SAYAD ADAM Vs. GOVERNOR OF GOA

JUDGEMENT

(1.) THE petitioner was working as a driver in the police department under the State of Goa. He was appointed as a driver on 10th October 1959. While he was on duty he met with a road accident on 4th June 1979 and was severely injured resulting in loss of the right eye and fracture of mouth bones. THE petitioner was unable to perform his duty as a driver for having lost his one eye, therefore, he asked for voluntary retirement under the then law applicable to employees of the Government of Goa. Indisputedly, at the time of the accident, the pension rules which were in force and which were applicable to the petitioner were called Estatuto de Funcionalismo Ultramarino. An official translation of the relevant articles of those Rules, namely, Articles 324 and 446 has been furnished to us by the advocate for the petitioner and not disputed by the learned Government Advocate Shri Bharne. THE official translation of Articles 324 and 446 reads as follows : - " Article 324: In the case of permanent total disability the functionary has the right of being retired independently of any other condition. Para one only: THE main provisions of this article can be extended to the permanent total disability resulting from disease contracted in the exercise of his functions and by reason of performance thereof, provided the functionary has at least ten years of active service. Article 446: In cases of extraordinary retirement in terms of Article 324, the pension shall be calculated as if the pensioner had thirty six years of service. " THE petitioner, according to us, very sensibly, by his letter dated 10th July 1980 requested the superintendent of Police, Panaji, to permit him to retire voluntarily in pursuance of the clauses mentioned above. Presumably, pursuant to that request, the Superintendent of Police (T), Panaji, Goa, has sent a request to the Police Medical Officer, Panaji, Goa, to see that the petitioner is examined by a medical board for assessing the percentage of incapacity to perform his duties as driver. Accordingly he was subjected to an examination by a medical board. Of course, we do not have the benefit of perusing the report of the medical board but the opinion of the medical board in short has been extracted in the letter dated 1st November 1987, Exhibit 'k' sent by the Inspector General of Police, Panaji, to the Under Secretary (Home), which reads as under : - " Shri Sayad Adam who met with an accident and lost one of his eyes, according to ESI Act 1984 page 55 SL No.31 he has sustained 40% loss of earning capacity. " We are surprised to see how the medical board made such an observation about the petitioner because what had been asked from the medical board was to assess his disability to work as a driver and not to assess his capacity of earning. It is very painful to note that the medical board without proper application of mind issued such a certificate. Be that as it may, the petitioner's case was treated mechanically by the Department also, by blindly accepting the certificate of the medical board. Based on this certificate, it appears, that the benefit under the aforesaid Articles was denied to the petitioner. He was retired by giving him the benefit of 22 years and 9 months, being the actual service rendered by him in the Government, instead of 36 years.

(2.) HERE is a petitioner, who comes forward, knowing his incapacity to work as a responsible employee of the Government, and offers to retire as driver, is denied the benefits admissible under the Rules. The denial of such a legitimate benefit allowed under the Rules, which were in force, is quite unkind and is unbecoming of a Government who is expected to deal with its employees with reasonable amount of fairness. The Government without properly understanding the intent and purpose of the Rules mechanically relied upon the certificate issued by the medical board and denied the benefit to the petitioner. Undisputedly, the petitioner had lost one eye. Having lost his one eye, he cannot be considered to be capable to perform the duties of a driver and as such, the petitioner is entitled to the benefit under Articles 324 and 446 of the Rules as aforementioned.