Tarlochan Singh Aujla vs D.T.C.
2005 Latest Caselaw 763 Del

JUDGMENT

Vikramajit Sen, J.

1. This Petition requires the interpretation of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short) which came into force vide S.O. (E) dated 7th February, 1996. The facts of the case are that the Petitioner had joined the Army in September, 1968 and was discharged in October, 1983. He was employed by the Delhi Transport Corporation as a Driver in December, 1985. He met with an accident while coming from Lucknow to Delhi on 22.8.1994 as a consequence of which he suffered an amputation of his left foot, and was prematurely retired in December, 1995. It shall be assumed that in compliance with the requirements of the Disabilities Act the Petitioner ware-employed as a Store Attendant, which according to the Respondents is a job which he could perform.

2. This Petition has been filed praying for with the following reliefs:

"It is, therefore, prayed that in view of the above circumstances, the writ of mandamus be issued against the respondent corporation with cost, thereby directing the respondent to absorb and place the respondent on the post which he would have been entitled to if he had not suffered the accident in August, 1994 and to grant all benefits including the increase in the salary and other benefits such as D.A., Bonus, gratuity, promotion etc. immediately and further to pay the entire arrears of salary and allowances w.e.f. August, 1994 till date. Any other order which this Hon'ble Court may deem fit and proper under the circumstances of the case, may be also granted in favor of the petitioner and against the respondent corporation."

3. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as follows:

Non-discrimination in Government employments.-(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 in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

4. It is contended by learned counsel for the Respondent that the Disabilities Act should not be enforced retrospectively. I am unable to find any merit in that argument for the reason that the Petitioner has been re-employed after the coming into force of the Act and would, therefore, be entitled to all the consequences of this avowedly beneficial Act. The object of the statute is to alleviate by way of a monetary measure, the disadvantage of having suffered a permanent disability.

5. Mr. Ahluwalia, learned counsel appearing for the Petitioner submits that the Petitioner has been paid salary in the scale of a Store Attendant whereas, as obligated under the Act, the Respondent should have shifted him to the present post with the same pay-scale and service benefits. Reliance has been placed by learned counsel for the Petitioner on the decision of Mukul Mudgal, J in Delhi Transport Corporation Versus Presiding Officer, Labour Court IV, Delhi and Anr. 105 (2003) DLT 208, where the decisions in Rohtash Kumar Versus DTC in CWP No.2689/1996 as well as Baljeet Singh Versus Delhi Transport Corporation, 83 (2000) DLT 286 had been taken note of. Viewed from any angle, the Respondents cannot be faulted in their conduct, in that the Petitioner has been given employment by adjusting him against the post of Peon, which is a job which he can suitably perform.

6. The only question which remains is whether the Petitioner is entitled to all the emoluments and other benefits applicable to his initial employment as a Driver. In Rood Singh Versus D.T.C. WP (C) No.4417/2003 decided by this Court on 7.4.2005, the question which had arisen before this Court was whether the person who has not cleared a physical examination on his attaining the age of 55 years could nonetheless claim extension of service as a Driver till he attained the age of 58 years. It had been explained by learned counsel for the Respondent that the DRTA (conditions of Appointment and Service) Regulations, 1952 originally contemplated the age of retirement at 55 years. This age of retirement was increased to 58 years by Officer Order No.999 dated 4.10.1963. Unfortunately, the Corporation has not seen it fit to do the obvious, that is, to substitute the original Regulation 10 by the complete Regulation which includes sub-paragraphs A-F. Had that been done it would have been abundantly clear that every Driver must appear for a Medical Test after having attained the age of 55 years as is envisaged in sub-paragraph F which reads as follows:

(f) The drivers of the D.T.U. Shall got the benefit of the enhanced retirement age subject to their being found fit in every respect after their medical examination by the medical officer/officers of the D.T.U. Every year after they have attained the age of 55 years. The first examination shall be carried out immediate after or before they have attained the age of 55 years. If as a result of such medical examination they are found unfit for further service, they would be retired from the service of the Undertaking without any notice.

I had arrived at the conclusion that this was impermissible. None of the cases considered by my learned brother Mukul Mudgal, J. took into their sweep this legal conundrum. The inescapable conclusion is that the Petitioner could not have claimed beyond the age of 55 years, which prescription applies to every Driver engaged by the DTC. The ratio of the Judgment of the Apex Court in State of Haryana Versus Narendra Kumar, 1994 (4) SCC 460, as also of Mukul Mudgal, J. is that which post the disabled employee is rehabilitated to he would be entitled to receive pay/emolument/benefits in accordance with the scale of his original post. Mukul Mudgal, J. has deprecated a refusal to work at a lower post, where a corresponding level job cannot be performed.

7. Since the prayer of the Petitioner is that he should receive emoluments in the scale payable to a Driver, which were the duties performed by him at the time of the accident, he must also clear the physical test which would entitled him to continue after the age of 55 years. The Disabilities Act does not give any added benefit to a person who has suffered an accident; it endeavors to level the disadvantages facing the employee as a result of the injuries sustained by him. Basically it enjoins the continuance of service on all terms applicable to all other employees. My attention has been drawn by learned counsel for the Petitioner to sub-clause 2 of Section 47 of the Disabilities Act which enunciates that no promotion shall be denied to a person merely on the grounds of a disability. It is contended that the next promotional position is that of Vehicle Examiner. Mr.J.P.Singh, Depot Manager, clarifies that one of the essential duties for a Vehicle Examiner is to drive the vehicle in the event of an emergency; in checking the functioning of a Bus he would also require to drive it. If the Petitioner, due to his disability cannot claim as a right the continuance in service beyond the age of 55 years because of his being medically unfit on reaching that age, he cannot steal an advantage over other persons because of his disabilities. The effect is that whilst the Petitioner would be entitled to payments in the pay-scale and receive all service benefits of a Driver, since he is not medically fit beyond the age of 55, he would have to superannuate on his attaining this age. This is also the intendment of the second proviso to Section 47 itself.

8. The State has the responsibility to look after its citizens. It appears to me that there is great merit in the adage that whilst there are limits to a persons need, there are no limits to his greed. The State has endeavored to look after the Petitioner in as best a manner possible by engaging him as a Peon but the Petitioner seeks to derive a premium from his accident. It had been specifically put to learned counsel for the Petitioner whether he would prefer to carry on in the post of Peon in which the retirement age is 60 years. That prayer, however, has been declined.

9. This Writ Petition is allowed to the extent that the Petitioner would be entitled to salary in the pay-scale of a Driver together with all service benefits till his superannuation on attaining the age of 55 years. Arrears/difference in salary be paid with effect from the date of re-employment i.e. December, 1996 till date. Mr.Ahluwalia contends that the Petitioner would also be entitled to unpaid salary for the period December, 1995 to December, 1996, but there is no prayer to this effect. This relief does not come within the general and residuary prayer of `consequential benefits'.

10. Payment be made within six weeks from today.

11. There shall be no orders as to costs.