Ashoke Kumar Dasadhikari, J.@mdashThe grievance of the writ petitioner in this writ application is that the writ petitioner No. 1 was employed as
Safety-cum-Production Assistant sometime in the year 1966 when the collieries were under private management. The concerned colliery under
which the petitioner was employed is known as ""Khandra Colliery"" under Eastern Coalfields Limited. He was discharging his duties with all
responsibilities as Safety-cum-Production Assistant. After nationalization of all the collieries by and under Collieries Nationalization Act, 1973, the
service of the petitioner No. 1 was converted into a public employment under Eastern Coalfields Limited, which has become a public authority
within the meaning of Article 12 of the Constitution of India. However, after nationalization the service of the petitioner No. 1 was confirmed in the
said post. The service of the petitioner No. 1 was continuing. After nationalization of all the coalfields the Government of India took a policy that
the employees who would be found medically unfit in course of their employment by the Management were required to be sent to the Medical
Advisory Board for examination of their medical fitness. In case the concerned employee is found by the medical board fit to continue, the
employee would be allowed to continue. In case it appears as per the decision of the medical board that an employee is unfit to continue in his
service, as per the tripartite settlement and also the decision followed by the concerned Eastern Coalfields Limited the employee''s dependant son
or the dependant relation of the employee concerned would be eligible for consideration for an employment.
2. It was submitted on behalf of the petitioners that the medical board of the respondent authorities after proper examination of the petitioner No. 1
found him unfit and he was stopped from performing his duties on and from 18th March, 1994. Along with the writ petitioner there are two other
employees who were also directed not to Join their duties on and from 18th March, 1994.
3. On the basis of the policy of the Eastern Coalfields Limited by and under their office order dated 16th March. 1994 the writ petitioner along
with two others were instructed that their dependants should apply for employment as per company''s rules. The office order was issued by the
agent of the Khandra Colliery. The office order issued by the Eastern Coalfields Limited reads as follows:-
Eastern Coalfields limited
Office of the Agent,
Khandra colliery.
Ref. No. KC/P/20B(VP)/1845/94 Dated: 16/3/94.
Office Order:
In terms of letter No. BA/PD/A-II(26)/632 dated 2/3 3.94 issued by the Personnel Manager (Inch), Bankola Area, the competent authority has
approved the termination of services on medical ground of the following workmen who appeared before the physical debility/disability board on
26.2.94 and have been declared ""Unfit for duty.
The duty of the said employees shall be stopped from 18.3.94. Their names may be deleted from all records from 18.3.94.
The dependents of the said employees should apply for employment as per company''s rule.
Name of the Employees Desig. U.Man No. �B� Duty stopped
declared unfit F. No. w.e.f.
1. Sri S.D. Pathak Prod./Safety 604091 37 18.3.94
Asst.
2. Sri ChanduNunia H/Khalasi 604947 796 18.3.94
3. Sri KunjBehari Singh Tyndal 605658 540 18.3.94
Sd/- Illegible
Agent
Khandra colliery
cc. to : G.M. (System), ECL, HQ.
cc. to : G.M./P.M.(Inch)/P.M., Bankola Area.
cc. to : D.P.O., Bankola Area - please delete their names in the month of April 94 w.e.f. 18.3.94.
cc. to : Manager/Dy. P.M./Sr. A.O./W.O./Asst. Manager, VK Unit.
cc. to : A.C.M., NKJ/Dy. M.S., VX/Sr. M.O., NKJ/
cc. to : T.K./Attend. Clerk/Bill/Leave/Store/P.F./Cash/Coal, VK/NKJ Unit.
cc. to : Co-operative credit society.
cc. to : Sri A.C. Pandit/Sri Chattoraj/Sri S.C. Karmakar.
cc. to : Co-operative credit society.
cc. to : Sri A.C. Pandit/Sri Chattoraj/Sri S.C. Karmakar, Clerk, Personnel Department.
cc. to: Persons concerned.
4. As per the direction of the concerned respondent authorities, the petitioner No. 1 stopped joining his duties on and from 18th March. 1994 and
his son being the writ petitioner No. 2 applied for employment as per company''s rules and policy. By and under the office memo dated 5th April,
1994 the three successors of the three employees were called for screening before the Screening Committee at Khandra Colliery on 8th April,
1994. The successors were requested to appear along with all relevant papers documents on the stipulated date and time. The writ petitioner No.
2 being the successor of the writ petitioner No. 1, the ex-employee was also asked by the Manager to appear before the Screening Committee
and accordingly the writ petitioner No. 2 appeared before the Screening Committee on the scheduled date and time with all his materials and/or
records.
5. It appears from the letter of the Manager, Khandra Colliery dated 5/ 7th April, 1994 that the writ petitioner No. 2 was also directed to appear
before the medical board. It was submitted that the medical board declared the writ petitioner 2 as fit candidate for getting employment. After the
entire selection process was completed no appointment letter was issued by the respondent authorities. Surprisingly enough on or about 1st
February, 1997 the General Manager issued a letter to the Vice-President of a Union that the decision of the apex medical board was not taken
into consideration and the dependant was not considered for employment. The writ petitioner No. 1 coming to know about the impugned letter of
1st March. 1997 from the Union, wrote a letter to the agent of Khandra Colliery wherein he wrote to the concerned agent that more than two
years passed but no employment was offered to his dependant and he specifically stated that he came to know from the Union that the concerned
respondent has cancelled the physical debility/disability board and the Union has instructed him to appear before the apex medical board at
Sanctoria.
6. The writ petitioner No. 1 raised serious objection against such calling and he claimed that the arrear wages amounting to Rs. 11 lacs should be
released in his favour being the arrears and he should be allowed to resume his duties immediately.
7. It was submitted that against that letter no response was given. However the writ petitioner made representation before the authorities to allow
him to resume his duties and to pay him the loss suffered for termination of service of the petitioner on and from 18th March, 1994 on the basis of
the medical board decision as regards his physical disability which was not accepted as alleged.
8. Learned Counsel submitted if it is the decision of the authorities that the medical board has wrongly concluded then the normal conduct on the
side of the respondents should be to allow the writ petitioner No. 1 to resume his duties immediately and to pay the loss suffered by such wrong
decision of the apex medical board. The respondent authorities sat tight over the matter and did not take a decision on this rather they have
stopped the writ petitioner No. 1 from joining his duties on the basis of medical report on and from 18th March, 1994. The conduct of the
respondent authorities is totally unfair and mala fide. On one hand, they are declaring the writ petitioner as unfit, on the other hand they are
unilaterally cancelling the medical report and refusing to give employment to the successor of the writ petitioner No. 1. The respondent authorities
did never allow the writ petitioner No. 1 to resume his duties and did not compensate the writ petitioner to get back the loss suffered by him. The
conduct on the part of the respondent authorities are all illegal, unfair and unjust and not at all supported by any norms and procedure and even the
rules applicable in the instant case.
9. Learned Counsel submitted when it is the rule of the company that on declaration of the medical board an employee is unfit, the successor of the
concerned employee should be given employment.
10. It was submitted by Mr. Alok Kr. Ghose, learned Counsel appearing for the writ petitioner that high-handed action on the part of the
respondents are not at all justifiable. This is a Court of equity and it should take note of illegalities and unlawful activities on the side of the
respondents who did not allow the successor of the writ petitioner to have his employment even after completion of all selection process and also
being declared by the medical board fit for such employment.
11. Mr. Banerjee, learned Counsel appearing for the respondent submitted that the decision was taken for holding further medical examination and
accordingly, the writ petitioner was informed and the writ petitioner No. 1 refused to appear before the medical board. He submitted that the writ
petitioner waited for a long time and has approached this Hon''ble Court belatedly, therefore on the ground of delay his writ petition should be
rejected. He submitted that since the writ petitioner No. 1 refused to appear before the newly constituted medical board the successor of the
concerned employee is not entitled to get the employment.
12. Mr. Banerjee further submitted that there were some allegations about the test held by the medical board and therefore, the respondent
authorities decided to cancel such examination result. Therefore, on that basis no action could be taken nor the successor of the employee could be
granted employment.
13. Mr. Alok Kr. Ghose in reply submitted that after the first medical report was accepted by the respondent the writ petitioner was stopped from
joining his duties on and from 18th March, 1994. The writ petitioner was never informed about the cancellation of such medical examination which
was held in 1994. He was informed by the Union member orally to appear before the medical board once again. The petitioner No. 1 was never
informed personally in that regard.
14. Mr. Banerjee could not show any documents wherefrom it appears that the writ petitioner No. 1 was ever communicated such desire of the
respondent authorities asking him to appear before the medical board. However, after coming to know through the Union he has replied and
immediately asked the respondent authorities to release all losses suffered for the decision of the company on the basis of the medical report of the
apex medical board constituted by the respondent authorities and further he asked the respondent to resume his duties instantly.
15. Mr. Ghose submitted that in case it is the decision of the respondent authorities that the medical report is not correct, then the normal conduct
of the respondent should be to allow the writ petitioner No. 1 to resume his duties and to pay him all arrear salaries and loss suffered by the writ
petitioner for the action on the part of the respondent authorities. Neither they have allowed the petitioner to resume his duties nor they have
allowed the writ petitioner No. 2 to get employment in lieu of his service on the basis of the medical report, as per the rules of the company.
16. Mr. Ghose further submitted the decision taken by the respondent authorities unilaterally without giving an opportunity of hearing to the writ
petitioner is also arbitrary and illegal and violative of principle of natural justice and cannot justifiable on any ground whatsoever.
17. Mr. Ghose further submitted that it is the duty of the respondent authorities to allow the petitioner No. 2 to join his duties when he has even
passed all tests carried out by the respondents.
18. Mr. Ghose cited the decision of the Hon''ble High Court reported in (2011)4 CHN 276 (Bikash Chandra Das v. The State of West Bengal &
Ors.) wherein this Court held that when the medical board declared the concerned employee permanently invalid and the concerned screening
committee recommended for employment of the successor of the writ petitioner, then any decision contrary by any authority of the respondent
authorities should be set aside and struck down.
19. He submitted the Judgment is clearly in his favour and the ratio of this judgment should be followed in this regard.
20. I have heard the submission made by the learned Counsel for the appearing parties and considered the materials available on record. It
appears from the office order dated 16th March, 1994 that the agent of Khandra colliery after having satisfied by the medical board report about
the petitioner status ""unfit for duty"" stopped the petitioner from joining his duty on and from 18th March, 1994 and he instructed in that order that
the dependants of the said employees should apply for employment as per company''s rule. It appears that after expiry of two years a letter was
issued to the Union Secretary who was informed that the concerned respondents have decided to cancel the medical board report of 1994. The
writ petitioner coming to know about it from the Union instantly wrote to the respondent authorities to allow him to resume his duties and pay the
losses suffered by him. But the respondent authorities did not respond to it unfairly and illegally. They also did not give employment to the writ
petitioner No. 2 who is fit otherwise and completed all tests held and done by the respondent authorities. If it is presumed that the decision of the
medical board is incorrect as stated by the respondent authorities, then the writ petitioner No. 1 is fit to resume his duty. He ought to have been
allowed to his duties instantly and he should have been paid all his backwages but the respondent authorities did not allow the writ petitioner either
to resume or allowed the writ petitioner to get the loss suffered by him.
21. In my view, the respondent authorities cannot deprive the writ petitioners in both ways. They cannot act contrary to their own rule specially
when they have accepted the writ petitioner No. 1 as unfit on medical ground and they have asked the writ petitioner No. 1 not to perform his duty
on and from 18th March, 1994 and asked the successor to apply in terms of their rules. It appears that the successor concerned was directed to
appear before the screening committee of the concerned colliery and the concerned successor being the writ petitioner No. 2 appeared before the
concerned authority and passed all tests including the medical test held by the respondent and in my view the writ petitioner No. 2 is entitled to get
the service as per the company''s rules specially when by their conduct, the respondent authorities have accepted the medical report and did not
allow the petitioner No. 1 to join his duty and did not pay the writ petitioner the loss suffered by him. The conduct of the respondent authorities
makes it clear that they have accepted the medical report. They have no escape rather they are compelled to comply with the rules framed by
them. They have given employment in other cases also. In my view, the company should not be allowed to blow hot and cold. They are public
authority and is obliged to act fairly and lawfully. I accordingly direct the respondent authorities to issue appointment letter to the writ petitioner
No. 2 immediately, within a period of fortnight from the date of communication of this order.
22. The respondent authorities are directed to issue the employment letter in favour of the writ petitioner No. 2 on the basis of communication by
the learned Advocate on record for the petitioners. The writ petition is, thus, disposed of. There would be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
