O.P. Sharma vs Delhi Transport Corporation And ...
2005 Latest Caselaw 1348 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 1418

1. The petitioner in these proceedings seeks quashing of the order, dated 28.9.1990 issued by the respondents (hereafter called 'the DTC '), by which the petitioner, serving as a conductor, was retired prematurely from its services on ground of medical un-fitness.

2. The petitioner joined the services of DTC as a Conductor on 23.12.1978. He is a qualified candidate having completed graduation in 1975. At the time of his joining the services he was physically handicapped, on account of deformity in his left leg.

3. While in service, the petitioner suffered a paralytic attack, which led to severe impairment of movement, of his leg. He was ill for about five months. On 18.3.1987, the petitioner was subjected to medical test. He was subsequently referred to medical board, which examined him on 25th March, 1987 and 30th March, 1987 respectively. The Medical Board found him to be un-fit. The report of the Medical Board reads as follows:

"Shri Om Prakash Sharma conductor 12837 appeared before Medical Board at I.P. Depot on 30.3.87 for medical examination.

On examination along with record of illness, he is found to be acase of Muscular wasting of (L) leg and fort c hypertensions c partial facial pal by (L) side of force. He is advised to change his designations as it will not be possible for him to perform smoothly the job of conductor."

4. It is claimed that on 6th April, 1987, the petitioner sought for assigning of other duties and he was assigned the duty of Ticket Tally Clerk (TTC). It is also alleged that the petitioner even applied to the post of Assistant Cashier. The job of TTC is to set apart/sort lot of tickets of different denominations, issue them to the Conductors on the following day to the various routes for being distributed to passengers. It is claimed that the petitioner had been even prior to his medical examination performing the duties of the TTC while being posted in Patparganj Depot. It is stated that the petitioner was transferred/posted to the Shahdara Depot and while joining that place he was obstructed Page 1419 in the discharge of his duties. In these factual back round, certain allegations were made against second respondent, that he did not permit smooth discharge of the functions by the petitioner and that eventually in an arbitrary manner, issued the impugned order dated 28th August, 1990. The petitioner states that his disability does not come in the way of his continuing in the DTC; at the time of his termination he was 39 years of age. In the petition, six instances have been given of Conductors who were permitted to work as TTCs after being declared un-fit to continue. It is claimed that the petitioner unsuccessfully represented for continuing in the services but in some other capacity. All into deaf years; he has therefore approached this Court.

5. The DTC in its return as denied liability. It relies upon Regulation 10 of the DRTA (Conditions of Appointment and Service) Regulations, 1952 (hereafter referred to as '1952 Regulations') stating that it is empowered to retire an employee on medical grounds prematurely before he attains the age of 58/60 years, as the case may be. It is averred that the petitioner was unable to discharge the duties as a Conductor and, therefore, his services were no-longer required. The order cannot be termed illegal since it is in the interest of of the Corporation and does not visit the employee or petitioner with penal consequences.

6. The writ petition was heard and decided on 10th March, 2000 by a Single Judge of this Court. At that stage, the petitioner had placed reliance upon the provisions of Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter called the '1995 Act') and the contentions that its could be pressed into service even in pending matters. The Court had in view of the position taken by the respondents that the petitioner could not be appointed as Assistant Cashier or Ticket Tally Clerk, [since those positions were in higher pay-scale than that of a Conductor and also that as per the recruitment rules, the post of Assistant Cashier required at least one year experience of cash handling and maintenance of accounts book] declined to interfere under Article 226 of the Constitution and left it open to the petitioner to raise an industrial dispute.

7. The petitioner had preferred a review petition, pointing out that while disposing off the proceedings, the Court had noted he had declined the work offered as a Peon and that such a finding was not correct. In the light of this, the review petition was allowed and the writ petition was restored to its original position. A number of adjournments were sought for between the years 2001 and 2005. Eventually, the matter was heard.

8. Ms. Rasmeet Charya, learned counsel for the petitioner submits that the respondents have no-where disputed that for a period of four years from the date of impugned order the petitioner was working as a Ticket Tally Clerk. Apart from the raising the objection that such a post was higher in status, no attempt has been made to offer alternative employment. It was submitted that the petitioner is a graduate and was even at the stage of recruitment, appointed as a handicapped person. The impugned order, of 1990 purports to be based upon a Medical Board Report of 30th March, 1987. The DTC completely ignored the intervening position, when, after the petitioner had been declared un-fit to work as Conductor, he was assigned other duties.

Page 1420

9. Learned counsel has placed reliance upon Section 47 of the Act and the judgment of this reported as Vijender Singh v. DTC, and DTC v. Harpal Singh, to say that the obligations under the provisions of the Act would also cover disabilities and instances which arose prior to its commencement. Learned counsel for the petitioner also relied upon the averments made in additional affidavit filed in Court on 6th February, 1996 to say that the petitioner had no objection to be designated as a Peon with protection of pay in the post of Conductor. For the purpose, the judgment reported as Narendra Kumar Chandla v. State opf Haryana and Ors., has been relied upon.

10. Learned counsel for the petitioner further urged that relief and complete consequential benefits should not be withheld in these proceedings merely because the Act came into force after the disability was incurred by the petitioner. She submitted that the claim of the petitioner for reinstatement was pending adjudication. Upon the came into force the Act, if there were any lingering doubt about the obligation of the employer, to offer employment, they stood dis-spelled; the DTC was bound to comply with it and grant employment in terms of Section 47 immediately after 1996. In any case, even if it need not be the same job, it is under obligation to protect the same terms and conditions and continue the petitioner, if necessary, in a superneumry post ill vacancy arose in a suitable post or till his super-annuation.

11. Ms. Geeta Sharma, learned counsel for the respondent DTC submitted that the provisions of the Act did not operate retrospectively. At the time when the DTC took the action and retired the petitioner prematurely, its action could not be found fault with. Indeed the prevalent thinking at that time was that if it was possible to rehabilitate and give some employment, the DTC could do so; however courts were not compelling the employer to take such measures. She has relied upon certain previous orders where the Court has refused to issue directions. It was also contended that the petitioner could not claim the post of TTC or Assistant Cashier as matter of right since those were higher/promotional post. The petitioner was offered alternative lower employment, which he declined.

12. Section 47, of the Act, reads as follows:

"47. Non-discrimination in government employment.

(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:

Page 1421

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 provision of this section.

13. The provision was considered in several decisions, by this court. It has been held that it applies, regardless of where the employee incurs the disability; it acquires primacy, and can be invoked, without application of laches; its benefits have to be given even if compensation is paid, for premature retirement of an employee. The position emerging from the various authorities are as follows:

1)Laches cannot be set up to deny relief, since the Act is a beneficial legislation: Krishan Chander v. DTC

2)The provisions of the Act have to be given effect to in respect of grievances that arose before enactment of the Disability Act: Vijender Singh v. DTC ; DTC v. Harpal Singh ;

3)The provisions categorically enjoin every employer not only to retain, and desist from discriminating employees suffering from impairment, but also to place them in other posts, without depriving any service conditions or benefits, if they are unable the function in their posts:

DTC v. Rajbir Singh ;

14. All 'establishments,' defined to include those under the control of the Government, are under an obligation to comply with the Act, particularly Section 47. This obligation is merely an affirmation of the primary duty not to discriminate, enjoined by Article 14 of the Constitution of India. The Supreme Court had recognized the need by the employer, particularly the State, to ensure rehabilitative measures to persons incurring disability. This emerges from reported decisions prior to the coming into force of the Act (Ref ( Ref Rakesh Chandra Narayan v. State of Bihar 1986 (Supp) SCC 576; B.R. Kapoor v. Union of India AIR 1990 SC 662 and National Federation of Blind v. Union Public Service Commission ). The Act merely ave statutory shape to the primary right of such persons to non-discrimination.

15. In Ramji Purshottam v. Laxmanbhai D. Kurlawala , the Supreme Court held as follows:

"The law coming into force during the pendency of the proceedings is being Page 1422 applied on the date of judgment to the pre-existing facts for the purpose of giving benefit to the tenant in the pending proceedings. This is not retroactivity.

14. Justice G.P. Singh states in Principles of Statutory Interpretation (9th Edn., 2004, at p. 462) "[T]he fact that a prospective benefit under a statutory provision is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective. ... the rule against retrospective construction is not always applicable to a statute merely because a part of the requisites for its action is drawn from time antecedent to its passing."

In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha1 the Constitution Bench held that Bombay Act 57 of 1947 is a piece of legislation passed to protect the tenants against the evil of eviction. And the benefit of the provisions of the Act ought to be extended to the tenants against whom the proceedings are pending on the date of coming into force of the legislation."

Earlier, in the decision reported as S. Sai Reddy v. S. Narayana Reddy, , the Supreme Court had to consider the impact of an enactment, which conferred a new statutory right, by way of entitlement to female Hindus, in co-parcenary properties. Upon resistance to use of the amendment in pending proceedings, on the ground that the rights were freshly created, and applied prospectively, and could not apply in pending proceedings, which were governed by law existing on the date of institution of proceedings, the Court held that:

"Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring an out any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act."

16. In the decision reported as Dilip v. Mohd. Azizul Haq, the Supreme Court explained the meaning of retroactivity, and application of a law, enacted during pendancy of proceedings:

Page 1423

"The result is that if at the time of the institution of the suit for eviction clause 13-A was not in force, but at the time of appeal such a clause is introduced, the tenant in appeal becomes entitled to its protection. We draw support for these propositions from the three decisions of this Court cited by the learned counsel for the appellants. Therefore, we are of the view that the High Court was not justified in holding that there was no appeal filed or pending against the tenant. In this case, although a decree for eviction had been passed in the suit, that decree was under challenge in a proceeding arising out of that suit in appeal and was pending in a court. Thus an appeal being a rehearing of the suit, as stated earlier, the inference drawn by the High Court that no proceedings were filed or pending against the tenant as on the date would not be correct.

8. The High Court further concluded that the amendments have no retrospective effect. The provision came into force when the appeal was pending. Therefore, though the provision is prospective in force, has 'retroactive effect '. This provision merely provides for a limitation to be imposed for the future which in no way affects anything done by a party in the past and statutes providing for new remedies for enforcement of an existing right will apply to future as well as past causes of action. The reason being that the said statutes do not affect existing rights and in the present case, the insistence is upon obtaining of permission of the Controller to enforce a decree for eviction and it is, therefore, not retrospective in effect at all, since it has only retroactive force.

9. The problem concerning retrospectivity concerning enactments depends on events occurring over a period. If the enactment comes into force during a period it only operates on those events occurring then. We must bear in mind that the presumption against retrospective legislation does not necessarily apply to an enactment merely because a part of the requisites for its action is drawn from time antecedent to its passing. The fact that as from a future date tax is charged on a source of income which has been arranged or provided for before the date of the imposition of the tax does not mean that a tax is retrospectively imposed as held in Commrs. of Customs and Excise v. Thorn Electrical Industries Ltd.11 Therefore, the view of the High Court that clause 13-A is retrospective in effect is again incorrect.

10. The High Court further took the view that the expression 'premises' in the Act (sic Order) does not state as to when the amendment was to be effective as it does not state whether the amendment was retrospective or prospective. The same is on the statute-book on the date on which the suit or proceeding is pending for purpose of eviction and cannot ignore the provision on the statute-book. Therefore, the view of the High Court on this aspect of the matter also, is incorrect. The arguments advanced on behalf of the respondents that these amendments are retrospective in character and could not have been made in the absence of an authority under the main enactment by virtue of which such order is made are untenable."

Page 1424

17. It would therefore appear that where by an enactment, beneficial measures are introduced, a litigant is entitled to avail of its benefits, certainly in pending proceedings. In the present case, the DTC, an instrumentality of the State, and admittedly bound by Article 14, was under an obligation to behave in a non-discriminatory and non-arbitrary manner. During the pendancy of litigation, the Act was brought into force; it gave statutory shape to the principle of non-discrimination at the workplace. Hence, its application cannot be construed as retrospective application of a later law.

18. The petitioner admittedly worked for about 4 years after incurring his disability. There is no reason why DTC could not have continued the arrangement, and given him assignments which did not require him to move around. Its insensitivity, led to the premature retirement of the petitioner, who was 39 years at that stage. The Act requires assignment of other duties, if the disabled employee cannot perform the duties assigned earlier. That obligation was admittedly not followed. The DTC stated that another, alternative employment was offered; the post of peon was offered to the petitioner, who agreed to it, but requiring that the DTC ought to protect his pay. Even this was not acceptable to the respondent. The facts show that even aside from the obligations under the Act, the DTC did not attempt to ensure alternative employment, or take into account the intervening 4 years employment of the petitioner in the capacity of TTC. It acted upon an old medical report, which stated that the petitioner could not work as conductor.

19. In the above conspectus of facts, and having regard to the position of law discussed earlier, I am of the opinion that the DTC denied alternative employment for arbitrary reasons; equally it terminated the petitioner's services in 1990, in a high handed manner.

20. In view of the foregoing discussion, the petitioner is entitled to relief. The petitioner is entitled to reinstatement. The impugned order is accordingly quashed. The respondent DTC is directed to reinstate the petitioner and assign him suitable duties in accordance with Section 47. The petitioner shall be entitled to continuity of service for all purposes, including grant of annual increment, consideration for promotion, etc. In the peculiar circumstances of the case, backwages shall be payable from 1-1-1996 till reinstatement of the petitioner. The respondents are directed to pass an order, reinstating the petitioner, fixing him in the relevant grade(s); pass orders of fitment, in accordance with this judgment, and also pay him the back-wages, within a period of 2 months.

21. The Petition is allowed in the above terms, with costs, quantified at Rs. 5,000/-, which shall be payable within 4 weeks.