The District Collector, Tuticorin and Others vs P. Krishnan

S. Manikumar, J.—1. Challenge in this writ appeal, is to the order, made in W.P(MD) No. 1687 of 2011, dated 09.01.2014, by which, a learned single Judge, has directed the appellants, to permit the respondent, to join as Sweeper, in Kalugumalai Town Panchayat, Tuticorin District.

Brief facts set out in the impugned order and the material on record, are that the respondent was appointed as a Sweeper, in Kalugumalai Town Panchayat, by the Executive Officer, Kalugumalai Town Panchayat, Tuticorin District, 3rd appellant herein. Case of the respondent is that, between 12.02.2002 and 31.07.2006, the respondent was mentally ill, and taking psychiatric treatment and hence, could not report for duty. Though he submitted a representation to the appellants, seeking permission to rejoin duty, there was no response. Respondent has also pointed out that one Ms. Mary, working as Sweeper in Kalugumalai Town Panchayat, Tuticorin District, did not attend duty, due to her illness, for more than three years, was permitted by the Executive Officer of the said Town Panchayat, to join duty, and that the period of her absence, was also treated as medical leave, without wages, but the respondent was not given the same treatment.

Contending inter alia that the writ petitioner has four school going children, and finding it difficult to provide education and other basic amenities and that he had no other alternative, except to approach this Court, under Article 226 of the Constitution of India, he has filed W.P(MD) No. 1687 of 2011, for a Mandamus, directing the appellants/respondents to permit the respondent/petitioner, to join duty as Sweeper, in the 3rd appellant Town Panchayat.

Before the Writ Court, the Executive Officer, Kalugumalai Town Panchayat, Tuticorin District, in his counter affidavit, has stated that the respondent was initially appointed, as Sweeper, vide proceeding in Na.Ka. No. 2247/97/17/A3, dated 19.03.1997, and thereafter, vide proceeding in Na.Ka. No. 447/97 dated 29.01.1998, he was granted consolidated pay of Rs. 900/- per month. According to him, the respondent failed to join duty, from 12.02.2002 to 31.07.2006. The respondent made a representation dated 13.08.2006, enclosing the medical certificates dated 11.02.2002, 12.02.2003, 12.02.2004 and 12.02.2004 to 12.08.2006, stating that due to illness and mental problem, he could not attend work, from 12.02.2002 to 31.07.2006, and requested the appellant to treat the said period of absence, as medical leave. He also sought for permission to continue as Sweeper.

The Executive Officer, Kalugumalai Town Panchayat, Tuticorin District, in his counter affidavit, has further submitted that as per G.O. Ms. No. 460, P & AR Department, dated 21.04.1978, if an employee takes medial leave, for more than 60 days and leave on loss of pay for more than 60 days, he should be referred to the medical board, and as per the Government Letter No. 48445/FR/95-1 P & AR dated 19.07.1995, an employee should submit an application for medical leave, along with medial certificate.

The Executive Officer, Kalugumalai Town Panchayat, Tuticorin District, has also submitted that Ms. Mary had obtained proper medical certificate from the Medical Officer, Tirunelveli, for her illness from 01.02.2002 to 21.12.2004 and based on the medical certificate, she was allowed to join duty. The Executive Officer, Kalugumalai Town Panchayat, has also stated that as per the proceedings of the Commissioner of Panchayat dated 04.10.1997, G.O. Ms. No. 199 Panchayat Administration and Water Distribution Department dated 12.08.1997 and G.O. Ms. No. 84, Panchayat Administration and Water Distribution Department and G.O. Ms. No. 60, Panchayat Administration and Water Distribution Department dated 23.06.2006, an employee, appointed on consolidated pay, and continued to work, uninterruptedly, for five years, alone are suitable to be placed in the time scale of pay. As the respondent had absented from 12.02.2002 to 23.06.2006, he is not entitled to time scale of pay. With the above averments, the 3rd appellant/Executive Officer, Kalugumalai Town Panchayat, Tuticorin District, has prayed for dismissal of the writ petition.

Adverting to the above pleadings, the Writ Court, vide order dated 09.01.2014 in W.P(MD) No. 1687 of 2011, at paragraphs 4 and 5, has ordered as follows:--

"4. The said letter has not been produced either by the petitioner or by the respondents. However, it is an admitted case that the petitioner has not been referred to the Medial Board by the respondents. The only point which permit me to grant a relief to the writ petitioner is that a person by name Mary, who was absent from 01.02.2002 to 21.12.2004 was reinstated in service, after producing the Medical Certificate from the Medical Officer, Tirunelveli, for her illness and the respondents permitted her to join duty. Since the petitioner is admittedly suffering from mental illness, he can be considered. He must be in a position to safeguard himself. The respondent contended that in case this Court is giving a direction for employment, the petitioner should not be given any wages for the past period as it would be a premium to the petitioner to get wages without work. The respondent also contended that unless the petitioner completes the continuous period of five years of service, the said person cannot be brought into time scale of pay.

Taking note of the above, I direct the respondent to consider the case of the petitioner to continue his service as Sweeper, but without backwages, for the period of his absence. The petitioner will not be entitled to any benefits for the period of absence, till he is reinstated. However, the period of absence may be taken only for the purpose of pensionary benefits, if he is otherwise eligible. The second respondent is directed to complete the said exercise within a period of 12 weeks from the date of receipt of a copy of this order. There will be no order as to costs. However, it is made clear that it is open to the respondent to send the petitioner to the Medical Board to ascertain the correctness of the statement of the petitioner regarding his mental ill-health.''''

In the appeal before us, the appellants have contended that the Writ Court has failed to consider that the medical certificates, enclosed along with the representation of the petitioner, were ante dated. Impugned order, made in the writ petition, is also assailed, on the ground that the respondent has not filed any medical certificate, in support of his contention. Writ Court has erred, in equating the case of the respondent, with Ms. Mary, who had submitted her medical certificate, for her absence and that the same was not done, by the respondent.

Heard Mr. M. Murugan, learned Government Advocate and perused the material on record.

As per the version of the Executive Officer, Kalugumalai Town Panchayat, Tuticorin District, the respondent was appointed as a Sweeper, vide proceeding in Na.Ka. No. 2247/97/17/A3, dated 19.03.1997, in Kalugumalai Town Panchayat and thereafter, vide proceeding, in Na.Ka. No. 447/97, dated 29.01.1998, of the Executive Officer, Kalugumalai Town Panchayat, the respondent was appointed as a Sweeper on consolidated pay of Rs. 900/- per month. From the counter affidavit, it could be deduced that there was no complaint, against the respondent between 19.03.1997 and 11.02.2002.

From 12.02.2002 to 31.07.2006, the respondent had not attended the work. According to him, he was mentally ill and took psychiatric treatment and during the said period, he was advised to take rest. The Executive Officer, Kalugumalai Town Panchayat, in his counter affidavit, has admitted that the respondent has made a representation on 13.08.2006, and enclosed the medical certificates dated 11.02.2002, 12.02.2003, 12.02.2004 and 12.02.2004 to 12.08.2006, stating that due to illness and mental problem, he could not attend the work. Absence during the said period, is apparent. Though the respondent was on consolidated pay, indisputably, no disciplinary action, has been taken against him, for the absence, during the said period.

Though the Executive Officer, Kalugumalai Town Panchayat, has contended that as per G.O. Ms. No. 460, P & AR Department, dated 21.04.1978, if an employee takes medial leave, for more than 60 days and leave on loss of pay, for more than 60 days, should be referred to the medical board, no such action has been taken by the appellants, by referring the respondent to medical board.

Though it is the contention of the appellants that as per the Government Letter No. 48445/FR/95-1 P & AR dated 19.07.1995, an employee should submit an application, for medical leave, along with medial certificate, within 7 days, Ms.Mary, who had absented from 01.02.2002 to 21.02.2004, had been permitted to join duty, based on the medical certificate, submitted by her.

Grounds raised in the appeal, that the Writ Court, has failed to consider that the respondent had not filed any medical certificate, in support of his contention, does not merit any consideration, for the reason, that even as per the version of the Executive Officer, Kalugumalai Town Panchayat, in his counter affidavit that along with the representation dated 13.08.2006, respondent has enclosed the medical certificates dated 11.02.2002, 12.02.2003, 12.02.2004 and 12.02.2004 to 12.08.2006. Just because, the respondent has not submitted any medical certificate, in support of the contention made in the writ petition, it does not mean that he had not enclosed any medical certificate, along with his request to the authorities, to permit him to rejoin duty. The contention that the respondent submitted ante dated medical certificate, also cannot be countenanced, for the reason that after his absence for a considerable period, the respondent had submitted a representation, enclosing the abovesaid medical certificates. Merely because, it is submitted belatedly, inference cannot be made that it is ante dated, unless the appellants have explained as to how, they were ante dated. Contention of the appellants that the Writ Court, erred in equating the case of the writ petitioner, with Ms.Mary, also cannot be accepted.

Perusal of the impugned order, made in W.P(MD) No. 1687 of 2011 dated 09.01.2014, also makes it clear that before the Writ Court, a contention has been made, by the appellants, that in the event of this Court, granting any direction, for employment, the respondent should not be given any wages, for the past period, and taking note of G.O. Ms. No. 199, Municipal Administration (Town Panchayat-II) Department, dated 12.08.1997, a further contention, has also been made, that unless the respondent completes a continuous period of five years of service, he should not be brought to the time scale of pay. Giving due consideration to the case of both parties, the Writ Court has directed the appellants, to consider the case of the respondent, for continuation of his service as Sweeper, but without backwages for the period of absence and also categorically held, that the respondent will not be entitled to any benefits, for the period of absence, till he is reinstated. Writ Court has further ordered that the period of absence, may be taken, only for the purpose of pensionary benefits, if he is otherwise eligible.

Going through the material on record and the challenge to the impugned order, we are of the view that there is no manifest illegality in the impugned order made in W.P(MD) No. 1687 of 2011, dated 09.01.2014, warranting interference. Accordingly, the writ appeal is dismissed. No costs. Consequently, C.M.P(MD) No. 1758 of 2016 is closed.