Bombay High Court

Forest Development Corporation ... vs Sharad Jagappa Barjibhe on 19 January, 2021

Bench: R. G. Avachat

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                          WRIT PETITION NO. 696 OF 2020

 1.       Forest Development Corporation
          of Maharashtra Ltd., F.D.C.M. Bhavan,
          Ambazari, Hingana Road, Nagpur - 440 036
          Through its Managing Director

 2.       Regional Manager,
          Forest Development Corporation
          of Maharashtra Ltd., Arnya Sankul,
          Trimbak Naka, Malika Mandir Road,
          Nashik - 422 002

 3.       Divisional Manager
          Forest Development Corporation
          of Maharashtra Ltd., Vanvikas Bhavan          ... PETITIONERS
                                                        (Orig. Respondents)
                  Versus

 Sharad Jagappa Barjibhe
 Age:58 years, Occu. Retired Employee,
 R/o Near Jalgaon District Central Cooperative
 Bank Ltd., Yawal, Dist. Jalgaon                        ... RESPONDENT
                                                        (Orig. Complainant)

                                 ....
 Mr. Pradeep Shahane, Advocate for petitioners
 Mr. Parag V. Barde, Advocate holding for Mr. A. D. Sonar, Advocate
 for the respondent
                                 ....

                                    CORAM     : R. G. AVACHAT, J.

JUDGMENT RESERVED ON : 11th JANUARY, 2021 JUDGMENT PRONOUNCED ON : 19th JANUARY, 2021

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JUDGMENT :-

. Rule. Rule made returnable forthwith and heard finally

with consent of learned counsel for the parties.

2. The challenge in this writ petition is to the judgment and

order dated 02.05.2016 passed by the Labour Court, Dhule in

Complaint ULP No.27/2014 and affirmed by the Industrial Court,

Dhule, by judgment and order dated 27.08.2019 in Revision ULP

No.16/2016.

3. The respondent was in the employment of petitioner

No.1 as a Forest Guard. He met with railway accident on

19.03.2007, as a result of which, both of his legs have been

amputated below the knees. The petitioner No.1, therefore, retired

him on medical ground in view of the service rules on 16.08.2010.

The respondent took exception to his retirement by approaching the

Labour Court. It is his contention that the petitioner No.1 indulged

in unfair labour practice and in colourable exercise, passed a

punitive order compulsorily retiring him from service. Pending the

claim before the Labour Court, the respondent attained the age of

superannuation. The Labour Court, therefore, directed the petitioner

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- employer to pay the respondent - complainant full wages from

16.08.2010 till 03.06.2015 with interest at the rate of 12% per

annum till the realization of the said amount. The respondent is also

held to be entitled to the increments, wage revision and all

consequential benefits from 16.08.2010 till 03.06.2015 with

continuity of service.

4. The petitioners challenged the order of Labour Court in

revision before the Industrial Court, but have been unsuccessful.

Hence, the present petition.

5. Shri Shahane, learned counsel for the petitioners would

submit that the respondent has been retired on medical ground. The

service rules authorise the petitioners to retire its employee, who is

found to be unfit to discharge his duties on medical ground. The

respondent has neither been dismissed nor discharged from the

service. The action of the petitioner, therefore, could not be branded

to be an unfair labour practice. He took me through Item 1 of

Schedule IV of the Maharashtra Recognition of Trade Union &

Prevention of Unfair Labour Practice Act, 1971 (MRTU & PULP Act,

1971). Learned counsel further submits that in case of retirement on

medical ground the concerned employee was not required to be

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heard. There is, therefore, no question of violation of principles of

natural justice. The service rules do not require to give a notice

before retiring an employee on medical ground. According to the

learned counsel, the respondent is a court-bird. He initiated various

proceedings before various forums, such as, Labour Court, Industrial

Court, Maharashtra Administrative Tribunal, the Commissioner

appointed under the Physically disabled Act, 1995 and the High

Court, as well. According to the learned counsel, the Labour Court

ought not to have granted relief of backwages with all consequential

benefits. He took me through the impugned order to contend it to

have been silent to give reasons in support of granting such a relief.

Learned counsel has relied on the following authorities:

(i) MANU/SC/1023/2018=2018(11)SCALE 353 (The Management of Regional Chief Engineer vs. Their Workmen)

(ii) 2020 I CLR 526 (SC) (Om Pal Singh vs. Disciplinary Authority & ors.)

(iii) MANU/SC/0741/2007=2007(2)SCC 433 (J.K. Synthetics vs. K. P. Agrawal and ors.)

(iv) MANU/SC/0584/2002=2002(6) SCC 41 (Hindustan Motors Ltd. vs. Tapan Kumar Bhattacharya and ors.)

(v) MANU/SC/7346/2007=2007(9)SCC663 (State of Punjab vs. Anil Kumar)

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(vi) MANU/SC/0447/1992=1992(2)SCALE 663 (State of U.P. vs. Atal Behari Shastri)

(vii) 2020 I CLR 728 (Canara Bank vs. Appellate Authority)

According to the learned counsel, when the respondent

had approached the Commissioner, he ought not to have approached

the Labour Court. There was a considerable delay in approaching the

Labour Court. The Limitation Act has no application. There is no

provision for condonation of delay in preferring an application to the

Labour Court. According to the learned counsel, the orders

impugned in this writ petition are inconsistent with settled legal

propositions and are therefore liable to be set aside.

6. Shri Parag Barde, learned counsel for the respondent

would on the other hand, submit that the petitioners victimised the

respondent. They made the respondent to run pillar to post. He had,

therefore, no option but to approach various judicial forums. The

learned counsel took me through the impugned orders to submit

them to have been in consonance with legal provisions.

7. I have considered the submissions advanced by the

respective learned counsel, also perused the impugned orders.



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Both the Courts below have passed concurrent findings

of fact, I see no reason to disagree therewith in exercise of writ

jurisdiction under Article 227 of the Constitution of India.

8. The respondent was in employment of petitioner No.1 as

a Forest Guard. He met with a railway accident. As a result thereof,

his both the legs have been amputated below the knees. Necessarily,

he became disabled to discharge duties as a Forest Guard. The

Medical Board, on examination of the respondent, found him to be

fit to discharge sedentary job. Section 47 of the Persons with

Disabilities (Equal Opportunities, Protection of rights and Full

Participation) Act, 1995 ( for short, ' the Act of 1995' )reads thus:

"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.

2. No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on any establishment, by notification and subject to such condition, if any, as may be specified in such notification,

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exempt any establishment from the provisions of this section."

9. The aforesaid provision makes amply clear that if an

employee after acquiring disability, is not suitable for the post he was

holding, he has to be shifted on some other post with the same pay

scale and service benefits. In case of non availability of a suitable

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. Even, promotion cannot be denied merely on the ground of

his disability.

10. It is true that Rule 5 of the Forest Development

Corporation of Maharashtra Limited Service Conditions (Retirement)

Rules, 1988 (Amended in 2001), empowers the competent authority

to retire its employee, if he is declared to be unfit for further service

by the competent Medical Authority of the Government, at any time

with immediate effect.

Here, although the respondent held to be unfit to

discharge duties as a Forest Guard, he has been found fit to do

sedentary job. The Apex Court, in the case of Kunal Singh vs. Union

of India and Anr., reported in AIR 2003 SC 1623 has observed that

the Disabilities Act is a special legislation and overrides the

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provisions of the Central Civil Services (Pension) Rules. As such, in

case of conflict between provisions of Section 47 of the Act of 1995

and Service Rules, the latter shall yield to the former.

11. The respondent, on his request, was transferred to

Taloda, District Nandurbar. Placing reliance on the Government

Resolution/Circular, he had requested to allot him disabled friendly

Government accommodation. The lavatory block in a Government

quarter provided to him was not suitable for him, since both of his

legs have been amputated below knees, necessarily he was required

western lavatory block. His request to allow him to acquire disabled

friendly accommodation on rent, was turned down. Instead of

complying with the provisions of Section 47 of the Act of 1995, the

petitioner No.1 retired the respondent on medical ground. When the

respondent was entitled to be continued in service, his retirement on

medical ground has rightly been observed by both the authorities

below, to be an unfair labour practice in colourable exercise of

power.

12. The Labour Court directed the petitioners to pay the

respondent full wages from the date of his retirement to the date of

his superannuation. The respondent is also held to be entitled for

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increments, revision of wages and all consequential benefits.

13. Learned counsel for the petitioners relying on the

authorities referred to herein above, submitted that the Labour Court

did not give any reason for grant of back wages and all

consequential benefits.

14. The gist of the authorities relied on by the learned

counsel for the petitioners is :

Back wages could not be awarded by the Court as of

right to the workman consequent upon setting aside of his dismissal/

termination order. A workman has no right to claim back wages from

his employer as of right. There has to be pleadings and production of

evidence to prove the material facts required for award of back

wages. It is for the workman to plead and prove with the aid of

evidence that after his dismissal from the service, he was not

gainfully employed.

15. In the case of J. K. Synthetics (supra), it has been

observed thus:

"17. There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several

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promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever Courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. ....."

16. There can be no two views about the observations or

what has been held in the cases (supra) relied on by the

petitioners. Each case is however, required to be decided on its

own facts.

The Labour Court has observed that retirement of

the respondent was illegal and therefore he was entitled for

grant of back wages and consequential benefits. Although, the

Labour Court did not state reasons in so many words for grant of

such a relief, it was justified to grant the same in the facts and

circumstances of the case. Due to amputation of both of his legs

below knees, the respondent was necessarily rendered unfit to

get gainfully employed. Section 47 of the Act of 1995 mandates,