Dharam Pal, Driver S/O Sh. Tarwar ... vs Delhi Transport Corporation, ...
2007 Latest Caselaw 1126 Del

JUDGMENT

Kailash Gambhir, J.

1. The petitioner has preferred the present writ petition feeling aggrieved with the order of the respondent dated 30.4.2004, retiring him prematurely after his attaining the age of 55 years after he was found medically unfit by the Medical Board in accordance with the office order No. 99 dated 4/7.10.1963 read with circular dated 30.6.1998.

2. The brief facts which are necessary to decide the present writ petition in nutshell are that the petitioner was employed as a driver with respondent/DTC and on 22.7.2003 while driving the bus No. DL 1 PB 5059 on route No. GL 32 (school bus) was assaulted by the traveling passengers of the bullock carts as the bus which the petitioner was driving just crossed through the two carts without even touching them but still the passengers of the bullock cart got enraged and assaulted the petitioner and inflicted serious injuries with the sticks. Due to such injuries sustained by the petitioner, his right hand got partially paralyzed. The petitioner remained under the treatment at Dr. Ram Manohar Lohia Hospital and although he was not fit to discharge his duties as a driver but he was declared medically fit to perform light duties. Accordingly, the petitioner was assigned other ancillary duties of checking the gas/fuel of the buses and air in the tyres and outshedding/inshedding the buses at the Depot/Workshop. From the date of resumption of duties on this new assignment there has been no complaint of any nature whatsoever against him. The petitioner was nearing to reach the age of 55 years in April, 2004 and as per the office order No. 99 dated 4/7.10.1963 read with circular dated 30.6.1998, the driver of the DTU could get the benefit of increased retirement age which, at the relevant time was up to 60 years, only after, such a driver is found medically fit after a thorough medical examination by the medical officer of the DTU. The petitioner was sent for medical check-up by the medical officer of the DTC on 29.3.2004 and he was directed to report on 8.4.2004 and again on 22.4.2004 when ultimately he was found and was declared unfit to perform the duties of a driver. After finding the petitioner unfit to perform the duties of a driver, the respondent invoked the term of the circular No. PLD-V/Ret./98/2145 dated 30.6.98 and prematurely retired the petitioner from 30.4.2004 in accordance with Clause 10 of DRTA (Conditions of Appointment and Service) Regulations, 1952. It would be appropriate to reproduce the provisions of the said circular whereby the extension of the petitioner beyond the age of 55 years was declined, after he was found unfit to perform the duties of driver.

...The Board further resolved that the drivers of the DTC shall get the benefit of enhanced retirement age subject to their being found fit in every respect after a thorough examination by the Medical Officer of the DTC every year/after they have attained the age of 55 years. The first examination shall be carried out immediately 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 Corporation without any notice.

3. The petitioner has assailed the decision dated 30.4.2004 of the respondent on the grounds that the petitioner has sustained the injuries on account of a sudden accident while performing his duties although he remained medically fit and enjoyed good health in general. Only those persons have to undergo the medical test, who were discharging their duties as a driver at the time of attaining the age of 55 years not of those who were put on some other job. The petitioner has also submitted that he was already assigned ancillary duties other than that of a driver immediately after the said accident and therefore he ought not to have been deprived from his employment till the age of superannuation, which is 60 years, just because he happened to meet with the said accident while discharging his duties. The counsel for the petitioner placing reliance on Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has contended that the decision of the respondent is in utter violation of the said provision of the Act, as any person who is rendered disabled during the service and is not found suitable to perform duties on a particular post, then, such a person should be shifted to some other post with the same pay scale and service benefits, instead of superannuating such an employee.

4. On the other hand, counsel for the respondent placing reliance on the aforementioned two circulars of the respondent has contended that there is no illegality in the action taken by the respondent as the respondent has not violated the provisions contained in the said circulars, whereby any person employed as a driver has to undergo the medical examination after attaining the age of 55 years to see whether the person is medically fit to discharge the duties of a driver. Where on account of any accident or otherwise, a person is found not medically fit then DTC has no option but to retire such a person from the Corporation without giving any notice. The counsel for the respondent has also stated that once an employee is not found medically fit to discharge his duties of a driver then, any extension of service on the said post would certainly imperil the safety of traveling passengers as well as other road users. Counsel for the respondent has further stated that in all fairness respondent was given alternative duties after the accident up to the date of superannuation i.e.12.4.2004, thereafter there was no obligation of the respondent to continue with the said engagement unless the petitioner qualifies the medical test in accordance with law. I have heard the arguments advanced by the counsel for the parties. The main thrust of the argument of the counsel for the respondent is that the petitioner could not have been given any added advantage of his medical unfitness and if in normal course he was to get retired on not qualifying the medical test, then, how the petitioner can be given any special advantage of extending his superannuation to the age of 60 years although not medically fit to discharge the duties of the driver. Counsel for the respondent also contended that once the petitioner was appointed on the post of driver then for getting the benefit of extension, beyond the age of 55 years he has to qualify the medical test in accordance with the office order No. 99 dated 4/7-10-63 read with circular dated 30th June, 1988 and in the present case admittedly the petitioner failed to qualify the medical test, therefore, the petitioner could not have been permitted to continue with the respondent beyond the age of 55 years. In support of his arguments counsel for the respondent has placed reliance on the judgments of this Court in Tarlochan Singh Aujla v. D.T.C. 2005 V AD (Delhi) 607, W.P.(C). No. 4417/2003 titled Rood Singh v. DTC dated 7.4.2005 and another judgment of this Court in WP (C) No. 22194/2005 titled Dalel Singh v. Delhi Transport Corporation and Anr. dated 2nd November, 2006. The contention of the counsel for the respondent is that law in this regard has already been settled by this Court and, therefore, there is no illegality in the decision of the respondent retiring the petitioner on his attaining the age of 55 years after his not qualifying the medical test.

5. In a recent judgment of the Hon'ble Supreme Court in State of Haryana and Ors. v. AGM Management Services Ltd. the Supreme Court has held that the ratio of judgment is not to be applied like a Euclid's theorem and the ratio of the judgment has to be seen in the context of the facts of each and every case. Para 7 of the aforesaid judgment is reproduced below:

7.9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton Mac Dermott observed:

The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.

10. In Home Office v. Dorset Yacht Co. Lord Reid said: 'Lord Atkin's speech...is not to be treated as if it were a statutory definition. It will require qualification in new circumstances.' Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) observed: 'One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament' and, in British Rlys. Board v. Herrington Lord Morris said: 'There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.'

11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo ) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.

6. In view of this dictum of the Supreme Court, the ratio of the aforesaid judgments cited by the counsel for the respondent needs to be examined from the angle of the peculiar facts in which the decision has been given in the aforesaid judgments. In the matter of Tarlochan Singh Aujla v. D.T.C. (supra) the petitioner therein had approached the Court to claim the benefit of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The petitioner in that case was employed as a driver in DTC and met with an accident, as a consequence of which he suffered amputation of his left foot. As a result of the accident, he was pre-maturely retired in December, 1995. In the said petition the petitioner prayed for the reliefs as reproduced under:

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 allowance 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.

7. In the background of the aforesaid prayer of the petitioner the Court had discussed the true scope and intendment of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and held that a person cannot steal an advantage over other person because of his getting disabled. It would be relevant to reproduce the following paras from the said judgments:

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. Ahluwallia 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'.

8. From the aforesaid observations of the High Court it is clear that the petitioner in that case did not prefer to work on the post of peon in which the retirement age was 60 years and had this offer been accepted by the petitioner he would not have retired at the age of 55 years, but at the age of 60 years. This judgment of this Court is not applicable to the facts and circumstances of the instant case, as in the present case, the petitioner is not seeking any promotion or any increase in salary or benefit of DA, gratuity, bonus etc. Moreover in the present case, the petitioner has already accepted the assignment as given by the respondent for discharging the ancillary duties of checking the gas/fuel of the buses etc. In the aforesaid judgment the petitioner had refused the offer of job of peon on which post without undergoing any medical test, as is required to be undergone by the drivers, he could have been retained in service till his normal retirement age up to 60 years. The ratio of the said case is thus not applicable to the facts and circumstances of the present case. The judgment of Rood Singh v. D.T.C. (Supra) is also not applicable to the facts and circumstances of the present case. The petitioner in that case had refused to undergo the medical test on the ground that he was already undergoing some medical treatment and, therefore, declined to undergo the medical test in accordance with the office order No. 99 dated 4/7-10-63 read with circular dated 30th June, 1988. As regards the judgment of Hon'ble Ms. Justice Manju Goel entitled Dalel Singh v. Delhi Transport Corporation and Anr. in W.P.(C) No. 22194/2005, with due respect, I do not agree to the ratio of the said decision as this Court has wrongly placed reliance on the judgment of Tarlochan Singh Aujla(supra), which was not applicable as per the facts of that case.

9. The office order No. 99 dated 4/7-10-63 read with circular dated 30th June, 1988 cannot be faulted with, but shockingly the same has been wrongly interpreted by the respondent. The said clause in the office order has an element of public interest of ensuring safety on the roads. The drivers who are not medically fit cannot be permitted to drive the vehicles without there being such medical test of drivers after their attaining the age of 55 years. It would be against the interest of the passengers and pedestrians, if such medically unfit drivers are allowed to drive on the roads. Already, the accidents on roads have reached alarming figures. The pertinent question is that whether the said office order is also meant for those drivers, who become disabled prior to their attaining the age of 55 years not on account of any natural deterioration or decay in their health, but on account of any accident met by them during the discharge of their duties of driving the vehicles of the respondent. I do not feel that the aforesaid office order is also meant for even those drivers, who receive injuries and are rendered disabled while discharging their duties. If the said office order is interpreted in a manner as suggested by the counsel for the respondent of putting such medically unfit drivers to medical test on attaining the age of 55 years, then, it would amount to making a mockery of all such disabled employees as they know well in advance that they cannot under any circumstances qualify the medical test at the age of 55 years due to their disablement. The medical unfitness of such disabled driver is fait accompli. Such interpretation to the said office order would defeat the very objective and spirit behind the said policy of the DTC, which is meant only for all those drivers, who are to be put to medical test on attaining their age of 55 years to see whether there eye sight has weakened or their limbs have gone weak or there has been any decrease in their physical strength for being not able to drive the vehicle. The said office order certainly is not meant for the persons who become disabled due to any accident or otherwise prior to the age of 55 years and who have already been given some other ancillary job by the respondent DTC under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or otherwise. Even otherwise the retirement age of a driver under the said office order with the amended circular has been fixed as 60 years, but to qualify the service up to the age of 60 years from 55 years the driver has to be declared medically fit after a thorough medical examination by the Medical Officer of the DTC after their attaining the age of 55 years. This would necessarily mean that the age of retirement of a driver stands enhanced from 55 to 60 years, but the benefit of enhanced retirement age can only be availed by the driver, if he remains fit till the age of 60 years. The medical fitness of the petitioner in the present case cannot be put to test for ascertaining his fitness to drive the vehicle as due to the accident he has already been rendered disabled. Once due to such disablement a person cannot be asked to undergo medical fitness test then how such a person can be deprived to claim the benefit of enhanced age up to 60 years. The benefit of 60 years of age in such circumstances should be given to such a physically disabled person who due to such disablement prior to attaining the age of 55 years stands deprived to prove his medical fitness for claiming the benefit of enhanced age up to 60 years. The denial of benefit of enhanced age up to 60 years to such a disabled driver is also in utter violation and disregard of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

10. Based on the above discussion, I feel that the petitioner should get the benefit of enhanced age of 60 years, as due to the accident he has become disabled and due to which alone he stands disqualified to prove his medical fitness on the post of driver. The writ petition of the petitioner is allowed. The respondents are directed to reinstate the petitioner on his assigned post with continuity of service and with all consequential benefits. However, since the petitioner has not been able to perform his duties during this period, 50% wages instead of full wages are awarded in his favor with effect from 1st December, 2004 till the date of his actual reinstatement. The present petition is allowed with the above directions.