IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WP(C).No. 7117 of 2005(V) ---------------------------------- PETITIONER: -------------------- V.T.PRASANNAN, EX.SUB INSPECTOR CISF, PREETHY HOUSE, NADUVILE VILLAGE, VAIKOM P.O. BY MR..K.R.B.KAIMAL, SENIOR ADVOCATE MR..B.UNNIKRISHNA KAIMAL, ADVOCATE RESPONDENTS: ------------------------ 1. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE SENIOR COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, COCHIN INTERNATIONAL AIRPORT LTD., NEDUMBASSERY, ERNAKULAM DISTRICT. 3. THE INSPECTOR GENERAL SWS C.I.S.F. R.C.F.L. COMPLEX, CHEMBUR, MUMBAI 400 074. BY MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7117 of 2005(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE MEDICAL ERTIFICATE DATED 25.10.2002 ISSUED BY THE MEDICAL BOARD TO THE PETITIONER. EXT.P2 - TRUE COPY OF THE APPLICATION DATED 1.2.2003 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF THE ORDER NO. V-11014/12/SZ/LC/SWS/04/5428 DATED 22.7.2004 ISSUED BY THE INSPECTOR GENERAL SWS, CENTRAL INDUSTRIAL SECURITY FORCE, MUMBAI. EXT.P4 - TRUE COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C) NO. 26971/2004 DATED 15.9.2004. EXT.P5 - TRUE COPY OF THE ORDER NO. V-15014/CISF/CIAL/CC/2004-7104 DATED 6.12.2004 ISSUED BY THE 2ND RESPONDENT. // TRUE COPY // PA TO JUDGE rhs T.R.RAMACHANDRAN NAIR, J ================== W.P(C) No. 7117 of 2005 ================== Dated this the 5th day of February, 2009 J U D G M E N T The petitioner who was working as Assistant Sub Inspector has sought for grant of invalid pension under Rule 38 of the CIS Pension Rules. 2. The history of the case show the following: 3. He was a directly recruited Assistant Sub Inspector in the Central Industrial Security Force, in the year 1987 in the Sports quota. He is an outstanding sportsman (Swimming coach) and his recruitment was at the time when he was working in the Delhi Police Establishment as Swimming Coach. After his enrolment in the year 1987, he was transferred to several units of the force and his services were essentially being utilised as a Swimming coach. While he was working in the CISF unit, R.T.C at Arkonam, he sustained serious injuries due to a fall. He had undergone treatment for a long time in the Stanley Medical College. Afterwards, he was transferred to the unit at Cochin International Airport. While working at the International Airport, he was directed to collect movement order on 25.1.2002 W.P(C) No. 7117 of 2005 -2- to attend the Orientation Training Course at R.T.C. Arkonam from 28.1.2002 to 12.7.2002. Since he was under treatment, he submitted a representation to the Commandant to exempt him from training and to cancel the movement order. He was admitted in the General Hospital, Ernakulam on 23.1.2002 for treatment and he was discharged from the hospital on 2.2.2002 with advice for taking rest for one month. He reported for duty on 3.3.2002 with Medical Certificate. Again he was issued a movement order dated 4.3.2002 for joining the refresher course at Training Centre at Arkonam. The petitioner, in view of his adverse physical ailments, sought for grant of exemption but without granting the same, he was placed under suspension on 4.3.2002. On completion of the inquiry, the Commandant issued an order dated 12.8.2002. He was reinstated in service, subject to the final decision in the disciplinary proceedings. Since he could not rejoin duty because of the continued ailment, he submitted an application for leave for 2 months from 10.9.2002 and produced Medical Certificate dated 3.9.2002. 4. At this point of time, he was directed to appear before the Medical Board by the 2nd respondent. Medical Board in the W.P(C) No. 7117 of 2005 -3- District hospital, Ernakulam examined him. Ext.P1 is the medical certificate. Ext.P1 shows that he is unfit to resume his further duties because of various problems which have been detailed therein. Though the same was forwarded to the 2nd respondent, the disciplinary proceedings continued. At the stage the petitioner submitted Ext.P2 application seeking for invalid pension. Thereafter, he was inflicted with the punishment of removal from service. 5. Ultimately, the appellate authority modified the punishment of removal from service to one of reduction of pay by three stages for a period of two years and ordered him to be posted at CISF unit, BHEL, Hyderabad. This was challenged in a revision by him. But revision petition was dismissed by Ext.P3 order. 6. The application for invalid pension was practically rejected by Ext.P5. The operative portion of the order states that the application for grant of invalid pension on the Medical Certificate issued by the medical authority in response to the office letter No. V-15014/CISF/CIAL/2002/2870 dated 18.9.2002 is not acceptable in accordance with relevant rules and on W.P(C) No. 7117 of 2005 -4- account of the facts stated therein and hence rejected. In fact this reply was given to him pursuant to the directions issued by this court in the judgment in W.P.(c) No. 26971 of 2004. 7. The petitioner challenges Ext.P5 on various grounds. It is pointed out that the petitioner had complied with all the requirements including requirements of a Medical Certificate. Even though, it was not in the prescribed form under Rule 38(3), it is submitted that there is substantial compliance with the form prescribed. It is also submitted that in the absence of a contrary finding to the effect that the medical certificate do not tally with the assessment of the physical conditions by the Medical board, the rejection of the application for invalid pension is not justified. 8. The respondents have filed a counter affidavit in the matter with regard to the claim for grant of invalid pension. It is maintained that as per Rule 38 of CCS pension rules certain conditions are required to be satisfied for grant of pension. The petitioner has not claimed for grant of invalid pension as per the procedure laid down Rule 38 of the CCS pension rules. The respondents have further taken the stand that even though several opportunities were given, he did not report for duty. W.P(C) No. 7117 of 2005 -5- 9. Ext.P2 is the application for grant of invalid pension. Going by Rule 38 of CCS pension Rules no prescribed form is there for submission of the “application” for invalid pension. The prescription in Sub Rule 2 is that Government Servant shall submit an application for invalid pension with a Medical Certificate. The form is prescribed under Sub Rule (3). 10. Here there is no dispute regarding the fact that this Medical Certificate was issued by the Medical Board after he was sent for medical examination by the respondents themselves. Therefore when clear evidence is available as per the Medical Certificate, the application should have been considered on the merits without standing on the technicalities of the particular certificate to be obtained in the form prescribed under Sub Rule 3. Going by Ext.P1, the Medical Board has given its opinion that, he is unfit to resume further duties. The expressions that are required to be made in the form prescribed under Rule 38, even though, are not in same in Ext.P1 substantially the physical condition of the petitioner is reflected in Ext.P1. The respondent should not have rejected the application on mere technicalities. In Ext.P1 as regards the W.P(C) No. 7117 of 2005 -6- physical condition of the petitioner following have been stated: “ On clinical examination and radiological evaluation he is having the following problems. - Periarthritic (R) shoulder. - Patello femural arthritics (L) Knee - Osteo arthritis both knee. - Chronic L.S. Strain with IVDP L4 5 S1 level. - Adjustment disorder with anxiety.” 11. There cannot be any doubt that a person affected with such physical incapacities could have resumed further duties. The question is whether there was a medical certificate in the proper form and whether the facts reflected in the medical certificate already produced really projects the physical condition of the applicant concerned. If there was no doubt about the physical condition of the petitioner the requirement of a certificate in a particular form should not have been taken as a ground to reject the application. In that view of the matter, I find that Ext.P5 suffers from legal infirmities. In Ext.P5 and in the counter affidavit the respondents seek to establish that the petitioner was evading from attending duties. 12. If at all what was required was a further examination at that point of time, by the medical board and that course was never adopted and he was never directed to undergo a re-examination. More importantly, he was never asked to W.P(C) No. 7117 of 2005 -7- produce a medical certificate in the form prescribed. 13. Therefore, Ext.P5 to the above extend is unsustainable and the same is quashed. There will be a direction to the 2nd respondent to reconsider the application Ext.P2 and pass orders on the merits of the application after considering various materials including Ext.P1. Final orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. If necessary, a further Medical Certificate can be called for. The petitioner will be entitled to produce additional materials if any in support of his case as regards his physical condition and in support of his plea for grant of invalid pension. The writ petition is allowed as above. No Costs. T.R.RAMACHANDRAN NAIR JUDGE rhs