SARASWATHY VISWANATHAN V. UNION OF INDIA

OP (CAT)/920/2011

AI Insights

The case involves Saraswathy Viswanathan, a retired Private Secretary from the Office of the Chief Commissioner of Income Tax (Appeals), Trivandrum, who was aggrieved by the rejection of her application for commuted leave on medical grounds following a road traffic accident. Initially, she was on commuted leave from December 1, 2008, to December 19, 2008, and after an accident on December 18, 2008, she extended her leave until February 16, 2009, supported by medical certificates from a private hospital. The government rejected her leave application, insisting on a medical certificate from an Authorized Medical Attendant. The Tribunal upheld this decision, leading her to approach the High Court, which ultimately ruled in her favor, emphasizing the need for flexibility in applying leave rules in exceptional circumstances.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 678955 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 31-08-2017
• Assessment Year: misc
• Laws Referred To: CCS (Leave) Rules 1972
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P PARAMESWARAN NAIR; N NAGRESH
• Assessee Lawyers: K M V PANDALAI; S HEMALATHA
• Keywords: Exceptional circumstances; Medical certificate; Commuted Leave; Private Hospital; Authorized Medical Attendant
• Section: 19; 65

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939 OP (CAT).No. 920 of 2011 (Z) ----------------------------- AGAINST THE ORDER/JUDGMENT IN OA 2/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER(S)/PETITIONER: ------------------------ SARASWATHY VISWANATHAN PRIVATE SECRETARY (RETD.),, OFFICE OF THE CHIEF COMMISSIONER OF INCOME TAX, (APPEALS),, TRIVANDRUM) PRASANTHI, 142, ARUNOOTTIMANGALAM NAGAR, MANGAD P.O., KOLLAM-691015. BY ADVS.SRI.K.M.V.PANDALAI SMT.S.HEMALATHA RESPONDENT(S): -------------- 1. UNION OF INDIA REP. BY THE SECRETARY,, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, NEW DELHI.-110001 2. THE CENTRAL BOARD OF DIRECT TAXES, REP. BY ITS CHAIRMAN,, NEW DELHI.-110001 3. THE CHIEF COMMISSIONER OF INCOME-TAX, AAYARKAR BHAVAN, KAWDIAR, TRIVANDRUM.-695003 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 28.7.2017, THE COURT ON 31.8.2017 DELIVERED THE FOLLOWING: OP (CAT).No. 920 of 2011 (Z) ----------------------------- APPENDIX PETITIONERS EXHIBITS EXT.P1 COPY APPLICATION O.2/2010 DATED 28.12.2009 WITH ANNEXURES FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM EXT.P2 COPY OF THE CERTIFICATE DATED 7.1.2010 PRODUCED ALONG WITH MISC.APPLICATION BEFORE THE TRIBUNAL EXT.P3 COPY OF THE REPLY STATEMENT DATED 10.5.2010 WITH ANNEXURE R1 FILED BY THE RESPONDENTS BEFORE THE TRIBUNAL EXT.P4 COPY OF THE REJOINDER DATED 14.6.2010 ALONG WITH ANNEXURES A9 AND A10 FILED BY THE PETITIONER BEFORE THE TRIBUNAL EXT.P4(a) COPY OF THE ADDL. REPLY STATEMENT FILED BY THE RESPONDENTS BEFORE THE TRIBUNAL EXT.P5 COPY OF THE ORDER DATED 3.1.2011 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM IN O.A. NO.2/2010 EXT.P6 COPY OF THE AFFIDAVIT DATED 11.1.2011 FILED BY THE RESPONDENTS BEFORE THE TRIBUNAL. EXT.P7 COPY OF THE ORDER DATED 13.1.2011 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM IN O.A. NO.2/2010. RESPONDENTS EXHIBITS NIL TRUE COPY P.A TO JUDGE SMM P.R. RAMACHANDRA MENON & SHIRCY V.,JJ. ------------------------------------------------------ O.P(CAT)No.920 of 2011 ------------------------------------------------------ Dated this the 31st day of August, 2017 JUDGMENT Shircy.v, J. The petitioner who retired from service as Private Secretary to the Commissioner of Income Tax Department from the Office of the Commissioner of Income Tax (Appeals), Trivandrum on 31.07.2009 is before this Court aggrieved by the rejection of her application for commuted leave on medical ground. She was on commuted leave for 19 days from 01.12.2008 to 19.12.2008 and had to join duty on 22.12.2008 as 20th and 21st were holidays. But unfortunately on 18.12.2008, she met with a road traffic accident, whereby she sustained fracture to her right hand. So she had to extend her leave and so she could rejoin duty only on 16.2.2009. She applied for commuted leave for the said period on medical ground. On expiry of her leave period, she rejoined duty with a medical certificate issued from the doctor who treated her in the O.P(CAT)No.920 of 2011 2 private hospital. But the leave application was rejected and she was denied commuted leave though she was eligible for the same. So she approached the Tribunal with the following prayers. “i) call for the records leading to the issue of Annexure A6 and A7 and to quash the same; and ii) declare that the applicant is eligible for 57 days' commuted leave as applied for in the circumstances of the case; or iii) direct the respondents to reconsider Annexure A5 representation taking into consideration the special circumstances of this case invoking Rule 65 of the CCS (Leave) Rules and to pass appropriate orders as expeditiously as possible. iv) issue any other order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of this case.” 2. We heard the learned counsel for the petitioner so also the learned counsel for the respondents. 3. Challenge is against the order of the Tribunal dismissing the application filed by the petitioner confirming the stand taken by the O.P(CAT)No.920 of 2011 3 respondents/Government that the medical certificate of a private hospital is not at all sufficient for grant of commuted leave . 4. Admittedly, the petitioner retired from service on superannuation on 31.07.2009. She availed commuted leave from 1.12.2008 to 19.12.2008 on medical ground. She had to join duty after the leave period on 22.12.2008 but unfortunately she met with an accident on 18.12.2008 and she had sustained fracture on her right hand and hence she again applied for commuted leave for 57 days on medical ground. Annexure A1&2 are the medical certificates issued from 'Sankar Shastyabdapoorthi Memorial Hospital' which is a private establishment. The Government did not accept the certificates and she was asked to produce medical certificate as well fitness certificate issued by an Authorised Medical attendant. Thereafter, though she submitted Annexure A5 explaining the reason and circumstances for production of O.P(CAT)No.920 of 2011 4 certificates from the private hospital and her inability to produce certificates from Authorised Medical attendant and sought for relaxation, her request was not accepted. Hence she was compelled to approach the Tribunal. But no relief was granted holding that at least she would have obtained countersignature of DMO ,Kollam in the certificate . 5. Normally, leave on medical ground will be granted to a Gazetted Officer of the Central Government on a certificate issued from a Government hospital or from a private hospital recognized under the Central Government as per Rule 19 Chapter 111 ,Central Civil Services Leave Rules 1972 (hereinafter referred to as 'the CCS(Leave) Rules. Rule 19 reads as: “19. Grant of leave on medical certificate to Gazetted and non-Gazetted Government servants. (1) An application for leave on medical certificate made by (i) a Gazetted Government servant, shall be O.P(CAT)No.920 of 2011 5 accompanied by a Medical Certificate in Form 3 given by a doctor in a Central Government Health Scheme Dispensary if such a Government servant is a Central Government Health Scheme beneficiary or by a Government Hospital or by an Authorized Medical Attendant if he is not a Central Government Health Scheme beneficiary; and by an Authorized Doctor of the private hospital recognized under Central Government Health Scheme or Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment in respect of any particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare: Provided that the Gazetted Government servant who is a Central Government Health Scheme beneficiary, if at the time of illness, is away from Central Government Health Scheme area or proceeds on duty outside the Headquarters will produce Medical Certificate or Fitness Certificate in Form 3 and Form 5, as the case may be, given by an Authorized Medical Attendant” In fact it is discernible from the records that she could not produce the certificate from an Authorised Medical attendant as after the accident, she was immediately rushed to a nearby private hospital where she had O.P(CAT)No.920 of 2011 6 undergone treatment. The said hospital was not a recognized hospital. 6. But it is significant to note that there is provision in the Leave Rules to deal with exceptional circumstances to the advantage of the beneficiary and that has to be carved out from General Rules. Rule 65 of CCS (Leave) Rules deal with the power to give relaxation to the rules pertaining to leave which reads as follows: ”65. Where any Ministry or Department of Government of India is satisfied that the operation of any of these rules causes undue hardship in any particular case, that Ministry or Department, as the case may be, may by order, for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner.” 7. Rule 65 indicates that when it is satisfied by the Department or the Ministry that the operation of any of the Rules relating to leave causes undue hardship in any O.P(CAT)No.920 of 2011 7 particular case the requirement can be dispensed with or relaxed subject to the exceptions and conditions dealing with the matter in just and equitable manner. 8. As mentioned above in this case this petitioner met with the accident on 18.12.2008 while she was standing in the public road. She was immediately rushed to the nearby private hospital so as to afford immediate medical attention. Annexure A3 is the accident cum wound certificate issued from the hospital. It is revealed from this document that she was taken to the hospital immediately after the accident and the certificate was issued at 8.30 p.m on 18.12.2008 and the diagnosis would show that she sustained fracture on lower end right radius. FIR was registered as Crime No.681/2008 by the Kilikolloor Police Station in connection with the said accident. Annexure A2 was the medical certificate issued advising her to take rest for a further period of 12 days from 2.2.2009 and Annexure A8 was the certificate issued O.P(CAT)No.920 of 2011 8 from the very same hospital certifying that she was taken to casualty at 7 p.m on 18.12.2008 with multiple injuries and fracture. Annexure A1 to A3 and A8 would show that she was treated in Sankar shastyabdapoorthi Memorial Hospital for collis fracture from 18.12.2008 till she was fully recovered on 14.2.2009. Annexure A5 is the representation made by her to consider her request sympathetically, when she was directed to produce the certificate issued from an authorised Medical Attendant. She had specifically mentioned in Annexure A5 that though she had spent Rs.3500/- as cost for her treatment, no claim for reimbursement was raised and thus no loss was caused to the Government, but her only request was to grant 57 days commuted leave right from 19.12.2008 to 13.2.2009. 9. The Department has no case that she has not sustained injuries in the accident as alleged by her or she had produced any bogus certificate for sanction for O.P(CAT)No.920 of 2011 9 availing commuted leave. It appears that she had undergone treatment in a private hospital as her condition at that point of time was found essential and immediate medical attention was provided from a private hospital. When the Department has no case that she had procured a bogus medical certificate or fitness certificate, there is absolutely no justification in asking her to produce a certificate from an authorised Medical Attendant from whom she did not avail any treatment. In fact directing her to produce such a certificate is to compel her to produce a bogus certificate as she had not undertaken any treatment before any Government agency. So she is perfectly justified in producing the records available from the hospital where she had undertaken treatment for the injury sustained by her in the road traffic accident immediately after the incident. In Annexure A5 she had clearly explained the compelling circumstances and reasons under which she had undertaken treatment in a O.P(CAT)No.920 of 2011 10 private hospital. In fact demanding her to produce certificate from a Government hospital is compelling her to procure a false certificate as she had not availed any treatment from the Government hospital. As noted above there is definite provision under Rule 65 CCS (Leave) Rules 1972 to relax the conditions or to dispense with the conditions stipulated for granting commuted leave, definitely the rejection of her request and claim for granting commuted leave is not justifiable. When there is a clear provision for relaxation to the rules for availing leave, there is no justifiable reason to deny the benefit to the petitioner. More so we think that such a provision was incorporated in the rules to meet such contingencies and to extend the benefits to the deserving employees. Accident itself means an incident that happens unexpectedly. The injured was rushed to a nearby private hospital by some well wishers or on-lookers for emergent treatment. So naturally she could produce O.P(CAT)No.920 of 2011 11 before the authorities the certificate issued by the authorities of the hospital from where she availed treatment. The validity of Annexures A2 and A8 Medical certificates were also not under challenge. There is also no provision to the effect that the medical certificate issued from a private hospital has to be counter signed by the DMO to prove its' authenticity. The concession or relaxation provided in Rule 65 of the CCS (Leave) Rules is to be made applicable in such a situation otherwise she will be forced to procure or arrange a certificate from a doctor who did not treat her at any point of time. In such a contingency we find absolutely no genuine ground to hold that she is not entitled to get the concession or relaxation available under Rule 65 CCS (Leave)Rules. In short, we find that the Medical certificates issued by the doctors of the private hospitals can be accepted under Rule 65 CCS (Leave) Rules without the stamp of a Government doctor in exceptional circumstances. O.P(CAT)No.920 of 2011 12 Hence, the verdict of the Tribunal rejecting her claim is set aside. The Department/Government is directed to treat the period of leave as 'commuted leave' and provide all the pecuniary benefits available to her at the earliest at any rate , within a period of two months on production of a copy of this judgment as she has retired from service on superannuation on 31.7.2009. The Original Petition is allowed accordingly. P.R. RAMACHANDRA MENON JUDGE SHIRCY.V JUDGE smm "