Maharashtra State Road Transport ... vs 3] The Member
2013 Latest Caselaw 134 Bom

    (j)1211wp2762.12                                             1
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH, NAGPUR




                                                                                    
                                                            
                      Writ Petition No.2762/2012




                                                           
                    Maharashtra State Road Transport Corporation
                    through its Divisional Controller, Wardha.
                                                  ..        Petitioner.

                            Versus




                                                
                     1] Diwakar Madhukarrao Malkapure
                                    
                        aged about 60 years,

                     2] Rupesh s/o Diwakar Malkapure
                                   
                        aged about 28 years,
                        Both resident of Post Colony,
                        Ward No.2, Ner Pratap Nagar,
                        Wardha.
         


                     3] The Member, Industrial Court,
                        Nagpur.                                   Respondents
      



                                                ...

Mr. R. S. Charpe, Advocate for petitioner. Mr. C. V. Jagdale, Advocate for respondents 1 and 2.

Mr. S.M. Ghodeswar, AGP for respondent no.3.

...

                              CORAM :   Z.A. Haq, J
                              DATE :    12th November, 2013.





                          ORAL JUDGMENT : (Per Z.A. Haq, J.) :



                     1]             Heard Mr. Charpe, learned Advocate for the

petitioner, Mr. Jagdale, learned Advocate for respondents

1 and 2 and Mr. Ghodeswar, learned AGP for respondent

no.3.

2] Rule. Rule is made returnable forthwith.

3] Writ Petition is filed by the Maharashtra State

Road Transport Corporation, body Corporate constituted

under the ig provisions of the Road Transport Act,

challenging the order passed by the Industrial Court,

Nagpur, in Complaint (ULP) No. 262/2006 on

6th September, 2011 by which the Industrial Court has

declared that the Corporation is engaged in unfair labour

practice under Item 9 of Schedule IV of the Maharashtra

Recognition of Trade Union and Prevention of Unfair

Labour Practices Act, 1971 (hereinafter referred to as

"MRTU & PULP Act") by not providing alternate

employment to respondent no.1. The Industrial Court has

directed the petitioner to pay wages to respondent no.1

for the period 2nd August 2002 till the date of attaining

the age of superannuation, further imposing costs of

Rs. 2000/- on the petitioner.

4] The relevant facts are as follows:-

Respondent no.1 was working as driver in the

employment of the petitioner from 1979. During the

course of the employment, respondent no.1 was referred

to Medical Officer for visual acuity test and the Medical

Officer declared unfit to drive the vehicle and, therefore,

the petitioner issued the order dated 8th February 2002

terminating the services of respondent no.1 with effect

from 15th January 2002 with retrospective effect. It was

the case of respondent no.1 that the petitioner did not

offer him alternate job in spite of the specific stipulation

to the effect in the settlement between the petitioner

and the employees. Respondent no.1 had submitted an

application requesting for appointment of his son-

Respondent no.2 on compassionate ground. The

petitioner had asked respondent to get the medical

certificate from the Medical Board, Nagpur to the effect

that he was totally unfit for discharging any sort of duty.

The petitioner had not given any letter to the Medical

Board to examine the respondent no.1 and, therefore,

he could not get himself examined by the Medical Board.

In this factual background, respondent nos. 1 and 2 filed

application before the Industrial Court under Item 9 of

Schedule IV of MRTU & PULP Act.

5] The petitioner opposed the claim, as made by

respondents 1 and 2, on the ground that respondent no.2

was not employee of the petitioner, therefore, complaint

on his behalf was not maintainable. The petitioner

admitted that respondent no.1 was removed from the

service on account of his visual acuity and it is

submitted that respondent no.1 had not applied for the

alternate employment and, therefore, there was no

question of providing him alternate employment.

Respondent no.1 submitted that he had not submitted

the certificate of the Medical Board showing that he was

unfit for discharging any sort of duty, therefore,

employment could not have been given to respondent

no.2.

6] Learned Member of the Industrial Court

proceeded with the matter and concluded that

respondent no.2 is not entitled to claim the job in place

of his father. The learned Member concluded that the

petitioner has committed unfair labour practice under

Item 9 of Schedule IV of the MRTU & PULP Act and that

respondent no.1 is entitled to get wages from

8th February 2002 till the age of attaining of

superannuation for the post of driver.

7] Learned Advocate for the petitioner has

submitted that the impugned order suffers from patent

irregularity and illegality and is not sustainable in law.

The learned Advocate for the petitioner has submitted

that respondent no.1 had accepted the termination order

and wanted to secure job for his son on compassionate

ground and it is only when the petitioner refused to

accept his request for giving compassionate appointment

to his son that the respondent no.1 has filed complaint

after about three years of the termination order. It is the

submission on behalf of the petitioner that the conduct of

respondent no.1 estops him from claiming reliefs as

prayed for him and the Industrial Court could not have

granted the relief to respondent no.1 overlooking these

aspects. It is the submission on behalf of the petitioner

that in any case respondent no.1 has not worked for the

period for which the back wages are granted and the

impugned order to that effect is contrary to the principle

"no work no wages" and, therefore, unsustainable in law.

The learned Advocate for the petitioner has relied on the

judgment reported in 2013(1)ALL MR 290 (Prakash

Vinayak Naik Vs. Pune Municipal Corporation) and has

submitted that the conclusions of the Industrial Court on

the basis of Section 47 of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 (hereinafter referred to as

"Persons with Disabilities Act 1995" are misconceived.

The learned Advocate for the petitioner has

submitted that the facts in the above referred judgment

are identical to the facts of the present case and,

therefore, the impugned order has to be quashed.

8] Mr. Jagdale, learned Advocate for respondents 1

and 2 has submitted that the petitioner has not only

acted contrary to clause 46 of the Settlement between

the petitioner and the employees but also has violated

the mandate of Section 47 of the Persons with

Disabilities Act, 1995 and, therefore, the petitioner is not

entitled for any relief from this Court specially in exercise

of extraordinary writ jurisdiction. The learned Advocate

for respondents 1 and 2 has submitted that the Industrial

Court has considered the matter in the right perspective

and has recorded proper findings, and it does not require

any interference by this Court.

9] I have considered the submissions made on

behalf of the respective parties and have examined the

record with the assistance of learned Advocates

appearing for the parties.

10] The Persons with Disabilities Act 1995 has been

enacted to give effect to the Proclamation on the Full

Participation and Equity of People with Disabilities in the

Asian and the pacific Region. The statement of objects

and reasons of the Persons with Disabilities Act 1995

states that the meeting to launch the Asian and Pacific

Decade of the Disabled Persons 1993-2002 was

convened by the Economic and Social Commission for

Asian and Pacific Region, and held at Beijing on 1st to 5th

December, 1992 and it adopted the Proclamation on the

Full Participation and Equality of People with Disabilities

in the Asia and the Pacific region. It states that India is a

signatory to the said proclamation and therefore, it was

necessary to enact a suitable legislation to provide for

the following:-

(i) to spell out the responsibility of the State towards

the prevention for disabilities, protection of rights,

provision of medical care, education, training,

employment and rehabilitation of persons with

disabilities;

(ii)to create barrier free environment for persons with

disabilities;

(iii)to remove any discrimination against persons with

disabilities in the sharing of development benefits,

vis-a-vis non-disabled persons;

(iv)to counteract any situation of the abuse and the

exploitation of persons with disabilities;

(v)to lay down a strategy for comprehensive

development of programmes and services and

equalisation of opportunities for persons with

disabilities; and

(vi)to make special provision of the integration of

persons with disabilities into the social mainstream.

11] Though the Persons with Disabilities Act

1995 has been enacted and is enforced since 1st

January 1996 it has been consistently noticed by the

Courts that there has been constant attempt by the

employers to deprive the persons with disabilities,

from the benefits of the Act. Looking to the blatant

violation of the mandate of the Persons with

Disabilities Act 1995 for the period of 17 years, the

Hon'ble Supreme Court has considered the matter

in the case of Union of India & anr. Vs. National

Federation of the Blind & Ors. in Civil Appeal No.

9096 of 2013 and has observed as follows:-

"49. Employment is a key factor in the empowerment and inclusion of people with

disabilities. It is an alarming reality that the disabled people are out of job not because

their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people

live in poverty and in deplorable ig conditions.

They are denied the right to make a useful contribution to their own lives and to the

lives of their families and community. "

12] The Hon'ble Supreme Court has issued

directions in paragraph 54 of the judgment as follows:-

"54. In our opinion, in order to ensure proper implementation of the reservation policy for the

disabled and to protect their rights, it is necessary to issue the following directions :

(i) We hereby direct the appellant herein to

issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Court's Order within three months from the date of passing of this judgment.

                             (ii) We             hereby             direct             the




                                                                                   
                             "appropriate          Government" to compute

the number of vacancies available in all the

"establishments" and further identify the posts for disabled persons within a period of three months from today and

implement the same without default.

(ii)The appellant herein shall issue

instructions to all the departments/public

sector companies undertakings, declaring that Government the non-

observance of the scheme of reservation for persons with disabilities should be considered as an act of

non-obedience and Nodal Officer in department/ public sector undertakings/

Government companies, responsible for the proper and strict implementation of

reservation for persons with disabilities, be departmentally proceeded against for the default."

                       13]         The    Hon'ble       Supreme           Court       in    the

                       judgment      reported      in       2013        (8)     Scale       171

                       (Geetaben       Ratilal    Patel      Vs.      District       Primary

Education Officer) emphasized on the rigor of the

mandate of the provisions of Section 47 of the

Persons with Disabilities Act 1995 and relying on

the proviso to Section 47(1) of the Persons with

Disabilities Act 1995 directed the employer to get

opinion of a Government Doctor and to assign

appropriate duty to the employee suffering with

disabilities.

ig In the case of Geetaben Ratilal Patel

Vs. District Primary Education Officer (supra)

the Hon'ble Supreme Court has again considered

the rigor of the mandate of the provisions of

Section 47 of the Persons with Disabilities Act ,1995

and has recorded in paragraph 18 as follows:-

"Therefore, even it is presumed that

the appellant became insane, as held by the Inquiry Officer, mentally illness being one of the disabilities under

Section 2(i) of the Act, 1995, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after

acquiring disability was not suitable

for the post he was holding, should have been shifted to some other post

with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant

against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable

post is available or, until the appellant igattained the age of superannuation whichever was earlier."

14] Similarly, the Division Bench of this Court

at the Principal Seat is also required to consider the

issues relating to the Persons with Disabilities Act,

1995 in Writ Petition No.3294/2010 (Mrs.Nilima

Ananat Surve Vs. The State of Maharashtra and

others) and Public Interest Litigation No 70 of 2002

(ILS Legal and Centre and ors Vs. The State of

Maharashtra and others) and Public Interest

Litigation No.139 of 2006 and in paragraph 11 of

the order, it recorded as follows:-

"11. The Health Department of State of

Maharashtra shall issue instructions to all the Medical Boards and Superintendents of

the Public Hospitals that when a candidate, selected for a post which is reserved for a physically challenged person, appears for

medical examination, he cannot be declared unfit or unsuitable for the post by the concerned Medical Board or

Superintendent of the Public Hospital on

the ground that he is medically unfit because of that particular disability. "

15] Section 47 of the Persons With Disabilities

Act, 1995 reads as under:-

"Section 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".

16] The mandate of Section 47 of the Persons

Disabilities Act, 1995 casts an obligation on the

employer to provide an alternate employment to the

employee, who acquired disability during his

service, in some other post with same pay scale and

service benefits. It lays down that if the employer

finds that the employee after acquiring the disability

is not suitable for the post he was holding then the

employee should be kept on a supernumerary post

until a suitable post is available or he attains the

age of superannuation, whichever is earlier. In the

present case, the petitioner-employer has directly

terminated the services of respondent no.1 on the

ground of his physical disability. It is not in dispute

that respondent no.1 acquired disabilities during the

course of his employment. Thus, the petitioner-

employer has violated the mandate of proviso to

Section 47(1) of the the Persons with Disabilities Act,

1995.

17] The second proviso to Section 47(1) of the

Persons with Disabilities Act, 1995 lays down 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, which is earlier. It is clear that

provisions of Section 47 of the Persons with

Disabilities Act, 1995 does not only casts an

obligation on the employer to provide alternate

employment but the second provision to Section

47(1) of the Persons with Disabilities Act, 1995

makes it clear that the employee, who has acquired

disabilities during the service cannot be removed

from the service on the ground of unfitness and the

employer is under an obligation to accommodate

him on supernumerary post till the suitable post is

available or till he attains the age of

superannuation. Therefore, the petitioner-employer

could not have terminated the services of

respondent no.1 overlooking the mandate of the

provisions of Section 47(1) of the Persons with

Disabilities Act, 1995.

18] The learned Member of the Industrial Court

has dealt with the factual aspects and rightly

recorded finding in favour of respondent no.1.

19] The petitioner has submitted that

respondent no.1 had accepted the termination order

and sought compassionate appointment of his son

and it is only when the petitioner did not give

compassionate appointment to his son that the

respondent no.1 has made complaint and, therefore,

the complaint should not have been entertained by

the Industrial Court, is misconceived. The

petitioner-employer could not have wriggled out of

the mandate of the provisions of Section 47(1) of

the Persons with Disabilities Act, 1995 and could not

have shirked its liabilities to provide an alternate

employment to respondent no.1 and, therefore, in

my view, the findings of the Industrial Court are in

accordance with the mandate of the provisions of

Section 47 (1) of the Persons with Disabilities Act,

1995.

20] Reliance placed on behalf of the

petitioner on the judgment given in the case of

Prakash Vinayak Naik Vs. Pune Municipal

Corporation (supra) is also not proper. In that case,

the employee was terminated and the employee's

son made representation dated 10th October 2002

and 26th September 2005 seeking compassionate

appointment ig and these representations were

rejected on 7th March 2006. Shri Prakash Vinayak

Naik (employee) had filed writ petition in August

2009 challenging the termination of his services

which was effected in 2005. In that petition, the

reasons given for the delay was that his son had

filed writ petition which was rejected on 29th June

2006 and the review petition was also dismissed on

12th February 2008. Special Leave Petition was filed

which was dismissed on 30th March 2009 and after

this writ petition was filed by the employee. Further

more, it is recorded in the above referred judgment

that Shri Prakash Vinayak Naik (employee) had

attained the age of superannuation on 30th June

2007 and the writ petition was filed practically after

two years from the date of his retirement. It is in

this factual background that the High Court refused

to consider the grievance of Shri Prakash Naik in the

above referred judgment. The facts of the above

referred judgment are totally different from the

present case. In the present case respondent no.1

was aged about 54 years when the complaint was

filed before the Industrial Court and respondent no.1

had not made grievance against the petitioner after

being unsuccessful in the Courts seeking

compassionate appointment for his son as was the

fact in the the case of Shri Prakash Naik. The

judgment given in the case of Shri Prakash Naik is

not of any assistance to the petitioner. Therefore,

the impugned order has to be upheld and the writ

petition has to be dismissed.

21] The facts on the record show that the

petitioner-employer has not only deprived

respondent no.1 from his legitimate claim but the

petitioner-employer has no regards to the mandate

of the provisions of Section 47(1) of the Persons with

Disabilities Act, 1995 and law laid down by the

Hon'ble Supreme Court and this Court. The

petitioner-employer is a body corporate and is State

within the meaning of Article 12 of the Constitution

of India and, therefore, it has to act as a Model

Employer. The conduct of the petitioner-employer is

highly deprecable and, therefore, in my view the

exemplary costs of Rs. 20,000/- have to be imposed

on the petitioner-employer so that similar persons

with physical disabilities are not deprived of their

legitimate claim and the rights conferred by the

provisions of Persons Disabilities Act, 1995 in future.

In view of the above, the writ petition is dismissed

with costs of Rs. 20,000/-. The costs be paid by the

petitioner-employer to respondent no.1 within one

month from today.

JUDGE Ambulkar