SHAIK ZAKIR AHMED v. THE FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED

3. In compliance of the said Judgment passed by this Court in W.P.(C) No. 12311 of 2021, the petitioner was examined by the Medical Board constituted as per Clause 11 of the "FACT Pre-employment Medical Examination Procedure" and the three member Medical Board found the petitioner unfit for employment and the said report dated 16.11.2021 has been placed on record as Exhibit R-1(b) in the counter affidavit filed on behalf of the 1^stand 2^ndrespondents. The Medical Board specifically noted that the viral load of the petitioner had increased, that too substantially in the last two years and liver functions tests and consistency of liver was showing pathological involvement of the organ. The Medical Board was of the opinion that the petitioner was holding Chronic Hepatitis B infection and the said disease was a communicable disease through blood and body fluids and in progressive pathological condition.

4. The petitioner was not satisfied with the aforesaid report and rejection of the petitioner for the post of Assistant General in the FACT. The petitioner again approached this Court in W.P.(C) No. 29693 of 2022. This Court vide the Judgment dated 25.08.2023 in Exhibit P-23 allowed the writ petition and set aside the report of the Medical Board and directed the petitioner to be further medically examined by

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the Medical Board to be constituted preferably by a Government Hospital or Government Medical College. In compliance of the direction issued by this Court vide Judgment dated 25.08.2023 in W.P.(C) No. 29693 of 2022, the General Hospital of Ernakulam constituated a two member Board for examination of the petitioner. The report of the General Hospital of Ernakulam has been placed on record as Exhibit R-1(c) in the counter affidavit. On physical evaluation conducted by Dr. Anu C. Kochukunj who was one of the members of the Medical Board constituted by the General Hospital for examination of the petitioner found the petitioner had affected chronically with Hepatitis B. He had undergone treatment in private hospital for his health condition and he was required to adhere to the expert advise from Gastroenterologist in future. The Gastroenterology evaluation was conducted by Dr. Anoop Paulose. The report of Dr. Anoop Paulose would read as under;

"Gastroenterology Evaluation (DR. ANOOP PAULOSE)

❖ The patient is found to have a Case of chronic HBV infection as His HbsAg is positive for more than 6 months (first diagnosed in 2019)

❖ At present he is not having any cirrhosis according to available Ultrasound scan and Blood investigations. He is in chronic HBV infection state.

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❖ All patients with chronic HBV infection are at increased risk of progression to cirrhosis and Hepatocellular carcinoma (HCC). Depending on Host and viral factors - EASL (European Association for the study of Liver Disease -2018). ❖ The risk of progression to cirrhosis and HCC is variable and is affected by Host immune Response - EASL 2018.

❖ The 5 yr cumulative incidence of cirrhosis ranges from 8% to 20% in untreated CHB (Chronic HBV) patients-EASL 2018 ❖ Treatment at designated point of time improve survival and quality of life by preventing disease progression and prevention of HCC development. - EASL 2018

❖ Patient viral load is of 10 lakh (9/12/2023) and he is contagious due to high level of DNA - EASL 2018 ❖ HBV infection alone should not disqualify infected person from the practice or study of surgery, dentistry, medicine or allied health field -CDC (Centre for Disease Control and Prevention)

❖ So the patient can participate in all his activities/training/job ❖ He has to practice universal precautions

❖ As Chronic HBV is a dynamic disease, he has to be assessed regularly whether an indication for treatment has developed. ❖ At present the patient is not having any cirrhosis according to available blood reports and USG scan.

❖ So the present condition he is able to join for work and he has to practice universal precautions in work. The employer should be aware that in future he has possibilities of progression to cirrhosis/HCC that depends on host and viral factors which we can't predict now.

I Dr. Anoop Paulose, MBBS, MD General Medicine, DrNB (Gastroenterology), I am in Asst. Surgeon in Health Service on Working Arrangement from Taluk Hospital, Palluruthy. There is no Hepatologist / Gastroenterologist by post available in Govt. Health Service, only available in Govt. Medical Colleges. Hence, a panel of Hepatologist and Gastroenterologist Opinion may be obtained from Govt. Medical Colleges."

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5. On the basis of the three reports, i.e. the report of medical examination conducted by the Medical Officer of the FACT, the 1^st Medical Board report in Exhibit R-1(b) and the 2^ndMedical Board report in Exhibit R-1(c), the respondent Company found the petitioner unfit. When the expert medical team has found the petitioner unfit for appointment to the post of Assistant General in FACT, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot substitute the opinion of the expert committee. There is no denial from the facts that the petitioner is suffering from Hepatitis B which is chronical. The FACT would not like to appoint a person with such a infectious disease in the organization. Moreover, every employer needs a healthy workmen/employee and not a patient. I therefore find no error in decision making process of the FACT. The decision taken by the FACT is based on the relevant medical records of the petitioner and there is no error or infraction of any Rule in the decision making process. Therefore, I find no substance in this writ petition which is hereby dismissed.

Sd/-

D. K. SINGH

JUDGE

Svn

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EXHIBIT P13 TRUE COPY OF THE REQUEST DATED 09.12.2019

EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED

13.04.2020, RECEIVED BY THE PETITIONER VIA E-

MAIL ON 15.04.2020

EXHIBIT P15 TRUE COPY OF THE RELEVANT PAGES OF THE

NOTIFICATION DATED 01.01.2020

EXHIBIT P16 TRUE COPY OF THE LIST OF CANDIDATES SHORT

LISTED

EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS OF THE 2ND

RESPONDENT DATED 22.09.2020

EXHIBIT P18 TRUE COPY OF THE INTERIM ORDER OF

WP(C)12311/2021 DATED 17.06.2021

EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 11.08.2021 IN

WRIT PETITION [CIVIL] NO. 12311 OF 2021

EXHIBIT P20 TRUE COPY OF THE COMMUNICATION DATED

07.10.2021, ISSUED BY THE 2ND RESPONDENT,

FOLLOWING THE DIRECTIONS CONTAINED IN EXHIBIT

P19 JUDGMENT

EXHIBIT P21 TRUE COPY OF THE TEST REPORT ISSUED BY MEDICAL

TRUST HOSPITAL, ERNAKULAM DATED 21.10.2021

EXHIBIT P22 TRUE COPY OF THE COMMUNICATION DATED

15.12.2021, WHICH WAS SERVED ON THE PETITIONER

BY THE 2ND RESPONDENT

EXHIBIT P23 TRUE COPY OF THE JUDGMENT IN WRIT PETITION

[CIVIL] NO. 29693 OF 2022, DATED 25.08.2023

EXHIBIT P24 TRUE COPY OF THE COMMUNICATION BY THE GENERAL

HOSPITAL ERNAKULAM DATED 01.12.2023

EXHIBIT P25 TRUE COPY OF THE ULTRASOUND ABDOMEN AND LIVER

FUNCTION TESTS RESULTS DATED 05.12.2023

EXHIBIT P26 TRUE COPY OF THE REPORTS FROM DDRC AGILUS DATED

06.12.2023

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EXHIBIT P27 TRUE COPY OF THE COMMUNICATION DATED

05.03.3024, BY THE 2ND RESPONDENT

EXHIBIT P28 TRUE COPY OF THE LITERATURE ON HEPATITIS B OF

THE WORLD HEALTH ORGANISATION DATED 27.07.2020.

EXHIBIT P29 TRUE COPY OF THE JUDGMENT REPORTED IN AIR 1997

BOM. 406.

RESPONDENT EXHIBITS

EXHIBIT R1(A) TRUE COPY OF THE FACT PRE-EMPLOYMENT MEDICAL

EXAMINATION PROCEDURE DATED NIL

EXHIBIT R1(B) TRUE COPY OF THE REPORT OF THE MEDICAL BOARD

DATED 16.11.2021 WITHOUT ENCLOSURES

EXHIBIT R1(C) TRUE COPY OF THE MEDICAL EVALUATION REPORT

PREPARED BY THE MEDICAL BOARD OF THE GENERAL

HOSPITAL ERNAKULAM DATED 04.01.2024 BEARING NO.

C2-17554/2023

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