K. Murugesan vs The Collector

S. Manikumar, J.—The petitioner has filed the Original Application No. 5771 of 1993 on the file of the Tamil Nadu Administrative Tribunal

praying for a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the respondent in Na.Ka.

N81475/92/Pa.A.1, dated 25.05.1993 and quash the same and direct the respondent to regularise the petitioner''s absence during the period

13.05.1987 to 04.08.1988 as unearned leave on medical certificate and grant him all consequential benefits, and the same has been transferred to

the file of this Court and renumbered as W.P. No. 18915 of 2006.

It is the case of the petitioner that he was working as Extension Officer (Social Education and Public Relation) Modakurichi Block, Periyar

District, by order of the Collector dated 07.05.1987, he was reverted to the category of Rural Welfare Officer, Grade-I for two years. His appeal

to the Director of Rural Development, was allowed and that the penalty of reversion was set aside. During the pendency of the appeal, he could

not attend the Office due to his illness and took leave from 13.05.1987 to 04.08.1988. On recovery, the petitioner obtained a medical certificate

issued by the authorised Government Medical Officers and finally on 05.08.1988, he submitted a report and he was allowed to join duty. Though

he had unearned leave of 18 months to his credit, the absence between 13.05.1987 and 04.08.1988 was only 16 months. The District Collector,

Erode, the respondent herein granted leave to the petitioner in the following manner:

13.05.1987 to 11.07.1987 Unearned leave on, medical

certificate (for 60 days)

12.07.1987 to 08.11.1987 Earned leave (for 120 days)

09.11.1987 to 04.08.1988 Leave on loss of pay (for 270

days)

Aggrieved by the order of the respondent, the petitioner preferred an appeal to the Director of Rural Development, Chennai. By order dated

26.04.1990, the appellate authority rejected the petitioner''s appeal and therefore, the petitioner filed 0.A.No.2083 of 1990 to quash the said

orders and sought a direction to the respondent to grant unearned leave on medical certificate for the period between 13.05.1987 and

04.08.1988. The Tribunal by order dated 18.06.1992, ordered as follows:

The notice for appearance before the Medical Board has been sent to him in communication dated 16.6.87, 13.8.87 and 20.8.87. The applicant

has been thereafter on leave for a further period upto 4.8.1988 for which period presumably he should have made further leave applications. It is

not clear, whether the department informed him that on account on his failure to appear before the medical board, his application for leave on

medical grounds will not be considered. He had been eventually allowed to join on 5.8.88. Following the prolonged illness, normally he should

have been referred to the medical board for certification of fitness before he was allowed to join duty. The applicant also, when the leave sought by

him was not being sanctioned should have tried to ascertain from the department the reasons for the non sanction. As a senior Government

employee, he should also be aware of the regulation that leave beyond 60 days on medical grounds can be sanctioned only on reference to the

medical board and he should not have been sending his leave application for leave supported by certificates from private medical practitioners,

That he had not at any time tried to ascertain from the office with the position regarding sanction of his leave also indicates, that his own conduct in

the matter is open to question. Normally an employee will not be staying away from duty applying for leave during which period, he was not getting

any salary, for such extended period of 450 days. However, in the absence of the records, we are not able to arrive at a conclusion in the matter.

We would therefore direct that the applicant may be given a notice indicating the position, his failures to comply with the rules and regulations and

reasons why his request for grant of leave -on medical certificate cannot be agreed to, and orders passed after considering his representations. We

are giving such direction, only because inspite of several opportunities, the relevant records to establish that the communication for appearance

before the medical board had been served on the applicant were not produced and therefore we are not able to finally decide the matter.

Pursuant to the orders of the Tribunal dated 18.06.1992, the petitioner requested the respondent to permit him to peruse the original records

and also prayed for an enquiry. The petitioner perused the records on 22.02.1993 and found that the signature in the communication alleged to

have been served on the petitioner''s son was not genuine. Thereafter, the respondent by order dated 25.05.1993, rejected the, petitioner''s claim

for regularisation of the period of absence from 13.05.1987 to 04.08.1988 as unearned leave on medical certificate. The said order is challenged

in this writ petition.

Learned Counsel for the petitioner submitted that there was no memo/communication issued by the respondent calling upon the petitioner to

appear before the medical board. He further submitted that the person alleged to have served the communication on the petitioner''s son on

25.08.1987 was not examined in the presence of the petitioner and that he was not given any opportunity to cross examine the said witness and

therefore, reliance should not be placed on his evidence. Learned Counsel for the petitioner further, submitted that the certificate issued by the

Government Medical Officers to prove his ailment should have been accepted and that the petitioner should have been granted medical leave with

salary.

The respondent has filed a detailed counter affidavit and submitted that on 07.05.1987, the petitioner was reverted from the post of Extension

Officer to Rural Welfare Officer, Grade-I/Assistant for a period of two years as a measure of penalty for certain malpractices committed by him in

the implementation of Family Welfare Programme when he was an Extension Officer (Senior Education and Public Relation) Modakkurichi.

Consequently, he was posted as Assistant in the cadre of Rural Welfare Officer, Grade-I in Kangeyam Panchayat Union by order dated

12.05.1987 and was relieved from the post of Extension Officer. Instead of joining the reverted post, the petitioner proceeded on leave on medical

ground stating that he was suffering from ''Peptic Ulcer''. Quoting the same reason, the petitioner was continuously absent for 450 days from

13.05.1987 to 04.08.1988 and had been frequently sending medical certificates at monthly intervals. The respondent further submitted that in

order to avoid working in the reverted post, the petitioner availed long leave and finally when his appeal preferred to the Director of Rural

Development, Chennai was allowed, the petitioner immediately joined the duty on 05.08.1988. The period of absence between 13.05.1987 and

04.08.1988 for 450 days was regularised in accordance with rules and regulations and that the petitioner accepted the same and received the

leave salary without any objection. It is further submitted in the counter affidavit that as per the existing Rules, the unearned leave on medical

ground should be supported by medical certificate issued by the District Medical Board and that there is no provision to accord sanction for

unearned leave on medical certificate beyond 60 days, unless the District Medical Board certifies the illness after due examination. It is also stated

that though the petitioner had periodically extended the leave every month for a continuous period of 45(2 days, he did not subject himself for

medical examination as he was well aware that the Medical Board will not recommend his continuous absence for such a long period of 450 days

for the only reason of ''peptic ulcer''. The respondent in his counter affidavit has also given the details of notices sent to the petitioner by the

Department and the same are extracted hereunder:

Sl. Current No. and the Extracts of Address to Remarks

No. Officer who sent the file which the

the reference reference was

sent

Ref No.8828/86/Al Since Thiru Thiru

dated 16.6.87 of K. Murugesan K. Murugesan, 12

the Block (Applicant) N. GGO Colony,

Development has 1st Street,

Officer, extended Erode 9.

Modakkurichi his leave

for a month (Despatched

beyond Officially)

13.5.87 he

should

appear

before the

District

Medical

Board and

obtain

Medical

Certificate

Ref No. 16143/M1/87 Directing Do.

dt. 18.8.87 of the him to

District Medical appear

Officer, Erode before the

Medical

Examination

on 26.8.87

at 10 A.M.

without

fail (Copy

marked to

2 B.D.O.)

Ref No.8828/86/A1 Directing do.

dated 20.8.87 of him to

the B.D.O., appear

Modakkurichi. before the

Medical

Board on

26.8.87 and

he has been

informed

that only

after

production

of

certificate

from

Medical

Board

Medical

Leave will

be

3 recommended

Ref. No. 8828/86/A1 DMO has Copy has been

dated 5.11.87 of been marked to his

the Block requested above

Development to examine residential

Officer, the address and

Modakkurichi applicant, despatched

consequent officially

on his

extension

4 of leave

Ref. No. 8828/86/A1 do. do.

dated 13.11.87 of

the Block Development

Officer,

5 Modakkurichi

Ref. No. 22175/M1/87 DMO has Sent to his

dated 19.11.87 of requested regular

the D.M.O. Erode the residential

applicant address

to appear officially

before the

Medical

Board on

25.11.87

for

6 examination

Ref. No. 8828/86/A1 DMO has Copy has been

dated 31.12.87 of been sent to his

the B.D.O., requested regular

Modakkurichi to examine residential

the address and

applicant. despatched

It has also officially

been

indicated

that he has

not

appeared

before the

Medical

Board on

previous

7 occasions

Ref. No. 8828/86/A1 do. do.

dated 10.2.88 of

the B.D.O.,

8 Modakkurichi

Ref. No. 3021/M1/88 Directing Sent to his

dated 24.2.88 of to appear regular

the D.M.O. Erode for the residential

Medical address and

Examination copy marked to

on 3.3.88 the B.D.O.

at 10.00

9 A.M.

Remarks : The reference has been served by pasting the same in his regular residence and has also been served through his son.

The respondent has further submitted that in spite of the receipt of the notice and affixture made in the residential address, the petitioner has

failed to appear before the Medical Board and produced medical certificate to prove that he was suffering from illness. The respondent has further

submitted that all the notices were sent only to the residential address with a direction to appear before the Medical board, but on the contra,

invariably in all the leave letters the address of the petitioner was not furnished to the Department.

The respondent has further submitted that pursuant to the directions of the Tribunal, the petitioner was permitted to peruse the entire records on

22.02.1993 at 3 p.m. in the presence of the Personal Assistant to the Collector (P.D). Even after perusal of the records, the respondent did not

submit the reply immediately. Though the petitioner had denied his son''s signature on the acknowledgement, he had failed to produce any

specimen signature or documents for comparison. The respondent has further stated that the Office Assistant of Modakkurichi Panchayat Union

who served the notice through his son had deposed that notice was given to the petitioner''s son on 25.8.87 at 1.45 p.m. and that his signature was

also obtained. It is also further submitted that the petitioner did not demand cross examination of the Office Assistant who served the notice on the

petitioner''s son. In fine, the respondent submitted that the notices have been duly served on the petitioner, calling upon him to attend the Medical

Board, but the petitioner has failed to prove that he was suffering from illness by producing a certificate from the Medical board.

I have heard Mr. P. Rajendran, learned Counsel for the petitioner and Mrs. Lita Srinivasan, learned Government Advocate appearing for the

respondent.

Admittedly, the petitioner had remained on leave continuously for 450 days and that he had been submitting medical certificates at regular

intervals. As an Extension Officer, he should be aware of the regulations that leave beyond 60 days on medical grounds cannot be sanctioned

without the certificate of the Medical Board. It is evident that right from 16.06.1987 onwards, the department had been continuously sending him

letters instructing him to appear before the Medical Board and copies of the letters have been marked to the Block Development Officer. By Ref.

No. 16143/M1/87 dated 18.8.87, Ref. No. 22175/M1/87 dated 19.11.87 and Ref. No. 3021/M1/88 dated 24.2.88, the District Medical

Officer, Erode has sent three letters to the petitioner to appear before the Medical Board for examination and the copies of those letters have been

marked to the Block Development Officer. Though the petitioner has disputed the signature of his son on the acknowledgement, he has not proved

the same by producing necessary documents containing the handwriting and specimen signature of his son. The petitioner who has disputed the

signature ought to have proved the same by placing necessary materials. It is hard to believe that a person who was suffering from peptic ulcer till

4.8.88, has miraculously recovered from the same and joined duty on 5.8.88.

As regards the contention that the Office Assistant was not examined behind his back, the petitioner did not demand any cross examination of

the Office Assistant. On the other hand, as many as nine letters have been sent to his residential address and affixure has also been made. The

petitioner has failed to appear himself before the Medical Board and produced necessary proof for illness. In the circumstances, in the absence of

any valid certificate from the Medical Board for the leave period beyond 60 days, the petitioner is not entitled to medical leave as a matter of right.

Moreover, being a Senior Officer, the petitioner ought to have appeared before the Medical Board and produced the medical certificate from the

competent authority. It is clear the petitioner had availed long leave to avoid serving in the reverted post, and joined the post of Extension Officer,

no sooner his appeal was allowed. In the light of the above, I do not find the authorities have committed any error in rejecting the medical

certificates produced by the petitioner. In the absence of the certificate from the Board, denial of medical leave is justified and therefore there are

no merits in the writ petition. Hence, the writ petition is dismissed. No costs.