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2022 DIGILAW 204 (GUJ)

State of Gujarat v. Satyawadi Swamy Hemamalini

2022-02-04

HEMANT M.PRACHCHHAK, R.M.CHHAYA

body2022
JUDGMENT : R.M. Chhaya, J. 1. Heard Ms. Dhwani Tripathi, learned Assistant Government Pleader for the State. 2. The facts of this case, without entering into the merits of the application, the delay is condoned and the Letters Patent Appeal is taken up for final disposal for hearing. ORDER ON LETTERS PATENT APPEAL 3. The following facts emerge from the record of the Appeal: 1.1 The respondent - Ms. Satyawai Swami Hemamalin is working as a Superintendent-cum-Civil Surgeon at Civil Hospital, Bharuch, which is run by the appellants-State Government. As the record indicates that the respondent was selected as Class II Medical Officer on 09.02.1980 after passing the Gujarat Public Service Commission exams and by the time the petition was preferred, the respondent original petitioner had served the State in Health Department for 21 years and 8 months. As the record unfolds, the respondent was promoted as Class I officer w.e.f. 12.10.2000 and since the year 2002, the respondent is working as Superintendent Civil Surgeon-cum-Chief Medical Officer at Bharuch. The record further indicates that on 27.12.2002 while respondent - original petitioner was on duty and actually traveling in an ambulance to attend a meeting, met with an accident and suffered serious injuries and after initial treatment at Bharuch Civil Hospital the respondent was required to be shifted to S.G. Hospital, Vadodara for further treatment. As per the say of the respondent both her legs were crushed in the accident and was required to be hospitalized for several months and had undergone several operations at Government as well as private hospitals. 4. As the record shows, which is not disputed by the appellants that the respondent has acquired 50% permanent disability of the body as a whole and has become physically handicapped. As the respondent had to remain only because of multiple health issues. The respondent applied for leave under the Gujarat Civil Services (Leave Rules), 2002, which inter-alia provides under Rules 72 & 73 that an employee can get leave of 224 days maximum period of leave, as the same was not considered even though it was pointed out on record that the respondent was suffering from Cervical Tuberculosis. The record indicates that only on the pretext that the respondent-original petitioner was required to be examined by the medical board. The record indicates that only on the pretext that the respondent-original petitioner was required to be examined by the medical board. The benefit of leave was partly denied and instead of 334 days leave, leave of only 221 days leave came to be sanctioned vide its order dated 02.06.2004 challenging the same, the present writ petition was filed inter-alia praying as under: a) be pleased to allow this Special Civil Application; b) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, by quashing and setting aside the action/order dated 02.06.2004 to the extent it sanction leave of 334 days as leave without pay and/or further be pleased to direct the respondents herein to sanction the leave of 334 days as earned leave by paying leave salary and/or further be pleased to direct the respondents herein to sanction the leave from 14.01.2004 upto 24.05.2004 as special leave as tuberculosis patient by paying the salary of the said period as per rules and/or further be pleased to direct the respondents herein to consider the case of the petitioner as per Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and/or further be pleased to direct the respondents to complete the procedure for sanctioning the special leave of the petitioner as a patient of tuberculosis by getting her examined by the Medical Board forthwith; (c) Pending admission, hearing and final disposal of this Special Civil Application, be pleased to stay further execution, operation, implementation and enforcement of order/action dated 02.06.2004 to the extent it sanction the leave of 334 days as leave without pay and/or further be pleased to direct the respondents herein to sanction the leave of 334 days as earned leave and/or further be pleased to direct the respondents to pay the leave salary forthwith as per rules/and or further be pleased to direct the respondents herein to complete the procedure of sanctioning leave of the petitioner as a patient of tuberculosis by getting her examined by Medical Board forthwith and or further be pleased to direct the respondents to consider the case of the petitioner under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. (ci) be pleased to quash and set aside the impugned order/action dated 15.05.2004 issued by the respondents and further be pleased to direct the respondents to immediately sanction the leave of the petitioner from 27.12.2002 and forthwith make payment of salary with 18% interest with all consequential and incidental benefits to which the petitioner is entitled, without insisting the petitioner to join duty; (d) pending admission, hearing and final disposal of this Special Civil Application, be pleased to stay further execution, operation, implementation and enforcement of order/action dated 15.05.2004 issued by the respondents and further be pleased to direct the respondents herein to immediately sanction special leave to the petitioner w.e.f. 27.12.2002 and forthwith make payment of the due and payable salary till today with 18% interest and all consequential and incidental benefits to which the petitioner is entitled, without insisting the petitioner to join duty; 5. Various contentions were raised before the learned Single Judge including Rules 72 & 73 of the Gujarat Civil Services (Leave Rules), 2002 and the provisions of Section 47 "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" were contended. The respondent - original petitioner has also relied upon the certificate issued by office of the Medical Superintendent Sayaji General Hospital, Vadodara, periodical certificate issued by the Government Hospitals. The learned Single Judge after interpreting the Rules 73 and 76 of the of the Gujarat Civil Services (Leave Rules), 2002 and considering the very conduct of the appellants that they have sanctioned 221 days as the special case the peculiar facts of this case, allowed the petition and being aggrieved by the same, the present appeal is filed. 6. Ms. Dhwani Tripathi, learned Assistant Government Pleader relying upon the communication dated 15.05.2004, which is an internal correspondence between the office of the Commissioner of Health Services (Medical Division) and Additional Director of Medical Services, Gandhinagar as well as the communication dated 27.02.2004, whereby the details were asked for from the office of the Commissioner of Health Services. 6. Ms. Dhwani Tripathi, learned Assistant Government Pleader relying upon the communication dated 15.05.2004, which is an internal correspondence between the office of the Commissioner of Health Services (Medical Division) and Additional Director of Medical Services, Gandhinagar as well as the communication dated 27.02.2004, whereby the details were asked for from the office of the Commissioner of Health Services. On the aforesaid grounds, it was contended by the learned Assistant Government Pleader that the respondent - original petitioner was aware about the same and should have submitted the certificate of medical board and she should have presented herself before the Medical Board, so as to get the benefit of Rule 73 as well as Rule 76 of the Gujarat Civil Services (Leave Rules), 2002. According to learned Assistant Government Pleader not having done undertaken the said provisions, the respondent - petitioner cannot be given benefit of the Rules and the learned Single Judge has thus committed an error in interpretation of Rule 73 of the Gujarat Civil Services (Leave Rules), 2002 in particular. Reiterating the contentions which were taken by the learned Assistant Government Pleader before the learned Single Judge, Ms. Tripathi, learned Assistant Government Pleader contended that the respondent will not be entitled to 50% salary of 334 days since she was not having any leave in her credit and the State Government has passed the legal order to consider 334 as leave without pay. Ms. Tripathi, learned Assistant Government Pleader has also relied Rule 57 of the Gujarat Civil Services (Leave Rules), 2002 and contended that as 46 days leave was in her credit, the same is treated as half pay leave. 7. On the aforesaid grounds, it was contended by the learned Assistant Government Pleader that the present appeal requires consideration. 8. Rule 73 and 74 of the Gujarat Civil Services (Leave Rules), 2002, provides as under:- "RULE 73 : Special disability leave for accidental injury (1) The provisions of Rule 72 shall apply also to a Government employee, whether permanent or temporary, who is disabled by injury accidentally incurred in, or in consequence of, the due performance of his official duties, or in consequence of his official position, or by illness incurred in the performance or any particular duty which has the effect of increasing his liability to illness or injury beyond the ordinary risk attaching to the civil post which he holds. (2) The grant of special disability leave in such case shall be subject to following conditions: (a) That the disability, if due to disease, shall be certified by a Medical Board to be directly due to the performance of the particular duty. (b) That, if the Government employee has contracted such disability during service otherwise than with a military force, it must be, in the opinion of the authority competent to sanction leave, exceptional in character or in the circumstances of its occurrence as to justify such unusual treatment as to the grant of this term of leave, and (c) That the period of absence recommended by a Medical Board may be covered in part, by leave under this rule and partly by any other leave, and that the amount of special disability leave granted on leave salary equal to that admissible on earned leave shall not exceed one hundred twenty days. Note. Special disability leave shall be admissible under this rule only where illness or injury is sustained as a result of a risk which is beyond the ordinary risk attaching to the civil post which a Government employee holds." "RULE 74 : Hospital Leave (1) The authority competent to grant leave may grant hospital leave to Class IV Government employees whose duties involve the handling of dangerous machinery, explosive materials, poisonous drugs and the like, or the performance of hazardous tasks, while under medical treatment in a hospital or otherwise, for illness or injury, if such illness or injury is directly due to risks incurred in the course of their official duties. Exception. The hospital leave may also be granted on account of ill health to Government employees specified below whose duties expose them to special risk of accident or illness even though the illness or injury may not be directly due to risk incurred in the course of their official duties. (i) Police officers, including trainees of a rank not higher than that of Head Constable; (ii) Government employees of the Prohibition and Excise Department other than clerical establishments; (iii) Forest subordinates, other than clerks in receipt of pay not exceeding Rs. 4400/. (2) Hospital leave shall be granted on the production of medical certificate from an Authorized Medical Attendant. (i) Police officers, including trainees of a rank not higher than that of Head Constable; (ii) Government employees of the Prohibition and Excise Department other than clerical establishments; (iii) Forest subordinates, other than clerks in receipt of pay not exceeding Rs. 4400/. (2) Hospital leave shall be granted on the production of medical certificate from an Authorized Medical Attendant. (3) Hospital leave may be granted on leave salary equal to that admissible during earned leave or half pay leave and for such period as the authority granting it may consider necessary. (4) Hospital leave shall not be debited against the leave account and may be combined with any other leave which may be admissible, provided the total period of leave, after such combination does not exceed 28 months. (5)(a) In the case of a person to whom the Workmen's Compensation Act, 1923 (8 of 1923) applies, the amount of leave salary payable under this rule shall be reduced by the amount of compensation payable under clause (d) of sub-sec. (1) of Sec. 4 of the said Act. (b) The amount of hospital leave which may be granted to a Government employee is limited to three months on earned leave pay in any period of three years. Hospital leave on half pay counts, for the purpose of this limit, as half the amount of leave on earned leave pay. Instruction. There is no objection to grant hospital leave during the first three years of service of the Government employee provided the prescribed limit of three months is not exceeded. Note. The period of "three years" referred to in this rule should at any time be calculated backward from the end of the actual period of the hospital leave proposed to be granted." 9. Rule 73 describes for disability leave for accidental injury, whereas Rule 74 provides for hospital leave. The respondent - original petitioner has relied upon the disability physically handicapped certificate issued by the Government Hospital, Vadodara. In addition to that, with a communication dated 01.03.2004, the respondent applied for sanction of special leave with full pay and allowance and relied upon 11 certificates showing indoor/OPD/rest certificates. Over and above, the initial phase of hospitalization and recovery from the accidental injuries sustained by the respondent - original petitioner. In addition to that, with a communication dated 01.03.2004, the respondent applied for sanction of special leave with full pay and allowance and relied upon 11 certificates showing indoor/OPD/rest certificates. Over and above, the initial phase of hospitalization and recovery from the accidental injuries sustained by the respondent - original petitioner. The respondent - original petitioner also relied upon a special leave of 71 days issued by the TB and Chest diseases physician Dr. Nikhil J. Shah of SSG Hospital, Vadodara, which indicates that the respondent had developed Cervical and Mediastinal tuberculosis and had severe hypersensitivity reactions to anti tubercular drugs. 10. The very conduct of the appellants in considering the application partly establishes the fact that there was no doubt about the genuineness of the hospitalization or the certificate issued by the competent Doctor of Government Hospital, Vadodara, as far as Tuberculosis is concerned. Interpreting the sub clause C of sub rule 2 of Rule 73 of Leave Rules, 2002, the learned Single Judge has come to the conclusion that as per the said Rule the part of the leave is required to be clubbed with other leave. As noted by the learned Single Judge, the appellants had already paid full salary for 167 days out 383 days and was rightly held by the learned Single Judge, the same can be treated as special disability leave. 11. Interpreting Rule 74 of leave Rule sub Rule 2002, the learned Single Judge has rightly come to the conclusion that the remaining 216 days has to be adjusted as the special leave read with keeping in mind the special rule namely Rule 76, the learned Single Judge has observed as under:- "7.2 Thus, the petitioner cannot be treated worse than the Class IV employee who is paid Hospital leave salary equal to that admissible during earned leave or half pay leave and for such period as the authority granting it may consider necessary as per sub rule 3. Sub-rule provides that Hospital leave shall not be debited against the leave account and may be combined with any other leave which may be admissible, provided the total period of leave, after such combination does not exceed 28 months. Thus, the petitioner who is incapacitated due to permanent disability cannot be denied salary for the entire period or for the remaining period of 216 days. 8. Thus, the petitioner who is incapacitated due to permanent disability cannot be denied salary for the entire period or for the remaining period of 216 days. 8. The respondents have sanctioned 221 days for the period from 14.1.2004 to 22.8.2004 as average pay leave in special case for the period when the petitioner was suffering from T.B. Rule 76 provides for leave for government employee suffering from T.B. The same reads as under: "RULE 76: T.B./Cancer/Leprosy Leave A Government employee suffering from T.B., Cancer or Leprosy shall also be entitled to leave as per Rules regarding grant of concessions to Government employee suffering from Tuberculosis/Cancer/Leprosy as prescribed by Government in Health and Family Welfare Department from time to time." 8.1 The aforesaid rule, though does not stipulate the period of leave, the respondents have sanctioned 221 days as average pay leave. Thus, the respondent authorities in the alternative can sanction 383 days leave in special case akin to the aforesaid period. 9. In the considered opinion of this Court, the petitioner would be entitled to average leave salary of 383 days since she was hospitalized for the aforesaid period. The petitioner shall also be entitled to full leave for the period from 30.12.2002 to 13.02.2003, which is 46 days which is treated as her half-pay leave by the respondent authority by the impugned order dated 02.06.2004." 12. We are in total agreement with the observations made by the learned Single Judge and the conclusion arrived at that the appellants not having any doubt about the genuineness or veracity of the certificates produced by the respondent - original petitioner as regards the disability and her diseases Tuberculosis should have sanctioned the leave as directed by the learned Single Judge. The respondent is a Doctor in the Government Hospital since 1980 and holding a post of Civil Surgeon in the District like Bharuch. This litigation could have been avoided, which is pending since 2004. Referring to the judgment of the Hon'ble Apex Court in the case of Kunal Singh v. Union of India and others reported in (2003) 4 SCC 524 , the appellants should have protected the interest of respondent, instead of taking higher technical view. 13. In totality of facts, no interference is called for. The present Letters Patent Appeal fails and is hereby dismissed. However, there shall be no order as to costs.