A.Raja v. Tamil Nadu State Transport
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE BATTU DEVANAND W.P.(MD)No.7385 of 2016 and W.M.P(MD)No.6211 of 2016 A.Raja
...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 ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, seeking for the issuance of Writ of Certiorari calling for the records relating to the proceedings of the 2nd respondent in Admn/A3/8076/2015 dated 03.03.2016 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
O R D E R
This Writ Petition has been filed seeking a Writ of Certiorari to quash the proceedings of the 2nd respondent in Admn/A3/8076/2015 dated 03.03.2016
2. The case of the petitioner is that since 31.07.1991, he served as Conductor in the respondent Corporation. While the petitioner on duty, he suffered with chronic lumbosacral dis lesion and he was referred to the medical board of the third respondent hospital by the second respondent. The medical board sent a certificate dated 18.01.2000 stating that the petitioner was unfit for the post of Conductor. Thereafter, the petitioner was terminated from service on medical grounds. The petitioner filed W.P.No.
11792 of 2003 and pursuant to an interim order passed in that Writ Petition, the petitioner was re-instated as Canteen In-charge in the 1st respondent Corporation.
3. While that being so, the impugned order was passed stating that the second respondent is referring the petitioner to the third respondent hospital to ascertain the physical fitness and percentage of disability to work as 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 Conductor. 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 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".
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.
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.
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
BATTU DEVANAND, J.
CM W.P.(MD)No.7385 of 2016 and W.M.P(MD)No.6211 of 2016 24.07.2023