IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN WRIT PETITION NO.25248 OF 2004 and WPMP.No.30712 OF 2004 K. Sivakumar S/o. Kuppusamy .. Petitioner vs. 1. The State of Tamil Nadu, rep. by its Secretary, Home Department, Fort St. George, Chennai 600 009. 2. The Commissioner of Police, Chennai City Police, Commissioner Office, Egmore, Chennai 600 008. 3. The Joint Commissioner of Police, Traffic, Vepery, Chennai 600 007. 4. The Chairman, The Regional Medical Board, Government General Hospital, Chennai 600 003. 5. The Tamil Nadu Administrative Tribunal, Chennai Bench, rep. by its Registrar, High Court Buildings, Chennai 104. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus calling for the records of the 5th respondent dated 223.2004 in O.A.No.2831 of 2003 and quash the same so far as it relates to the direction to the respondents to treat the period of the petitioner's absence as unearned leave on medical certificate and direct the respondents 1 to 4 to consider the period of the petitioner's absence from duty between 25.7.2003 to 31.4.2004 as period of duty with full salary and attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R. Srinivas For Respondents1 to 4: Mr.K. Elango Special Govt. Pleader - - - O R D E R (Order of the Court was made by P.K. MISRA, J) Heard the learned counsels appearing for the parties. 2. The facts giving rise to the Original Application and the present writ petition are as follows :- The present petitioner was working as Grade II Constable under the Police Department. He had applied for grant of medical leave on 20.6.2003 as he was having constant respiratory problem on account of the fact that he was posted in Traffic Enforcement Wing. Accordingly, he availed medical leave from 20.6.2003 till 25.7.2003. Thereafter, the petitioner was asked to appear before the Medical Board of the General Hospital at Chennai. For the aforesaid purpose, he was admitted as an inpatient and remained in the hospital till 14.8.2003, on which date the petitioner was directed to get admitted in Ward No.19 of the Institute of Mental Health (IMH), Kilpauk, Chennai. However, the petitioner apparently desisted. On 18.8.2003, Respondent No.3 issued a memo indicating that, unless the petitioner got himself admitted in IMH along with his wife, departmental proceedings would be initiated. At that stage, the petitioner filed O.A.No.2831 of 2003 before the State Administrative Tribunal (in short "Tribunal"). During pendency of the Original Application, by an interlocutory order dated 5.2.2004, the Tribunal directed the present petitioner to appear before the Director of the IMH for the purpose of evaluation of his mental health. After examination of the petitioner, the hospital authorities did not find any thing unusual with the petitioner. Subsequently, the Tribunal has issued a direction directing the Department to allow the petitioner to rejoin duty. However, while doing so, the Tribunal directed that "the period of absence so far, shall be treated as unearned leave on Medical certificate with full pay, provided he has not exhausted the leave under this head". It is only this latter portion of the order passed by the Tribunal, which is under challenge in the present writ petition. 3. Learned counsel for the petitioner had contended before the Tribunal that there was no justification on the part of the Department to insist that the petitioner should be admitted in a mental hospital when there was no complaint of any mental illness nor there was any symptom of mental disorder. As a matter of fact, the Tribunal has observed as follows :- "... Therefore, it is cruel on the part of the Medical Board and the Higher Police officers to repeatedly harass the applicant to go and get admitted in the Mental Hospital." https://hcservices.ecourts.gov.in/hcservices/ 4. Learned counsel appearing for the petitioner by placing reliance upon the aforesaid observation of the Tribunal has submitted that, when the Tribunal has come to a conclusion that the petitioner has been repeatedly harassed by the higher police officials, it should not have given a direction to treat the absence of the petitioner as unearned leave on medical grounds, which practically penalizes the petitioner even though he was not at fault. 5. It is to be noted that the Department has not challenged the order passed by the Tribunal. On the other hand, the Department has treated the period of leave vide proceedings dated 12.7.2004 as follows :- 20.06.2003 to 17.09.2003 - 90 days UEL on M.L. 18.09.2003 to 12.02.2004 - 148 days EL on M.L. 13.02.2004 to 30.04.2004 - 78 days LWP on M.L. 6. Learned counsel appearing for the State has vehemently opposed the contentions raised in the writ petition and submitted that the petitioner on earlier occasions had frequently absented himself on medical leave and therefore there was enough justification for the authorities to direct the petitioner to get admitted in the Mental Hospital. 7. We have gone through the entire materials on record. The previous medical history of the petitioner nowhere indicates about any complaint relating to mental disorder. On the other hand, it is apparent that there was certain physical disorders like breathing difficulty and other difficulties for which the petitioner had availed medical leave on several occasions. Merely because the petitioner had availed Medical Leave on previous occasions, he should not have been directed to get himself admitted along with his wife in the mental hospital. As rightly observed by the Tribunal, it was some sort of mental torture inflicted on the petitioner merely because the petitioner had on earlier occasion dared to give a proposal for starting an Association. 8. Having gone through the materials on record and the reasonings given by the Tribunal, we feel that utter injustice has been done to the petitioner, even though he has been directed to rejoin duty by treating the period of absence as unearned leave on medical certificate. In our considered opinion, the period of absence from 15.8.2003 to 30.4.2004 should be treated as duty for all purposes. 9. The next question is as to whether the petitioner should be paid salary for the said period. Initially we were thinking that since the petitioner has not worked for the said period, entire backwages need not be paid. However, keeping in view the background of the case and the observation of the Tribunal that the petitioner has been subjected to mental harassment by https://hcservices.ecourts.gov.in/hcservices/ higher officials, it would not be justified on our part to refuse any part of the backwages. However, we clarify that the period of absence from 20.6.2003 till 14.8.2003 should be treated as medical leave with all service benefits. 10. The writ petition is accordingly allowed. The period of absence from 20.6.2003 till 14.8.2003 shall be treated as medical leave with all service benefits and the period from 15.8.2003 to 30.4.2004 shall be treated as duty for all purposes and the petitioner shall be entitled for backwages for the aforesaid period. There would be no order as to costs. Consequently, the connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dpk To 1. The Secretary, State of Tamil Nadu, Home Department, Fort St. George, Chennai 600 009. 2. The Commissioner of Police, Chennai City Police, Commissioner Office, Egmore, Chennai 600 008. 3. The Joint Commissioner of Police, Traffic, Vepery, Chennai 600 007. 4. The Chairman, The Regional Medical Board, Government General Hospital, Chennai 600 003. + 1 CC To Mr.R.Srinivas, Advocate SR NO.30431 + 1 CC to the Government Pleader SR NO 30547 WP.NO.25248/2004 GR(CO) SRA(01/09/2008) https://hcservices.ecourts.gov.in/hcservices/