IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 33472 of 2006(I) ---------------------------------------- PETITIONER(S): ------------------------ VITTALA SHENOY (RETIRED LD COMPILER), KOCHUMADATHIL HOUSE, THURAVOOR NORTH P.O., CHERTHALA, ALAPPUZHA. BY ADV. MR.P.N.MOHANAN RESPONDENT(S): --------------------------- 1. PRINCIPAL SECRETARY, PLANNING AND ECONOMIC AFFAIRS (D) DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF ECONOMICS AND STATISTICS, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33472/2006 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(RT) NO.437/84/PLG. DTD. 10/07/84. EXT.P2: COPY OF THE LETTER DTD. 23/10/90 OF THE 2ND RESPONDENT. EXT.P3: COPY OF THE LETTER ISSUED BY THE HEALTH SERVICE DIRECTOR DTD. 27/11/90. EXT.P4: COPY OF THE MEDICAL CERTIFICATE DTD. 08/02/1991. EXT.P5: COPY OF THE PETITIONER FILED BEFORE THE 2ND RESPONDENT ON 13/12/2003. EXT.P6: COPY OF THE LETTER DTD. 6/05/2005 OF THE 2ND RESPONDENT. EXT.P7: COPY OF THE REPLY DTD. 25/07/05 SUBMITTED BY THE PETITIONER. EXT.P8: COPY OF THE LETTER DTD. 6/12/05 OF THE 2ND RESPONDENT. EXT.P9: COPY OF THE LETTER DTD. 9/01/06 OF THE 2ND RESPONDENT. EXT.P10: COPY OF THE LETTER DTD. 7/08/06 OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.33472/2006-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 17th day of February, 2009 J U D G M E N T The petitioner is seeking for invalid pension. He joined as L.D.Compiler on 12/12/1977 under the second respondent-Director of Economics and Statistics, Thiruvananthapuram. Because of mental depression and ill health initially he availed eligible leave. Later on, he entered on leave without allowance on 14/11/1982 on medical grounds and leave was granted for 23 months from 14/11/1982 as per Ext.P1 order. This was extended upto 15/04/1990 on medical grounds as per G.O.(Rt). No.501/89/Plg, dated 25/10/1989. He was under treatment in the Santhigiri Ashram and Medical College, Pothencode, Thiruvananthapuram. Later on, he filed an application for extension of leave and sanction of invalid pension. By Ext.P2, the second respondent requested the Director of Health Services to obtain the final recommendation of the Medical Board on the question for granting invalid pension. As per Ext.P3 letter, the petitioner was requested to appear before the Medical Board for examination and on 08/02/1991 he was examined by the Board. Ext.P4 shows that the Medical Board examined the petitioner and issued medical certificate stating that the W.P.(C) No.33472/2006 -:2:- petitioner is completely and permanently incapacitated for further services of any kind in the Department to which he belongs in consequence of Chronic Schizophrenia and he will develop irregular and intemperate habits. 2. The petitioner has relied on Rule 42(1) and 42(2) of Part III KSR wherein in support of his case it is stated as follows:- “42(1) Where the Government/pension sanctioning authority have/has reason to believe that an employee is suffering from a contagious disease, or physical or mental disability or infirmity which in their/its opinion interferes with the efficient discharge of his duties, they/it may direct him to undergo medical examination by a Medical Board or Medical Officer with a view to ascertain whether he may be retired from service on invalid pension. 42(2) An invalid pension shall be granted to an employee who, having appeared on the directions of the Government/pension sanctioning authority under sub- rule (1) or on his own application, before a duly constituted Medical Board or Medical Officer, is certified by such Medical Board or Medical Officer to be W.P.(C) No.33472/2006 -:3:- permanently incapacitated by a contagious disease or physical or mental disability or infirmity for the public service or for the particular branch of it to which he belongs.” 3. According to the petitioner, the above provisions have been strictly followed, but further actions were not taken. Due to the delay in the matter, he again filed Ext.P5 representation before the second respondent. By Ext.P6 he was given a reply to the effect that the petitioner has not been sanctioned his leave and he was further directed to produce the medical certificate stating the date from which he became invalid to sanction pension. The petitioner submitted Ext.P7 reply. In the meanwhile he retired from service on 31/10/2005. 4. In the counter affidavit filed by the first respondent, the stand taken is that the petitioner has not forwarded Ext.P4 medical certificate issued by the Medical Board to the Director of Economics and Statistics at the relevant point of time. It is, therefore, submitted that action could not be taken in the absence of medical certificate. In paragraph (3) of the reply affidavit it is stated that normally, the Medical Board will issue the certificate of the examination of a mental patient to the Director of Health Services who in turn might have forwarded it to the second respondent. W.P.(C) No.33472/2006 -:4:- 5. The stand taken, therefore, that the medical certificate did not reach the Director of Health Services cannot be said to be correct. But as on today, the respondents have not explained as to whether the certificate was received from the Medical Board or not. 6. Even though this Court, on 25/11/2008, specifically directed the learned Government Pleader to get instructions from the second respondent as to whether the petitioner had made available the original of Ext.P4 or whether it was directly received by him from the Medical Board, the affidavit filed does not show any of those aspects. 7. Therefore, the matter has to be considered with the aid of available materials. In the statement filed on behalf of the Director of Health Services dated 10/02/2009 it is admitted that after examination of each candidates, the Medical Examination Report is directly send by post to the offices from where request was received to conduct Medical Examination. 8. Therefore, in normal circumstances, the Medical Certificate should have reached the concerned office. Merely because the petitioner has relied on Ext.P4, the respondents cannot take a stand that the application for pension cannot be considered in the absence of the certificate. W.P.(C) No.33472/2006 -:5:- 9. Even now, the statement filed on behalf of the Director of Health Services does not throw any light on the original of Ext.P4. Therefore, his case can be considered in the light of Ext.P4 produced herein. 10. Therefore, there will be a direction to the respondents to consider the case of the petitioner for grant of invalid pension in the light of Ext.P4 certificate and as per Rule 42 of Part III KSR. Appropriate orders shall be passed within two months from the date of receipt of the copy of this judgment. The petitioner will produce a copy of this judgment along with a copy of this writ petition before the respondents for compliance. Petitioner will be offered an opportunity to produce fresh materials if any. If a further medical examination is needed, before passing orders, he will be given due intimation. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms