IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.10.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION No.849 OF 2009 R.John .. Petitioner vs. The General Superintendent Christian Medical College and Hospital, Vellore Tamil Nadu. .. Respondent Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus as stated therein. For petitioner : Mr.R.John Party-in-Person For respondent : Mr.Pandian .. ORDER The writ petitioner was appointed as a Special Attender in the respondent college and hospital in Vellore on 1.11.1965. As per his date of birth, his date of retirement is 3.4.2004. It is the case of the petitioner that he was removed from service on 15.7.1997 on medical ground. According to him, he was removed from service without any basis and he is liable to be paid salary till his original retirement date i.e., 3.4.2004. The petitioner has given a representation on 4.7.2008, requesting to pay arrears of salary and seeking retirement certificate. Since no order has been passed, he filed the present writ petition for direction against the respondent to set aside the order of removal from service on medical ground of HIV on HAART dated 15.7.1997 and to pay arrears of salary. 2. In the counter affidavit of the respondent college, it is stated that the petitioner joined as Peon in the Radiation Therapy Department with effect from 1.11.1965 as per the appointment order dated 27.10.1965 on the scale of Rs.63-1-1½-88. It is stated that the petitioner had been absenting himself without permission or https://hcservices.ecourts.gov.in/hcservices/ leave and memo was issued on 28.4.1983 for absenting himself without leave or permission on 21.3.1983 and 22.3.1983. 2(a). It is stated that there was a show-cause notice issued on 13.2.1984 for his absence on 30.1.1984 and his absence was treated as loss of pay and a charge memo was issued on 28.9.1988 for forcibly entering into the Deputy Director's room and threatening the officials and he was fined to pay a sum of Rs.20/- for his misconduct as per memorandum dated 1.12.1988 and he was also warned for his unauthorised absence on 13.2.1989. It is stated that again, for the unauthorised absence on 3.6.1991 and 4.6.1991, he was warned on 3.10.1991 and he was also fined a sum of Rs.25/- for his misconduct as per memorandum dated 29.7.1992. 2(b). It is the case of the respondent that the petitioner was always sick and incapable of discharging the work assigned to him and ultimately, the petitioner voluntarily requested for retirement on medical grounds by letter dated 25.6.1997 and the Medical Board consisting of a panel of doctors examined him and on the basis of the report of the Medical Board, he was afforded another opportunity to say as to why he should not be retired on continued ill-health and that letter was acknowledged by the petitioner on 10.7.1997 and the petitioner reiterated that he would be willing to retire from service as per the Medical Report. 2(c). It is on receipt of the letter of the petitioner dated 10.7.1997, by memorandum dated 14.7.1997, the petitioner was informed that he would retire from service on medical grounds and a cheque for one month pay was also sent. It is stated that the petitioner received the cheque without any protest. 2(d). It is stated that Staff Special Superannuation Benefit is given to staff who retire on medical grounds only if they have completed 55 years of age and put in 20 years of service and as on 15.7.1997, the petitioner was not eligible to receive the Staff Special Superannuation Benefit, however, he was paid the Maximum Ex- gratia payment of Rs.20,000/- on 21.7.1997 payable to employees discharged on medical grounds and seven years after receiving the said amount in 1997, the petitioner submitted the letter dated 29.10.2004, asking for Staff Special Superannuation Benefit, in which he requested that the amount of Rs.20,000/- already given may be deducted. 2(e). It is stated that the said representation of the petitioner was placed before the Council of the college as a special case and the Council sanctioned monthly pension to the petitioner with effect from 15.7.1997 and from the said date onwards, the petitioner has been receiving the monthly pension of Rs.2754/- regularly. Therefore, according to the respondent, all the https://hcservices.ecourts.gov.in/hcservices/ statutory benefits due to the petitioner were given and there are no other dues. 3. The petitioner who has appeared in person, while admitting that it was due to his continuous ailment, he was unable to perform his functions, he has stated that he never opted for voluntary retirement on medical grounds. Therefore, according to him, he should have been permitted to work till his date of retirement viz. 3.4.2004. It is his submission that the conduct of the respondent in not allowing him to work till 3.4.2004 is against law and therefore, he is entitled for full salary till 3.4.2004. He has also stated that he is entitled for salary as it was paid to the similarly situated employees. 3(a). It is his case that on the said date of retirement, a similarly situated employee was paid a sum of Rs.6000/- per month as salary and based on that, he filed a letter to this Court stating that he will be entitled for Rs.5,95,400/-. When specifically asked, he also admitted that he has been paid the pension amount of Rs.2754/- from 1997 onwards. His only submission is that he has never asked for voluntary retirement at any point of time. 4. On the other hand, Mr.Pandian, learned counsel appearing for the respondent College would submit that the letter of the petitioner opting for retirement on medical ground shows that it is voluntary and it is not fair for the petitioner who has been getting treatment for his ailment in the same medical college free of cost for the past many years and receiving pension from 1997 as a special case, to allege now as if he was compelled to give the letter for voluntary retirement. On instructions from the respondent, he would submit that up to an amount of Rs.30,000/- may be paid additionally to the petitioner but, the petitioner has refused to accept the said offer and insisted for an order to the effect that he is entitled for the entire salary up to 3.4.2004 along with other benefits. The petitioner also admits that he has been given treatment for his ailment in these years. 5. A reference to the order of appointment given to the petitioner dated 27.10.1965 shows that the petitioner whose qualification was 10th Std. and SSLC failed was appointed as a Peon in Radiation Therapy Department of the respondent college with effect from 1.11.1965 with the starting pay of Rs.63/- per month. The said appointment was subject to the completion of probation for one year and he is entitled to become a member of the Provident Fund from the time of confirmation. As per the appointment order, the normal age of retirement for the last grade workers like, Attenders, Special Attenders, Ward-aids, Ward-boys, Peons and Sweepers is 55 years, however, it is extendable by the General Superintendent beyond 55 years and not beyond 65 years at any cost. As on https://hcservices.ecourts.gov.in/hcservices/ 15.7.1997, the petitioner should have been 53 years old since as per the appointment order his date of birth is 3.4.1944. The relevant portion of the appointment order referring to age of retirement is as follows: " (ii) The normal age of retirement for the last grade workers (Attenders, Special Attenders, Ward-aids, Ward- boys, Peons and Sweepers), and artisans (mechanics, drivers, carpenters, tinkers,blacksmiths and plumbers) is 55 years. It shall, however, be open to the General Superintendent to extend the service of a person by one year at a time beyond 55 years. No person in these categories will be related in service after completion of 65 years." 6. It is true that some memos have been issued to the petitioner for his absence without permission or leave. The typed-set of papers filed by the respondent college contains a letter stated to have been sent by the petitioner on 25.6.1997 to the respondent requesting for retirement on medical grounds. The contents of the letter are as follows: "I have joined our noble institution on 1st November 1965in our Hospital Services and spanning a period of 32 years of blemishless track record. Of late for the past 5 years I was on and off suffering from ill health and was duly treated in our hospital. Recently, I was treated for a major ailment and was bedridden for more than three weeks. During the said period of illness I have lost quiet substantial body weight due to which I am unable to cope up with the day to day work outrusted to me. I am not able to even withstand minor viral infections and now through this letter I request your good offices to entertain my request for retirement on purely humanitarian and health grounds. I am very much grateful for your favourable reply for my above stated request." 7. The signature in the said letter has not been denied by the petitioner who appeared in person, but, it is his case that he was compelled to sign such letter on 25.6.1997. However, the petitioner has not stated anything in the affidavit to the effect that the signature was obtained by the respondent by compulsion. There are records to show that the petitioner was examined by the Medical Board consisting of Dr.P.J.Kuruvilla, Convenor, HOD and four other doctors and the report shows that the petitioner is suffering from recurring diarrhoea, weight loss and lethargy. 8. After the said report was received from the Medical Board, https://hcservices.ecourts.gov.in/hcservices/ the respondent issued a memorandum to the petitioner on 10.7.1997 stating that the petitioner is permanently incapacitated and the chances of his recovery are remote and it has been decided to retire the petitioner from service on account of his continued ill-health with effect from 15.7.1997 and in the said memorandum, the petitioner was called upon to give his reply. Thereafter, the respondent passed the order on 14.7.1997, retiring the petitioner from service with effect from 15.7.1997 on the ground of ill-health. 9. It is also stated that since the petitioner has worked in the respondent hospital for more than 15 years, he would be eligible for medical facilities as it is available to all retired employees and not eligible for Staff Special Superannuation Benefit for Long Term Service as the petitioner has not completed 55 years of age as on 15.7.1997 and instead, an amount of Rs.20,000/- would be paid on the ground of ill-health. It is seen that along with the said order, a clearance certificate was enclosed and even though the petitioner has not sent back the clearance certificate with signature, he has received the said amount of Rs.20,000/- which is not in dispute. 10. It was only on 29.10.2004, after seven years from the date of retirement on medical grounds, having received pension continuously, the petitioner wrote a letter to the respondent admitting that he was retired on medical grounds and that requested payment of pension as given to other retired staff. The said letter of the petitioner dated 29.10.2004 is as follows: " Sub:Pension on medical ground retirement – Reg. Ref:Appointment dated 1.11.1965 – Retirement dt.14.7.1997 under medical ground. ... I had been working in Pharmacy department upto 1997. At that time, I was retired on medical ground. At present, CMCH provides pension benefits for previous retired staff (medical grounds also). So, I kindly request you to arrange the above said pension benefit for me. At that time of retirement, I was given Rs.20,000/-. Kindly deduct this amount from my benefit." Even in the said letter, he has not whispered anything about the alleged compulsion played by the respondent while getting the letter dated 25.6.1997. On the other hand, he only requested for pension as given to other retired staff. 11. It was, considering the said application of the petitioner, the respondent decided to approve payment of special ex-gratia of Rs.20,000/- already paid and that decision was taken in July, 2005. The resolution stated to have been passed by the respondent college https://hcservices.ecourts.gov.in/hcservices/ as found in the typed-set of papers filed by the respondent is as follows: " The June 2002 Council has approved a reduction of the minimum qualifying years of service for eligibility for the staff special superannuation benefit scheme for long term service from 20 years to 15 years and the age ceiling of eligibility from 55 years to 50 years. In view of this, the following staff application can be taken to the Administrative Committee for consideration. (the details prepared by the Accounts department are given below) prior to the discussion in the Executive Committee. As per the rules, preclude a member of staff receiving both the exgratia payment and superannuation benefit when he is discharged from service on medical grounds, a decision needs to be taken on whether the exgratia payment of Rs.20,000/- needs to be recovered if the SSSBS is approved. After discussion, it was RESOLVED to recommend to the Director/Executive Committee to approve the special superannuation benefit to Mr.John. R.Emp.No.01480, Attender Gr.I. Pharmacy Dept. Who has retired on medical grounds from 15.7.1997. Mr.John R.Emp.No.01480 Designation : Attender Gr.I Dept. : Pharmacy Date of Joining : 1.11.1965 Date of discharge on medical grounds : 15.7.1997 Years of service : 30years Basic & DA at the time of discharge : 1322/- Rs.1426/- SSBS based on final salary : Rs.1374/- Basic & DA as per latest salary revision : Rs.2700/- & Rs.1350/- SSBS based on latest salary revision : Rs.2025/- Recommendation : Full Exgratia paid : Rs.20,000/-" 12. It is the admitted case that the petitioner received the amount of Rs.20,000/- as ex-gratia payment along with the order of discharge on medical grounds dated 14.7.1997. It is also the admitted case that the petitioner is being paid the monthly pension of Rs.2754/- from the date of his discharge. As per the decision https://hcservices.ecourts.gov.in/hcservices/ taken by the respondent in the Council as stated above in July, 2005, the ex-gratia amount of Rs.20,000/- has been paid to the petitioner. It was, considering the special case of the petitioner, the respondent through his counsel submitted that another amount upto Rs.30,000/- would be paid. 13. On the facts which have been elicited above, there is no reason to suspect that the respondent obtained the letter from the petitioner on 25.6.1997 forcibly. The very fact that the petitioner has not raised anything about the so-called compulsion in getting such letter and the petitioner has raised only in the year 2004 that he was forcibly discharged on medical grounds shows that the petitioner has raised an unbelievable story, in this case. If really such compulsion had been played by the respondent against the petitioner with any motive, the respondent would have even refused to give medical treatment to the petitioner. The petitioner himself admits that he is suffering from ailment and receiving treatment in the respondent hospital. Even in the letter dated 4.7.2008 written by the petitioner to the respondent as it is seen in the typed-set of papers filed by the petitioner, he has not raised any issue that he was compelled to retire on medical grounds on 14.7.1997 and his compliant is that he was not given a certificate of retirement. The said letter is as follows: "Sub:Letter requesting to furnish information under the Right to Information Act. .. I joined in the services of Christian Medical College and Hospital, Vellore as Attender on 01.11.1965 and my employment number was 01480. After serving for 32 years I was made to retire on medical grounds on 14.7.1997. Though I was made to retire on compulsion, I was not served any Order of Retirement. More over, despite my repeated requests from 1999 till date I was not furnished Certificate of Retirement. Therefore, I request you to furnish me a copy of Order of Retirement and Certificate of Retirement. Thanking you." 14. As found in the typed-set of papers, the petitioner himself has filed the pension order issued by the respondent stating that the pension would commence from 16.7.1997 which shows that the claim of the petitioner in this writ petition is only an after thought. It is not the case of the petitioner that the order dated 14.7.1997 has not been served on him. He has also admitted that he has received Rs.20,000/- as ex-gratia payment when he was discharged from service. 15. Further, as seen from the appointment order, the age of https://hcservices.ecourts.gov.in/hcservices/ retirement is 55 years for the posts of Attenders, Peons, Sweepers, etc. Even though power is given to the General Superintendent to extend the age limit up to 65 years, the said power of extension would not be applied in the present case. If 55 years is taken as the age of retirement, his date of birth being 3.4.1944 as it is seen in the appointment order, the petitioner's actual retirement on completion of 55 years would be 2.4.1999, but he was discharged from service on medical grounds on 14.7.1997. Therefore, he would have been in service after the date of discharge only for another one year and nine months, if not discharged. Even if that is taken into account, his claim for Rs.5,95,400/- can never be accepted as it is highly fanciful and beyond any human understanding. The claim of the petitioner cannot be entertained even under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short, "the Act") which is applicable to establishments defined under section 2(k) of the said Act which is as follows: " 2(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Department of a Government." 16. Even assuming otherwise, the disabilities for which the employer dispenses the services of the employee and confer the benefit under section 47 of the Act does not cover the disability stated to have suffered by the petitioner. The term, 'disability' is defined under section 2(i) as follows: "2(i) "disability" means- (i)blindness; (ii)low vision; (iii)leprosy-cured; (iv)hearing impairment; (v)locomotor disability; (vi)mental retardation; (vii)mental illness." Therefore, the benefit conferred to the employees under section 47 of the Act is also of no avail to the petitioner. In such view of the matter, the petitioner is not entitled for the relief of Rs.5,95,400/- claimed by him during the course of argument, ignoring the order of discharge made by the respondent on medical grounds on 15.7.1997. In any event, as stated above, the learned counsel has submitted on instruction that the respondent is ready to pay a sum of Rs.30,000/- to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 17. In the circumstances that the petitioner is stated to be suffering from a serious disease for many years for which the respondent is giving treatment, I am therefore of the view, to meet the ends of justice, the petitioner should be paid an amount of Rs.50,000/- in addition to the amount of pension which he is entitled as per the Rules governing the respondent college. Accordingly, the writ petition stands dismissed however with direction to the respondent to pay an amount of Rs.50,000/- as a special case to the petitioner considering the disease with which the petitioner is affected, in addition to the pension which is being paid to him and the said amount shall be paid to the petitioner within a period of 10 days from the date of receipt of copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To The General Superintendent Christian Medical College and Hospital, Vellore Tamil Nadu. CKN(CO) km/20.10. W.P.NO.849 of 2009 https://hcservices.ecourts.gov.in/hcservices/