Jharkhand High Court
Siddhant Dilip Jangam vs Coal India Ltd on 4 March, 2021
Equivalent citations: AIRONLINE 2021 JHA 415
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 [W.P.(S) No. 1945 of 2017]
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 1945 of 2017
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Siddhant Dilip Jangam, son of Sri Dilip Jangam, resident of Plot no.62,63, Pushpa Apartment, Manish Nagar, PO and PS-Somalwara, District Nagpur ..... Petitioner
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1.Coal India Ltd., through its Chairman having his office at Coal Bhawan, 10 Netaji Subhash Road, Kolkata, PO and PS Kolkata, West Bengal
2.Director (Personnel), Coal India Ltd., through its Chairman having its office at Coal Bhawan, 10 Netaji Subhsah Road, Kolkata, PO and PS Kolkata, West Bengal
3.Deputy Director(Personnel), Coal India Limited, having his office at Darbhanga House, PO, PS and District-Ranchi ...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Shresth Gautam, Advocate For Respondents :- Mr. Anoop Kumar Mehta, Advocate
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7/04.03.2021 Heard Mr. Shresth Gautam, the learned counsel for the petitioner and Mr. Anoop Kumar Mehta, the learned counsel for the respondents.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitioner has preferred this writ petition for quashing the communication dated 28.06.2016 whereby the petitioner has been declared unfit for the job. The further prayer for quashing of order dated 27.10.2015 as well as 13.06.2016 issued by the Medical Board of the respondents have also been challenged. The prayer for appointment of the petitioner on the post of Management Trainee (Mechanical) is also made.
2 [W.P.(S) No. 1945 of 2017]
4. The petitioner was studying B.Tech course at Nagpur wherein the respondent-Coal India Limited has approached for appointment on the post of Management Trainee (Mechanical). The petitioner participated in the placement fair organized by the college wherein the petitioner was studying. The respondent-Coal India Limited has participated in that fair. The petitioner was examined by the respondent-Coal India Limited by way of written and oral interview and thereafter the petitioner was offered appointment as Management Trainee in Coal India Limited. In the said appointment letter, it has been disclosed that the petitioner is required to report to the General Manager (Personnel/Rectt), CIL, CMPDIL, Kanke, Ranchi for medical test. The petitioner was examined in the light of Medical Attendance Rule which came into force on 26.12.1981 of the respondent-Coal India Limited. The petitioner has approached the respondent authorities on the scheduled date for medical check-up and a Form 'O' in terms of Rule 29 'F' to Rule 29 'L' of the Mines Rules, 1955. The medical form in the Form 'O' was issued whereby the petitioner has been declared as temporary unfit owing to 'Diabetes Mellitus'. The petitioner again got himself examined with an independent diagnostic service wherein it was declared that the petitioner's diabetes is under control. The petitioner was again called for re-examination and again a form 'O' dated 13.06.2016 was issued and the same finding of the ailment i.e. 'Diabetes Mellitus' was declared. When the appointment was not extended to the petitioner, the petitioner approached the Bombay High Court, Nagpur Bench, at Nagpur in W.P. No.4673/2016 which was disposed of on the ground of territorial jurisdiction and the petitioner was provided liberty to move before the competent Court having jurisdiction of Ranchi area. Pursuant thereto, the 3 [W.P.(S) No. 1945 of 2017] petitioner has filed the present writ petition with the aforesaid prayers.
5. Mr. Shresth Gautam, the learned counsel appearing on behalf of the petitioner assailed the impugned action of the respondent- Coal India Limited on the ground that diabetes is not an ailment for which the appointment can be refused in the present scenario. He submits that diabetes is now a days very common in the Indian society and apart from that, no other ailment has been declared against the petitioner. He submits that in that view of the matter, the petitioner was required to be taken into service and on erroneous ground of ailment the petitioner has been denied the appointment. To buttress his argument, he submits that the case of the petitioner is fully covered in view of the judgment of Madras High Court in the case of 'Union of India v. M. Packiyaraj' in W.P.No.3385/2015 which was disposed of by order dated 27.10.2015. He refers to paragraph nos.8 and 9 of the said judgment, which are quoted hereinbelow :
"8. The Hon'ble High Court Madras in its order dated 01.08.2013 in W.P.No.21082/2013, while affirming the order of this Tribunal in OA 381/2012 dated 15.03.2013, observed in para-5 as follows:-
"5. We are unable to accept the stand taken by the learned counsel for the petitioners as the said provision viz., para-511 9 (d) speaks about constitutional disorders commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. No record has been placed by the Railway administration to establish that diabetes is said to be a constitutional disorder commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. Medical experts opine the diabetes is a condition where the body fails to utilize the ingested 4 [W.P.(S) No. 1945 of 2017] glucose properly. Further, there is a school, of thought that a diabetic is not suffering from a disease, but only a disorder that could be managed. Approximately, as of 2011 as per survey, 62.4 million (as against 1.2.billion Indian population) are diabetics, which is stated to increase in 2030 to 110.1 million form the large work force of our country. Diabetics usually has no impact on individual's ability to do a particular job, and in most cases the employer may not even know that his employee has diabetes. As the impact of diabetes and its management varies among individuals, there cannot be a blanket ban on giving public employment to persons with diabetes. The matter largely rests on individual assessment, such assessment may occur in two different situations, first when the applicant is offered a placement/job subject to passing a medical fitness test. In such cases, the fitness is assessed whether the applicant can perform the functions of that particular job/assignment, with or without accommodation, not solely upon being diagnosed as a diabetic. The second situation is when on medical evaluation the employee being a diabetic, could affect his job performance or safety, in such situation there shall be an assessment as to whether an employee could safety carry out his duties assigned... "
9. In the Judgment in W.P.4268/2015 dated 03.03.2015, the Hon'ble High Court of Madras has held as under:-
"9.Today, India has become the diabetic capital of the world. It is common perception that diabetes is more of a disorder than a disease. The dcisions relied upon by the learned counsel for the petitioner, came before the advent of the 5 [W.P.(S) No. 1945 of 2017] persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Today, quite a number of posts on the non technical side are reserved even for persons, who are physically challenged. Therefore, to reject the candidature of the second respondent on the sole ground that he is a diabetic, cannot be accepted and the Tribunal was right in allowing the claim of the second respondent. We find no merits in the writ petition. "
6. He submits that the identical issue was before the Madras High Court and the Madras High Court has considered that the diabetes has became common in India and it is common perception that diabetes is more of a disorder than a disease. He further submits that the petitioner was appointed on the post of Executive and the respondents is also having the general offices in different States and the petitioner can be posted in the offices. He further submits that the petitioner was examined at Ranchi in the hospital of the respondent CCL. In terms of the offer of appointment, the petitioner was required to report before the Personnel Department of CCL at Ranchi and considering, the Nagpur Bench of Bombay High Court has given liberty to the petitioner to approach the Court having territorial jurisdiction of Ranchi area. He submits that part of the cause of action is still there before this Court. So far part of cause of action is concerned, he has relied in the case of "Indian Performing Rights Society Ltd. v. Sanjay Dalia", (2015) 10 SCC 161, paragraph no.14, 15, 17 and 18 of the said judgment are quoted hereinbelow:
"14. Considering the very language of Section 62 of the Copyright Act and Section 134 of the Trade Marks Act, an additional forum has been provided by 6 [W.P.(S) No. 1945 of 2017] including a District Court within whose limits the plaintiff actually and voluntarily resides or carries on business or personally works for gain. The object of the provisions was to enable the plaintiff to institute a suit at a place where he or they resided or carried on business, not to enable them to drag the defendant further away from such a place also as is being done in the instant cases. In our opinion, the expression "notwithstanding anything contained in the Code of Civil Procedure" does not oust the applicability of the provisions of Section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business, etc. as the case may be. Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the defendant resides or where cause of action arose. Section 20(a) and Section 20(b) usually provides the venue where the defendant or any of them resides, carries on business or personally works for gain. Section 20(c) of the Code of Civil Procedure enables a plaintiff to institute a suit where the cause of action wholly or in part, arises. The Explanation to Section 20 CPC has been added to the effect that corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has subordinate office at such place. Thus, "corporation"
can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at a place where it has also a subordinate office at such place.
15. The learned author Mulla in Code of Civil Procedure, 18th Edn., has observed that under clauses
(a) to (c) of Section 20, the plaintiff has a choice of forum to institute a suit. The intendment of the Explanation to Section 20 of the Code of Civil Procedure is that once the corporation has a 7 [W.P.(S) No. 1945 of 2017] subordinate office in the place where the cause of action arises wholly or in part, it cannot be heard to say that it cannot be sued there because it did not carry on business at that place. The linking of the place with the cause of action in the Explanation where subordinate office of the corporation is situated is reflective of the intention of the legislature and such a place has to be the place of the filing of the suit and not the principal place of business. Ordinarily the suit has to be filed at the place where there is principal place of business of the corporation.
17. Accrual of cause of action is a sine qua non for a suit to be filed. Cause of action is a bundle of facts which is required to be proved to grant relief to the plaintiff. Cause of action not only refers to the infringement but also the material facts on which right is founded. Section 20 CPC recognises the territorial jurisdiction of the courts inter alia where the cause of action wholly or in part arises. It has to be decided in each case whether cause of action wholly or in part arises at a particular place, as held by this Court in Rajasthan High Court Advocates' Assn. v. Union of India. Thus, a plaintiff can also file a suit where the cause of action wholly or in part arises.
18. On a due and anxious consideration of the provisions contained in Section 20 CPC, Section 62 of the Copyright Act and Section 134 of the Trade Marks Act, and the object with which the latter provisions have been enacted, it is clear that if a cause of action has arisen wholly or in part, where the plaintiff is residing or having its principal office/carries on business or personally works for gain, the suit can be filed at such place(s). The plaintiff(s) can also institute a suit at a place where he is residing, carrying on business or personally works for gain dehors the fact that the cause of action has not arisen at a place where he/they are residing or any one of them is residing, carries on 8 [W.P.(S) No. 1945 of 2017] business or personally works for gain. However, this right to institute suit at such a place has to be read subject to certain restrictions, such as in case the plaintiff is residing or carrying on business at a particular place/having its head office and at such place cause of action has also arisen wholly or in part, the plaintiff cannot ignore such a place under the guise that he is carrying on business at other far-flung places also. The very intendment of the insertion of provision in the Copyright Act and the Trade Marks Act is the convenience of the plaintiff. The rule of convenience of the parties has been given a statutory expression in Section 20 CPC as well. The interpretation of provisions has to be such which prevents the mischief of causing inconvenience to the parties.
7. He further relied in the case of Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335, paragraph no.37 of the said judgment is quoted hereinbelow:
"37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a "part of cause of action", nothing less than that."
8. He submits that even small fraction of cause of action accrues within the jurisdiction of the Court, that Court is having the jurisdiction in the matter. To buttress his argument, he relied in the case of 'Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, 9 [W.P.(S) No. 1945 of 2017] paragraph no.10 of the said judgment is quoted hereinbelow:
"10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter."
9. He further draws the attention of the Court to paragraph nos.15 to 23 of the counter affidavit filed by the respondents and submits that in these paragraphs, the respondents have admitted that the petitioner was required to be posted as Executive.
10. Per contra, Mr. Anoop Kumar Mehta, the learned counsel for the respondents submits that this Court has got no territorial jurisdiction. According to him, the Coal India Limited Headquarter for eastern region is at Kolkata and the Kolkata Court is having the jurisdiction. To buttress his argument, he refers to paragraph no.7 and 8 of the counter affidavit. Mr. Mehta, the learned counsel for the respondent CIL by way of referring to paragraph no.5 of the counter affidavit, submits that the petitioner was examined thrice by the medical board and in all the occasions 'diabetes mellitus' was found and in light of the rules of the Coal India Limited, a person who is completely medically fit is required to be appointed. He submits that there are job under the Coal India Limited which requires to be performed under the mines and a person like the petitioner found not fit to work under the mines and that is why the petitioner was not appointed. Mr. Mehta, the learned counsel submits that offer was made in the year 2015 and now we are in 2021 and in view of such time in between many appointments may have taken place.
11. On perusal of the order of the Nagpur Bench of Bombay High Court, it is clear that Bombay High Court came to the conclusion that the competent Court having jurisdiction of Ranchi area is having the 10 [W.P.(S) No. 1945 of 2017] jurisdiction and that is why the writ petition filed by the petitioner is disposed of with liberty to the petitioner to approach the competent Court as per law. Moreover, the Nagpur Bench order has not been challenged by respondent Coal India, which has attained the finality. Annexure-1 dated 18.09.2015 is the document of offer of appointment as management Trainee (Mechanical) in Coal India Limited. The petitioner was directed to approach CMPDIL, Kanke, Ranchi for medical test, Annexure-2 dated 27.10.2015 was performed at Ranchi in the hospital of Coal India Limited. CCL and CMPDIL offices are at Ranchi. In light of Annexure-1 and 2 the part of cause of action is within the territorial jurisdiction of this Court. The Coal India Limited is also working for gain at Ranchi through its subsidiary companies such as CCL and CMPDIL. Thus, this Court comes to a conclusion that this Court is having the territorial jurisdiction under Article 226 (2) of the Constitution of India. One of the medical reports annexed with the writ petition and two medical reports annexed with the supplementary counter affidavit of the respondent Coal India Limited, it is crystal clear that on all the three occasions the only ailment with regard to the petitioner was 'diabetes mellitus'. Thus, no other ailment was there with the petitioner. In spite of thrice examining the petitioner only that ailment has been detected and it can be safely said that diabetes is not an ailment for that the offer of appointment cannot be denied. This aspect of the matter has been dealt with by the Madras High Court in the case of 'Union of India v. M. Packiyaraj' (supra). Apart from the Madras High Court order, it is well known that diabetes is in view of the present life style is very common and for that, only on that ground, the appointment cannot be snatched. So far the ground taken by the learned counsel for the respondent CIL 11 [W.P.(S) No. 1945 of 2017] with regard to the tenure of offer of appointment and 2021 is concerned, which was beyond the control of the petitioner, the petitioner has already approached the Bombay High Court, Nagpur Bench in the year 2017 itself and that writ petition was disposed of by the Bombay High Court, Nagpur Bench in the year 2017 itself and this writ petition was filed in this Court on 08.07.2017. Thus, for this delay, the liability on the petitioner cannot be fastened. The Court comes to the conclusion that quashing of the medical board report is not required as the medical board report is on the examination of the petitioner and it is an admitted fact that the petitioner is having 'diabetes mellitus'. The petitioner was already offered appointment letter and was asked to go for medical checkup at Ranchi and only on that ground, the offer of appointment was not made, which does not sound good.
12. On perusal of the counter affidavit, particularly paragraph no.23, wherein it has been stated that the appointments of all Executives of Coal India are done centrally by Coal India limited, Kolkata. Thus, it has been admitted that the petitioner was appointed on the post of Executive. Group A and B have been prescribed in the Rules relating to Medical Examination which has been brought on record as Annexure-C to the counter affidavit. In Rules, it has been clearly stated that, the Minimum Physical Standard for the above is as under:
"A. MINIMUM PHYSICAL STANDARD FOR ALL CLASSES OF EMPLOYEES DIRECTLY CONNECTED WITH COAL MINING (MINING, GEOLOGICAL, SURVEY, MECHANICAL, ELECTRICAL, ELECTRONICS, OPEN CAST, PERSONNEL, MINING TRAINEES, AUTHORIZED DRIVERS AND WATCH AND WARD EMPLOYEES, ETC.)
(i) A candidate must be in sound mental and physical health and free from any physical defect likely to interfere with the efficient performance of his duty. He should not be grossly over-weight or under-weight.
(ii) Minimum standard of height may be relaxed to 60" in case of watch and ward candidates belonging to races such as Gorkhas, Garhwallis and Assamese Tribals etc. Height must be taken without shoes 12 [W.P.(S) No. 1945 of 2017]
(iii) Hearing must be good and there should be no progressive disease affecting hearing.
(iv) Speech must be without impediment, excluding stammering of moderate degree.
(v) Chest measurement: The girth of the chest in full expiration should be recorded to determine the range of expansion (between the minimum and maximum). In all doubtful cases the functional capacity of the lungs may be tested.
In the examination of candidates, the following table of correlation of height and chest girth will be applied HEIGHT CHEST MEASUREMENT In inches In cm On ful expiration On full inspiration In inch In cm In inch In cm Between 62-1/2 &65 Betweem 150&165 30 75 32 81 2 Between 65&68 Between 165&173 31 79 33 84 Between 68&70 Between 173&178 32 81 34 86 Between 70&72 Between 178&183 33 84 35-1/2 90 More than 72 More than 183 34 86 36-1/2 93
(vi)Chest must be well formed, the lungs and heart must be normal. After 20 hops (or stands and squatting) pulse should return to normal within 3 minutes. There should be no evidence or Chronic pulmonary, bronchial, laryngeal, valvular diseases or gross arteriosclerosis.
(vii)Blood pressure should be normal in recumbent posture.
(viii)The teeth must be in good order, decayed or broken teeth must be properly stopped or crowned and deficient teeth replaced by artificial teeth where necessary. Gums should be in healthy condition.
(ix)There should be no hernia
(x)There should be no hydrocele. In case there is a hydrocele the person may be permitted to get operated within 3 months and if the operation is successful, he may be declared fit.
(xi)The limbs, hands, fingers, feet and toes must be well formed and developed with free and perfect motion of all joints.
(xii)Candidates should not suffer from chronic or extensive ulcers, ailments of skin or other system. Subjects of palsy, paralysis and Epilepsy are to be rejected.
(xiii) Vision should be of the following standards:
Naked eye Corrected with Near vision
glasses
Better eye 6/12 6/6 0.6
Worse eye 6/24 6/9 0.8
Or
Each eye pypermetropia
Note:
(a) Total Myopia on the above standard should not exceed -6D
(b) Manifest Hypermetropia should not exceed - 3D, total
(c) In case of total error of refraction about -2D, Ophthal- moscopic examination should be conducted to detect any pro morbid changes of the choroid,or retina 13 [W.P.(S) No. 1945 of 2017]
(d) Night blindness and colour blindness: Candidate's night vision will be tested to ascertain whether or not he suffers from night blindness. Tests also should be done for colour blindness
(e) In case of defective vision due to nebula of the cornea the candidate will be rejected
(f) Squint or any morbid condition subject to risk or aggravation or recurrence in either eye may cause rejection of a candidate
(xiv)Urine should be examined particularly for the presence of sugar and albumin
(xv)Examiners will use their own discretion as to the scope of the general physical examination in each case and will judge cases on their merits, taking into consideration the prospective duties of the examinees.In the examination of the candidate's hearing the speaking voice test will be employed. The examiner will speak in an ordinary conversational voice the examinee will be at a distance of three yards and with his back to the examiner, the ears will be separately tested by the occlusion of other ear. It should be understood that the question of fitness involves the future as well as the present; that the main object of medical examination is to secure continuous effective service to prevent early retirement and payments in case of premature death or payments of accidents compensation attributable to physical deficiencies and unusual medical expenditure on employees of poor physique. (xvi)Particulars against items Nos. 1 to 4 in the prescribed medical examination form are to be furnished by the appointing authorities concerned to the medical examiner.
(xvii)The report of the medcal examination should be treated as confidential (xviii)Personal statement and declaration should be obtained from all candidates for medical examination in the prescribed form. "
13. For other than Group-A, the minimum physical standard required for recruitment has been prescribed in Clause-'B', and in the light of the averments made in the paragraph nos.7, 8 and 23 of the counter affidavit, the petitioner comes under Group-B.
14. As a cumulative effect of the above discussions, the respondents are directed to appoint the petitioner on the post as offered at Annexure-1 dated 18.09.2015 within a period of 12 weeks.
15. The writ petition stands allowed in the above terms and disposed of.
( Sanjay Kumar Dwivedi, J) SI/,