WP/15240/2007 of M.Indrasena Vs The Depot Manager, APSRTC., on 27 December 2007

ORDER:

This writ petition is filed seeking a Mandamus declaring theaction of the first respondent in not paying full salary for the period from8.3.2005 to 31.1.2006 (328 days) to the petitioner as arbitrary, illegaland contrary to regulations by setting aside the office orderNo.P2/394(1)/2006-KG dated 22.9.2006 of the first respondent andconsequently direct the respondents to pay the salary due to thepetitioner treating the period as leave on full pay.

The facts are not much in dispute. It appears, petitioner who isworking as Driver in respondent-Corporation and attached toKushaiguda Depot, Hyderabad. On 8.3.2005, while he wasperforming duty on the route Bangalore to Hyderabad, an accident hadoccurred near Priya Cement Factory, Gooty. At the time of accident,petitioner was sitting in the Bus as an extra Driver and was on duty.Due to the said accident, his left knee got fractured and received someother injuries. He was shifted to Doan Government Hospital and fromthere to APSRTC Tarnaka Hospital and was treated there from8.3.2005 to 31.1.2006. Vide proceedings dated 12.7.2006, firstrespondent sanctioned hospital leave on full pay for the entire periodfrom 8.3.2005 to 31.1.2006 (328 days). Subsequently, vide office orderdated 2.9.2006, first respondent sanctioned hospital leave only for 180days and the remaining period of 148 days was treated as half payleave (i.e. 94 days as half pay leave (MC) and 54 days as half payleave (PA). The grievance of the petitioner is that since the ChiefMedical Officer, APSRTC, who is the superior authority, hasrecommended for sanction of hospital leave on full pay, therefore, he is entitled for full salary for the entire period from 8.3.2005 to 31.1.2006.According to the petitioner, he is entitled for full pay as per Regulation46(4)(a) of Andhra Pradesh State Road Transport CorporationEmployees (Leave) Regulations 1963. Regulation 46 reads as under:

46. Hospital Leave:

(1) Subject to the provisions of this Regulation, a competentauthority may grant hospital leave to employees otherthan those in Class-I or Class-II services while they areundergoing medical treatment for injuries sustained onduty.authority may grant hospital leave to employees otherthan those in Class-I or Class-II services while they areundergoing medical treatment for injuries sustained onduty.

(2) Hospital leave shall not be admissible in respect of aninjury by an accident due to carelessness on the part ofthe employee viz. while he was under the influence ofdrink or drugs or due to wilful disobedience of orders orwilful removal of safety devices.injury by an accident due to carelessness on the part ofthe employee viz. while he was under the influence ofdrink or drugs or due to wilful disobedience of orders orwilful removal of safety devices.

(3) The period of leave granted shall be such as is certified bythe competent Medical Officer to be necessary but shall inno case exceed six months in respect of any one injury.the competent Medical Officer to be necessary but shall inno case exceed six months in respect of any one injury.

(4) Subject to the limits specified in clause (3), hospital leavemay be granted on leave salary equal to either full pay orhalf pay as follows:may be granted on leave salary equal to either full pay orhalf pay as follows:

(a) On full pay, where the competent authority issatisfied that the injury was due to causes beyondthe control of employees; andsatisfied that the injury was due to causes beyondthe control of employees; and (b)On half pay, where the competent authority issatisfied that the injury was due to causes whichthough within the control of the employee did notamount to carelessness on his part.satisfied that the injury was due to causes whichthough within the control of the employee did notamount to carelessness on his part.

(5) Hospital leave is not debitable to the leave account andma be combined with any other leave which may beadmissible. Provided that the total period of leave doesnot exceed 24 months.ma be combined with any other leave which may beadmissible. Provided that the total period of leave doesnot exceed 24 months.

(6) The grant of hospital leave to a non-payment employeewill be subject to the codition that the period of leave doesnot extended beyond the period for which the post fromwhich he proceeds on leave is sanctioned.will be subject to the codition that the period of leave doesnot extended beyond the period for which the post fromwhich he proceeds on leave is sanctioned.

(7) If the employee is one to whom the Workmen’sCompensation Act, 1923 (Central Act 8 of 1923), applies,the amount of leave salary payable during hospital leaveshall be reduced by the amount of compensation payableunder clause (d) of sub-section (1) of section 4 of thatAct. In such cases no payments should be made to theemployees other than those admissible to him inaccordance with the provisions of the said clause (d) untilhe returns to duty but the period of disablement shall bereckoned from the fourth day following the date of injury.Compensation Act, 1923 (Central Act 8 of 1923), applies,the amount of leave salary payable during hospital leaveshall be reduced by the amount of compensation payableunder clause (d) of sub-section (1) of section 4 of thatAct. In such cases no payments should be made to theemployees other than those admissible to him inaccordance with the provisions of the said clause (d) untilhe returns to duty but the period of disablement shall bereckoned from the fourth day following the date of injury.

(8) The competent authority may after the employee hasresumed duty authorize the payment of leave salary forthe period of disablement in accordance with theprovisions of clause (4), subject to the followingconditions, namely:-resumed duty authorize the payment of leave salary forthe period of disablement in accordance with theprovisions of clause (4), subject to the followingconditions, namely:-

i) that the competent medical officer certifies that theemployee is completely fit to resume duty; andemployee is completely fit to resume duty; and

ii) that the competent authority is satisfied that on theemployee’s return to duty the temporary disablementhas not resulted in a reduction in the employee’swages owing to the accident.employee’s return to duty the temporary disablementhas not resulted in a reduction in the employee’swages owing to the accident.

The learned counsel for petitioner strenuously contended that asper Regulation 46(3), the period of leave granted shall be such as iscertified by the competent Medical Officer to be necessary, but shall inno case exceed six months in respect of any one injury, and in thepresent case, since the petitioner suffered with multiple injuries,respondents could have treated the entire period as on leave, which is just and proper in the facts and circumstances of the case.

Conclusion

The respondents filed a counter denying the allegations made bythe petitioner and asserted that basing on the claim and certification ofSenior Medical Officer, hospital leave was sanctioned for the entireperiod from 8.3.2005 to 31.1.2006 vide proceedings dated 12.7.2006erroneously instead of sanctioning leave for 180 days which is themaximum period eligible in terms of Regulation 46(3) of Regulations. Therefore, a revised office order dated 22.9.2006 was passed treatingthe period from 8.3.2005 to 3.9.2005 i.e. 180 days as hospital leaveand the remaining period from 4.9.2005 to 6.12.2005 i.e. 94 days ashalf pay leave (MC) and from 7.12.2005 to 31.1.2006 i.e. 54 days ashalf pay leave (PA). Further, the Depot Manager is the competentauthority to sanction leave basing on the medical certificate.

From the above, it appears that though initially a decision wastaken to treat the entire period of 328 days as hospital leave, butRegulation 46(3) states that the hospital leave can be grantedmaximum for 180 days and not more than that, therefore the authoritieshave taken a decision to treat the period of 180 days as hospital leave and the remaining period of 148 days as half pay leave (i.e. 94 days ashalf pay leave (MC) and 54 days as half pay leave (PA). The merecertification and recommendations of Medical Officer are not bindingon respondents 1 and 2. The third respondent is only a certifyingauthority and he is not the Unit Officer or Drawing Officer to decide andapply leave regulations as applicable to the petitioner. A combinedreading of Regulation 46(3),(4) and (4)(a) of Regulations would make itclear that the petitioner is entitled for maximum of 180 days towardshospital leave with full pay and the rest of the period needs to beregulated by the competent authority i.e. Depot Manager. Therefore,first respondent, vide impugned order dated 22.9.2006, has rightly taken the decision, which is in tune with APSRTC Employees (Leave)Regulations, 1964. I am of the opinion that the respondents 1 and 2have not committed any error calling for interference of this Courtunder Article 226 of the Constitution of India. The writ petition isdevoid of merits and liable to be dismissed.

Accordingly, the writ petition is dismissed. No order as to costs.

Date: .12.2007

____________

C.V.RAMULU, J

DA

THE HON’BLE SRI JUSTICE C.V.RAMULU

27.12.2007

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESHAT HYDERABAD

THE HON’BLE SRI JUSTICE C.V. RAMULU

W.P.No.15240 of 2007

Date: 27[th] December, 2007

Between:

M.Indrasena

.. Petitioner

And

The Depot Manager, APSRTC,Kushaiguda Bus Depot,Hyderabad & others.

.. Respondents