Virender Kumar Gupta vs Delhi Transport Corporation
2001 Latest Caselaw 1360 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Having met with an accident, the petitioner herein not only had to undergo physical and metal torture, but on top of that, he also lost his means of livelihood as he was prematurely retired by the respondents, by issuing an order dated 29th May, 1998.

2. The petitioner while working as a Conductor with the respondent/Corporation was confirmed in the said post. On 24th December, 1996 the petitioner met with an accident consequent to which the petitioner was admitted to the Ram Manohar Lohia Hospital and thereafter, he was transferred to the All India Institute of Medical Sciences. The petitioner remained under treatment in the said Institute and during the period of the aforesaid treatment the petitioner was granted medical leave without pay by the respondent. After treatment in the said Institute the petitioner was discharged and a medical certificate was issued to him by the authorities of the Institute certifying that the petitioner has recovered from his illness and fit to resume his duties with effect from 31th October, 1997 and that he is fit to do desk job only.

3. On receipt of the said medical certificate and the fitness certificate, the petitioner met the Deport Manager of the respondent requesting him to take back the petitioner on duty and to assign him appropriate desk work as suggested by the authority of the Institute. The Depot Manager directed the petitioner to report to the Medical Board of the respondent/Corporation on the same day whereupon the petitioner reported to the Medical Board and submitted the Fitness certificate issued by the Institute. The petitioner appeared before the Medical Board. However, the petitioner received a Memorandum dated 29th May, 1998 issued by the Depot Manger whereby the petitioner was informed that consequent upon his having been declared medically unfit by the Medical Board of the Delhi Transport Corporation, the petitioner working as a Conductor stood retire prematurely from the aforesaid post with effect from 29th May, 1998 under para 10 of the D.R.T.A. (Condition of Appointment and Service) Regulations, 1952. Being aggrieved by the said order, the petitioner filed the present petition in this Court seeking for quashing and setting aside the said order with a further direction to the respondent to take back the petitioner in service with continuity of service and all consequential benefits.

4. The respondent contested the writ petition contending, inter alia, that there is no provision of absorbing the operational staff in the light/desk job and that as the petitioner as per the report of the doctor of the All India Institute of Medical Sciences was capable of performing the light/desk job only, the same could not be given to him as there is no such provision of light/desk job for the operational staff and, therefore, the petitioner was declared medically unfit, under report dated 25th May, 1998. it was also submitted that as per the D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952, the Medical Officer of the Delhi Transport Corporation Medical Board is the competent authority to recommend an employee fit for duty or rest on the basis of medical examination and that in the present case the Medical Board submitted a report dated 25th May, 1998 declaring the petitioner medically unfit after due examination of his physical condition.

5. Counsel appearing for the petitioner during the course of his arguments contended that one of the premier Institutions of the country, namely, the Institute having opined that the petitioner is fit for desk job the petitioner should have been provided with an alterative job instead of passing an order prematurely retiring the petitioner from service. He further submitted that there are several other posts which are equivalent to the post of Conductor and, therefore, the petitioner should have been absorbed in any of such posts in terms of the policy adopted by the Government of taking measures to rehabilitate handicapped persons. It was submitted that by refusing to accommodate the petitioner in an equivalent post without any valid ground, the respondent has ignored its responsibilities. In this connection, reference was also made to the provisions of Section 47 of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" (hereinafter called the 'Act').

6. Counsel appearing for the respondent, on the other hand, submitted that since the Medical Board of the Corporation opined that the petition was medically unfit, therefore,e there was no question of further retention of the petitioner in the service of the Corporation and accordingly he was prematurely retired from service. he further submitted that the provisions of Section 47 of the Act are not applicable to the facts and circumstances of this case. He also submitted that even if the said provisions are found to be applicable, it would have been open for the petitioner to approach the Chief Commissioner under the provisions of Section 59 of the Act which provides for an alternative remedy and since an alternative remedy exists, the present petition under Article 226 of the Constitution of India is not maintainable.

7. In the light of the aforesaid submissions of the counsel appearing for the parties, I proceed to decide this matter on merit.

8. There is no dispute to the fact that the petitioner met with an accident and he had received treatment initially at Ram Manohar Lohia Hospital and thereafter in the All India Institute of Medical Sciences. The petitioner was under treatment of the All India Institute of Medical Sciences for a long period of time and after the said treatment, the petitioner recovered. He was also issued a medical certificate by the All India Institute of Medical Sciences which indicates that the petitioner was not declared to be totally incapacitated from working. It was clearly stipulated in the said certificate that the petitioner could be given desk job which he would be able to perform. In spite of the said certificate and the clear opinion of the doctor of the Institution which is an established premier and famous hospital of the country, the respondent could have acted upon the said opinion. Even assuming that such a second opinion was necessary, the doctor of the Corporation could not have given an opinion superseding the opinion of a reputed and expert on the subject working in the Institute. It is also interesting to note that the doctor of the respondent/Corporation did not dispute the fact that the petitioner is capable of doing desk job. Therefore, on the records of the case, it is established that the petitioner was capable of doing desk job provided such a job is made available to him.

9. In the case of Ved Prakash Singh v. Delhi Transport Corporation and Ors. Civil Appeal No. 3138/1991 disposed of on 5th August, 1991, the Supreme Court in a similar case, on consideration of the records, found that there exists several posts in the Corporation which are treated to be equivalent to that of a Conductor. Therefore, the petitioner could have been accommodated in one of such posts in view of the policy being adopted in this country of taking measures to rehabilitate handicapped persons. In the aforesaid case, the Supreme Court found that the respondents refused to accommodate the employee who was working as a Conductor in an equivalent post without any valid ground and accordingly directed the appropriate authority to offer a post to the said employee equivalent to the post of Conductor with continuity of service and for payment of back wages at the rate payable to the Class IV post.

10. In my considered opinion, the ratio of the aforesaid decision is also applicable to the facts of the present case for the medical opinion clearly holds the petitioner fit for desk job and such a post could have been found out for the petitioner as there are several posts which are treated equivalent to that of a Conductor. In this connection, reference may also be made to the decision of this Court in Baljeet Singh v. Delhi Transport Corporation; . In the said case also the respondent/Corporation prematurely retired the petitioner therein who was also working as a Conductor. This Court while dealing with the said case invoked the provisions of Section 47 of the Act which clearly mandate that no establishment would dispense with or reduce in rank the employee who acquires the disability during his service. It was further provided that even if he is not suitable for the post he was holding, as a result of disability, he is to be shifted to some other post with same pay scale and service benefits and even if he cannot be adjusted against any other post, he is to be kept on supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

11. A reading of the said provision makes it crystal clear that the intention of Section 47 is lud and clear and in unambiguous term. It is clearly declared that the service of a person shall not be dispensed with upon his acquiring disability during his service. In the said decision, it was further held that even if it is presumed that there is a power vested with the Chief Commissioner under Section 59 of the Act, existence of alternate remedy is not an absolute bar for exercising jurisdiction under Article 226 of the Constitution of India. It was further held that there is no power with the Chief Commissioner or the Commissioner to hold order of termination of service or dispensing the service of an employee or reduction in rank to be invalid and to enforce such an order or to pass order of a prohibitive nature or to compel an establishment to take back the employee whose services have been terminated illegally and in contravention of the mandatory provisions of Act of 1995.

12. In my considered opinion, the ratio of the aforesaid decision of this Court also applies to the facts of the present case in full force and I see no reason to deviate from the aforesaid conclusions arrived at by this Court. Accordingly, following the ratio of the decision of the Supreme Court as also of this Court in the aforesaid cases, I allow this writ petition and set aside the order or premature retirement of the petitioner dated 29th May, 1998 with a direction to the respondent to take the petitioner back in service and pay the salary from the date when the respondent stopped paying full salary soon after the accident/injury as the case may be. The petitioner would be treated as in continuous employment without any break in service. The respondent shall pass appropriate orders within a period of six weeks from today offering a post to the petitioner equivalent to the post of Conductor and pass such orders as are necessary in terms of the proviso to Section 47 of the Act. Pending application stands disposed of accordingly.