IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No. 32336 of 1998 Between: V.Andhra S/o.Yellaiah R/o Qr.No.D-1002,P.V.Township Manuguru Mandal Khammam Dist. ..... PETITIONER AND 1 Singareni Collieries Co.Ltd., Kothagudem rep. by the Chairman & Managing Director 2 Singareni Collieries Co.Ltd Manugur rep. by the Sr.Divisional Engineer. 3 Singareni Collieries Co.Ltd., Manuguru rep. by the Chief Medical Officer. 4 The Dy.Medical Superintendent, Singareni Collieries Co.Ltd, Manuguru. 5 Dr.D.R.P.S.Krishna,M.D Sri Lalitha Padmavathi Nursing Home, Opp: Ganesh Temple Kothagudem. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order direction more particularly one in the nature of Writ of Mandamus declaring the proceedings No.CHK/Corp/Med.II/2568/5010 dated 17-10-1998 issued by the 3rd respondent and consequential proceedings No.Sr.DE/AWS/MNG/6/1156 dated 27-10-1998 issued by the 2nd respondent as illegal and arbitrary and consequently direct the respondent herein to reinstate the petitioner into service forthwith as Motor Vehicle Driver with all consequential benefits by setting aside the proceedings dated 27-10-1998 and pass such other order or orders. Counsel for the Petitioner: Mr.G.VIDYASAGAR Counsel for the Respondents 1 to 4: Mr.K.SRINIVASA MURTHY Counsel for Respondent No.5 : None appeared The Court made the following : ORAL ORDER: This writ petition is filed seeking a Mandamus to declare the Proceedings dated 17- 10-1998 of the 3rd respondent and the consequential Proceedings dated 27-10-1998 of the 2nd respondent as illegal and to direct respondents 1 and 2 to reinstate the petitioner into service forthwith as Motor Vehicle Driver with all consequential benefits. According to the petitioner, he joined as a Motor Vehicle Driver in the respondent- Singareni Collieries Company Limited at Kothagudem on 12-5-1978. While so, on 5- 9-1997 he was admitted in the Area Hospital, Manuguru for heart problem. From there, he was referred to Main Hospital of the respondent-company at Kothagudem, wherein he was admitted as inpatient. On 13-9-1997, he was discharged and was referred to Osmania General Hospital for further treatment, since the Area Hospital diagnosed his disease as Cardio Artery Disease (CAD) and there is no Specialist available thereat. Again, on 20-9-1997 he was referred to Osmania General Hospital for further evaluation and treatment to be attended to by Dr.Sudheer R.Naik, Chief Cardiologist. Since Dr.Naik was not available, he was admitted by Dr. P.Krishnam Raju, Professor & Cardiologist. On 26-9-1997, Echo-Colour Doppler Test was conducted and he was advised for Angiography Test. The respondent-company by Proceedings dated 18-10-1997 sanctioned a sum of Rs.6,000/- for procuring the material to undergo Coronary Angiography Test. He was admitted in the Osmania General Hospital on 2-12-1997. On the next day, Angiography test was conducted and was discharged on 4-10-1997 advising to undergo PTCA/Stent. Again, he was admitted in the Osmania General Hospital on 24-2-1998. On 9-3-1998 PTCA was done and subsequently he was discharged on 12-3-1998. The Osmania General Hospital issued medical certificate dated 17-3-1998 stating that he was fit for duty from 20-3-1998. Accordingly, he reported to the Deputy Medical Superintendent, Area Hospital, Manuguru, 4th respondent herein, along with fitness certificate. The 4th respondent addressed a letter dated 27-3-1998 to the 3rd respondent to advise with regard to the fitness for duty and also stated that he was on special leave from 6-9-1997 to 4-3-1998. The 3rd respondent did not permit him to report for duty and on the other hand, issued Proceedings dated 31-3-1998 that he may be kept in sick list. Again, by Proceedings dated 26-6-1998, the 4th respondent sent him to the 3rd respondent for review. Special leave was not extended nor any salary was paid to him from 4-3-1998. It is also stated that on the advice of the 3rd respondent, the 4th respondent addressed a letter dated 4-7-1998 to Dr.P.Krishnam Raju to further review his case and also conduct thread mill test to decide his fitness. The said Doctor examined him and noted in his discharge book on 9-7-1998 that there was no need of TMT and he was fit to join duty and a fitness certificate was already issued on 17-3-1998. In spite of this, nothing happened and he was not permitted to join duty. On the other hand, he was asked to approach the Main Hospital at Kothagudem after two weeks for review of his case. Thus, he was being shuttled between Area Hospital, Manuguru and Main Hospital, Kothagudem in spite of the fitness certificate and the review opinion by the Cardiologist of the Osmania General Hospital, who had conducted PTCA. Again Proceedings dated 13-9-1998 was issued asking him to attend before the 3rd respondent on 14-9-1998 for admission and for decision of his fitness. Accordingly, the 3rd respondent on 15-9-1998 admitted him in the Main Hospital at Kothagudem. Though there was no ailment nor any sickness reported by him, on 16-9-1998, the 3rd respondent advised him to go over to Osmania General Hospital, Hyderabad and report at Cath Lab at 8.00 a.m. on 17-9-1998. He was also advised to be available at Cath Lab till Dr. C.R.P.S.Krishna – 6th respondent herein – comes and meets him. Since he was eager to join duty by obtaining fitness certificate, he reported at Osmania General Hospital on 17-9-1998 and met the 6th respondent. Thereafter, he was asked to wait at the Osmania General Hospital. Ultimately, on 19-9-1998 he was asked to undergo Echo Cardiogram test and also Stress Test. The Medical Officer, who conducted Echo Cardiogram test issued report dated 19-9-1998. The report had shown normal and there was good LV Systolic function. The stress test was also done and the Medical Officer stated that the test is negative for Ischaemia. In the stress test, it was recorded that there was good effort tolerance and the percentage of TSR achieved was 97. Although those two tests were undergone, he was not examined by Dr.S.R.Naik either before or after undergoing the test. Thereafter, he was asked to report at the Main Hospital, Kothagudem. Thus, he reported at Main Hospital, Kothagudem on 20-9-1998 and thereafter he was discharged on 25-9-1998. After that, proceedings were issued on 17-10-1998 stating that the Medical Board consisting of Dr.S.R.Naik and Dr.C.R.P.S.Krishna had considered his case and declared that he was unfit to work as Motor Vehicle Driver in view of CAD disease. Thereafter, he was discharged from service of the respondent-company, which is arbitrary and illegal. A detailed counter affidavit is filed on behalf of respondents 1 to 4 stating inter alia that a duly constituted Medical Board of the company examined the petitioner and opined that the petitioner is unfit to hold the post of Motor Vehicle Driver and as such, he was terminated from service with effect from 27-10-1998. Heard both sides at length. Learned counsel for the petitioner submits that the petitioner was never examined either before or after the medical test conducted on 19-9-1998 by Dr.S.R.Naik, Chief Cardiologist of Osmania General Hospital. In fact, the competent Medical Board as per the directions of the Chairman and Managing Director – 1st respondent herein - was not constituted and petitioner was never asked to be present before the duly constituted Medical Board. At the earliest point of time, the Osmania General Hospital had issued the certificate holding the petitioner to be fit to hold the post of a Driver, whereas one of the Medical Officers of the Board differed with the report of the Osmania General Hospital and asked for reconsideration. Then the file was placed before the 1st respondent- Chairman & Managing Director – on 10-8-1998. The 1st respondent stated that if there is a difference of opinion, it is better, the matter be referred to a Medical Board with one outside expert in the concerned field and two internal physicians/surgeons of the respondent-company. No such Board was constituted and even otherwise, no opportunity was given to the petitioner to submit his explanation etc., as required under the Service Rules of the company. Therefore, the impugned Proceedings are arbitrary and illegal and liable to be set aside. I have gone through the material papers and also the record produced by the respondent-company, particularly, the original medical record pertaining to the writ petitioner i.e., the report of the Chief Medical Officer of the company at Kothagudem etc. It is true that from the said report, it is clear that though a certificate was issued as to the fitness of the petitioner by the Osmania General Hospital (Dr.P.Krishnam Raju) on 9-7-1998, the 3rd respondent felt that they refer the patients to outside hospital for further evaluation and further management and will not take the opinion of the Doctors of Osmania General Hospital/Nizam’s Institute of Medical Sciences/outside hospitals regarding the fitness of their employees and the fitness will be decided by the Medical Board of the company. In view of this, the 1st respondent on 10-8-1998 ordered to constitute a Medical Board with one external expert in the concerned field and two internal Physicians/Surgeons from the respondent-company. But, as seen from the Proceedings dated 17-10-1998 only two Medical Officers of the respondent-company were constituted as Medical Board and both of them are from M.D. (General Medicine) field and there is no expert in the Cardiology field. Therefore, while differing with the fitness certificate issued by the Osmania General Hospital, it would be proper on the part of the 3rd respondent to follow the instruction as issued by the 1st respondent on 10-8-1998 to constitute a proper Medical Board consisting of an expert in the field i.e. Cardiology. Such a course of action was not followed and the same is obvious from the Proceedings dated 17-10-1998 of the Medical Board of the respondent-company. The Medical Board of the company simply relied upon the purported report of the Medical Board consisting of Dr.S.R.Naik and Dr.C.R.P.S.Krishna, which, in fact, was not a medical opinion, but it was only a review based on earlier medical reports. Further, it is not in dispute that earlier the Medical Officer of the Osmania General Hospital to whom the petitioner was referred by the Medical Officer of the respondent-company himself had certified that the petitioner was fit to hold the post of a Motor Vehicle Driver. Under those circumstances, the Proceedings dated 17-10-1998 does not satisfy the criteria laid down by the 1st respondent in his Order dated 10-8-1998. Further, the Medical Officer of the respondent-company, who said to have examined the petitioner at Osmania General Hospital along with Dr.Sudheer R Naik and issued medical certificate was made a party in this proceeding as 5th respondent. Though notice is served, no appearance is made and no counter affidavit has been filed on his behalf. There is something more behind, which is intangible in this case. More than once the petitioner was referred to the Osmania General Hospital and was declared fit to hold the post, but they have introduced the theory of Dr.S.R.Naik being attended to the patient and examined him and issued the certificate. The said Dr.S.R.Naik was also made a party, but his name was struck off as per the oral order of the Court. Therefore, the allegation made by the petitioner that he was not examined by Dr.S.R.Naik at any point of time goes unrebutted. Even the purported Medical Board, which gave its opinion on 19-9-1998 was also not properly constituted as required by the Order of the 1st respondent dated 10-8-1998, which states that the Medical Board should consist of one outside expert in the concerned field and two internal Physicians/Surgeons of the respondent-company. Admittedly, the Medical Board, which reviewed the case of the petitioner on 19-9-1998 consisted of only Dr.Sudhir R Naik, Professor and Head of the Department of Cardiology, Osmania General Hospital and Dr.C.R.P.S.Krishna, Physician, Main Hospital, Singareni Collieries Company Limited Kothagudem and not with three Medical Officers as ordered by the 1st respondent. Further, as asserted by the petitioner, the report also does not speak that the petitioner was examined physically by the Board at all. Though the Board refers to various earlier reports, the Proceedings dated 19-9-1998 of the Board reveals that the petitioner was not examined physically by the Board on that day i.e. 19-9-1998. It may be noticed that it cannot be said that a person with heart disease after treatment cannot attend to his normal duties. Even this is the opinion of the Medical Officers of the company as per the record placed before this Court. But such factors were never taken into consideration, whether the petitioner requires any operation or other treatment and at least thereafter he could attend to his normal duties. Simply to get rid of the petitioner, the Medical Board of the company declared him unfit, since it had spent about Rs.75,000/- towards medical expenses while introducing PTCA/Stent. It is unfortunate to note that the 3rd respondent in his proceedings recorded that the opinion rendered by the Medical Officer of the OGH/NIMs/outside hospital is not binding on them. May be, it is not binding on them, but at their instance, the petitioner was referred to the referral hospital. Once having referred the petitioner and invited the opinion, time and again they are not supposed to shuttle the petitioner between one hospital and another and for one opinion and another and subjecting him to discriminatory treatment. From the above circumstances, it is clear that the case of the petitioner was not dealt with fairly. Therefore, I am of the considered opinion that the services of the petitioner could not have been terminated without examining him by a duly constituted Medical Board as was directed by the 1st respondent on 10-8-1998 and any decision of the company affecting the interests of the petitioner, at that stage, could have been communicated to the petitioner and he should have been asked to submit his explanation and thereafter final proceedings ought to have been issued. Therefore, the impugned orders are liable to be are set aside; accordingly, set aside. The petitioner is entitled for reinstatement into service with all consequential benefits. Respondents 1 to 4 are directed to re-examine the petitioner by constituting a proper Medical Board as directed by the 1st respondent in his Order dated 10-8- 1998 and shall communicate the decision of the Board to the petitioner and call for his explanation, in case they want to take a decision to terminate his services. The Writ Petition is allowed to the extent indicated above. There shall be no order as to costs. September 9,2004 Prk The Rule nisi has been made absolute as above. Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Ninth day of September Two thousand and Four. ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER 1 The Chairman & Managing Director, Singareni Collieries Co.Ltd., Kothagudem. 2 The Sr.Divisional Engineer, Singareni Collieries Co.Ltd Manuguru. 3 The Chief Medical Officer, Singareni Collieries Co.Ltd., Manuguru. 4 The Dy.Medical Superintendent Singareni Collieries Co.Ltd Manuguru. 5. 2CD copies