Sk.Rasul Saheb vs Andhra Pradesh State Road ...
2023 Latest Caselaw 5373 AP

Citation : 2023 Latest Caselaw 5373 AP
Judgement Date : 8 November, 2023

Andhra Pradesh High Court - Amravati

Sk.Rasul Saheb vs Andhra Pradesh State Road ... on 8 November, 2023

Bench: Harinath Nunepally

           THE HON'BLE SRI JUSTICE HARINATH.N

              WRIT PETITION No.39477 OF 2014
ORDER:

This writ petition is filed under Article 226 of the

Constitution of India to declare the action of respondent No.3 in

terminating the petitioner from employment, vide order

No.E2/255(2)/2014-JPT, dated 04.09.2014, on medical grounds

without providing alternative employment as per Section 47(1) of

the Persons with Disabilities Act, 1995 (for short, 'the Act,

1995'), as illegal and consequently to direct the respondents to

provide suitable alternative post to the petitioner with all

consequential benefits, including payment of salary, from the

date of declaration of medically unfit till the date of providing

alternative post.

02. Heard the learned counsel for the petitioner and the

learned standing counsel for respondents-Corporation.

03. The petitioner's case is that on 30.01.2012, the

Respondents-Corporation engaged the petitioner as a driver on

contract basis. On 08.07.2013, the petitioner underwent a

periodic medical examination, where he was found unfit for the

A1 category driver post due to colour blindness. On appeal, the

petitioner was directed to A.P.S.R.T.C. Hospital, Tarnaka,

Hyderabad, where he was also declared unfit for the driver post

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on 16.07.2013 and the petitioner was further subjected to a

medical examination before the Medical Board, where the

Superintendent, Tarnaka Hospital, declared the petitioner as

unfit for the driver post due to colour blindness, vide letter No.

SP/19(M.B.9)/2014-TH, dated 25.06.2014. Due to the said

disability, the petitioner was terminated from employment.

Aggrieved by the illegal termination, the petitioner preferred the

writ petition and relied upon the provision of Section 47(1) of the

Act, 1995, and claims that the respondents-Corporation did not

consider his case for alternative employment.

04. The respondents filed their counter stating that the

colour blindness disability is not covered under Sections 2(b)

and 2(i) of the Act, 1995 and draws the attention of this Court to

the judgment, dated 23.02.2017, in S.L.P. Civil Appeal No.3529

of 2017, whereby the Hon'ble Apex Court allowed the S.L.P.

confirming the order, dated 29.01.2016, passed by the learned

single Judge in W.P. No.36337/2012 and batch cases by setting

aside the common order passed by the Hon'ble Division Bench in

W.A. No1120 of 2015 and batch, holding that the benefit of

Section 47 of the Act would be available to only those who are

covered by Section 2(i) of the Act and directed the Corporation to

take a decision on the individual grievance of the employees and

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the employees are at liberty to take their remedies in terms of the

above judgment.

05. During hearing, the learned counsel for the petitioner

drawn the attention of this Court to the Judgment, dated

06.11.2017, in W.A. No.1635 of 2017, passed by the Hon'ble

Division Bench of the composite High Court for the State of

Telangana and Andhra Pradesh, wherein it was held that under

Section 12(3) of the Industrial Disputes Act, 1947 a settlement

arrived between the A.P.S.R.T.C. employees' union and the

Management in the presence of the Joint Commissioner of

Labour. Clause (14) of the said settlement deals with colour-

blind drivers, is extracted in the order at paragraph 11, which

reads as under:

'11. Paragraph No.14 of the said settlement reads as under:

"14. Colour blind drivers:

a) The long pending issue has been decided and it was agreed to given alternate job to the Drivers found colour blind during the periodical examination. While giving the alternate job, the time scale and pay drawn by the Driver at the time of disqualification would be protected. Circular instructions would be issued in this regard incorporating the cases arising after the issue of circular No.P1/210(1)/76-PD, dt.16-08- 1976.

b) Having been the alternative job, the seniority of Drivers will, however, be continued in the Drivers

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cadre, and they shall take their further promotions at appropriate time as per Cadre & Recruitment Regulations.

c) Drivers who are found Colour Blind during periodical Medical Examination would be given day duties subject to availability of such duties in the Depots.

d) Regarding the suggestion of the Union for finding out an alternate test for Ishara test, the VC & GM agreed to request the Eye Specialist of RTC Hospital Dr.E.Babu Rao and after hearing the views of few other eye Specialists, the decision would be taken whether to continue the Ishara Test or a suitable alternate test is available for determination of colour blindness keeping in view the safety of passengers and the vehicle.'

06. The Hon'ble Division Bench further observed that the

settlement arrived under Section 12(3) of the Industrial Disputes

Act was not brought to the notice of the Hon'ble Apex Court and

whereas before the Hon'ble Apex Court, the Corporation relied

only on the aspect i.e., whether the colour-blind drivers would be

entitled to the benefit under Section 47 dehors Section 2(i) of the

Act, 1995. The Hon'ble Division Bench dismissed the writ

appeal upholding the order of the learned Single Bench in

granting relief to the respondent as a settlement under Section

12(3) of the Industrial Disputes Act is sacrosanct and is placed

on a higher pedestal than the settlement under Section 18(1) of

the Industrial Disputes Act. The respondents-Corporation has