Orissa High Court
Lokanath Khora vs Hindustan Aeronautics Limited And ... on 27 November, 2017
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.11282 of 2012
In the matter of an application under Articles 226 and 227 of the Constitution
of India.
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Lokanath Khora ...... Petitioner
- Versus-
Hindustan Aeronautics Limited and others ...... Opposite Parties
For Petitioner : M/s S.Patra-1 & B.C.Patra
For Opp.Parties : Mr. Sarat Ku.Das, Sr.Advocate,
M/s. N.N.Mohapatra, O.J.Devdas &
S.K.Mohanta (for O.Ps. 1 to 3).
M/s Ajodhya Ranjan Das, B.Mohapatra,
K.S.Sahu, L.D.Achari, G. Chaitanya,
A.Mohanta (for O.Ps. 2 & 3)
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PRESENT:
THE HONOURABLE SHREE JUSTICE S.N.PRASAD
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Date of hearing and judgment: 27.11.2017
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S.N.Prasad,J. In this writ petition under Articles 226 and 227 of the
Constitution of India wherein the order dated 16.6.2012 as contained under
Annexure-14 is under challenge whereby and where under training of the
petitioner as Technician Trainee(Turner) in the Hindustan Aeronautics Limited
has been terminated with immediate effect.
2. Brief facts of the case of the petitioner as pleaded the writ
petition is that he has passed H.S.C. Examination and +2 Arts Examination in
the year 1995 and 2000 respectively, had undergone apprenticeship training
in the trade Turner at Training and Development Centre of Hindustan
Aeronautics Limited, Koraput Division, Sunabena-2 from 15.4.2002 to
2
14.4.2005. He has passed the prescribed test conducted by the National Council for Vocational Trades, New Delhi held in the month of April,2005. He was duly selected and appointed as Technical Trainee(Turner) vide order dated 24.1.2007, then he was examined by doctors of Visakha Eye Hospital on 22.2.2097 and reported on 23.2.2007, appointment of the petitioner was cancelled vide order dated 21.3.2007. The petitioner has submitted his candidature again pursuant to the advertisement dated 6.12.2008, after being duly selected, he vide order dated 9.11.2010 was issued with the provisional letter of appointment to the post of Technical Trainee(Turner) with terms and conditions as indicated therein, he thereafter joined his duties.
3. Grievance of the petitioner that prior to joining he was found fit in the medical test and accordingly allowed to complete training successfully and satisfactorily and as such appointed to the post of Technical Trainee(Turner) vide order dated 12.2.2011 and pursuant thereof he joined his duties and discharging his duties to the satisfaction of the higher authorities but he was advised to go for re-medical examination vide order dated 27.2.2012 in the office of the Chief Medical Services, HAL, Sunabeda, petitioner has prayed to allow him time to appear in the medical examination but vide order dated 23.3.2012 he was intimated that re-medical examination is re-scheduled on 26.3.2012 and the same will be conducted at Visakhapatnam and accordingly he was directed to report on 26.3.2012, accordingly he had attended re-medical examination on 31.3.2012 at Visakhapatnam wherein it was detected that he is suffering from Deutranopia i.e. Congenital Red-Green Absolute Colour Blindness and accordingly show cause notice has been issued upon him, he had responded but without considering his response, the authorities has come out with order as contained in the communicated dated 16.6.2012 whereby and whereunder his training as Technical Trainee(Turner) has been terminated with immediate effect which is impugned in this writ petition.
The petitioner has assailed the action of the authorities on the ground that before re-examination he was medically examined in which he was found to be medically fit and thereafter he was allowed to complete the 3 training which he has completed and in view of the successful completion of training he has been permanently given appointment as Technical Trainee(Turner) and then he has started discharging his duties. He was again been directed to medically examine locally but subsequently he was forced to take L.V.Prasad Eye Institute, Visakhapatnam for examination where the petitioner was found suffering with disease of Deuteranopia i.e. Congenital Red-Green Absolute Colour Blindness which is absolutely illegal, reason being that at the time of pre-training he was medically examined, thus there was no occasion to re-examine him and by doing so the authorities have committed illegality and unreasonableness.
4. The opposite parties have filed counter affidavit, inter alia, stating therein that the opposite parties-company is a defence unit of Government of India under the Ministry of Defence, established for production and overhaul of Aero engines of the defence needs of the country. The company has set up various divisions at different locations in the country of which Engine Division, Koraput is established at Sunabeda in the district of Koraput, Odisha where the petitioner was engaged as a Technician Trainee(Turner). The petitioner has been provided offer of appointment for the post of Technician Trainee(Turner) after completion of the procedure required, which was provisional one and subject to qualifying the pre-employment Medical examination. After completion of medical examinations, the petitioner had joined as a Technician Trainee(Turner) in the division on 28.2.2011. It was stipulated in the provisional offer of appointment, under Annexure-6, that the training of the petitioner will be for a period of one year and upon completion of training satisfactorily, said appointment will be regularized and in such case, he will be kept under probation for a period of six months. It was further stipulated that after satisfactorily completion of the probation period, appointment of the petitioner in the said post will be confirmed only if he will be intimated to that effect in writing. The petitioner while was in training, the opposite party-company received registered notice from an Advocate of Koraput wherein the Division was informed that the petitioner is suffering from colour blindness and in order to verify the veracity of the allegation and to ascertain the truth, the opposite party-company constituted 4 a committee for re-medical examination of the petitioner consisting of Chief of Medical Services, HAL Hospital, persons from higher management of the company and authority from Human Resources Department of the company. The company has also taken into consideration by putting one independent person other than from HAL Hospital and in order to avoid any type of biasness, Consultant-Ophthalmologist and Eye specialist from District Headquarters Hospital, Koraput were included as members of the said committee. Accordingly, the petitioner was informed on 27.2.2012 regarding his proposed re-medical examination and to appear before the said committee at 2 p.m. on the same day for his re-medical examination. The petitioner had appeared before the said committee on the said day but refused to undergo the medical test. He, without assigning any reason, had requested the committee to allow him 5 to 10 days time for the said test, but in spite of several requests the petitioner remained calm and did not agree for the medical test. The petitioner thereafter submitted an application on 2.3.2012 to the Senior Manager(HR) expressing his willingness to undergo the medical test and mentioned that due to family problem he could not face the medical test on 27.2.2012 and requested to allow 20 days time to prepare for the medical test. On 27.2.2012 the petitioner did not intimate anything to the committee regarding his family problem and as such the authority on appreciation decided to send the petitioner to Visakhapatnama by rescheduling the medical test to 31.3.2012 and the same was intimated to the petitioner on 30.3.2012 as per Annexure-10 annexed to the writ petition. The petitioner had reported for medical test on 31.3.2012 and was sent officially to L.V.Prasad Eye Institute, Visakhapatnam which is a specialized Eye Hospital for which the petitioner has also consented for examination of his eyes and put his signature for the purpose in the portion of the Patient Record Face Sheet supplied to him. Accordingly, he was examined and it was dictated that he is suffering from Deuteranopia. Said finding of the medical examination was forwarded to the Chief Medical Services, HAL Hospital, Sunabeda for interpretation of the report and accordingly it was requested to submit his opinion. The Chief Medical Services in his report clarified that „Deuteranopia‟ is a medical terminology used for „Congenial Red-Green Absolute Colour Blindness. He 5 further informed that the petitioner is suffering from Red-Green Colour Blindness and he is considered to be unsuitable for technical job. Accordingly, show cause notice was issued to the petitioner to reply and after taking into consideration the nature of job which he was performing and considering the fact that he was found medically unfit as per the report submitted by L.V.Prasad Eye Institute, his training has been cancelled with immediate effect vide communication dated 16.6.2012 which is impugned in this writ petition.
Learned counsel for the opposite party-company has submitted that the authorities have committed no illegality in asking the petitioner to go for re-medical examination and the same has been provided under Clause 22 of the Standing Orders which contend that there was pre-medical examination and after completion of training and for regular appointment, medical examination can be done of an employee and for the interest of the company the authority has put the petitioner medical re-examination, hence there is no illegality.
He further submits that at the first instance also the petitioner was medically examined and he was found not fit but he has made application second time, this fact has been suppressed and if this fact would not have been suppressed, the authority would not have appointed him, hence the petitioner cannot take plea that the action of the authority is illegal.
5. Heard learned counsel for the parties and perused the documents available on record.
6. It is evident from appreciation of the rival submissions of the parties that the petitioner who has got Technician Training(Turner) under the opposite parties and in view thereof he was appointed on 24.1.2007 as Technician Training(Turner), he was examined by doctors of Visakha Eye Hospital on 22.2.2007 and on the report dated 23.2.2007 the appointment of the petitioner was cancelled vide order dated 21.3.2007 on the ground that he was suffering from illness of eyes. The petitioner has again made application in pursuance to the advertisement dated 6.12.2008 and has been duly 6 selected vide order dated 9.11.2010 provisionally as Technician Training(Turner) with the terms and conditions indicated therein which speaks that the appointment would be subject to presenting a satisfactory medical report from the company Medical Officer at HAL Hospital, Sunabeda and satisfactory verification of character and antecedents from the concerned district authorities and thereafter final offer of appointment has been issued vide order dated 12.2.2011 making the appointment on probation for a period of six months. The petitioner while discharging his duty the authority has been informed from the local Advocate regarding petitioner suffering from eye disease. Accordingly, the authorities, in order to verify the genuineness of the complaint, has constituted a committee for re-medical examination of the petitioner and was directed to appear before the committee but he, in spite of several adjournments, has not appeared and as such the members of doctors of the committee decided to refer the petitioner to a specialized eye hospital where Hi-tech facilities are available for checking colour blindness in order to avoid biasness of the company. The committee also recommended to the management to initiate suitable administrative/ disciplinary action for insubordination committed by the petitioner. The petitioner thereafter has made an application on 2.3.2012 stating therein that he may be allowed to undergo the medical test. Accordingly, he was asked to go to the L.V.Prasad Eye Institute, Visakhapatnam which was conducted on 31.3.2012 there and it was found that the petitioner is suffering from Emmetropia Deutranopia which is a medical terminology used for „Congenital Red-Green Absolute Colour Blindness and as such show cause notice was issued upon him which he has responded and thereafter the authorities has come out with order of cancellation of the Technician Training(Turner) which is impugned in this writ petition.
7. Learned counsel for the petitioner has taken ground that once the petitioner has been given provisional appointment as Technician Training(Turner) and when he was medically been examined then there was no occasion for the authorities to again go for re-medical examination. It is evident from the contents of the Clause-22 of the Standing Order which is annexed as Annexure-F to the counter affidavit, it has been provided:
7" "All candidates selected for employment shall undergo a thorough medical examination and shall be allowed to join their respective duties only when they are found medically fit. After joining their duties, all workmen shall be liable to be medically examined at the discretion of the management and if found permanently medically unfit by the authorized medical Officer, they will be liable to be discharged from service, provided that if any of the workmen concerned so desires, he shall be referred to a Medical Board of 3 officers to be set up by the management on payment of Rs.10/- which shall be refunded to him if he is declared medically fit by the Board. The decision of the Medical Board referred to above in this regard shall be final."
It is evident from the Standing Order that it is the discretion of the opposite parties to ask employee to go for medical examination and if found permanently medically unfit by the authorized medical officer, they will be liable to be discharged from service, provided that if any of the workmen so desires, shall be referred to a Medical Board of 3 officers to be set up by the management on payment of Rs.10/- which shall be refunded to him if he is declared medically fit by the Board. The decision of the medical board referred to above in this regard shall be final, argument which has been advanced by learned counsel for the petitioner that the opposite parties cannot take decision by asking the petitioner to go for re-medical examination after getting appointment on permanent basis, is contrary to the provisions of the Standing Order as referred to above, the provision of Standing Order will be applicable to the petitioner as per the provision of the Industrial Disputes Act,1947.
In view thereof, jurisdiction of the authority in asking the petitioner to go for re-medical examination cannot be said to be illegal.
8. So far as the contention raised by the learned counsel for the petitioner that at the initial stage the petitioner was found medically fit and as such there was no occasion for re-medical examination and even if he was medically examined, the said report cannot be relied upon, this argument is not sustainable in the eye of law for the reason that the petitioner although was examined at the time of getting the provisional appointment but on complaint received from the local Advocate that the petitioner was suffering from eye ailment, it was the duty of the opposite parties to look into the veracity of the complaint and accordingly acting upon the same, initially the medical Board was constituted consisting of opposite parties, doctors along 8 the government doctors, in order to avoid the biasness to shows bonafide by the authorities but the petitioner refused to appear before the committee but however, subsequently he has shown his willingness to be re-medically examined but in the meanwhile, the authority at its own discretion, that has been invoked by virtue of the provision of the Clause 22 of the Standing Order, has decided to send the petitioner for expert medical examination at L.V.Prasad Eye Institute, Visakhapatnam, accordingly he was tested therein and it was found that the petitioner was suffering from eye disease which is not suitable to retain him in service.
The other reason for not accepting this argument is that in the first instance of the petitioner was found not suitable on the ground of colour blindness, that was the basis of the report given by L.V.Prasad Eye Institute, Visakhapatnam but second time when he has participated in the medical examination process, he has not disclosed this aspect of the matter to the authorities and as such he has suppressed the material aspect and as such now the petitioner cannot take this point that he should not have been directed to go for re-medical examination, since it is the petitioner who has suppressed the material fact from the authority and if he would have stated the instance of the first time, the authority would not have appointed him. It is a fact that at the second time he was appointed on the basis of the some medical examination but it does not mean that any error if committed by the authorities, the petitioner will be allowed to take advantage of the same that too when there is provision under Clause 22 of the Standing Order and invoking the same, the veracity of the disease has been rechecked up and accordingly it was found that he is suffering from a disease which is not fit to retain him in service.
The petitioner was on probation during the relevant time and show cause notice has been issued which was not responded and thereafter accepting the medical report and taking into consideration the fact that the person suffering from such nature of disease that cannot be allowed to be retained in service considering the serious nature of work which relates to 9 defence of the country and as such the decision of the authority in terminating the petitioner cannot be said to be illegal.
9. The plea taken by the petitioner that since he was holding regular post and as such disciplinary proceeding ought to have been initiated but same is also not sustainable in the light of the fact that the order of cancellation of Technician Training(Turner) is simplicitor and not on the basis of any misconduct warranting any disciplinary action. It is settled that in a case of simplicitor termination, a show cause notice is the requirement of the law, which has been done in this case and as such this argument of the learned counsel for the petitioner is not sustainable in the eye of law.
10. In the entirety of facts and circumstances and the reasons stated herein above, we find no reason to interfere with the decision taken by the authorities under Annexure-14.
Accordingly, the writ petition fails and is dismissed.
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S.N.Prasad,J.
Orissa High Court, Cuttack, Dated the 27th November,2017/Palai