T v Rao Vs South Eastern Coalfields Ltd.

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2024:CGHC:45198

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 769 of 2019

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1 - T V Rao S/o Late Chalamaiah Aged About 61 Years R/o Flat No. G 4, Sanskriti Heights Near Corporation Bank Netaji Subhash Chandra Bose Road Tanuku, District West Godavari Andhra Pradesh., District : West Godavari, Andhra Pradesh

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... Petitioner

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versus

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1 - South Eastern Coalfields Ltd. Through Its Chairman Cum Managing Director, Seepat Road, Bilaspur Chhattisgarh. Pin 495006, District : Bilaspur, Chhattisgarh 2 - General Manager Personnel / Executive Establishment, South Eastern Coalfields Ltd. Seepat Road, Bilaspur Chhattisgarh. Pin 495006 3 - Chief Of Medical Services South Eastern Coalfields Ltd. Seepat Road, Bilaspur Chhattisgarh. Pin 495006

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... Respondents

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For Petitioner : Mr. Gary Mukhopadhyay, Advocate For Respondents : Mr. Pankaj Agrawal, Advocate.

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: Mr. Pankaj Agrawal, Advocate.

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SB: Hon'ble Shri Parth Prateem Sahu, Judge

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ORDER ON BOARD

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20/11/2024

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This petition has been filed by the petitioner seeking for the following

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relief(s):-

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“10.1. That, the Hon'ble Court may kindly be pleased to call for entire records pertaining to the matter with respect to the petitioner.

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10.2 This Hon’ble Court be pleased to quash the impugned order dated 5/6.9.2018 Annexure-P/1.

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NISHA Digitallysigned by DUBEY NISHADUBEY

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10.3 This Hon’ble Court may kindly be pleased to quash the impugned letter dated 19.11.2018

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Annexure-P/2.

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10.4 This Hon’ble Court may kindly be pleased to direct the respondents to make full payment for the period of 6 months from 26.10.2016 to 25.04.2017.

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10.5 This Hon’ble Court may kindly be pleased to direct the respondents to pay interest on the full payment for the period of 6 months from 26.10.2016 to 25.04.2017.

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10.6 Cost of this petition be awarded to the petitioners.

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10.7 Any other relief/reliefs, order/orders, direction/directions and writ/writs as may be deemed fit by the Hon’ble Court in the facts and circumstances of the case.”

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Learned counsel for petitioner submits that petitioner while working on the post of Assistant Manager (excavation) with the respondents suffered with medical ailment in his head for which he underwent treatment in the hospital of the respondent and after considering nature of disease to be Neurology / CVA, the respondent referred petitioner to Yashoda Hospital, Secunderabad vide letter dated 28.9.2016. Petitioner thereafter got himself examined by the expert doctors of Yashoda Hospital and he was advised for MRI of brain. In MRI report, it is mentioned that “Scattered flair hyper-intensity in bilateral deep white matter and corona radiate-small vessel ischemia.” On 24.11.2016 petitioner submitted an application through proper channel for grant of six months special leave as per Rule 7.7 of Coal India Executive Leave Rules, 2010 (for short ‘the Rules, 2010’). After availing special leave, petitioner appeared in the office on 10.4.2017 for joining duties, however, considering that period of leave of the petitioner was more than 30 days, the matter was referred to the Deputy General Manager for sanction of leave. The Deputy General Manager, without considering that application for grant of special leave submitted by petitioner remained pending, has erroneously took a decision on the leave application of the petitioner, asked the petitioner to join with immediate effect, with adjustment of the absence period from balance leave and the remaining period to be treated as “dies-non”.

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Petitioner thereafter on 26.10.2017 has again submitted representations to the authority concerned for sanction of special medical leave under Rule 7.7 of Rules, 2010. However, decision on the representation/ application for grant of special leave was taken only on 5/6.9.2018 and rejected the same. Reason assigned for rejecting application is contrary to the Rule 7.7 of Rules, 2010. While rejecting the application, respondent authority has observed that no specific rule prevails for brain disorder for executive of CIL, which on the face of Rule 7.7 is erroneous. Petitioner thereafter again submitted an application for review of the decision on the special medical leave, which was considered and decided on 19.11.2018. In the said decision it has only been mentioned that petitioner at any time has not taken inpatient treatment for Scattered flair hyper-intensity in bilateral deep white matter and corona radiata-small vessel ischemia. It is contention of counsel for petitioner that rule only mentions the nature of disease with which an employee is suffering for their entitlement for special leave. In the rules, it is no where specifically mentions that the employee should be entitled for special leave only when he took treatment as inpatient for the diseases specified therein. He submits that the respondent authorities have not considered the nature of disease with which the petitioner was suffering and will fall within the specified disease in Rule 7.7 “brain disorder”. Petitioner has obtained information from the VMMC & Safdarjang Hospital, which is hospital of Government of India and as per the information provided Department of Neurology there is clear mentioned that the Cerebral Ischemia affects the brain. Copy of the information is filed as Annexure-P/24, which is dated 5.9.2018. Petitioner has also obtained information under Right to Information Act from All India Institute of Medical Sciences, Cardio-Neuro Centre, Ansari Nagar, New Delhi and the information provided by the appellate authority by Dr. Kameshwar Prasad, Professor & Head, Department of Neurology, Neuro Science Centre AIIMS. To the question” Whether Cerebral Ischemia comes under Brain

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Disorder or not?” the expert has answered as “Yes”.

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From the aforementioned two information provided under Right to Information Act from the Neurology Department of two renowned Hospital of Government of India at Delhi, it clearly reveals that the disease with which petitioner was suffering falls under the specified disease “Brain Disorder”. The Medical Board which was constituted by the respondent has not considered this aspect and had arbitrarily rejected the application submitted by the petitioner.

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Learned counsel for respondent opposes the submission made by counsel for petitioner and would submit that in Annexure-P/2 claim of the petitioner was considered in detailed. The authority has consider the findings of the Medical Board and as per the examination of the Medical Board, petitioner was found “stable vitals with all movements of limbs are normal and motor power Grade V. He is doing his routine work normally. Hence, special leave cannot be recommended to this patient.” He also submits that in the said decision dated 19.11.2019, the authority has also considered that the petitioner has not taken treatment for Cerebral Atrophy with small vessel ischemia Gr.-1 as inpatient, which was also one of the consideration for rejecting of the claim of the petitioner for grant of special leave. He submits that to consider the claim of the petitioner for grant of special leave, twice medical board was constituted and on both the occasion the Medical Board has not recommended for grant of special leave, therefore, petitioner has not entitled for the same.

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Heard learned counsel for the parties and perused the documents placed on record.

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Perusal on the documents placed on record in particular Annexure-P/3 and Annexure-P/4 would show the nature of disease with which the petitioner was suffering. Respondent No.3 upon primary examination of petitioner diagnosed him with Neurology/CCA disease and referred him for better

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treatment to higher hospital i.e. Yashoda Hospital, Secunderabad. In the Yashoda Hospital, Secunderabad, looking to the nature of disease, screening MRI of brain of petitioner was done on 19.10.2016 and as per findings of MRI of brain, the petitioner was diagnosed with :”Scattered flair hyper-intensity in bilateral deep white matter and corona radiata- small vessel ischemia.”

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The question which arises for consideration before this Court, at this stage, in view of the decision taken by the respondent vide Annexure-P/1 and Annexure-P/2 is whether the disease with which the petitioner was found suffering falls within category of ‘Brain Disorder’ which is categorized as specified disease under Rule 7.7. of Rules, 2010. Respondent no where considered this aspect whether the nature of disease with which petitioner was suffering falls within the Brain Disorder or not. On the other hand, in Annexure-P/1 the authority opined that no specific rule prevails for Brain Disorder for executive of CIL. Said observation and opinion of the authority on the face of Rule 7.7 of Special leave under Rules 2010 appears to be erroneous. Under Rule 7.7 along with other nature of diseases ‘Brain Disorder’ is also mentioned as the specified disease and for an employee suffering with which to be entitled for special leave.

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Rule 7.7 special leave does not specify that the employee, who is taking treatment as inpatient, is only entitled for special leave. Infact Rule 7.7 only mentions that when the executive is suffering from following diseases, on production of medical certificate from a authorised medical officer, his special leave will be sanctioned for a total period not exceeding 6 months during entire service period. Rule 7.7 is extracted below for ready reference”-

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“ 7.7 Special Leave - Special leave on full pay for a total period not exceeding six months during the entire service may be granted only when the executive is suffering from the following diseases on production of medical certificate from authorised medical officer.

T.B.

Cancer

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Leprosy Severe Heart Attack Paralysis By-pass/Open Heart Surgery Renal disease AIDS Brain dis-order Cirrhosis/Liver Transplantation Hepatitis ‘B’ or ‘C’ Any other disease with recommendation of Director (Personnel) and approved by the Chairman may add to this list.”

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Petitioner along with writ petition has also enclosed the information sought under Right to Information Act, 2005 from the two hospitals of Government of India. Firstly, information is sought from VMMC & Safdarjang Hospital, Department of Neurology on 5.9.2018. The question put and the answer given under RTI Act is extracted below for ready reference:-

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“Question: Whether cerebral Ischemia comes under brain disorder or not?

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Answer: Cerebral Ischamia affects the brain.

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10.In another opinion supplied by the All India Institute of Medical Sciences, Cardio-Neuro Centre, Ansari Nagar, New Delhi by Professor & Head, Department of Neurology, Neuro Science Centre AIIMS. the question put and the answer given is also extracted below for ready reference.”-

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“ Question: Whether Cerebral Ischemia comes under Brain Disorder or Not?

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Answer:Yes.”

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From perusal of both the information, it is reflecting that experts have categorically opined that the disease with which petitioner has been found suffering on his medical examination is “Cerebral Atrophy with small vessel ischemia ”. Cerebral Ischemia affects the brain and further the said disease comes under the Brain Disorder. This aspect remain unconsidered by the

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respondents. They have not considered that the nature of disease with which petitioner has been found suffering would fall under Brain Disorder or not but took decision considering that no specific rule prevails for brain disorder for executive of CIL, and in review, the decision is based on consideration that pettiioner did not take inpatient treatment, therefore, in the opinion of this Court, decision taken by the respondents on the application for grant of special leave submitted by the petitioner vide Annexure-P/1 & Annexure-P/2 is not sustainable in the eyes of law. Accordingly, it is set aside. Respondents are directed to reconsider the claim of the petitioner for grant of special leave considering all the documents which were filed along with writ petition afresh and thereafter to pass an order afresh on the application for grant of special leave submitted by the petitioner, in the light of the Rules of 2010. Let this exercise for reconsideration on the application for grant of special leave be completed by the respondents within a period of two months from the date of receipt of the order.

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12.Certified copy as per rules.

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Sd/-

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(Parth Prateem Sahu) JUDGE

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NIsha

T v. Rao v South Eastern Coalfields Ltd.

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T v. Rao v South Eastern Coalfields Ltd.

Case brief

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