Dilip Kumar Choudhary vs South Eastern Coalfields Limited

Heard on I.A. No.7294/2018, an application for hearing during summer vacation.

For the reasons mentioned in the application I. A. is allowed.

Heard.

Petitioner has challenged the findings and the decision of the Medical Board by which the petitioner has been declared unfit for appointment to the

post of Mining Sirdar.

The recruitment process was initi ted by respondent No.1/ Company for appointment to the post of Mining Sirdar. Petitioner was selected for

appointment. He was subjected to medical examination by Medical Board constituted by respondent No.1/ Company. He was declared unfit for

service because Medical Board noticed that petitioner was suffering rom the disease of Blood Sugar. Against said decision the pe i ioner preferred an

appeal before the Apex Medical Board. He was sent for medical examination to Apollo Hospital. As per petiti ner, the report of Apollo Hospital

Bilaspur Blood Sugar of the petitioner was within the limit, in spite of that petitioner was declared unfit by the Medical Board.

Learned counsel appearing on behalf of the petitioner has contended that the decision of the Medical Board is contrary to the statutory provisions.

Sugar level is not a serious disease in accordance with Rules, Company has wrongly held that the petitioner was suffering from ailment. It is further

submitted by the learned counsel for the petitioner that Sugar level of the petitioner was within normal limit.

It is an admitted fact that the petitioner was selected for the post of Mining Sirdar. He was directed for medical examination, he was declared unfit for

appointment to the post on the ground that on his medical examination high Blood Sugar was noticed. Petitioner was communicated about the

aforesaid fact vide commutation dated 28.11.2017. In Form O there is noting that the petitioner is unfit due to high Blood Sugar. The petitioner

preferred an appeal before Apex Medical Board. Board directed the petitioner to examine at Apollo Hospital Bilaspur. As per report of hospital

Annexure P.7 Glyscosylated Haemoglobin of the petitioner was 4.7. It was within limit. There are Rules in the Company for medical examination.

Chapter VIII of the Rules relating to medical examination. Clause xii of the aforesaid Rules is applicable to pre-employment medical examination.

Aforesaid Rule reads as under :

(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 ejected.

According to aforesaid Rule the c ndidate should not suffer from chronic ailment.

Madras High Court in the matter of Union of India Vs. Registrar passed in W. P. No.21082 of 2013 has considered this aspect and held as under in

regard to the fact that whether Sugar Deficiency is chr nic ailment :

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 disorder liable of

recurrent exacerbation of disabling kind. Medical experts opine that diabetes is a condition where the body fails to utilise the ingested glucose properly.

Further, there is strong school of thought that 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 from the large

work force of our country. Diabetes usually has no impact on an individuals 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 situation,

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,Pradeshnotsolely upon been diagnosed as a

diabetic. The second situation is when on medical evaluation the employee being iab tic, could affect his job performance and/or safety, in such situ

tion there shall be an assessment as to whether the employee could safely carry out his duties assignedMadhya.Insuchcircumstances, the assessment

can hardly be based on single blood sugar test.

Division Bench of Madras High Court has further considered the aforesaid aspect in the matter of Union of India Vs. Registrar passed in W. P.

No.14760/2015 and held as under:

There ore, in the absence of any scientific evidence to show that a diabetic will not be able to discharge the duties of his office, it is not possible to

accept the stand taken by the petitioners. This is especially in view of the fact that today, India has become the diabetic capital of the world, probably

due to the concerted efforts taken in the past five decades by the food, fertilizer, pharmaceutical and beverage industries. According to a global report

submitted the Indian Diabetes Research Foundation, 40.9 million Indians are diabetic. Therefore, it is not possible to accept that they are unemployable

or that if employed, they would become a liability on the employer.

The fact whether Sugar disease is chronic or not has been considered by the Division Bench of Karnatka High Court in the matter of The Chief

Personal Officer Vs. Subodh Kumar passed in W. P. No.106814/2016 (S-CAT) and Karnatka High Court is in agreement with the decisions of the

Madras High court.

Apart from this there is no sufficient evidence that petitioner was suffering from ailment of Blood Sugar. Curtailing the opportunity of employment has

a serious consequence on a person who has been selected for the post. The management must debar a person only if there is clear evidence or his

selection would be against any statutory Rule. In the present case prima-facie it appears that the decision of the Apex Medical Board is not proper.

Hence, this petition is disposed of at this stage with the directions that petitioner shall submit copies of the judgments of Madras High Court as well as

Karnatka High court filed along with the petition. It shall be examined by the Board thoroughly. Blood sample ofPradeshthepetitionerbe taken in

accordance with law and it would be examined by standard laboratory to find out that whether petitioner is suffering from the disease of Sugar and

management shall also consider the f ct that whether the petitioner is suffering from any chronic ailment in accordance with statutory Rules.

Necessary decision be t ken within period of thirty days from the date of receipt of copy of this order.

No order as to costs.