Gujarat State Road Transport ... vs Mohmadyasin J Shekh

                                                                                NEUTRAL CITATION




     C/SCA/16238/2022                            ORDER DATED: 26/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16238 of 2022

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           GUJARAT STATE ROAD TRANSPORT CORPORATION
                             Versus
                      MOHMADYASIN J SHEKH
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                            Date : 26/09/2023

                             ORAL ORDER

1. This petition is filed under Article 14, 226 and 227 of the Constitution of India, wherein an order of the Industrial Tribunal, Ahmedabad in Reference (IT) No.198 of 2016 dated 26.07.2021 is under challenge, in which the Industrial Tribunal has awarded pay scale to the workman in the cadre of driver though he has been re-categorized in the cadre of helper till the date of his retirement and all the benefits including retirement benefits are ordered to be paid accordingly.

2. It is the case of the petitioner that the respondent herein was an employee of Gujarat State Road Transport Corporation and was serving in the cadre of driver. The respondent applied for re-categorization through an application dated 21.01.2014. Therefore, respondent was sent to the Civil Hospital at Sola for medical check up and he was declared temporarily unfit for the post of driver on 26.06.2014. In view of such declaration, a decision was taken to avail the services of respondent in Depot / Workshop as driver and was later on re-categorized in Page 1 of 7 Downloaded on : Tue Oct 03 20:31:08 IST 2023 NEUTRAL CITATION C/SCA/16238/2022 ORDER DATED: 26/09/2023 undefined the cadre of Helper (Class-IV) w.e.f. 10.08.2016. Thereafter, the respondent was placed in the pay scale of Helper by way of modifying the pay scale meant for the cadre of driver as per the prevailing rules and regulations and policy of the Corporation. By way of filing Reference (IT) No.198 of 2016, the respondent has approached the Industrial Tribunal praying for the pay scale in the cadre of Driver as well as benefits of Earned Leave on the basis of provisions of Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act 1995 (herein after referred to as "the Act").

2.1 Before the Industrial Tribunal, detailed written statement was filed on behalf of the petitioner and opposed the said prayer on the basis of the policy of the Corporation and the consent letter of the respondent dated 21.01.2014 agreeing to re-categorization to a Class IV post and acceptance of pay scale meant for such cadre. The petitioner relied upon provisions of Section 47(ii) of the Act to support its contention that the respondent was not entitled to the pay scale of the cadre of driver after re-categorization.

2.2 It is also the case of the petitioner that the Industrial Tribunal has misread and misinterpreted the provisions of the Act as well as the Rules and Regulations of the Corporation and concluded that the respondent was entitled to pay scale meant for the cadre of driver in spite of his categorization on 10.08.2016 to the cadre of helper till the date of his retirement and all the monitory benefits including retirement benefits be paid accordingly.

NEUTRAL CITATION C/SCA/16238/2022 ORDER DATED: 26/09/2023 undefined 2.3 Being aggrieved and dissatisfied by the award passed the Industrial tribunal, petitioner has filed this petition.

3. Heard learned advocate Mr. H. S. Munshaw for the petitioner. Though notice is served upon the respondent- nobody appears on his behalf. The matter taken up for final hearing at an admission stage.

4. It is submitted by learned advocate Mr. Munshaw that the findings and the award by the Industrial Tribunal is illegal, erroneous and contrary to the facts on record. The Industrial Tribunal has not appreciated the provisions of the Act. It is also submitted that the respondent has attained the age of superannuation on 31.07.2019 and he himself submitted an application for re-categorization and same was accepted after the medical certificate was perused and re-categorization was given on permanent basis on the cadre of helper w.e.f. 10.08.2016 and therefore, workman was entitled to a pay scale of helper. It is also submitted that the tribunal has misread the provisions of the Act and accordingly granted benefits to the respondent. It is also submitted that as per the policy of the Corporation the benefit of re-categorization was given to its employees and to fix the pay scale of re-categorization cadre and the same has been followed by the Corporation. In that event, it is submitted that the Industrial Tribunal has not considered the evidence and the facts and the law and has passed the erroneous order, which requires interference.

NEUTRAL CITATION C/SCA/16238/2022 ORDER DATED: 26/09/2023 undefined

5. I have gone through the judgment and award of the Industrial Tribunal. The Statement of claim of the workman is produced at Exh.3, wherein it is submitted that the Civil Hospital has issued a certificate dated 26.06.2014 disclosing the respondent as temporarily unfit for the post of driver and fit for the post of Helper (Class IV) and the period of such certificate was from 23.03.2014 till 22.04.2015 and after receipt of such certificate, respondent was transferred to Ahmedabad Depot vide communication dated 07.08.2014 and that during that period from 14.01.2014 to 07.08.2014, respondent was on leave due to the problem of his eyes and his leave are also considered to be in balance. It is also the case of the respondent that the leave application was taken by force and coercion by the petitioner.

5.1 As against the statement of claim, reply has been filed by the petitioner vide Exh.6 denying all the aspect of statement of claim and has submitted that the re-categorization of the employee was at his instance and that he was found unfit and as per the policy of the Corporation he has been given all the monitory benefits as per the re-categorized cadre and that no illegality has been committed by the Corporation. No Act was in existence at that time when the re-categorization was made by the Corporation and it was decided that salary was to be given in the cadre of re-categorized cadre.

5.2 Documentary evidence on behalf of the respondent - workman has been produced on record vide list at Exh.25. The documents which are admitted and with consent exhibits are given to Exh.27 to 33. The respondent - workman has Page 4 of 7 Downloaded on : Tue Oct 03 20:31:08 IST 2023 NEUTRAL CITATION C/SCA/16238/2022 ORDER DATED: 26/09/2023 undefined been examined at Exh.26 and cross examined by the petitioner

- Corporation. Based upon the evidence, the questions are arose before the Industrial Tribunal regarding credit of balance of leave in the account of the respondent and granting the pay scale and grade pay of driver though he has been re- categorized.

6. Perusing the findings of the Industrial Tribunal, the issue No.1 regarding the balance of leave in the account of the workman has been denied and this aspect has not been challenged by the workman by way of any petition before this Court. As regarding the re-categorization is concerned, admittedly, as he was declared unfit due to his visionary loss, he was re-categorized and transferred to Ahmedabad. He was placed in the cadre of helper and thereafter his salary was fixed in the cadre of helper which was not denied by the petitioner. Documentary evidence has also been produced on record which also not in dispute. In view of the fact that in case of disability which has occurred with the workman ant re- categorization where his pay scale which of a lower category regarding this aspect it has been rightly observed by the Industrial Tribunal based upon the Act has been referred which reproduced particularly Section 47 of the Act, which is as under;

"47 Non-discrimination in Government employments (1) No establishment shall dispense with, or reduce jn rank, an employee who acquires a disability during his service; provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the Page 5 of 7 Downloaded on : Tue Oct 03 20:31:08 IST 2023 NEUTRAL CITATION C/SCA/16238/2022 ORDER DATED: 26/09/2023 undefined same pay scale and service benefits; Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment by Notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

7. Based upon this provision of law which cannot be denied and it is much more important than any other Rules and Regulations of any association, it is a mandatory provisions that if an employee is not suitable for the post because of his disability, he could be shifted to some other post but with same pay scale. Here in this case considering these provisions of law the respondent has not been declared unfit or not removed or not found suitable for the post, is not the case. His services were re-categorized under Section 2(i) of the Act. In that case, reduction of pay scale where he was not declared to be unsuitable is not acceptable. The Industrial Tribunal has relied upon a case of Kunalsing vs. Union of India reported in 2003 (1) CLR 786.

7.1 In this circumstances, perusing the award of the Industrial Tribunal I am of the opinion that no illegality or erroneous findings has been laiddown by the Tribunal and based upon the statutory provision of Section 47 of the Act, Page 6 of 7 Downloaded on : Tue Oct 03 20:31:08 IST 2023 NEUTRAL CITATION C/SCA/16238/2022 ORDER DATED: 26/09/2023 undefined this Court does not found any irregularity or illegality in the impugned award passed by the Tribunal. In that event, this Court does not found any reason to interfere with the award under Article 227 of the Constitution of India. The petition devoid of merits has been rejected. The award dated 26.07.2021 by the Industrial Tribunal, Ahmedabad in Reference IT Case No.198 of 2016 is confirmed. Petitioner is directed to implement the award within a period of 30 days from the receipt of writ of this order.

7.2 With these observations and directions, petition stands rejected. Notice discharged. No orders as to costs.

(RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA Page 7 of 7 Downloaded on : Tue Oct 03 20:31:08 IST 2023