Maharashtra State Road Transport ... vs Uttam Shatrughan Raserao
2002 Latest Caselaw 488 Bom

JUDGMENT

F.I. Rebello, J.

1. Objections other than Court fees dispensed with office to register the petition. Petitioners are directed to pay the Court fees within seven days. Rule. Notice on respondents dispensed with. Heard forthwith. Petitioners impugn the order dated August 18, 2000. By the said order the Industrial Court has confirmed the order dated August 14, 1992 passed by the Labour Court. The petitioners do not challenge directions Nos. 1 and 2 of the said order. What is being challenged is direction No. 3 which reads as under;

The opponent shall also pay supplementary: gratuity to the complainant in lieu of the reinstatement as a compensation within one month from the date of this order.

It is contended on behalf of the petitioners, that the said direction is without jurisdiction as the termination on the ground of medical unfitness would not amount to retrenchment and further respondent could not have supplementary gratuity in lieu of, reinstatement.

2. The petitioners have framed regulations in the matter of termination of services and have issued two circulars in the matter of supplementary gratuity. Regulation 8(b): provides that an employee declared unfit by the competent authority either initially or on subsequent medical examination would be discontinued from service. The respondent had been sent for medical examination and was; declared medically unfit on the ground that he was suffering from Leprosy. Therefore, termination is on the ground of medical unfitness in terms of Regulation 8(b). That termination cannot be therefore, said to amount to retrenchment. The petitioners, however, in terms of the Circular G.S.O. 942 dated February 20, 1976 have clarified the issue of payment of supplementary gratuity. The position is clarified as under:

(1) As general rule, supplementary gratuity is admissible for the following two cases only:

(a) when an employee dies while in service, and

(b) where the services of the employee are terminated before his reaching the age of superannuation consequent to his being found permanently disabled (i.e. by mentally or bodily infirmity he is incapacitated for any kind of service) and certified accordingly by the competent medical authority.

3. It is further clarified that the employee if found to be medically unfit for any work whatsoever, i.e. if the unfitness certified indicates that the employee is unfit to work only in the post he was already holding, at the time of his medical examination, he will not be entitled for supplementary gratuity.

4. In the instant case, medical board has held a person medically unfit to hold any post and consequently his services have been terminated. Unfit for any work must be read in the context of the regulations of the petitioners and that is for the purpose of holding a post with the petitioners. The regulations cannot be extended to hold and mean the posts outside the premises of the establishment. Rule has to be read in the context that is meant for the purpose of retaining or not retaining the persons in the service of the petitioner and they cannot be re-located in the service of the petitioner. Even otherwise, the petitioners have taken a stand based on the Medical certificate that on account of leprosy, he would be medically and bodily unfit to hold any post in their establishment. It is not possible to understand on what basis the petitioners have come to the conclusion that because person suffers from leprosy apart from the social stigma, that disease is incurable. Modern science has developed techniques and persons suffering from leprosy are treated and furthermore are rehabilitated. Petitioner organisation, instead of promoting rehabilitation is choosing to do otherwise. In this context regulation by the petitioner must be extended in favour of such persons whom petitioner seeks to socially ostracise by holding that they are unable to hold the post. In my view therefore, respondent would be entitled to the benefit in terms of the clarification issued by the petitioners themselves.

5. In view of the same, I find no reason to interfere with the impugned orders except to clarify that the termination would not amount to retrenchment. The respondent would be entitled to the benefit also in Condition No. 3 which should be paid to him at any rate within six weeks from today.

6. Rule discharged. No order as to costs.