Shri Sunil Kumar vs Delhi Transport Corporation And ...
2005 Latest Caselaw 744 Del

JUDGMENT

Vikramajit Sen, J.

1. Rule. The matter has been heard at length and, therefore, is being finally disposed of.

2. This is yet another case where Delhi Transport Corporation (DTC) has considered it expedient to prematurely retire a workman, in the face of their own Resolution as well as the mandates of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as `the Disabilities Act') rather than take work from him. The effect is, as in so many cases which have come to Court, that the DTC shall have to pay wages to persons from whom the have taken over, largely due to the obduracy of the Corporation.

3. Circular No. PLD-III (Remustering/absorption) 96/2221 dated 11th October, 1996 reads as follows:

"It has been decided by the DTC Board vide its Resolution No. 116/96 (Item No. 94/96) that the existing scheme of payment of compensation as circulated vide office order issued vide office order issued vide No. PED-III(Remustering/Absorption)/95/3318 dated 13th November, 1995 to those employees who are rendered medically unfit by the DTC Medical Board for the posts they were appointed, on their pre-mature retirement on medical grounds, may continued to be followed, subject to the following modifications:

i) In case of injury caused by accident arising out of and in the course of employment and as a result of which an employee is incapacitated for the work which he was capable of performing at the time of accident resulting in total disablement, shall be rehabilitated either in these equivalent post or lower post subject to the conditions that he fulfillls the conditions of educational qualification and is medically fit for the new post.

ii) The definition of total disablement shall be the same as specified in section 2(i)(1) of the Workmen's Compensation Act, 1923."

4. This Resolution has been taken note of by Hon'ble Mr. Justice Mukul Mudgal in Writ Petition (Civil) No. 4311/1997 titled as Shri Ompal Sharma v. Delhi Transport Corporation decided on 3.11.1999. In that petition Shri Ompal, the Petitioner, met with an accident as a consequence of which his left leg below the knee was amputated. After discussing the decisions rendered in P.M. Singh (dead) v. Sriniwas Sabtal, 1976 1 SCC 289, SLP (C) No. 1575 of 1991 titled as Ved Prakash Singh (Conductor) v. Delhi Transport Corporation and Ors., CWP No. 1148 of 1991 titled as Shri Phool Chand v. Delhi Transport Corporation and Anr. decided on 28.4.1998 by a Learned Single Judge of this Court, and Baljeet Singh v. Delhi Transport Corporation, 83(2000) DLT 286 etc., Justice Mudgal had decided that the shortening of one leg by two centimeters was sufficient to force the employee to be pre-maturely retired. As per its own Resolution it was the duty incumbent on the Respondent to enquire whether the Petitioner could be rehabilitated either in an equivalent post or lower post so long as he possessed the educational qualification as well as medical fitness for the alternate post. Instead of embarking on this exercise, the services of the Petitioner have been brought to an end. It is contended by Mr. J.N. Aggarwal, learned counsel for the Respondent, that this Resolution would apply only in the event that the injury was caused by an accident arising out of and in the course of employment. However, decisions of Courts have held that it is wholly immaterial where the injury is caused while on duty or at any other time. The Disabilities Act is a beneficial enactment. No person will welcome an injury to his person.

5. Mr. Aggarwal has also relied on the definition of Disability in Section 2 of the Disabilities Act. I am unable to appreciate how it can possibly be contended that the injury of the Petitioner does not fall within the term `locomotor disability' which term has itself been defined to take within its sweep disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs. It has been contended that the Petitioner had been employed as a Conductor and that he can no longer fulfilll these functions. I am unable to agree with this contention. Since 1998 when the Petitioner's services were brought to premature end, if not prior thereto, Conductors were expected to occupy a fixed position in the bus.

In the present instance it is not that the Petitioner is unable to walk. Perhaps he cannot run as well as other persons but that is not a concomitant of his service requirement. Mr. Aggarwal has also drawn my attention to Section 2(t) which defines persons with disability as those suffering from not less than forty per cent of that disability. The argument is a double edged weapon. On the one hand it would not be possible to contend that the Petitioner does not suffer from forty percent disability and yet try to sustain an order where a workman's services have been brought to an end on the grounds of disability.

6. There is also another unsurmountable obstacle in the path of the DTC and that is that disablement would not be a reason for the cessation of a contract of employment and would go against the intendment of the Industrial Disputes Act.

7. The decision to prematurely retire the Petitioner is predicated on in-house medical examination. Subsequent to the cessation of the Petitioner's employment the Respondents had themselves referred him to L.N.J.P. Hospital. It has been asseverated by the Petitioner that he was found fit for employment and this has not been specifically denied.

8. In the present case the Petitioner has been paid his terminal benefits. A similar question came up before Hon'ble Mr. Justice S.K. Kaul who had ordered in CWP 7840/2001 titled Jiwa Lal v. Delhi Transport Corporation decided on 1.5.2002 that the compensation for premature retirement on medical grounds could be adjusted against the amounts payable to the Petitioner on his premature retirement having been held to be illegal.

9. Judgments of several Benches of this Court have repeatedly struck down administrative decisions such as the one which has been impugned in this writ petition on the grounds that they are contrary to law. The Respondent ought to have endeavored to find a position for the Petitioner which would permit him to continue in service even if his injury has disabled him to discharge the functions of a Conductor. This is also the mandate of the Disabilities Act. It is not open to the Respondent to claim termination of service on the grounds of medical disability and yet plead insulation against the requirements of the Disabilities Act as well as its own Resolution extracted above.

10. The impugned order is accordingly quashed. The Petitioner shall report back for duty on 23.5.2005 in the Office of Senior Manager (Personnel), I.P. Estate, New Delhi. He shall be paid his back wages within sixty days from today. Since the effect of this would be that the Petitioner shall receive salary for a number of years without having worked for that period I refrain from imposing costs. The DTC, however, should reconsider the futility of such Order and the burden caused on the public exchequer. It would be desirous and certainly more expedient, therefore, for it to determine which jobs the disabled or injured persons/employees can be rehabilitated into. The direction of Hon'ble Mr. Justice Kaul is to be followed in that the amounts which has already been paid by way of premature retirement/compensation shall be adjusted against past wages. The Petitioner shall be entitled to continuity of service.

11. A copy of this order be given dusty to counsel for the parties.