Dalel Singh vs Delhi Transport Corporation And ...
2006 Latest Caselaw 1947 Del

JUDGMENT

Manju Goel, J.

1. The petitioner is challenging the order dated 25-10-2005 of the respondent No. 1 whereby he was retired with effect from 30-11-2005 on attaining the age of 55 years.

2. The petitioner was working as a Retainer Crew Driver with effect from 21-8-1989. His services had been dispensed with from 20-2-1990 but he was again reappointed on 16-7-1991 and, thereafter, brought on monthly pay with effect from 1-4-1992 and became a regular employee with effect from 1-4-1993. On 7-6-1996 while he was on duty of Bus No. DHP-3565, he met with an accident at Lodi Pur Village at 4.15 hrs. The petitioner received grievous injuries including a fracture shaft humar(right) and fracture dislocation ankle(R). The petitioner asked for injury leave after availing of sick leave and earned leave for the period of 8-6-1996 to 10-9-1996. The petitioner, thereafter, was asked to appear before the DTC Medical Board which advised him rest for 60 days. The petitioner again appeared before the Medical Board on several occasions after periods of rest. On 23-4-1998, the DTC Medical Board after examining the petitioner declared him unfit for the post of driver. He was retired on medical ground with effect from 23-4-1998. The petitioner challenged this order before the Civil Court in Delhi which passed a mandatory injunction on 10-9-2005 directing the DTC to reinstate the petitioner in service and to consider the case of the petitioner in terms of Section 47 of Persons with Disabilities(Equal Opportunities, Protection of Rights and full participation) Act, 1995 (hereinafter referred to as the `Act') The petitioner was, thereafter, taken back and was reinstated vide a letter dated 20-10-2005 and was given gate duty in view of the provisions of Section 47 of the Act. The respondent, however, served the petitioner with the letter dated 25-10-2005 retiring him from service with effect from 30-11-2005 as he would attained the age of 55 years on 1-11-2005.

3. It is contended on behalf of the petitioner that the age of retirement of DTC employees is 60 years and, thereafter, he could not be retired at the age of 55 years. He is conscious of the fact that the drivers of DTC can get employed beyond the age of 55 years provided they undergo a thorough medical check up every year on attaining the age of 55 years and their services can be extended till the age of 58 years,(now enhanced to 60 years) on being found fit in all respects to work as drivers. It is, however, contended on his behalf that since the petitioner has been assigned the duty at the gate, he is not governed by the rules requiring examination on attaining the age of 55 years and, therefore, he should be allowed to continue in service.

4. The respondent is vehemently disputing the claim of the petitioner by saying that by virtue of Section 47 of the Act, the petitioner has been restored all the benefits of his service as a driver and he has been getting all the pay and allowances etc. as a driver, although he has been given duty of a Gate Keeper in view of his disability. It is contended on behalf of the respondent that he continues to be a driver for the purpose of service conditions and, therefore, on attaining the age of 55 years, not being fit to work as a driver in view of the permanent disability, is liable to be retired.

5. Both parties have argued in support of their claims. The case is covered by the judgment of this Court in the case Tarlochan Singh Aujla v. D.T.C. 2005 V AD (Delhi) 607 where this very question came for examination. A DTC driver after an accident in course of his work suffered amputation of foot. He was adjusted in the post of Peon on account of Section 47 of the Act and was retired at the age of 55 years. The same rule was quoted by the DTC respondent. The Court held as under:

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.

6. This is the natural fall out of the provisions of Section 47 of the Act. The Act does not anywhere say that the person disabled during his service be given better emoluments and service conditions than what he was already enjoying. It already protects him from his employment in all respects since his employment as a driver would have come to an end at the age of 55 years being found to be medically unfit to work as a driver. There is no reason why his employment should be extended, despite disability, beyond the age of 55 years. I am entirely in agreement with the decision of this Court in the case of Tarlochan Singh Aujla v. D.T.C.(supra).

7. The writ petition is dismissed.