HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 20903 OF 2009
ORDER:
This Writ Petition is filed seeking a direction to the respondents to provide any alternative employment to petitioner in terms of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act') with effect from 17.08.2009 and grant all other consequential benefits duly declaring the order dated 17.08.2009 of the 2nd respondent as illegal and arbitrary.
2. Learned counsel for petitioner Sri K. Vasudeva Reddy mainly contends that Section 47 of the Act mandates, if an employee acquires disability during his service, he shall not be terminated from service but he could be provided alternative employment duly protecting his wages. At the same time, the case of respondent Corporation is that the said provision comes to the rescue of an employee who is found to be disabled, in the instant case, petitioner was neither on the rolls of the Corporation nor was declared disabled by any competent authority. He takes cue from the judgments of the Division Benches of this Court in Writ Appeal No. 1376 of 2016, dated 2 27.11.2018, Writ Appeals No. 1254 of 2016 and batch, dated 22.06.2017 and that of Hon'ble Apex Court in Andhra Pradesh State Road Transport Corporation v. B.S. Reddy 1.
3. In this regard, petitioner submits that though he was appointed as a driver on contract basis, Section 47 of the Act equally applies to him. According to him, while on duty, husk of maize fell in his left eye, resulting in itchiness and redness. Initially, he took treatment in a private hospital, thereafter, he was referred to RTC Hospital, Tarnaka, from there to NIMS, Hyderabad and finally, to LV Prasad Eye Hospital. However, he lost vision in his left eye permanently. As he was in sick list with Tarnaka Hospital from 15.10.2008 to 26.05.2009, he was declared unfit for the post of driver under A1 category. However, it is stated that show cause notice dated 08.07.2009 was issued alleging absenteeism from 04.05.2009 to 08.07.2009. Even according to Corporation, he submitted sick certificate from RTC Hospital, Tarnaka last attended on 26.05.2009 which itself establishes that he was sick from 15.10.2008 to 26.05.2009 and he was unlikely to be fit for the post of driver in A1 category. It is stated that show cause notice was issued directing him to report to duty; on receipt of which, 1 AIR 2017 SC 1621 3 he appeared before the 2nd respondent within two days, but to his surprise, the impugned order was passed on 17.08.2009 showing the period of absence from 04.05.2009 to 17.08.2009. Hence, the action of treating his absence either from 04.05.2009 to 08.07.2009 or from 04.05.2009 to 17.08.2009 does not arise. The case of Corporation is quite contra; petitioner did not submit any intermediate sick certificate from Tarnaka Hospital and absented from duties; as there was no information regarding the incident, they conducted enquiry and obtained statement of service conductor who stated that there was not any specific incident; petitioner at about 17.00 hours told him that something fell in his eye after that also they have completed two trips; there was no breakage of glass of bus and service driver was in good condition and completed his spell of duty. It is stated that petitioner was terminated as per Circular No. PD- 05/2009 issued from Head Office and contract service agreement at Clause 7 duly following the procedure in toto.
4. The employee in question suffered disability during the course of employment, hence, he sought benefit under Section 47 of the Act to the effect that his rank should not be reduced and he should only be shifted to some other post, with same pay-scale and service benefits. Section 47 reads as under: 4
" 47. Non-discrimination in Government employments: (1) No establishment shall dispense with, or reduce in 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 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 such condition, if any, as may be specified in such notification exempt any establishment from the provisions of this section."
In this context, it is pertinent to see the judgments relied on by the learned standing Counsel, the gist of which is the benefits of Section 47 of the Act will be available only to those who are covered by Section 2(i) of the Act. The said law is binding on this Court.
The word disability is defined in Section 2(i) as under:
" 2(i) disability means
(i) Blindness;
(ii) Low vision;
(iii) Leprosy-cured;
(iv) Hearing impairment;
(v) Locomotor disability;
(vi) Mental retardation;
5
(vii) Mental illness.
5. From the material placed on record, it is clear that petitioner lost vision in left eye during the course of employment. Assuming that petitioner did not submit any sick certificate, even according to the Corporation, the fact that he was referred to Tarnaka Hospital, NIMS and LV Prasad Eye Hospital itself shows that he suffered injury for which he took treatment. It is stated by the petitioner that when he reported the 2nd respondent on receipt of show cause notice, he also opined that with vision in one eye, he would not be permitted to drive the bus which is unsafe not only for the public but also the property of the RTC. Along with the reply-affidavit, petitioner filed photo copies of the certificates issued by the above-said hospitals and the Medical Certificate for Blind dated 19.06.2009 certifying disability at 40% (partially blind). In view of the same, it can safely be concluded that he falls in the category of Section 2(i)(ii), consequently eligible for the benefit under Section 47. It is to be noted that the contract employee, if is used as a substitute for a regular employee, the State must be made to be bound by the same public law limitations, which are imposed on it by the Constitution and also the extant statutory enactments. 6 It is time that the Courts need to protect the interests of the contract / outsourcing employees working in regular vacancies also in the same way as the regular employees are protected by applying the principles underlying Article 311 of the Constitution of India. (see State of Telangana rep. by its Principal Secretary, Higher Education Department, Hyderabad v. M.R. Jyothi Lakshmi 2).
6. Insofar as the other contention that regular departmental enquiry was not conducted before the Corporation resorted to such an action, according to petitioner, vide show cause notice of removal dated 08.07.2009, he was asked to report to duty and accordingly, reported before the 2nd respondent who also opined that with vision in one eye, he would not be permitted to drive the bus. The show cause notice was issued alleging absenteeism from 04.05.2009 to 08.07.2009 whereas the impugned order was issued for alleged absenteeism from 04.05.2009 to 17.08.2009; and the impugned order cannot go beyond the scope of show cause notice. According to petitioner, vigilance department authorities came during night time and enquired about the injurie caused to his left eye while on duty, except the vigilance enquiry which is a prima facie 2 2017(6) ALT 115(DB) 7 enquiry, no departmental enquiry was conducted. The case of Corporation is otherwise in this regard. It submits that based on the report of TI-II/ARMR dated 08.07.2009, his services were terminated as per the guidelines issued vide Circular No. PD- 05/2008, dated 23.02.2009. It is stated in the counter that conductor was examined who stated that there was not any specific incident; petitioner at about 17.00 hours told him that something fell in his eye after that also they have completed two trips; there was no breakage of glass of bus and service driver was in good condition and completed his spell of duty. That itself does not fulfill the requirement of enquiry. Hence, this Court comes to the conclusion that no departmental enquiry was conducted in this case.
7. While admitting the Writ Petition, this Court by order dated 15.03.2011 in W.P.M.P.No. 27207 of 2009, directed respondents to provide alternative employment in terms of Section 47 of the Act. The Corporation filed vacate Application and pending the same, petitioner filed C.C.No. 835 of 2012 complaining non-implementation of order dated 15.03.2011. This Court by order dated 14.12.2015, while making the interim direction dated 15.03.2011 absolute, directed the respondent authorities to consider the case of petitioner for alternative 8 employment and pass appropriate orders in view of the opinion expressed by the APSRTC Hospital, Tarnaka in the sick intimation certificate placed at page No.9 of the material papers, within two weeks from the date of receipt of a copy of that order. Accordingly, closed the Contempt Case.
8. Learned counsel for petitioner submits that pursuant to the said direction, petitioner was given alternative employment vide order dated 13.05.2016 as Shramik on contract basis and he was directed to be paid minimum basic of Shramik along with statutory contributions as in the case of contract drivers and conductors and posted him to Nizamabad- 1 depot. Petitioner filed additional reply affidavit stating that he was not being paid regular scale of pay, whereas the services of other colleagues, who were appointed along with him on contract basis, were regularized and were being paid regular scale of pay. In this regard, he approached the respondents on several occasions requesting to regularize his service and pay on par with his colleagues. Here, it is to be noted that petitioner prayed in this Writ Petition a direction to respondents to provide any alternative employment in terms of Section 47 of the Act duly granting all other consequential benefits. Since petitioner was already provided with alternative employment as Shramik 9 which is not equivalent to the post of driver and since petitioner was not extended the benefit of regularization of service on par with the employees who were appointed with him on contract basis, this Court deems it fit to direct respondents to provide employment befitting his position duly protecting his pay.
9. In the result, the Writ Petition is allowed and order dated 17.08.2009 is set aside with a direction to respondents to provide alternative employment to petitioner befitting his position duly protecting his pay. No costs.
10. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 01st November 2023 ksld