1998 PLP 76 (PLC)

Impression: Multiple fractures of fibula with malalignment non-union # of lower 1/3rd of tibia with suggestion of Ch. Osteomyelitis in the past. X-Ray Rt. Hip Joint: Pseudo arthrosis of Rt. hip joint is seen following posterior and upward dislocation of femerol head out of acetabulum. There is evidence of protrusis acetabuli. Original acetabulum is deformed. Left hip joint is normal. Impression: Rt. Pseudo arthrosis with protrusis acetabuli. He was then examined by Orthopaedic Surgeon who recorded the following opinion. "He has persistent fracture, dislocation of right hip and non-union of right tibia, right lower extremity is 4" short and is deformed. He is totally disabled to do his job as waiter. He should have been retired many years ago." On the basis of this test and examination, the petitioner submitted his sick report to the Station Master, Bahawalpur who referred him to Medical Officer, Sama Satta wherefrom he was sent to Divisional Medical Officer, Multan. After noting down the remarks of the Orthopaedic Surgeon, the case was referred to Medical Board Pakistan Railways, Lahore. The Medical Board vide their Certificate dated 3-10-1995 declared him fit for performing his duties.

3. It is submitted by the learned counsel that Dr. Tehseen Ahmed Cheema, Orthopaedic Surgeon of B.V.H., Bahawalpur is an Expert in Orthopaedics and it was for l long period of four years that the petitioner remained under the treatment of the Medical Expert of B.V. Hospital. The opinion of the Medical Expert was not merely based on mere paper hypothesis rather the petitioner had been under his treatment for a petty long time and again he was examined by Senior Doctor, Dr. Abdul Sami Qazi who was Assistant Professor of Radiology. The report of the Orthopaedic Surgeon is also countersigned by Medical Superintendent, B.V. Hospital, Bahawalpur. The opinion of the Railways Medical Board is not based on medical evidence. It fails to disclose as to whether any examination of the petitioner was carried out by the Medical Board or had they some medical data before concluding that he was fit for performing his duties. Since none of the members in the Medical Board was Specialist in Orthopaedics as such being general their opinion cannot out-weigh the opinion of a Medical Expert under whose treatment the petitioner had been for a considerable period and the opinion of the Specialist is not merely countersigned by M.S., B.V. Hospital, Bahawalpur but is based on medical evidence and the medical data collected by the hospital authorities, as such, requiring the petitioner to perform his duties with such a perpetual disability which according to the Expert has rendered him totally unfit for duty, is unjust, unfair and not in keeping with the principles of justice, equity and good administration.

4. Comments of the respondents were called for in which it has been conceded that the petitioner had indeed met an accident and remained hospitalized from a long period. His absence from duty, in view of his being confined to the hospital, was treated leave with pay by the railways department. As for his ability to perform his duties after being incapacitated it was pointed out that since the higher medical authority in railways has opined that he is fit for performing his prayer for retirement cannot be acceded to when he has attained only the age of 52 years.

5. Arguments have been heard and record perused. The only question confronting us is that which of the two opinions, one rendered by a Specialist in Orthopaedics under whose treatment the patient had remained for over three years and the other that of the Railways Medical Board, is to be preferred. The opinion expressed by Railways Medical Board fails to show that they had examined the petitioner in detail and had also carried out the necessary tests to come to the conclusion. This bald opinion without any medical evidence particularly when none of the members of the Board was Specialist in Orthopaedics, cannot be preferred over the opinion of the Expert. According to the opinion of Dr. Tehseen Ahmed Cheema, the petitioner should have been retired many years ago. However, in order to satisfy myself I examined the petitioner and observed his fractured and deformed leg. His right leg is shorter as compared to the other leg and the petitioner faces difficulty in walking. Sometimes he requires a prop to effectively stand up. My examination also persuaded me to agree with the opinion to the Expert.

6. It is true that Railways Medical Board consists of men of calibre and competence but since none of them was Specialist in the particular field, the question is whether in the given circumstances, the opinion of the Orthopaedic Surgeon is to be given preference over the opinion of the Board constituted by the Railways. I would like to prefer the opinion of the Orthopaedic Expert and would refer to 1968 PCr.LJ 167 in support of my view wherein their Lordships of the Supreme Court preferred the evidence of an experienced Medical Officer to the evidence of a Doctor of a Rural Dispensary. It would be instructive to reproduce the relevant part of the judgment which shortly read as under:

"The High Court has preferred the evidence of Dr. Aftab Ahmed in view of his higher qualifications, particularly, since he too had examined the wounds through a magnifying glass and did not find the two injuries with which we are not concerned to be either clean cut or sharp-edged injuries. The possibility of an error being made by the doctor of the Rural Dispensary as to the nature of the injuries cannot be ruled out, for, it is not unlikely for an injury caused by a blunt weapon on a bony prominence to appear as a clean cut wound to an inexperienced person who has not acquired sufficient skill in carrying out post-mortem examinations. In the circumstances, we are unable to accept the contentions of the learned counsel that the opinion of the doctor at the Rural Dispensary was wrongly not preferred over that of the doctor who performed the post-mortem examination by the High Court. The post-mortem, it is true, was held on the 25th September, 1964, at 7 a.m. but this was not such a long period after as to completely alter the nature of the injury and transform an incised wound into a contused wound. "

7. The evidence rendered by the Medical Expert and that of the Radiologist of B.V. Hospital, Bahawalpur appears to be above reproach and confidence inspiring. The petitioner has, therefore, made out a case and it is hereby ordered that he shall be retired forthwith by the Railways Department with all benefits of retirement accruing to him in accordance with the rules. A.A./M-481/L Petition accepted.