THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.1716 of 2013
ORDER:
Aggrieved by the action of respondent No.2 in issuing proceedings No.E2/255(1)/11-RM:NZB dated 11.07.2011 in fixing the pay of the petitioner in the category of Shramik and not paying the salary from November, 2010 to July, 2011, the present writ petition is filed.
The case of the petitioner is that he was appointed as a Driver in the respondent Corporation in the year 1986. While so, in the year 2010, the respondents have sent the petitioner No.1 for periodical medical examination to the respondent Hospital at Tarnaka; where, after examination he was declared unfit to the post of Driver through medical certificate dated 09.11.2010. Subsequently, the petitioner was also referred for further medical examination to the Medical Board, Tarnaka Hospital, Hyderabad, where also after examination, the Doctors of the Medical Board have held that petitioner was unfit to the post of Driver vide proceedings dated 28.02.2011. Thereafter, the petitioner was provided an alternative employment as a Sramik and posted at Kamareddy depot vide proceedings dated 11.07.2011, however, without extending the pay protection in the cadre of Driver and also without paying salary from AAR, J 2 WP_1716_2013 November, 2010, to July, 2011. Questioning the same, the present writ petition is filed.
This Court while admitting the writ petition on 20.02.2013 has issued interim direction to the respondents to fix the pay in the cadre of Grade-I Driver and pay the salary from November, 2010, to July, 2011, and arrears thereof.
A counter affidavit has been filed mainly stating that the petitioner was offered alternative employment of Shramik w.e.f.11.07.2011 subject to certain terms and conditions as per Circular No.PD-16/2008, dated 25.02.2008, and PD-09/2009 dated 04.03.2009. His pay and allowances, scale was regulated according to the instructions in force, for which the petitioner has opted. His pay was protected while fixing in the Shramik scale from 09.11.2010 and he was paid all eligible wages duly along with leaves to his credit from the date of being declared as unfit i.e. 09.11.2010 to the date of reporting at Kamareddy depot on 18.07.2011. It is further stated that the interregnum period from the date the employee is declared 'unfit' by the Medical Officer, till the date he is declared 'unfit' or 'fit' by the Medical Board, will be treated as leave due to him. The employees who work in the Corporation for considerable period will have sufficient leave balances to their credit and such leaves will be debited for payment of salary, during the interregnum period. It is further averred that the services of the AAR, J 3 WP_1716_2013 petitioner are not dispensed with and has been kept under Medical observation and therefore Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short '1995 At'), is not applicable to the case of the petitioner. Hence, it is prayed to dismiss the writ petition.
An additional counter affidavit has also been filed by the respondent Corporation mainly stating that the pay of the petitioner in the cadre of Driver has been protected. It is stated that the petitioner was drawing the gross salary of Rs.18,387/- in the post of Driver whereas in the alternative employment as Shramik his gross salary in the month of November, 2011 was Rs.19,483/-. Thus, there was no reduction either in the basic pay or gross salary in the post of Shramik. It is further stated that the petitioner was provided alternative employment as Shramik vide office order dated 11.07.2011 and he reported for the duty at Kamareddy Depot on 18.07.2011 and since then he had been paid the salary. Therefore, it is prayed to dismiss the Writ Petition.
Heard Sri A. Jagan, learned counsel for the petitioner, and Sri Thoom Srinivas, learned Standing Counsel for the respondent-Corporation.
Learned counsel for the petitioner has stated that as per the provisions of the 1995 Act, more specifically Section 47 (1) AAR, J 4 WP_1716_2013 thereof, the petitioner is entitled to the pay protection. Learned counsel has stated that due to the disability declared by the Superintendent, APSRTC Hospital, Tarnaka, the petitioner was declared 'unfit' to be a driver on the ground that he had a defective distant vision on left eye. Thereafter, on the representation of the petitioner, the respondent Corporation has issued the proceedings No.E2/255(1)/11-RM:NZB, dated 11.07.2011 appointing the petitioner as a Shramik in X-2 category. Learned counsel has further stated that the protection of pay, which has been contemplated under Section 47 (1) of the 1995 Act has not been extended to the petitioner. Learned counsel has placed reliance on the order dated 02.11.2012 passed by a learned single Judge of this Court in W.P. No.29583 of 2012 in support of his case and prayed to allow the writ petition.
Per contra, the learned Standing counsel for the respondent Corporation has vehemently opposed the very maintainability of the writ petition and stated that the petitioner does not fall within the definition of 'disability' defined under Section 2 (i) of the 1995 Act. Learned counsel has stated that for extending the protection of pay enumerated under Section 47 (1) of the 1995 Act a person who is having disability has to fit into the category mentioned in 2 (i). Learned counsel has relied on the unreported judgment of Hon'ble Supreme Court in Civil AAR, J 5 WP_1716_2013 Appeal No.3529 of 2017 & batch, dated 23.02.2017, and the unreported common judgment dated 25.03.2022 rendered by the Division Bench of this Court in Writ Appeal Nos.196 of 2017 and batch.
Perused the material on record.
It is pertinent to note that even though the respondent- Corporation has taken a specific stand, both in the counter affidavit as well as the additional counter affidavit, that pay protection has been given to the petitioner, the petitioner has not bothered to file any reply denying that pay protection has not been extended to him.
Further, the Hon'ble Supreme Court while dealing with Civil Appeal No.3529 of 2017 & batch, emanating from this Court, has held, vide order, dated 23.02.2017, as under:
"...We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order and approve the view taken by the High Court of Delhi in Hawa Singh v. Delhi Transport Corporation & Airport Authority of India v. Kumar Bharat Prasad Narain Singh. We do not find any reason to hold that expression "disability" in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2 (i) of the Act. We also note that even though Section 2 (i) of the Act may not cover every disabled, scheme of the Andhra Pradesh and Telangana Transport Corporations covers even those employees who are not covered by Section 2 AAR, J 6 WP_1716_2013
(i) of the Act. Thus, those who are disabled within the meaning of Section 2 (i) of the Act are not without any benefit whatsoever. They are, thus, entitled to invoke such schemes but not Section 47 of the Act.
In view of above, we allow these appeals in above terms and hold that the benefit of Section 47 of the Act will be available only to those who are covered by Section 2(i) of the Act....."
Following the said ratio, a Division Bench of this Court has disposed of Writ Appeal Nos.380 of 2017 and batch vide common judgment, dated 05.06.2017, holding as under:
"Following the order of the Supreme Court, in Civil Appeal No.3529 of 2017 and batch dated 23.02.2017, these Writ Appeals are also disposed of holding that the benefit of Section 47 of the Act shall be available only to those who are covered by the disabilities specified in Section 2 (i) of the Act; it is open to the appellant-Corporation to take a decision, on individual grievances of the respondent-writ petitioners, with utmost expedition preferably within three months from the date of receipt of a copy of the order; and the respondent- writ petitioners are at liberty thereafter to avail their remedies in terms of the judgment of the Supreme Court..."
The common judgment dated 05.06.2017 has also been followed by another Division Bench of this Court in Writ Appeal Nos.196 of 2017 & batch dated 25.03.2022.
AAR, J
7 WP_1716_2013
Having regard to ratio laid down by the Hon'ble Supreme Court in the judgment dated 23.02.2017 in Civil Appeal No.3529 of 2017 & batch, followed by the Division Benches of this Court in Writ Appeal Nos.380 of 2017 and batch vide common judgment, dated 05.06.2017, and common judgment dated 25.03.2022 passed in Writ Appeal Nos.196 of 2017 & batch, this Court does not see any merit to grant the prayer sought in the present Writ Petition.
Accordingly, the Writ Petition is dismissed. Having regard to the fact that in the counter filed by the respondent Corporation a specific stand has been taken that the pay protection has been granted by the Corporation while providing alternative employment to the petitioner as Shramik, the said protection shall continue. However, in case the petitioner is still having any grievance with regard to his pay fixation, it is open to the petitioner to avail the remedies available, if any settlement has been reached by the Corporation and the Employees' Union under the Industrial Disputes Act, 1947.
Miscellaneous petitions pending, if any, shall stand closed. No costs.
_________________________ A.ABHISHEK REDDY, J Date : 13.03.2023.
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