Bombay High Court
Deepak S/O Wamanrao Rane vs Maharashtra State Road Transport ... on 23 February, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.803/2019
Deepak s/o Wamanrao Rane,
aged about 56 years, Occ. Service,
r/o S.T.Quarter, Ghat Road, Nagpur .....PETITIONER
...V E R S U S...
Maharashtra State Road Transport
Corporation, through its Divisional
Controller, MSRTC, Nagpur. ...RESPONDENT
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Mr. C. V. Jagdale, Advocate for petitioner
Mr. R. O. Chhabra, Advocate for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 23.02.2021.
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties. The petitioner-
Deepak is represented by Mr.Jagdale, learned counsel and
respondent-Maharashtra State Road Transport Corporation
(hereinafter referred to as 'Corporation' for the sake of brevity) is
represented by Mr. Chhabra, learned counsel.
2. This writ petition is filed before this Court with
following prayer:
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"(b) The judgment and order passed by Hon'ble
Member, Industrial Court, Nagpur (Annex.-I) in Complaint
(ULP) 300.2009 on 21.08.2012 may kindly be modified by
directing respondent to pay full back wages to the
petitioner from 4.5.2006 till July, 2013 with all
consequential benefits."
3. According to Mr.Jagdale, learned counsel for
petitioner, in view of Section 47 of the Persons With Disabilities
Act, 1995 and in the light of the decision of this Court in Writ
Petition Nos.4365/2010 and 4484/2011 dated 06.09.2018, the
learned Judge of the Industrial Court has committed error in not
giving benefit of back wages. He, therefore prayed that the
petition be allowed.
Per contra, Mr.Chhabra, learned counsel for the
respondent supported the judgment of the Industrial Court.
4. The petitioner was in employment of the Corporation
as Driver. In the year 2006, he was required to undergo Lambs
Spine surgery. Due to the said surgery, the petitioner was not in a
position to discharge his duty as driver. He was referred to the
Civil Surgeon and the Civil Surgeon, vide his order dated
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15.04.2006, certified that he is completely and permanently
incapable for further service as driver.
The Corporation, in view of the letter of the Civil
Surgeon, removed the name of the petitioner from the muster roll
in CBS-II Nagpur (as driver). Thereafter, on 04.05.2006, he was
discharged from service with retrospective effect from 15.04.2006.
5. Request of the petitioner to consider for providing
alternate employment was also not accepted by the Corporation.
Therefore, the petitioner approached to the Industrial Court by
filing the Complaint (ULP) No.300/2009 under Section 28 of the
Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practice Act. According to the complaint, the
Corporation has indulged in unfair labour practice as envisaged
under Item 9 of Schedule IV of the MRTU & PULP Act. The
complaint was contested by the Corporation. Though the relations
between the petitioner and Corporation as employer and
employee were not denied or not in dispute. Learned Member of
the Industrial Court, Nagpur vide judgment dated 21.08.2012,
partly allowed the complaint, thereby declaring that Corporation
has engaged in unfair labour practice by not providing alternate
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employment to the petitioner and also directed to provide
alternate employment as a Peon.
6. Learned counsel for the petitioner has made a
statement that in view of the judgment dated 21.08.2012, the
petitioner is being given work of Peon and subsequently on
attaining the age of superannuation on 20.09.2020, he stood
retired from service. Further, the said judgment is not at all
challenged further and thus has attained finality.
7. The present petition is filed seeking back-wages from
04.05.2006 i.e. date of order of termination till July-2012 when
the petitioner was reinstated by the Corporation though as a Peon.
8. Admittedly, the petitioner was a driver and it is also
admitted that in the year 2006, the petitioner was required to
undergo Lambs Spine surgery, which made him incapable of
discharging his duties as driver. It is also not in dispute that there
is a settlement between Corporation and recognized union in the
year 1999 and as per clause 46 of the said settlement, an
employee is entitled to get alternate employment.
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9. It is also not in dispute that when the petitioner found
that he is unable to discharge his duties as driver, he moved an
application to the Corporation for providing him alternate job
which was not given. Section 47 of the Persons With Disabilities
Act, 1995 reads thus:
"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 shift 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."
10. Services of the petitioner were never terminated
because of any misconduct on his part. The petitioner was unable
to discharge his duties as driver because of his surgery. It was the
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duty of the Corporation, therefore, in view of Section 47 to
provide alternate job to the petitioner. The Corporation has failed
to discharge the obligation on it put by the Act. Therefore, in my
view, the learned Member, Industrial Court has committed error
in not granting back-wages for the period from 04.05.2006 to
July-2013 when the petitioner was provided alternate
employment.
In view of above, I pass the following order.
ORDER
(i) The writ petition is allowed.
(iii) It is held that the petitioner is entitled to back-wages
along with consequential benefits, from 04.05.2006 till July-2013
when the petitioner was provided with alternate employment as
Peon.
(iv) The respondent-Corporation is directed to pay back-
wages for this period to the petitioner along with consequential
benefits, within two months from today.
Rule is made absolute in the above terms. No order as
to costs.
JUDGE
kahale
