(1) This petition for the issue of a writ of certiorari under Art. 226 of the Constitution is filed by the management of the Presidency Talkies (P) Ltd. It is concerned with the question of employment of Sattar Khan who admittedly was working as ticket collector in the Paragon talkies, a cinema theatre owned by the petitioner-management. The management had reason to suspect that Sattar Khan became afflicted with leprosy, and therefore, before it could continue to employ him, insisted that he should produce a certificate from a competent medical officer in regard to the condition of his disease and to his being free from it. Two certificates from Dr. S. L. Ahmed, who is in charge of the Leprosy department of the General Hospital holding the rank of a civil surgeon, Ex. H. 4 dated 3-8-1962 and Ex. W. 21 dated 28-1-1963, were filed in the Labour Court. Ex. H. 4 stated that Sattar Khan was rendered 'non-infective by treatment, that he was fit to resume duty as ticket collector, and that he may be permitted to work without let or hindrance.' Ex. W. 21 given some months later, stated that Sattar Khan, an employee of Paragon Talkies, had become 'disease arrested' that he was no danger to the public and that he might be employed without let or hindrance anywhere and was fit for duty.
But the management contended that Ex. W. 21 was not produced by the worker before it, and that it was only produced in the labour court during the award enquiry. The management had only Ex. H. 4 before it, and therefore it held that that certificate which reported that the worker was non-infective, would not suffice to show that he had become cured of the disease; it refused to employ him until such time, when he could produce a certificate showing that a cure had been effected in his case. This dispute about his non-employment was taken up by the labour Court, and at its instance, a reference was made by the Government of Madras to the Labour Court to settle this as an industrial dispute. The Labour Court went into the matter at some length, and Dr. Ahmed, who gave the certificate Ex. H. 4 and later on the certificate, Ex. W. 21, was examined and cross-examined. The Labour Court came to the conclusion that the certificate as well as the evidence of the doctor, showed that the management's stand was unreasonable in insisting upon a 'cured' certificate, and it passed an award directing the worker to be reinstated with backpay. The management has filed the present writ petition to quash the aforesaid order by a writ of certiorari.
(2) Learned counsel for the petitioner submitted that the employment of the worker in this case, Sattar Khan, as ticket collector, in a cinema theatre brings him into direct contact with members of the public, who would include young children, who are specially susceptible to infection from the disease of leprosy. The Madras Medical Code which has issued authoritative instructions to the Government doctors, for the issue of certificates to patients suffering from leprosy, draw a clear distinction between a 'non-infective' certificate and a 'quiescent' certificate. The nature of these two certificates and the tests required to be performed before such certificates are issued, are given at pages 381 and 382 of Volume 1 of the Madras Medical Code, 5th Edn. 1959. Rule 536(2) of the aforesaid Madras Medical Code states-
'A Government servant who is not engaged in any such occupations as that of school teacher, personal servant or cook whose lesions are bacteriologically positive and should be allowed to return to duty on presentation of a non-infectious certificate, subject to the condition that he continues treatment until he obtains a quiescent certificate. The period for reporting for re-examination in the case of infectious cases should be two years after a certificate of quiescence has been provided. A Government servant engaged in any of the following employments should not be allowed to return before the completion of a quiescent certificate; school teacher, child nurse, barber, dhobi, food-vendor, personal servant and any employment or occupation involving risk of infection to children'.
It is stressed by the learned counsel for the petitioner--in my opinion with justification--that Sattar Khan as a ticket collector of a cinema theatre is engaged in an 'occupation involving risk of infection to children' and that in his case a non-infective certificate alone would not suffice to show a complete cure, but a quiescent certificate will be necessary, if we bear in mind the distinction which the Madras Medical Code has drawn between two types of certificates and the necessity to insist upon a quiescent certificate before a person could be safely employed in a job where he comes into contact with young children. Unfortunately, in the Labour Court this essential distinction had not been borne in mind. The doctor was questioned at length whether he held the requisite tests even before the grant of the non-infective certificate. His replies do not show that he did perform all the tests as required in the Madras Medical Code. His explanation for not doing so was that Sattar Khan became unconscious on the day on which he took the first smear, that is on 3-8-1962, and therefore he took one smear in this case instead of the prescribed three.
He added that he had to take the physical condition of the patient into consideration and find out whether he would stand all the required tests. As a layman, I can only say the doctor's explanation for not conforming to the requirement of performing all the prescribed tests is not quite convincing. If a patient is suffering from an infectious disease, he should be declared free from it to enable him to be engaged in an occupation where the public come into contact with him. The reason that he was in a weak condition, can hardly be urged by the doctor for not examining him in the manner which the rules require, before a satisfactory certificate of fitness could be given. If the patient was too weak to stand all the tests, the doctor should give him adequate tonic and medicine to restore his strength. That will not be a ground for shirking the performance of the required tests.
But I do not want to say more on this aspect of the matter, lest we lose sight of what is essential in a case like this, namely, the obtaining of a quiescent certificate which admittedly has not been done and which, in the circumstances of the case, appears to be clearly required before the management could take him back to his old employment as ticket collector. In the Labour Court, this aspect has not been considered at all, either during the examination of the doctor or in the award of the labour court. No doubt the management in its counter in the Labour Court did not specifically refer to the requirement of a quiescent certificate. It has used the word 'cured' to enable the worker to mingle with the public as a ticket collector. It is not difficult to infer that what the management was really having in mind in using the word 'cure' was a further stage in the curative treatment of leprosy, which takes the patient beyond the stage of non-infectivity, and which would enable him to come into contact with all sections of the public, young as well as old, without fear of infection. Obviously, what was implied therein was quiescent certificate.
(3) That the Madras Medical Code provides a safe guidance in such cases even where the employee is not a Government servant, is clear from the admission of the doctor in his cross-examination, where he stated that in giving certificates both of non-infectivity and quiescent in leprosy cases, no distinction is made between Government servants and others. This is as it ought to be, because the standard of good health for a Government servant who comes into contact with the public can in no way be different from the standard of good health required for a non-Government servant who also has got to have dealings with the public. Learned counsel for the petitioner drew my attention to a decision of the learned Chief Justice in Sivaperumal Kounder v. Munuswami Kounder, C. R. P. No. 206 of 1961 (Mad) where dealing with the qualification of a Panchayat Board member under the Madras Village Panchayats Act, his Lordship held that even if the disease was found to be a non-infectious disease, it would attract the disqualification mentioned in S. 16(2)(a) of the Village Panchayats act, which disqualifies a person for election as a member of the Panchayat, if he is a 'leper' on the date of the nomination or election. But it is not necessary to decide for the purpose of this case when a person is a 'leper' and when he ceases to be so. To all intents and purposes, the reaching of a quiescent stage is treated as sufficient evidence of a cure which would enable a person who had suffered from leprosy or Hansen's disease, to mix freely with all sections of the public, including the very young, for whom the disease according to all authorities is considered specially infective.
(4) I therefore allow the writ petition and quash the order of the Labour Court. The Labour Court will restore the case to its file and dispose it of afresh by considering the crucial point for determination whether the disease from which Sattar Khan was reported to be suffering--an infectious type of leprosy--has really reached a quiescent stage and whether as a consequence he could be employed without risk to the public as a ticket collector under the petitioner-management. There will be no order as to costs.
(5) Petition allowed.