liver disease. He has to continue long term treatment for virus and needs close monitoring by Gastroenterologist every 3-6 months."

From the above, it is amply clear that the petitioner is suffering from a pronged disease relating to chronic Hepatitis B infection. He has compensaleaded chronic: liver disease. He has to continue for long term treatment for virus and needs close monitoring by Gastroenterologist. According to the petitioner, he is taking treatment in Bangalore, wherein the facilities for treatment by the specialist on the subject are available.

Though the number of reliefs are sought for by the petitioner in this writ petition, during the course of arguments it is submitted by the learned Counsel for the petitioner that the petitioner may be permitted to retire on medical grounds so that he may get pension as well as medical treatment in future life. While submitting so, the learned Counsel for the petitioner undertakes that the petitioner is ready to forego all back wages except continuity of service till this day. Even in an earlier occasion, i.e. on 30-10-2015, the learned Counsel for the petitioner had made same submission that the petitioner may be permitted to retire on medical grounds and that he is ready to forego back wages except continuity of service. On that day, the learned Advocate for the respondents submitted that the decision in that regard needs to be taken by the Director General, CISF, New Delhi. Thus, the matter was adjourned for getting instructions from the concerned Director General, CISF, New Delhi.

When the matter is being heard today, Sri Ashok Naik, learned Advocate for the respondents submits that the decision is not yet taken by the respondents, inasmuch as the respondents want to get the petitioner medically examined once again. According to him, a notice was also issued by the Department to the petitioner to undergo medical examination at CIFS-NISA Hospital, Hyderabad and that the petitioner has not received the notice. Such submissions on behalf of the respondents cannot be accepted.

Looking to the facts of the case, in my considered opinion, the respondents are not justified in repeatedly calling upon the petitioner to undergo medical examination. On more than two occasions, the petitioner has undergone medical examination in the hospitals named by the respondents. Undisputedly, he is suffering from a pronged disease relating to chronic Hepatitis B infection. He has compensaleaded chronic liver disease. He has to continue for long term treatment for virus and needs close monitoring by Gastroenterologist. In this view of the matter, interest of justice would be met if the petitioner is permitted to retire on medical grounds. No useful purpose will be served in continuing him in service any more, having regard to the facts and circumstances of the case.

Accordingly, following order is made:

(i) The order of termination, terminating the petitioner from duties is quashed.

(ii) The respondents are directed to permit the petitioner to retire on medical grounds.

(iii) The petitioner is not entitled for back wages from the date he remained absent to duties till this day.

(iv) He is also not entitled to any other monetary benefits in respect of the said period. However, he is entitled to continuity of service i.e. only for pensionary benefits.