Full Judgment Text
SMT. CHARANJIT KAUR
A
v.
UNION OF INDIA AND ORS.
JANUARY 21, 1994
B
[P.B. SAWANT AND N.P. SINGH, JJ .]
Constitution of India : Articles 21 and 3r-compensation-Death of
Anny Officer in mysterious circumstances-Finding of enquiry tha t death not
attributable to military serv i ce, but reporl withheld from petitioner-wife as being
C highly confidential-Claim for Syc.cial Family Pen sion and Child r en Al-
l owance rejected by authorities as petitioner could not make out that death
was on account of or during, military service-Held, the officer died while in
service, in mysterious circumstances-His death attributable to, and ag-
gravated by, military service-Petitioner, entitled to Special Family Pension
D and Children Allowance-Rs.6 lakhs to be paid as compensation-Casual
.manner of preparing affidavit cri ticised-Investigation to be made at the
highe st level-Chief of Anny Staff to look into the matter.
The petitioner 's husband, a Major in the Army died in my sterious
circumstances. The petitioner-wife was given a post- mortem report which
E attributed the death to extensive burns.
-
After over 7 years, and several letters, she was informed that the
enquiry held bad found that the death of her husband was not attributable
to military service. Her claim for Special Family Pension and Children
Allowance was rejected in July 1985 with the intimation that she co uld
F appeal within 6 months if she was dissatisfied with the order. She was
refused a copy of the enquiry report as being a highly confidential docu-
ment.
The petitioner-wife approached this Court claiming Special Family
G Pension and Children Allowance. She also claimed damages of Rs.7,50,000.
The authorities inter alia contended that they had not denied the
pension and allowance to the petitioner but that she had failed to fil e a
review with them. They also admitted that the Co urt of Inquiry could not
conclusively prove whether the officer's death was one of murd er or of
H suicide.
2 00
CHARANJIT KAUR v. U .0 .I. 201
Allowi ng the petition, this Court
A
HELD : 1. The conduct of the authorities has, right from the incep-
tion, been utterly irresponsible. There is a good deal of substance in the
allegation that the death of the petitioner's husband was in mysterious
circumstances. Further, no enquiry whatsoever seems to have been made
and if made, its results were kept a secret. That such an incident should
B
have occurred in the presence of the responsible Army officers and should
go uninvestigated and in fact completely ignored is all the more barning.
There is a good deal in this case for which the authorities have to answer.
This is apart from the fact that till this day, the case bas been handled
with culpable negligence and cynical indifference. This is matter which
a C
requires investigation at the highest level. The matter should be personally
looked into by the Chief of the Army Staff. (208-C-F]
2. lo the facts of the case, the conclusion is inescapable that the
officer died while in service in mysterious circumstances and his dea th is
attributable and aggravated by the military service. The respon si bility of D
his death is prima acie traceable to the act of criminal omissions and
f
commissions on the part of the concerned authorties. (208-G]
3. The petitioner is entitled to the Special Family Pension a nd
Children Allowance, according to the relevant Rules, w.e.f. 23 June 1978,
E
that is the date of the death of her husband with interest at 12% p.a.
(208-G)
Com pe nsation quantified at Rs.6,00,000 is granted. (208-H]
4. The affidavit of the authorities has been prepared in the most F
casual manner as is apparent even from the kind of language and the
grammatical as well as factual mistakes which have been committed in it ,
and is replete with unspecific and omnibus statements. [206-H, 207-A]
ORIGINAL JURISDICTION : Writ Petition (C) No. 45 of 1989.
G
(Under Article 32 of the Constitution of India)
M.C. Dhingra for the Petitioner.
V.V. Vaze, AS. Bhasme and Ms. A. Subhashini for the Re spondents.
H
202 SUPREME COURT REPORTS [1994) 1 S.C.R.
A The Judgment of the Court was delivered by
SAWANT, J. 1. This case is a glaring example of gross negligence
and callousness on the part of the authorities and the consequent in-
describable mental torment and physical and financial hardship caused to
B the widow and two minor children of an Army officer. The apathy and the
extremely casual attitude adopted by the concerned officers travelled even
to the proceedings in this Court and are writ large on the affidavit-in- reply
which they have filed in response to the petition.
C 2. The petitioner's husband, Mukhbain Singh was commissioned as a
Lieutenant in the Indian Army on or about 13 .10.1963 according to the
petitioner and on 1 .6. 1968 according to the respondent-authorities, and was
promoted to the rank of Major on 24.5 .1 978. On promotion, he was posted
at on 10.6. 1978 . According to the petitioner, he complained of chest
Kargil
D pain on 12 .6. 1978 and was removed to Leh on 16.6. 1978. The diagnosis
made was of Ischaemic heart disease. Th e petitioner who was married to
Mukhbain Singh in 1971 wa s living in Meerut at the relevant time with her
two children - a daughter born in 1972 and a son born in 1975 . On receiving
information of the illness of her husband, she rushed with her children to
Leh on 16 .6.1978. After a great deal of persuasion, the petitioner and her
E
children were allowed to meet Mukhbain Singh who was then lying in a
make-shift hospital which was devoid of life saving treatment at the relevant
time. She found her husband in a precarious condition. He was unable to
move on his own. Both the petitioner and her husband requested the
authorities to air-lift him to Ambala or Srinagar Military Hospital for
F proper treatment. This request was turned down. Upon this the petitioner
and her husband requested the authorities to discharge him so that he
might move to Srinagar at his own risk. That request was also not acceded
to . On the other hand, he was threatened with Court Martial. After a great
deal of persuasion and pleading, on 19 .6. 1978 one Dr. Major Boffalo
G agreed to shift Mukhbain Singh from Leh to Ambala and told the
petitioner that her husband would be airlifted to Ambala on 21.6.1978. The
petitioner a.µd her husband pleaded with the authorities that she and her
children be allowed to accompany him but that request was also not
acceded to. She was asked to move with her children independently from
Leh, and reach Ambala to receive her husband there.
H
CHARANnTKAUR v. U.O.I. [SAWANT, J.] 203
3. The petitioner was not satisfied with the as surance given by the A
authorities and insisted that she would stay on till her husband was actually
airlifted on 21.6 . 1978. On 21.6 .1978, Mukhbain Singh was not airlifted. On
enquiry, it was revealed that the Commanding Officer had not passed the
necessary orders for his evacuation to Ambala Army Hospital. However,
the authorities persuaded the petitioner to move to Ambala with an as-
B
surance that her husband would be airlifted to that place on 23.6.1978.
Hence, on 22.6.1978 the petitioner with her children reached Srinagar and
from there, reached Udhampur on 23 .6. 1978. On that day at the Udhampur
check post, she was informed that her husband was not "well" and she
should return to Leh. The petitioner rushed back to Leh the next day, i.e., C
on 24.6 . 1978 . There she was to receive a rude shock when she was shown
the burnt body of her husband. The authorities did not disclose to her the
circumstances under which her husband had received the burns. Later on,
she was only given a report of the postmortem examination conducted by
the Army Medical Authorities at Leh which attributed the death to "exten-
D
sive burns ".
4. ~ccording to the authorities, after Mukhbain Singh complained of
chest pain at Kargil he was evacuated to Leh on 16 .6.1978. He was advised
transfer to Ambala on 22 Jan 1978. The transfer according to the
authorities, "was not an emergency one ". It is also the case of the authorities
E
that it is Mukhbain Singh who did not board the plane on 23 .6. 1978 .
According to them, on that day he had gone to attend to some private
business in the cook house and later his charred body was found with 98
per cent burns due to kerosene oil leading to irreversible shock. This was
at 0803 hours on that day.
F
5. According to the petitioner, her husband's death took place in
mysterious circumstances, particularly because when she saw her husband,
he was unable to move around. It was, therefore, ununderstandable as to
how he could, on his own, move around to receive the said burns. He was G
in fact brought to the air-base at Leh from the Army Hospital in the
custody of the Army specialists according to the authorities, and was
supposed to be in their custody till he was to board the plane. Hence she
protested to the authorities at Leh, upon which she was told that the matter
would be investigated and it is only after the investigation that she would
be informed about the circumstances leading to her husband's death:
H
204 SUPREME COURT R EPORTS 199 4] 1 S.C.R.
f
A Th ereafter, she wr o te several letters to the authorities for communicating
to her the result of the enquiry; but only a few of the le tt ers were an swered
intimating her that she would be informed in the matter wh en the report
would become available. After more than seven year s, the finding of the
enquiry was that the death of her husband was not attributable to military
service. She applied for a copy of the enquiry report so that she could
B
challenge the same in appeal and claim Special Family Pension and
Children Allowance. The authorities, however, re fus ed to give her a copy
of the report stating that it was a highly confidential document.
1
6. The petitioner ha s, therefore, approached this Court under Article
32 of the Constitution claiming both Special Family Pension and Children
C
Allowance as well as damages of ij.s .7 , 50,000.
7. According to the authorities, the case for granting Special Family
Pension to the petitioner was initiated on 14 .7. 1978 but due to incomplete
documents, a final dec is ion could be taken only in July 1 985. The petition er
D
was informed of the decision of the Government rejecting her case for the
grant of the Special Family Pension vide letter dated 15th Jul y, 1985 with
the intimation that she could appeal against the decision within a period
of six months in case she was dissatis fi ed with the same. According to the
authorities, the petitioner did not appeal and preferred to go to the Court.
E
8. The respondent-authorities have further stated that the reasons
which led to the death of Mukhbain Singh could not be disclosed to her,
the same being confidential in naturt!. It is not di sputed that her success in
the appeal was dependent upon the case she had to make out, viz., that
F her husband had died on account of or during military service. For this the
enquiry report was very much necessary. Instead, in paragraph 8 of their
affidavit-in-reply, they have stated that "the special family pension and
children allowance has not b'!en denied to the petitioner. She did not
appeal to the Government for a review of their decision in this regard ".
TJie case made out in the said paragraph is, therefore, that since she had
G not appealed to the Government for a review of their decision, it should
be held that she had not been denied the pension and the allowance. It
appears that the authorities do not recognise any limit to perversity in
reasoning. However, immediately in paragraph 9 thereafter, they contradict
themselves and state that "It is humbly submitted that all families of Army
officers are not granted special family pension. Special family pension is
H
v.
CHARANJITKAUR U.0.1. [SAWANT,J.] 205
granted only when death is considered attributable to or aggravated by him
A
military service as defined under Govt . of India letter No.1(1)/81/Pen-C
dated 22 March 1983" . The statement in paragraph 8 of the affidavit can,
therefor e, only be termed as adding insult to the· injury. It is then the case
of the r es pondent-authorities that they had set up a Court of Inquiry on
14.7.1978. The recommendations of the GOC- in-C were recorded on
B
25.7. 1978 with a s~ggestion that the case be handed over for investigation
by CBI to probe the "alleged/suspected murder" of the officer. The civil
investigation was carried out by the District Police, Leh in December 1984
at the behest of 1051 FD Wksp (GREF). They regretted their inability to
carry out the detailed investigation at that late stage, due to the following
reason s: C
"(a) No factual evidence available in the ground.
(b) Witnesses are not available.
D
( c) No ground study can be made out.
( d) Officers/staff services of your HQ at that time has either
proceeded in parts or relieved.
( e) At this stage, it is not possible to trace out any circumstantial
E
evidence if any and thereby obtain the expert views. The
Government of India is not study (sic) bound to disclose its
findings specially if they are confidential in nature".
9. In reply to the ave rments of the petitioner in her petition that her
husband was not airlifted on 21.6.1978 because the Commanding Officer
F
had not pa ssed the necessary orders for his evacuation to Ambala military
hospital, till that d ay the respondent-authorities in paragraph 13 of their
affidavit state that "as the transfer was concurred by OC MH Ambala on
22 January 1978, the officer was sent to the airfield on 23 January 1978.
Th e transfer was not an emergen cy transfer but a routine one for detailed
investigations and further management at MH Ambala. It is submitted that G
the dec is ion regarding opportune time for transfer of patient with refer-
ence to his medical condition is part of the medical management and is the
prerogative of the treating specialist. Some delay in evacuation resulted
from unwillingness of the officer. The officer was under care of a medical
specialist w.e.f. 16 January 1978 onwards".
H
206 SUPREME COU RT REPORTS (1 994 J 1 S.C.R.
10 . It is then stated in paragraph 14 of their affidavit that "the transfer
A
of the officer to MH Ambala for detailed investigation and further manage-
ment was concurred in by officer commanding MH/Ambala on 22 January
1978 and the officer was sent to the airfield on 23 January 1978 . The officer
did not board the plane. He had gone to auend some private bu s in ess in the
in the
cook h ouse and later his charred b ody was found with 98 % bums
serious as contended by the plaint.
As such there was no cause for apprehen-
In reply to the petitioner's grievance that she and her children were
sion".
B
not permitted to accompany her husband, it is stated that "travel of NOK
in the service aircraft evacuating a patient is not permitt ed under the Army
rul es". According to the respondent-authorities, further, the final report
from the Civil District Police was received in December 1984 and the
C
Ministry of Defence which is the competent authority in deciding at-
tributability aspect for grant of special Family Pension rejected the case on
the basis of inconclusive evidence to s how whether the death was "s uicide
murder". 'The petitioner was informed of the authorities' decision by their
l et ter of 15 July 1985 to appeal against their decision. The respondent-
D
authorities have admitted that the petitioner had sought the Court of
lnquiry report vide her letter dated 1 February 1986 as also the medical
record which was re fu sed by them by their letter of 24 June 1986 on the
ground that the documents were confidential. The re spo nd ent-authorities
have also admitted that the Court of Inquiry could not conclusively prove
E whether the officer's death was one of murder or of suicide. According to
them, every effort was made to ascertain the facts, but final conclusion
could not be arrived at. In the end, the respondent-authorities claim that
in the circumstances, the writ petition be dismissed.
F 11. In the first in stance, this affidavit-in-reply h as been filed by one
Smt. Lina Mukherjee who is working as "DAAG/PS-4 in the office of the
Army Headquarters, Sena Bhavan" as has b ee n stated in the affidavit. She
h as stated that she is conversant with the facts of the case. It is not known
nor is it stat ed there, as to how she had beco me con ve rsant with the facts
of the case so as to swear the affidavit. The fact that affidavit had been
prepared for anybody to come and swear it is apparent firstly from the fact
that blanks were left in the typed affidavit for the name and designation of
the deponent and they were later fill ed in in hand. Secondl y, although the
deponent is a lady [We presume to be so from her name], paragraph 4 of
the affidavit begins with the words "the respo nd ent humbly submits that he
may be allowed to submit... ... ". The affidavit is also pr epared in the most
H
G
CHARANJITKAUR v. U.0.1. (SAWANT, J.] 207
,.
.
casual manner as is apparent even from the kind of language and the A
gramm at ical as well as factual mistakes which have been committed in it.
Although the petitioner has specifically stated in the petition that her
husband b eca me unwell on 12.6.1978, all that the deponent has stated in
the affidavit in reply is that Major Mukhbain Singh went on temporary duty
to Kargil on 10 Jun e 1978; he complained of chest pain and was evacuated B
to Leh on 16 June 1978 . No date on which he complained of chest pain is
mentioned, and the statement of the petitioner that her husband fell ill on
12 June 1978, is not controverted. the illness was of chest pain and it was
If
suffer ed on 12 June 19 78, it is not known why he was moved to the hospital
at Leh only on 16 June 19 78. There is further no denial of the petitioner's
averment in the petition that on h ea ring of the illne ss of her husband, she C
had rushed with her children from Meerut to Leh on 16 June 1978 and it
wa s on ly after great deal of persuasion that she and her children were
a llow ed to meet her husband. There is also no denial of the petitioner's
averment that the hospital wa s a make-shift one devoid of life saving
treatment. Th ere is also no denial of the following a ve rment s, viz., that (a)
D
the officer was in a precarious condition a nd unable to move on his own;
(b) both the petitioner and her hu sband had requested the authorities to
airlift him to Ambala or Srinagar Military Ho spital for proper treatment
which request was declined; (c) th.ereafter the petitioner and her husband
had reques ted the authorities to discharge him so that he might move to
Srinagar at his own risk which request was also declined; ( d) in fact the E
officer wa s threatened with Court Martial; ( e) it was only after a great deal
of persuasion and pleading that Dr. Major Boffalo on 19 June 1978 agreed
for shifting him from Leh to Ambala and the petitioner was told that her
husband would be airl ift ed on 21 June 1978; (f) the officer was not airlifted
on 21 June 19 78 because till that day the Commanding Officer had not
F
passed order fo r lii s evacuation to Ambal a; (g) the petitioner was assured
that the officer would be airlifted on 23 June 1978 and it was only at
Udhampur on 23 June 1978 that she was asked to return to Leh as her
husband was not we ll ; (h) the authorities did not disclose to her any reason
as to h ow and why th e body of her husband wa s partially burnt when she
reached Leh on 24 June 1978. An omnibus statement in the affidavit-in-
G
reply lik e "a ny submi ss ion made herein inconsistent with the facts of the
case and n ot spec ifi ca lly admitted is hereby denied" only rubs salt into the
wound.
12 . The manner in which the authorities ha ve dealt with the episode H
SUPREME COURT REPORTS [1 994) 1 S.C.R.
208
of the alleged burning is all the more reprehensible. All th at is stat ed in
A
the affidavit-in-reply is that when the officer was sent to the airfield on 23
January 1978, "the officer did not board the plane. He had gone to attend
some pr ivate business in the cook house and later his charred body was
found with 98% in the serious as contended by the plaint (sic). As such
..
there was no cause for apprehension".
B
13 . We are pained at the utterly irresponsible conduct of the
authorities in the present case right from the inception. We see a good deal
of substance in the allegation of the petitioner that her husband met with
his death in my sterious circumstances. It is surprising that wh en the officer
C was not in a condition to move on account of his ailment, and when on
16.6.1978 his condition was considered so delicate that even his wife and
children were permitted to see him only after a great deal of persuasion,
and when he was all the while accompanied by the specialist doctor, he
was allowed to move on his own and go for his pri va te business to the cook
D house, if the version of the respondent-authorities is to be believed. It is
also difficult to belie ve that when he was being airlifted at hi_s own request,
he had refused to board the plane and instead had left for his said alleged
private business. All that thereafter was found was his charred body with
98% bums. No enquiry whatsoever seems to have been made and if made,
its results are kept a secret. That such an incident should have occurred in
the presence of the responsible Army officers and should go uninvestigated
E
and in fact completely ignored is all the more baffling. There is a good deal
w~ch
in this case for the authorities have to answer. This is apart from the
fact that this day, the case has been handled with culpable negligence
till
and cynical indifference. This is a matter which requires investigation at
F the highest level. We, therefore, desire that this matter be personally
looked into by the Chief cf the Army Staff.
14 . the aforesaid facts, the conclusion is , therefore, inescapable
In
that the officer died while in service in mysterious circumstances and his
death is attributable to and aggravated by the military service. The respon-
G sitility of his death is prima f acie traceable to the act of criminal omissions
'
and commissions on the part of the concerned authorities. The petitioner
is, therefore, entitled to suitable compensation as well as to the Special
C~ildren
Family Pension and the Allowance according to the relevant
Rules. w.e.f. 23.6.1978, i.e., the date of the death of her husband. We award
H her compensation in the amount of Rs.6,00,000 (Rupees six Lakhs) and
CHARANJIT KAUR v. U.0.1. [SAW ANT, J.] 209
dire~ that the said amount be paid to her within six weeks from today. We A
further direct that the arrears of the Special Family Pension and the
Children Allowance be paid to her within eight weeks from today with
interest at 12% per annum. Rule issued is made absolute accordingly. The
1st respondent will pay the costs of the writ petition which are fixed at
Rs.6, 000 .
U.R. Petition allowed.
I
A
NARENDRA KUMAR CHANDLA
v.
STATE OF HARYANA AND ORS.
FEBRUARY 4, 1994
B
(K. RAMASWAMY AND B.L. HANSARIA, JJ.)
SeJVice Law: Employee holding a technical post--Afflicted with certain
disease-Amputation of right hand-Reasonably prevented from peif orming
dutie s in the technical job--Employer offering altemative post with lesser pays-
cale-Validity of
c
Constitution of India, 1950: Article 21-Right to life includes right to
livelihood.
The appellant was working as Sub-Station Assistant with the
Respondent Electricity Board in the pay scale of Rs. 1400- 2300. Due to
cancer his right arm was completely amputated. He could work only with
his left arm. The Respondents absorbed him as Carrier Attendant, which
carried a lesser pay scale. Aggrieved by this, he approached the High Court
by filing a Writ Petition. The High Court having dismissed the Writ
Petition, appellant preferred the present ~ppeal.
D
E
This Court directed the Respondents to constitute a Board of three
doctors and an Executive Engineer to find out whether the appellant could
discharge the duties of Sub-Station Attendant or any other equivalent post
in the same pay scale. The Board reported that the appellant failed to
perform his duties as Sub- Station Attendent or equivalent technical posts.
The Board also recommended that the appellant could be considered for
clerical or non-technical post subject to his meeting education), ad·
ministrative requirements of the Electricity Board.
F
Allowing the appeal, this Court
G
HELD: 1. The Medical Board sympathetically considered the
appellant's capability pursuant to the directions given ~y this Court.
Tberef ore, the appellant may not be justified in making 1my allegations
against the Board. Suffice to state that in view of the findings given by the
Medical Board, assisted by the Engineers, the Court does not think that H
657
SUPREME COURT REPORTS
658 [1994] 1 S.C.R.
A it can direct the Board to absorb the apellant either as Sub-Station
Attendant or in any equivalent post on the technical side. (660-D]
2. This Court cannot also give directions to the respondents to
appoint the appellant as U.D.C. which carry equal pay. The reasons are
B that there are two channels of appointment to the post of U.D.C. One is
promotion and another is direct recruitment in the ratio prescribed at 75%
and 25% respectively. For a direct recruit, graduation or post-graduation
or law graduation is the minimum educational qualification required
apart from the other requirements. Admittedly, the appellant is not pos·
sessed of the qualifications. He is only Matriculate. (660-F-GJ
c
3.1. Article 21 protects the right to livelihood as an integral facet of
right to life. When an employee is affiicted with unfortunate disease due to
which, when he is unable to perform the duties of the posts he was holding,
the employer must make every endeavour to adjust him in a post in which
the employee would be suitable to discharge the duties. [ 660-H; 661-A]
D
3.2. In the inscant case asking the appellant to discharge the duties
as a Carrier Attendant is unjust. Since he is a Matriculate, he is eligible
for the post of L.D.C. for which apart from matriculation, passing in
typing test either in Hi"di or English at the speed of 15/30 words per
minute is necessary. For a Clerk, typing generally is not must. The respon-
dent board is directed tn relax bis passing of typing test and to appoint
him as a L.D.C. Admittedly on the date when he had the unfortunate
operation, he was drawing the salary in the pay scale of Rs. 1400-2300.
Necessarily, therefore, his last drawn pay has to be protected which shall
F be so done. The Respondent-Board shall pay all the arrears of salary to
the appellant. (661-B-C)
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 874 of
1994 .
G
From the Judgment and Order dated 10.10.1990 of the Punjab &
Haryana High Court in W.P. No. 8290 of 1990.
M.C. Bhandare and Ms. C.K. Sucharita for the Appellant.
H Manoj Swarup, for the Respondents.
N.K. C HANDLA v. STATEOFHARYANA 659
The following Order of the Court wa s delivered:
A
Special leave granted.
1. The appellant while working as a Sub -S tation Attendant in the pa y
seal~
of Rs. 1400-2300, unfortunately had to be operated on February 13,
Me~orial
1984 for Chondrosarcoma and eversince he was treated in Tata B
Hospital, Bombay upto March 18 , 1985 and threrafter he was discharged
and right arm was compelely amputated due to the said Sarcoma. It
his is
I a cancer affect but it was arrested. The Doctor in his letter dated May 3,
1985 recommended that he can assume his normal duties. The bone of his
right arm is completely missing. He shall work properly with his left arm C
Subsequently, th e respondents ha ve absorbed his as Carrier Attendant in
the pay scale of Rs. 825-1300. Feeling dissatisfied, the appellant ap-
proached the High Court and the High Court in the impugned order
dismissed the writ petition on October 10, 1990 in limine . Thus this appeal
by special leave.
D
2. On September 24, 1993, we directed the State Electricity Board,
hereafter the 'Board', to constitute th ree members' Board of Doctors to
examine the a pp ellant whether he can discharge the duties of Sub-Station
Attendant or any other equivalent post carrying the pay scale of R s.
1400-2300. We had also directed to associate any Engineer of the rank of E
Ex ec utive Engineer working in the o ffic e r' of the respondents to assist the
Medical Board in giving proper advice to the Board to come to its
conclusion on the point noted abo ve. Th e three members Board was
accordingly constituted and the Chief Medical Officer in his letter dated
October 19, 1993 has submitted the report of the three members' Board.
They have stated that two Engineers assisted them. They had taken the F
appellant to 66 KV Sub-Station at Panchkula to assess his capability in the
operation of some installations. The report states: " He was unable to align
the trolley let alone take it in position. He also failed to raise it and had a
great difficulty in low er ing it. He was th en taken to switch yard and was
asked to operate the Isolator which he could not perform efficiently. The G
Medical Board feels that such handling of equipment can be risky not only
to the installations but even to the person himself and as such the appellant
cannot perform the duties of Sub-Station Attendant ".
3. Th e Medical Board also attempted to find whether he can be
posted as Sub-Sta ti on A.F.M., Foreman Grade Ill , Chargemen, Rigger,
H
SUPREME COURT REPORTS (1994] 1 S.C.R.
660
A Crane Driver, Welder, etc. It recommended that the duties to those posts
are similar to the Sub-Station Attendant. Under these circumstances, the
Medical Board felt that the appellant who failed to perform his duties as
Sub-Station Attendant cannot also discharge the duties of alternative posts
as mentionecd above. They have also stated that the appellant has been
B able to write English and Hindi with his left hand and if th e Board feels,
he can be considered for clerical or non-technical post subject to his
meeting educational administrative requirements of the Board.
4. In the objections filed by the appellant he mentioned that he was
performing the duties in 33 KV and that there is no prior practice given
C to him for handling 66KV and his Advocate was not permitted to attend
at the time when he was examined thereby sought to make some allegations
against the Medical Board. We pa y no heed, nor countenance such unwar-
ranted allegations against an impartial Board which has no axe to grind
against the appellant. The Medical Board s.ympathetically considered the
D appellant's capability pursuant to the directions given by this Court. There-
fore, he may not be justified in making such allegations against the Board .
S'!dfice to state that in \riew of the findings given by the Medical Board
assisted by the Engineers, we do not think that we can direct the Board to
give suitable post to absorb the appellant e ith er as Sub-Station Attendant
or any equivalent post on the technical side.
E
5. Howe ve r, we have considered the material placed before us by the
respondents relating to qualifications, etc., for working on the clerical or
non-technical side as suggested by the Medical Board. Though, Shri M.C.
Bhandare, learned counsel for the appellant has attempted to argue for
directing the respondents to appoint the appellant as U.D.C. which carry
F
equal p
•
1
ay scale, we think that we cannot give such directions. The reasons
are that there are two channels of appointment to the post of U.D.C. One
is promotion and another is direct recruitment in the ratio prescri bed
ar
75% and 25%. For a direct recruit, graduation or post-graduation or law
graduation is the minimum educational equalificaiton required apart from
other requirements mentioned therein. Admittedly, the appellant is not
G
posses se d of the qualifications. He is only matriculate. As a result we
cannot give any direction to appoint him as U.D.C.
6. Ajt~cle 21 protects the right to livelihood as an intergral facet of
H right to life. when an employee is afflicted with unfortunate disease due to
N.K.CHhNDLA v.STATEOFHARYANA 661
. which, when he is unable to perform the duties of the posts he was holding, A
the empoloyer must make every endeavour to adjust him in a post in which
the employee would be suitab le to discharge the duties. Asking the appel-
lant to discharge the duties as a Carrier Attendant is unjust. Since he a
matriculate, he is eligible for the post of L.D . C. For L. D.C., apart from
matriculation, passing in typing test either in Hindi or English at the speed B
of 15/30 words per minute is neces :; ary. For a Clerk, typing generally is not
a must. In view of the facts and circumstances of this case , we direct
respondent Board to relax his pa.Ssing of typing test and to appoint him as
a L.D.C . Admittedly on the date when he had unfortunate operation, he
was drawing the salary in the pay scale of Rs . 1400-2300. Neces s arily,
therefore, his last drawn pay has to be protected. Since he has been C
rehabilitated in the post of L.D . C. we direct the respondent to appoint him
to the post of L.D . C. protecting his scale of pay of Rs . 1400-2300 and direct
to pay all the arrears of salary .
The .appearis acc o rdingly allowed . No costs.
G.N . Appeal allowed.