Delhi Transport Corporation vs Presiding Officer, Labour Court ...
2003 Latest Caselaw 522 Del

JUDGMENT

Mukul Mudgal, J.

1.The writ petition filed by the DTC challenges the award dated 1st March, 1990 rendered by Labour Court IV, Delhi. The facts of the case are that the respondent No. 2 while on duty as a driver (class III post) sustained an injury in his left eye and the Management upon medical examination through Dr. Rajendra Prasad Centre for Opthalmic Science came to conclusion that the respondent No. 2 Ram Kumar was visually unfit for appointment as a Driver.

2.The respondent No. 2 was offered job of Peon/Store Assistant, admittedly a lower post in Class IV than that of the respondent No. 2 was holding. Upon declining the said offer for appointment on the alternate post of Peon, respondent No. 2 was prematurely retired which action was challenged by seeking a reference leading to the award dated 1st March, 1999 impugned in the present writ petition. The Labour Court came to a conclusion that there was deficiency in the vehicle as adequate protection by way of glass was not provided in the window and it also found that the injury was sustained while respondent No. 2 was driving the vehicle of the petitioner. The Labour Court also found that respondent No. 2 had declined the offer for the post of Peon and found such rejection of lower post to be justified. The Tribunal has derived sustenance from the benefits given to similarly situated drivers. Based on this logic that the drivers similarly situated were given the same post, the denial to respondent NO. 2 the same post was found unjustified and discriminatory and accordingly action of the petitioner in prematurely retiring the respondent No. 2 was set aside by the impugned award.

3.Learned counsel for the respondent No. 2 has sought to submit that in response to a claim by the respondent in this Court under the Persons with Disability (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act), and the benefit there under should be given to the respondent No. 2.

4.Learned counsel for the petitioner also averred that the petitioner could not offer the workman the post of Vehicle Inspector sought by him as he was not qualified not being a senior most driver.

5.Counsel for the petitioner submitted that the impugned action was taken on 3rd May, 1985 well before the Act came into force. Accordingly, the provision of the Act should not be made applicable in the present case. Relying upon the order of the learned Single Judge in Rohtash Kumar vs. DTC in CWP No. 2689/1996, where the learned Single Judge has held that since the case of the petitioner was rejected prior to coming into force of the enactment of the Act only a few days after and the Act being prospective benefit of the same could not be extended to the workman. Learned counsel for the respondent No. 2 in response to this plea has relied upon an observation of the learned Single Judge in Baljeet Singh vs. Delhi Transport Corporation, it has been held :

"16. I may mention here that even when the aforesaid legislation was not enacted Courts have been passing appropriate orders for rehabilitation of such employees who suffered disabilities during the course of their employment. In Special Leave Petition (Civil) No. 1575 of 1991 entitled Shri Vedi Prakash Singh, Conductor v. DTC and others, Supreme Court gave directions vide order dated 5th August, 1991 to the effect the he should be posted against an equivalent post and be also paid salary for the intervening period. Similarly, in the case of State of Haryana v. Narendra Kumar Chawla, , the Apex Court held that in case of employees rendered physically handicapped due to disease, the Court has power to give directions regarding absorption of such employees carrying a pay scale equal to that of his original post. A known essential requirement for appointments to that post can also be relaxed. It is further observed in that judgment that such an employee has right to protection of pay. Even when he is absorbed in a lower post, he is entitled to protection of the pay scale of his original post in view of Article 21 of the Constitution of India."

6. Learned counsel for respondent No. 2 has also relied upon the order of the Hon'ble Supreme Court dated 5th August, 1991 in a Civil Appeal arising out of Special Leave Petition (C) No. 1575/1991 titled Ved Prakash Singh vs. DTC wherein the relevant observations read as under:

"Assuming that the Corporation is right that the appellant is now not fit to be a Conductor, there is another aspect which the authorities have failed to take into account. From Annexure 'A' to the rejoinder affidavit, it appears that several posts are being treated equivalent to that of a Conductor, and having regard to the Medical report, it cannot be suggested that the appellant is unfit for being entrusted with the duties of any of these posts. On the last date when the matter was heard in part, we had drawn the attention of the counsel for the respondents to this aspect and the case was adjourned for the respondents to consider the feasibility of appointing the appellant as a Junior Telephone Operation, Confidential Clerk, Counter or in any other equivalent post. The learned counsel for the appellant states today that the Corporation is not prepared to offer the appellant a post in Class III. The learned counsel however has not been able to suggest any acceptable reason in support of the stand of the respondents. While we find a policy being adopted in this country of taking measures to rehabilitate handicapped persons, the respondents are referring to accommodate the appellant in an equivalent post without any valid ground. Having considered all the relevant circumstances we therefore direct that appropriate orders shall be passed by the respondents within a period of three weeks from today offering a post, equivalent to the post of Conductor, to the appellant. His continuity of the service shall also be maintained. So far the back wages are concerned, the respondent shall allow the same for the intervening period at the rate payable for a Class IV job."

7.Thus without going into the fact whether the aforesaid Act can be retrospective and can apply to the facts of the present case, in my view the judgment of the Hon'ble Supreme Court in Ved Prakash (supra) and Baljeet Singh's case (supra) sets down the parameters applicable to the present case. The aforesaid findings made by the Hon'ble Supreme Court about the measures needed to rehabilitate handicapped persons have assumed greater force after coming into force of the said Act in 1996. Accordingly, without going into the question that whether the Act could operate retrospectively, I am of the view that in accordance with the judgment of the Hon'ble Supreme Court in Ved Prakash Singh's case (supra), respondent No. 2 ought to have been absorbed in a post which offers emoluments equivalent to the post of Driver on which the respondent No. 2 was employed prior to his premature retirement. Even though the Hon'ble Supreme Court had granted back wages at the rate payable for a lower post of Class IV instead of Class III in which the workman was reinstated, it is not discernible from the judgment of the Hon'ble Supreme Court whether the workman there had declined the offer of a lower post. Accordingly it would not be appropriate to offer all the back wages to respondent No. 2 who has declined the offer of lower post. However, since I found that the decision of the DTC to be unjustified and respondent No. 2 himself contributed to the present situation by declining to accept the lower post, it will be in the interest of justice that 25% back wages for the intervening period from the date of award up to the date of reinstatement which is payable to the Class IV employee is paid on or before 1st July, 2003. The respondent No. 2 shall also be reinstated on or before 1st July, 2003.

8. The writ petition stands dismissed with the aforesaid modification in the award to the extent of reduction of back wages.