Union Of India & Another vs Shri Prakash Ramchandra Yadav ...

                                                                                   wp4421.03
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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                    NAGPUR BENCH, NAGPUR




                                                                   
                             WRIT PETITION NO.4421 OF 2003

    1.  Union of India,




                                                                  
    Through Secretary,
    Ministry of Defence (Production)
    New Delhi.

    2.  The Senior General Manager,




                                                         
    Ordnance Factory,
    Chanda P.O. Chandrapur,             
    Tahsil Bhadravati,
    District Chandrapur.                                              ..... Petitioners.
                                       
                                              ::  VERSUS  ::

    Shri Prakash Ramachandra Yadav,
    Qr. No. Type I, Sector IV,
            


    Chanda Estate,
    P.O. Chandrapur Ord. Factory,
         



    Tahsil Bhadravati,
    District Chandrapur 442 501.                              ..... Respondents.
    ==========================================
                        Shri J.S. Mokadam, counsel for the petitioners.





                        Shri M.G. Burde, counsel for the respondent.
    ==========================================

                                         CORAM          :  B.P. DHARMADHIKARI &
                                                           P.N. DESHMUKH, JJ.                   

DATED : APRIL 13, 2016.

ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)

1. Heard learned counsel Shri J.S. Mokadam for the .....2/-

wp4421.03 2 petitioners and learned counsel Shri M.G. Burde for the respondent.

2. The respondent joined employment of petitioner No.2 in 1985 as Fireman Grade-II. On 24.2.1989, he was appointed as Civilian Motor Driver Grant-II (Ordinary Grade) in Group-D. In due course, on 10.4.2002, he got the benefits of the financial up-gradation under the Assured Career Progression Scheme-I in the pay-scale of Rs.4000-6000. This benefit was given to him for a period from 24.2.2001 to 27.3.2002.

3. On 17.10.2001, the doctor from the Indira Gandhi Medical College and Hospital at Nagpur certified that the respondent was suffering from cervical spondylosis and, therefore, unfit to drive the vehicle. On 23.11.2001, the medical establishment of respondent No.2 recommended alternate job and the respondent was informed on 20.2.2002 that he could not be given job of junior examiner (Group-D) since he was not holding necessary educational qualifications.

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4. On 28.2.2002, the respondent then submitted an application exercising option for post of labourer. He was called for meeting on 19.3.2002 and, on that day, he was appointed as a labourer (un-skilled). On 22.4.2002, he moved an application seeking equivalent post having same pay-scale, but the petitioners expressed their helplessness. Hence, the respondent filed O.A. No.2123 of 2002 in the Central Administrative Tribunal and, on 26.9.2009, after hearing the parties, the Tribunal, during its seating at Nagpur, allowed the application. The Tribunal has relied upon the provisions of Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the said Act") and the judgment of the Honourable Apex Court in the case of Kunal singh ..vs.. Union of India and anr, reported in 2003(2) SLR

502.

5. Learned counsel Shri Mokadam for the petitioners, submits that in this situation, the reliance upon the provisions of Section 47(1) of the said Act supra is erroneous because it is the respondent who volunteers to work as labourer. After receipt of that .....4/-

wp4421.03 4 letter, his voluntariness was verified on 19.3.2002 and, thereafter, on 28.3.2002, he was given post of labourer (unskilled). He contends that while doing so, last pay given by him was kept in mind and protected. In this situation, when the respondent was given ample time to make up his mind, the grievance made by him by placing reliance upon the provisions of Section 47(1) of the said Act, is misconceived. He does not dispute the law as laid down by the Honourable Apex Court, but urges that in the present facts, the said law is not attracted. He has also invited our attention to the interim orders passed by this Court on 14.11.2003 while issuing the Rule in the matter.

6. Learned counsel Shri Burde for the respondent, on the other hand, submits that the above mentioned Act is a welfare measure and the respondent has never given up or waived its benefits. He invites our attention to the fact that the person, who has suffered disability, is required to be absorbed on an equivalent post with similar service conditions or then on a supernumerary post, if such a post is not available. He adds that if such post does not .....5/-

wp4421.03 5 become available during service tenure of such a disabled person, that person may retire from a supernumerary post itself. He, therefore, places emphasis on this scheme to urge that the option exercised by the respondent is not final and the employer is not exonerated of obligation of implementing the provisions of Section 47(1) of the said Act.

7. This Court has, while issuing the Rule in the matter, directed the employer to deposit the amount due and payable to the respondent on account of a difference in salary actually paid to him and the salary which he would have drawn as per the Scheme of Section 47(1) of the said Act with the Nationalized Bank. Accordingly, that amount is being deposited.

8. The judgment of the Honourable Apex Court mentioned supra, is very clear. The C.A.T. has looked into that judgment in paragraph Nos.12 and 13 of its judgment and in paragraph No.11 has reproduced the provisions of Section 47(1) of the said Act. As per the said judgment, it is incumbent on the employer to shift such .....6/-

wp4421.03 6 employee to some other post with same pay-scale and service benefits. If such shifting and adjustment is not possible, he is to be kept on a supernumerary post, till a suitable post becomes available or then, till he attains the age of superannuation whichever event takes place earlier. Thus, even in absence of a post carrying same pay-scale and service benefits, the employer is obliged to provide work or absorb employee on a supernumerary post. Thus, the emphasis is to protect the pay-scale and service benefits of such disabled person.

9. In this situation, merely because of finding that the petitioner could not have been absorbed on the post of junior examiner (Group-D), this obligation could not have been avoided by the employer. If no post was available, a supernumerary post was required to be created and respondent needed to be absorbed against that post, which was not done.

10. We, therefore, find that the C.A.T. has correctly appreciated the position. The law on the point has been properly .....7/-

wp4421.03 7 applied. No case is, therefore, made out warranting interference in writ jurisdiction. The writ petition is, therefore, dismissed. No costs.

Rule is discharged.

11. Needless to mention that the amount, in deposit with the Nationalized Bank as per the interim orders of this Court on 14.11.2003, shall be allowed to be withdrawn by the respondent and shall be released keeping in mind the directions issued by the C.A.T.

and upheld by this Court.

                                  JUDGE                                   JUDGE 





    !!  BRW  !!





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