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2018 DIGILAW 106 (GAU)

AJIT DAS v. STATE OF ASSAM

2018-01-23

HRISHIKESH ROY

body2018
JUDGMENT/ORDER : 1. Heard Mr. H.R.A. Choudhury, the learned Senior Counsel appearing for the petitioner. The respondents are represented by Mr. D. Nath, the learned Addl. Sr. Government Advocate, Assam. 2. The petitioner was a Constable with the 6th A.P. Battalion, Kathal in Cachar district and his grievance relates to the order of leave without pay, for the absence period from 22.4.2007 16.10.2008, by denying him for the requested 18 months Extraordinary T.B. Leave under Rule 14 (2) (iii) of the Leave Rules 1934 (hereinafter referred to as "the Leave Rules"). On 20.4.2007 the petitioner was diagnosed to be suffering from Pulmonary Tuberculosis at the District T.B. Control Society, Karimganj but after his recovery the Constable was declared fit to resume his duty w.e.f 15.10.208. But the Medical Certificate furnished from the District T.B. Control Society, Karimganj were not found acceptable on the basis of the opinion of the Standing Medical Board, who examined the petitioner (after he recovered), on 20.10.2008 and 19.1.2009 respectively. The negative report dated 21.2.2009 (Annexure-9) was in a sense, inconclusive, as it was opined that at the stage of examination, the petitioner was not suffering from T.B. However, the doctors observed that Tuberculosis at an earlier stage cannot be ruled out since the patient was not examined, during the relevant period. 3. Mr. H.R.A. Choudhury, the learned Senior Counsel submits that the petitioner was detected to be suffering from Tuberculosis in April, 2007 and the constable gave immediate intimation to the Commandant of the 6th A.P. Battalion through his letter dated 24.5.2007 (Page-22). The request for Extraordinary T.B. Leave for the patient was not immediately considered but the Commandant under his letter dated 25.9.2007 (Annexure-4) informed the Constable that, the decision is taken to obtain Medical Opinion for granting the Extraordinary T.B. Leave and further action will be intimated to the petitioner. The Counsel projects that while the constable was under treatment, no such official examination was done but only after he was cured and declared to be fit to resume duty w.e.f. 15.10.2008, the Commandant of the 6th A.P. Battalion, arranged for examination of the patient on 20.10.2008, by the Standing Medical Board at the Silchar Medical College and Hospital. Accordingly the petitioner argues that the inconclusive report of the Standing Medical Board after the patient had recovered, cannot be an acceptable cause for denying the Extraordinary T.B. Leave, to the petitioner. 4. Accordingly the petitioner argues that the inconclusive report of the Standing Medical Board after the patient had recovered, cannot be an acceptable cause for denying the Extraordinary T.B. Leave, to the petitioner. 4. On the other hand, Mr. D. Nath, the learned Addl. Sr. Government Advocate refers to the averments in the counter affidavit filed by the Commandant, 6th A.P. Battalion on 22.4.2010 to project that a request letter was sent by the Commandant on 25.9.2007 to the Principal-cum-Chairman of the Sanding Medical Board, Silchar Medical College, to verify whether the Constable is entitled to the special T.B. leave. But no response was received from the Principal of the Silchar Medical College. Thus examination of the patient by the Medical Board could not be done, while he was ailing. But subsequently on the basis of the reminder letter dated 9.9.2008 sent by the Commandant, the Standing Medical Board was constituted and that Board doctors examined the patient on 20.10.2008. Since inconclusive opinion was given on the illness of the petitioner, the Government Advocate submits that Extraordinary T.B. Leave was rightly refused by the authorities. 5. As was noted earlier, the petitioner was diagnosed with suffering from T.B. in April, 2007 and was under treatment till he was declared to be fit to resume his duty (w.e.f. 15.10.2008). This was certified by the competent authority i.e. the District T.B. Officer, Karimganj, under the Certificate dated 14.10.2008 (Annexure-7). While he was ailing, the patient was not produced before the Standing Medical Board and they could examine the constable only on 20.10.2008. But by that time, the petitioner had recovered from his illness was found fit to rejoin duty. Thus the competent Medical Board had no occasion to examine the petitioner when he was suffering from T.B. 6. This must be the reason for the inconclusive conclusion drawn by the Medical Board. The Medical Board however questioned the genuineness of the Medical Reports produced by the patient as the concerned OPD Slips did not bear the Registration Number, for the patient. Moreover, the nature of the treatment was also questioned by the Board doctors. Notwithstanding these infirmities, the Medical Board doctors observed that T.B. at an earlier stage for the petitioner cannot be ruled out, on the basis of their examination of the already recovered patient and the medical records. Moreover, the nature of the treatment was also questioned by the Board doctors. Notwithstanding these infirmities, the Medical Board doctors observed that T.B. at an earlier stage for the petitioner cannot be ruled out, on the basis of their examination of the already recovered patient and the medical records. The employer however based their decision to deny the extraordinary T.B. Leave because of such open ended conclusion, of the Standing Medical Board. 7. Any Government servant suspected to be suffering from T.B., should be examined at the nearest T.B. clinic and only when he is declared to be fit, he is entitled to resume his duties. The Leave Rules permit a T.B. patient to also receive treatment at his residence. The Government servant is however required to produce a certificate signed by the specialist to claim the Extraordinary T.B. Leave, under Rule 14 (2) (iii) of the Lave Rules. 8. In the instant case, the District T.B. Officer, Karimganj had examined and diagnosed in April, 2007 that the constable is suffering from T.B. The local centre which is otherwise competent, had certified the ailment of the patient since the petitioner was under his treatment. If those documents are suspected to be not-genuine, the authorities could have arranged for cross-verification, from the District T.B. Officer. When the patient was examined only after recovery and symptoms of T.B. could not be detected at the recovered state, the Standing Medical Board could have also independently examined the District T.B. Doctor, who actually treated the patient. This could have been opted to confirm the genuineness of the Medical Certificate produced by the constable. But these options were not explored and only because of the inconclusive report dated 21.2.2009, the Extraordinary T.B. Leave was denied and instead, leave without pay (from 22.4.2007 16.10.2008), was granted, by the Commandant of the 6th A.P. Battalion. 9. Whenever the Extraordinary T.B. Leave is applied, the employer is entitled to have the patient examined by the Standing Medical Board and in fact this is what was suggested on 25.9.2007 by the Commandant, when he wrote to the Principal of the Silchar Medical College to arrange for medical examination of the patient, to ascertain whether the constable is entitled to the Extraordinary T.B. Leave. But unfortunately the Medical Board was never constituted while the patient was suffering from T.B. and only when he recovered in October, 2008, the Special Medical Board was convened for examination of the recovered patient. The examination of the constable after recovery lead to a negative report on the illness. But it cannot be overlooked that the Standing Medical Board also observed that such negative status after recovery, does not rule out T.B. at an earlier stage, when the patient was actually suffering the ailment. Thus the opinion that was provided on 21.2.2009 cannot be construed to be a conclusive report for the petitioner. Yet the open ended report was made the basis, for refusing the Extraordinary T.B. Leave, sought by the constable. 10. The above approach in my considered opinion was faulty and unfair since the refusal of Extraordinary T.B. Leave is not on the basis of definite conclusion drawn by the Standing Medical Board. In fact the Board doctors themselves observed that the suffering from T.B. at an earlier stage, cannot be ruled out only because of the negative conclusive drawn through examination of the already recovered patient. 11. For the foregoing discussion, the Court is persuaded to conclude that the denial of Extraordinary T.B. Leave under Rule 14 (2) (iii) of the Leave Rules was not justified. But at the same time, in view of the inconclusive report, it is difficult to say with certainty on the basis of the available materials that, the petitioner is entitled to the Extraordinary T.B. Leave for those 18 months, when he remained absent. 12. Therefore, I deem it appropriate to allow the petitioner to raise his grievance on denial of the Extraordinary T.B. Leave, before the Director General of Police (respondent No.2) and the head of the organization is requested to evaluate the available materials and also if necessary, requisition further materials and then to take a fresh decision on how the absence period (from 21.4.2007 to 16.10.2008) should be treated. The medical certificates from the District T.B. Officer, Karimganj can be cross-checked and confirmed. If they are found genuine, the Extraordinary T.B. Leave can be granted, notwithstanding the earlier decision of the Commandant given on 2.5.2009. To facilitate the exercise, the petitioner will file a representation within 2 weeks and the DGP (respondent No.2) should decide the representation on merit, within 8 weeks thereafter. It is ordered accordingly. 13. If they are found genuine, the Extraordinary T.B. Leave can be granted, notwithstanding the earlier decision of the Commandant given on 2.5.2009. To facilitate the exercise, the petitioner will file a representation within 2 weeks and the DGP (respondent No.2) should decide the representation on merit, within 8 weeks thereafter. It is ordered accordingly. 13. With the above order, the case stands allowed without any order on cost.