Kiran Babu K. v. Fertilizers and Chemicals Travancore Ltd. (WA No. 144 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943** **WA NO. 144 OF 2022** **AGAINST THE JUDGMENT DATED 09.12.2021 IN WP(C) 26680/2021 OF HIGH** **COURT OF KERALA** ## **APPELLANT/PETITIONER IN W.P(C):** **KIRAN BABU K., AGED 27 YEARS S/O.BABU K.P., PRESENTLY WORKING AS FORK LIFT OPERATOR (ON CONTRACT BASIS), THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD.,UDYOGAMANDAL,RESIDING AT KALAPURAKKAL HOUSE,CHETTINADU,ALATTUCHIRA P.O.,PERUMBAVOOR-683 544.** **BY ADVS. C.S.AJITH PRAKASH T.K.DEVARAJAN PAUL C THOMAS BABU M. ANCY THANKACHAN NIDHIN RAJ VETTIKKADAN HAARIS MOOSA** ## **RESPONDENTS/RESPONDENTS IN W.P(C):** - **1 THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL (A GOVERNMENT OF INDIA ENTERPRISE), UDYOGAMANDAL P.O.,** **KOCHI-683 501, REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR.** - **2 THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL ( A GOVERNMENT OF INDIA ENTERPRISE), UDYOGAMANDAL P.O.,** - **KOCHI-683 501. REPRESENTED BY THE CHIEF GENERAL MANAGER (HR).** - **3 THE DISTRICT MEDICAL OFFICER, ERNAKULAM, DISTRICT MEDICAL OFFICE, ERNAKULAM-682 011.** W.A No.144 of 2022 2 **4 AKHIL U., AGED 26 YEARS HEAVY EQUIPMENT OPERATOR ON CONTRACT, HEAVY EQUIPMENT DEPARTMENT, THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL P.O., PIN-683513.** **5 ATHUL KRISHNAN K., AGED 27 YEARS HEAVY EQUIPMENT OPERATOR ON CONTRACT, HEAVY EQUIPMENT DEPARTMENT, THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD.,UDYOGAMANDAL P.O. 683513.** **BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN** **B.UNNIKRISHNA KAIMAL, SR.GP** **SRI. JAI MOHAN FOR R1 & R2** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.144 of 2022 3 # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **=================================** # **W.A No.144 of 2022** [ _arising out of the judgment dated 09.12.2021 in W.P(C) No.26680/2021_ ] **=================================** Dated this the 01[st] day of February, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** This intra court appeal has been filed by the appellant, as he is aggrieved by the impugned judgment rendered on 09.12.2021, dismissing W.P(C) No.26680/2021 filed by him. 2. Heard Sri.C.S.Ajith Prakash, learned counsel appearing for the appellant in the W.A/petitioner in the W.P(C), Sri.M.Gopikrishnan Nambiar, learned Standing Counsel instructed by Sri.Jai Mohan, learned counsel appearing for official respondents 1 & 2 and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the 3[rd] respondent. In the nature of the orders proposed to be passed in this writ appeal, notices to contesting respondents 4 & 5, will stand dispensed with. 3. According to the appellant, he has been working as Forklift Operator on contract basis in the Petrochemical division of the respondent-company w.e.f 18.10.2021 and that his present period of contractual engagement in that regard is upto 18.04.2022. While so, the W.A No.144 of 2022 4 respondent-company had invited applications from eligible candidates for appointment to the post of Heavy Equipment Operator on fixed tenure contract (adhoc) basis in terms of Ext.P-2 notification dated 01.02.2021. That the writ petitioner had applied for the post of Heavy Equipment Operator on the basis of Ext.P-2 selection notification, as he fulfilled all the eligibility criteria for the said selection. It is not necessary to deal with the averments in the W.P(C) regarding the details of the eligibility criteria. After the due process of selection, the appellant has been included in Ext.P-5 select list/rank list dated 22.03.2021, wherein the appellant has been included in the un-reserved/general category of the select list, in which his name appears as Sl.No.6 thereof and the names of the contesting respondents 4 & 5 are included therein as Sl.Nos.7 & 8 thereof, which is immediately below the placement of the appellant therein. That thereafter, the writ petitioner had reported for medical examination and he has now been intimated as per Ext.P-6 letter dated 08.11.2021 issued by the Senior Manager of the Human Resources department of the respondent-company stating that the medical officer of the company, after medical examination has opined that the appellant is unfit for the post due to hearing loss of 70 decibel and that therefore, the candidature of the appellant for the abovesaid selection process stands rejected. According to the appellant, there was no criteria stipulated in Ext.P-2 selection W.A No.144 of 2022 5 notification about any such disqualification or disability regarding hearing loss and further that, subsequently the appellant has approached a Government medical institution, who after examination has issued Ext.P-8 physical fitness certificate stating that the appellant does not suffer from any physical disqualification for the post of Heavy Equipment Operator, etc. The appellant would also place reliance on Ext.P-4 certificate dated 03.02.2020 issued by the respondent-company, in which it is certified that the appellant had completed a training course and that he has been found sincere and hardworking, etc. 4. It is in the light of the above facts and circumstances, the appellant has instituted the above Writ Petition (Civil) with the following prayers : - _“i. To call for the records leading to the issuance of Exhibit P6 proceedings/communication and to quash the same after declaring it as illegal, arbitrary._ - _ii. To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent Management to refer the medical fitness case of the petitioner to a competent Medical Board constituted, in consultation with the District Medical Officer, Ernakulam and to effect appointment of the petitioner in the respondent company._ - _iii. To declare that the petitioner is entitled to be selected to the post of Heavy Equipment Operation on the basis of his position in the Exhibit P5 rank list/select list in preference to the candidates ranked below his position._ - _iv. To issue a writ of mandamus or any other appropriate direction, directing the respondents 1 & 2, to cancel the appointment of respondents No.4 & 5 in case the petitioner is found to qualified for appointment and effect appointment to the petitioner, in the_ W.A No.144 of 2022 6 _interest of justice._ - _v. Grant such other reliefs as this Hon'ble Court may deem fit and proper considering the facts and circumstances of the case in the interest of justice.”_ 5. The learned Single Judge after hearing both sides, has rendered the impugned judgment dismissing the above W.P(C), stating that it has now been apprised that as per clause 11 of Annexure-A1 guidelines, party who has grievance as in the instant case, will have to file appeal against the medical disqualification, before the Chairman-cumManaging Director of the respondent-company and that in view of the appellate remedy, there is no necessity to invoke the discretionary writ remedy, etc. It is the abovesaid judgment of the learned Single Judge dismissing the above W.P(C) on the above ground that is under challenge before us. 6. Earlier, when the matter has come up for consideration, Sri.C.S.Ajith Prakash, learned counsel appearing for the appellant had submitted that even the services of the appellant in the present contractual appointment as Forklift Operator, which was current upto 18.04.2022, has now been prematurely terminated by the respondent-company, presumably as the appellant has filed the above writ petition, etc. We had then requested the learned Standing Counsel for the respondent-The Fertilizers & Chemicals Travancore Ltd. (FACT) to get instruction on those W.A No.144 of 2022 7 aspects. Today when the matter has been taken up for consideration, the learned Standing Counsel for the respondent-FACT would submit on the basis of instructions that the contractual arrangement with the contractor in respect of the above project, in which the appellant was engaged by the contractual Forklift Operator, was terminated by the respondent-company on account of deficiency in work of the contractor and that it may be only in consequence to this decision that the appellant, as the employee of the contractor, would have lost his job and that the respondent-FACT has not in any manner acted as against the individual interest of the appellant and that the respondent-FACT was constrained to take the decision on account of the deficiency in work of the contractor employer. Further that R4 & R5, with lower ranking in merit than the appellant, have been selected. 7. In view of the above submission, we are of the view that if the appellant has any subsisting grievances regarding his termination of the said contractual appointment as Forklift Operator, it is for him to ventilate those grievances before the competent authority among respondents 1 & 2, who thereafter, may examine those matters and deal with the matter in accordance with law. In that regard, it is also open to the appellant to make an alternate plea that in case another contractor is engaged by the respondents to do the abovesaid work, wherein the appellant was engaged as Fork Lift Operator on contractual basis, then the appellant may also be engaged at that point of time as Forklift Operator, etc. Except for these aspects, we need not get W.A No.144 of 2022 8 into these issues, as the main issue posed before us is regarding the rejection of the candidature of the appellant for the post of Heavy Equipment Operator notified as per Ext.P-2. 8. We are now apprised by the learned Standing Counsel for the respondent-FACT that the candidature of the appellant has notified in Ext.P-6, as the medical officer after careful examination has opined that the appellant was not medically fit to undertake the job in question on account of hearing loss, as mentioned therein and further that, clause 11 of Annexure-A1 guidelines provided for an appellate remedy, for which the appellant should have approached the Chairman-cum-Managing Director of the respondent-company, who then in his discretion should have decided in the said appeal, in the manner known to law, etc. 9. After hearing both sides, we are of the view that even if the time limit for submission of the appeal has expired, the time spent for prosecuting the present writ proceedings and the writ appeal would be taken into account for such exclusion of time. Hence, it is ordered that it is for the appellant to immediately file appeal in terms of clause 11 of Annexure-A1 guideline before the Chairman-cum-Managing Director of the respondent-company and upon which, the appellate authority will consider the said appeal on merits. Now it has to be noted that the medical officer of the respondent-company would opine that the appellant W.A No.144 of 2022 9 suffers from disability of hearing loss and hence, his candidature is to be rejected, whereas the appellant would place reliance on Ext.P-8 medical certificate said to have been issued by a Government medical institution subsequently, which according to the appellant is in his favour. In view of the said professional medical controversy, it is only fair and just that the case of the appellant shall be referred for appropriate decision by the medical board of a Government medical institution and it may be ensured that the said medical board should be inclusive of an expert specialist in the field of ENT surgery, as the disqualification alleged in Ext.P-6 is relating to hearing loss. In that regard, the medical board will ensure that the appellant is also physically examined by the specialist in the field of ENT surgery, for arriving at a proper professional medical opinion in the matter. The appellant will ensure that the appeal in terms of clause 11 at Annexure-A1 guidelines is filed immediately, without even waiting for copy of this judgment, to obviate any further delay. On filing of such appeal, further steps in the matter may be taken by the competent authority of the respondent-company referring the matter to the medical board of the medical institution, as above, within 2 to 3 weeks from the date of receipt of a copy of this judgment. If the assessment by the Medical Board is in favour of the appellant, then necessary revision of the selection process may be done to ensure that the ranking and merit of the appellant as W.A No.144 of 2022 10 reflected in Ext.P-5, is duly honoured. The contention of the appellant that hearing deficiency is not a disqualification for the job, shall also be duly considered by the official respondent. These aspects of the matter has not been duly taken note of in the rendering of the impugned judgment. Hence, the impugned judgment rendered by the learned Single Judge dismissing the instant W.P(C), will stand set aside. With these observations and directions, the above Writ Appeal, will stand finally disposed of. ## **Sd/ALEXANDER THOMAS, JUDGE** **Sd/-** **VIJU ABRAHAM, JUDGE** vgd W.A No.144 of 2022 11 ## **APPENDIX OF WA 144/2022** ## **PETITIONER'S ANNEXURES** **ANNEXURE A1 A TRUE COPY OF THE RELEVANT PAGE OF FACT PRE - EMPLOYMENT MEDICAL EXAMINATION PROCEDURE.**