Union Of India & Another vs Shri Prakash Ramchandra Yadav ...
2016 Latest Caselaw 1475 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                    NAGPUR BENCH, NAGPUR




                                                                   
                             WRIT PETITION NO.4421 OF 2003

    1.  Union of India,




                                                                  
    Through Secretary,
    Ministry of Defence (Production)
    New Delhi.

    2.  The Senior General Manager,




                                                         
    Ordnance Factory,
    Chanda P.O. Chandrapur,             
    Tahsil Bhadravati,
    District Chandrapur.                                              ..... Petitioners.
                                       
                                              ::  VERSUS  ::

    Shri Prakash Ramachandra Yadav,
    Qr. No. Type I, Sector IV,
            


    Chanda Estate,
    P.O. Chandrapur Ord. Factory,
         



    Tahsil Bhadravati,
    District Chandrapur 442 501.                              ..... Respondents.
    ==========================================
                        Shri J.S. Mokadam, counsel for the petitioners.





                        Shri M.G. Burde, counsel for the respondent.
    ==========================================

                                         CORAM          :  B.P. DHARMADHIKARI &
                                                           P.N. DESHMUKH, JJ.                   

DATED : APRIL 13, 2016.

ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)

1. Heard learned counsel Shri J.S. Mokadam for the

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petitioners and learned counsel Shri M.G. Burde for the respondent.

2. The respondent joined employment of petitioner No.2 in

1985 as Fireman Grade-II. On 24.2.1989, he was appointed as

Civilian Motor Driver Grant-II (Ordinary Grade) in Group-D. In due

course, on 10.4.2002, he got the benefits of the financial up-gradation

under the Assured Career Progression Scheme-I in the pay-scale of

Rs.4000-6000. This benefit was given to him for a period from

24.2.2001 to 27.3.2002.

3. On 17.10.2001, the doctor from the Indira Gandhi Medical

College and Hospital at Nagpur certified that the respondent was

suffering from cervical spondylosis and, therefore, unfit to drive the

vehicle. On 23.11.2001, the medical establishment of respondent

No.2 recommended alternate job and the respondent was informed

on 20.2.2002 that he could not be given job of junior examiner

(Group-D) since he was not holding necessary educational

qualifications.

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4. On 28.2.2002, the respondent then submitted an

application exercising option for post of labourer. He was called for

meeting on 19.3.2002 and, on that day, he was appointed as a

labourer (un-skilled). On 22.4.2002, he moved an application seeking

equivalent post having same pay-scale, but the petitioners expressed

their helplessness. Hence, the respondent filed O.A. No.2123 of 2002

in the Central Administrative Tribunal and, on 26.9.2009, after

hearing the parties, the Tribunal, during its seating at Nagpur,

allowed the application. The Tribunal has relied upon the provisions

of Section 47(1) of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 (for short "the

said Act") and the judgment of the Honourable Apex Court in the case

of Kunal singh ..vs.. Union of India and anr, reported in 2003(2) SLR

502.

5. Learned counsel Shri Mokadam for the petitioners,

submits that in this situation, the reliance upon the provisions of

Section 47(1) of the said Act supra is erroneous because it is the

respondent who volunteers to work as labourer. After receipt of that

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letter, his voluntariness was verified on 19.3.2002 and, thereafter, on

28.3.2002, he was given post of labourer (unskilled). He contends

that while doing so, last pay given by him was kept in mind and

protected. In this situation, when the respondent was given ample

time to make up his mind, the grievance made by him by placing

reliance upon the provisions of Section 47(1) of the said Act, is

misconceived. He does not dispute the law as laid down by the

Honourable Apex Court, but urges that in the present facts, the said

law is not attracted. He has also invited our attention to the interim

orders passed by this Court on 14.11.2003 while issuing the Rule in

the matter.

6. Learned counsel Shri Burde for the respondent, on the

other hand, submits that the above mentioned Act is a welfare

measure and the respondent has never given up or waived its

benefits. He invites our attention to the fact that the person, who has

suffered disability, is required to be absorbed on an equivalent post

with similar service conditions or then on a supernumerary post, if

such a post is not available. He adds that if such post does not

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become available during service tenure of such a disabled person,

that person may retire from a supernumerary post itself. He,

therefore, places emphasis on this scheme to urge that the option

exercised by the respondent is not final and the employer is not

exonerated of obligation of implementing the provisions of Section

47(1) of the said Act.

7.

This Court has, while issuing the Rule in the matter,

directed the employer to deposit the amount due and payable to the

respondent on account of a difference in salary actually paid to him

and the salary which he would have drawn as per the Scheme of

Section 47(1) of the said Act with the Nationalized Bank. Accordingly,

that amount is being deposited.

8. The judgment of the Honourable Apex Court mentioned

supra, is very clear. The C.A.T. has looked into that judgment in

paragraph Nos.12 and 13 of its judgment and in paragraph No.11 has

reproduced the provisions of Section 47(1) of the said Act. As per the

said judgment, it is incumbent on the employer to shift such

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employee to some other post with same pay-scale and service

benefits. If such shifting and adjustment is not possible, he is to be

kept on a supernumerary post, till a suitable post becomes available

or then, till he attains the age of superannuation whichever event

takes place earlier. Thus, even in absence of a post carrying same

pay-scale and service benefits, the employer is obliged to provide

work or absorb employee on a supernumerary post. Thus, the

emphasis is to protect the pay-scale and service benefits of such

disabled person.

9. In this situation, merely because of finding that the

petitioner could not have been absorbed on the post of junior

examiner (Group-D), this obligation could not have been avoided by

the employer. If no post was available, a supernumerary post was

required to be created and respondent needed to be absorbed against

that post, which was not done.

10. We, therefore, find that the C.A.T. has correctly

appreciated the position. The law on the point has been properly

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applied. No case is, therefore, made out warranting interference in

writ jurisdiction. The writ petition is, therefore, dismissed. No costs.

Rule is discharged.

11. Needless to mention that the amount, in deposit with the

Nationalized Bank as per the interim orders of this Court on

14.11.2003, shall be allowed to be withdrawn by the respondent and

shall be released keeping in mind the directions issued by the C.A.T.

and upheld by this Court.

                                  JUDGE                                   JUDGE 





    !!  BRW  !!





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