Hoshiar Singh vs The Management Of Delhi Transport ...
1994 Latest Caselaw 157 Del

JUDGMENT

P.N. Nag, J.

(1) Petitioner has challenged the order passed by Depot Manager, Delhi transport Corporation dated 31.7.1991, Annexure P-l whereby he has been declared unfit for the post of Driver on account of medical report of Medical Board,DTC as per provision of Clause 10 of Data (Conditions of Appointment andService) Regulations,1952.The petitioner was asked to appear before the Medical Board for eye test. the medical Board not only conducted eye test of the petitioner who was working as Driver but also declared him unfit for the post of Driver and on that basis the impugned order has been passed. On the last date of hearing Mr. Sharma, learned counsel for the petitioner cited a judgment of two Honourable Judges of the supreme Court arising out of Special Leave Petition (C) No-1575/90, Ved PrakashSingh (Conductor) v. Delhi Transport Corporation and Others whereby he pointed out the policy being adopted by the Supreme Court of taking recourse to rehabilitate handicapped persons and submitted that in view of such observations of the Supreme Court, the petitioner being handicapped person should be offered some suitable job. In view of such submission we directed the respondent to consider the case in the context of observations of the Supreme Court. The matter again has been heard today and learned Counsel for the respondent has brought to our notice another judgment of the Supreme Court by three Honourable Judges in the case of U.P.State Road Transport Corporation and Another v. Mohd. Ismailand Others, of the judgment, the Supreme Court has observed that the statutory authority has to exercise discretion in such case and the court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The observations of the Supreme Court are reproduced in para-II of the judgment which are re-produced below: "the high Court was equally in error in directing the Corporation to offer alternative job to drivers who are found to be medically unfit before dispensing with their services. The Court cannot dictate the decision of the statutory authority that ought to be made in the exercise of discretion in a given case. The Court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The court could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law. Whether alternative job is to be offered or not is a matter left to the discretion of the competent authority of the Corporation and the Corporation has to exercise the discretion in individual cases. The Court cannot command the Corporation to exercise discretion in a particular manner and in favor of a particularperson. That would be beyond the jurisdiction of the Court."

(2) In view of the aforementioned judgment of the U.P. State Road Transport Corporation and Another (supra) we are of the opinion that the respondents should consider the question of offering alternative suitable employment to the petitioner.However, learned Counsel for the petitioner has also brought to our notice the case of Anand Bihari and Others v. Rajasthan State Road Transport Corporation,Jaipur and Another . In that case, the Supreme Court, while considering the question whether the termination of services of drivers on account of medical unfitness for driving heavy motor vehicles because of weak eye sight amounted to retrenchment under Section 2(00) of the Industrial Disputes Act, 1947 and whether the services of the drivers have been rightly terminated. It has been held by the Supreme Court in that case that such termination of services being covered by Sub clause (e) of Section 2(00) would not amount to retrenchment within the meaning of Section 2(00) of the I.D. Act and, therefore, the termination per se is not illegal. However, it has further been observed by the Supreme Court in that case that although the order of termination of service parse cannot be faulted on the ground of the breach of the Act, the important question that still remains to be considered is whether in the circumstances of the case and against the background of the relevant provisions of the Constitution, it can be said that the action of the Corporation is proper, equitable and justified when the workmen have putin service with the Corporation for long periods and all of them are above 40 years of age and their superannuation age is 58 years. In that case, the drivers developed a weak or sub-normal eye-sight or lost their required vision on account of their occupation as drivers in the Corporation. Having this background in view, the supreme Court came to the conclusion that the service conditions of the workmen such as the drivers, therefore, must provide for adequate safeguards to remedy the situation by compensating them in some form for the all-round loss they suffer for no fault of theirs. The Supreme Court in those circumstances asked the Corporation to formulate a scheme and after having found an unhelpful attitude of theCorporation, they formulated the scheme for the workmen like the drivers which is mentioned in para 12 of that judgment. This Scheme was formulated by the supreme Court having kept in mind that the workmen concerned were incapacitated to work only as drivers and were not rendered incapable of taking any other job either in the Corporation or outside.Further the workmen were at an advanced age of their life and it would be difficult for them to get a suitable alternative employment outside and the relief made available under the Scheme should not be such as would induce the workmen to feign disability.

(3) This scheme was formulated by the Supreme Court in the case of Rajasthan State Road Transport Corporation (supra). This scheme inter-alia provides for alternative job available with the respondent-Corporation and amount of compensation having regard to the length of service and the age of workmen etc. We fail to understand why such analogous scheme cannot be formulated by the respondents for their drivers.In this case we are told that petitioner has rendered 26 years of service and is above 50 years and the age of Superannuation is 58 years.59In these circumstances, we are of the opinion that this is a case where the drivers of the respondent-corporation should be considered for alternative suitable employment or should be given compensation in the light of the judgment of the Supreme Court in Anand Bihari v. Rajasthan State Road Transport Corporation's (supra) case. The question whether the appropriate Govt. can refuse reference to Labour Court is left open.In the light of what is discussed above, the respondents are directed (1) to formulate a scheme analogous to the scheme formulated by the Supreme Court preferably within three months from today; (2) to offer the petitioner alternative suitable employment; and (3) In case it is not possible to employ him, then there spondents are directed to consider for payment of compensation to the petitioner in the light of the judgment of the Supreme Court aforementioned.