Delhi High Court
Delhi Transport Corporation vs Mohinder Pal Sharma on 6 August, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
WP (C) No. 8579/2007
+
DELHI TRANSPORT CORPORATION ......Petitioner
Through: Mr. Jitender Kumar Advocate.
Versus
MOHINDER PAL SHARMA .....Respondent
Through: Mr. Bharat Bhushan Bhatia, Advocate.
Judgment pronounced on: 6th August, 2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MANMOHAN SINGH, J.
1. The present writ petition has been filed by the petitioner
under Articles 226 and 227 of the Constitution of India seeking the
order for quashing the award dated 26.05.2007 passed by POLC
No. VII in ID No.116/04. The facts leading up to the filing of the
present writ petition are that the respondent was appointed as a
Retainer Crew Conductor w.e.f. 15.02.1978 and was brought on
monthly rates of pay w.e.f. 15.02.1978. He proceeded on leave
from 13.02.2001 to 26.02.2001 on account of sickness. The
respondent was directed to report to DTC Medical Board for a
medical checkup on vide memo dated 04.09.2001 and after the
checkup on 07.09.2001 the respondent was advised by the Medical
Board to rest for two months.
2. On 12.11.2001 the respondent again appeared before
the Medical Board as he was required to do so and on that date he
submitted a permanent visual disability certificate issued to him by
the Gurunanak Eye Centre, Maulana Azad Medical College, New
Delhi, according to which the respondent has a permanent
disability vision of 30%. Therefore the Medical Board, vide order
dated 18.12.2001, declared him unfit for duty and the respondent
was given premature retirement under clause 10 of the DRTA
(Condition of Appointment and Services) Regulations, 1952.
Subsequently he was given compensation of Rs. 1,64,406/- vide
cheque no. 070858 dated 20.02.2002. The respondent had opted
for DTC pension and presently he is getting pension of Rs. 2,472/-
per month. The respondent has already received an amount of Rs.
1,58,832/- of total pension from his retirement till September 2007.
3. In 2004 the respondent filed an application under Sub-
Section 4A of Section 10 of the Industrial Disputes Act, 1947
directly before the Labour Court praying to revoke his pre-mature
retirement order dated 18.12.2001 and to reinstate him with full
back wages and continuity of service.
4. By the impugned award dated 26.05.2007, the learned
Labour Court, set aside the premature retirement of the respondent
and declared it to be illegal, unjustified and applied Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 to the facts of the present case and
awarded a compensation of Rs. 1,50,000/- to the petitioner as an
alternative to reinstatement with back wages. Aggrieved by the
said award the petitioner has filed the present writ.
5. One of the grounds of the present writ petition is that the
Industrial Tribunal does not have the authority to exercise any
power for the enforcement of rights under the Persons with
Disabilities Act, 1995 because as per the said Act any complaint
with regard to deprivation of rights of persons with disabilities is to
be made before the Chief Commissioner under section 59 of the
Act. It is further stated by the petitioner that the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 is not applicable to the facts of the present
case as the said Act stipulates specific cases which would be
covered under the Act considering the degree and nature of
disability. Non-fitness for the post does not translate into the cover
of the Disabilities Act, 1995 unless other conditions as to the
applicability of the said Act are fulfilled. Section 2 (t) clearly
stipulates a disability of not less than 40% to be covered under the
Disabilities Act.
6. In the counter affidavit filed on behalf of the respondent
it has been is stated that the respondent developed Low Vision
during the period of service and is covered under Sub-Section (u) of
Section 2 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 which reads as
under :
"2(u). Person with Low Vision" means a person with
impairment of visual functioning even after treatment
or standard refractive correction but who uses or is
potentially capable of using vision for the planning or
execution of a task with appropriate assistive device;"
7. It is also pointed out in the counter that on 28.04.2007
Sh. Gopak Shukla M.W-1 stated in his cross examination that as per
the report of the medical board the respondent has not been
declared unfit for any other post. He also accepted in his cross-
examination that the respondent was not issued any chargesheet
or notice before his termination. The notice dated 18.12.2001
under reference No. DGD/PFC (Cond) /2001/3268 declaring the
respondent unfit for the post and recommending his pre-mature
retirement was in contravention to the Rules & Regulations framed
by the petitioner. As per the respondent, since he sustained loss of
vision during the course of employment with the petitioner he was
entitled to re-employment on a different post on an equivalent
salary.
8. It appears from the record that the petitioner, while
considering the report of the Medical Board without issuing any
show cause notice, communicated to the respondent by way of
letter dated 18.12.2001 declaring him unfit to continue to the post
of conductor and recommended premature retirement from the
service of the petitioner corporation in terms of Clause 10 of the
DRTA (condition of appointment and service) Regulation 1952 w.e.f.
12.11.2001. The said notice of premature retirement is in
contravention to the rules and regulations framed by the petitioner
corporation which is resolution no.23 issued by the Financial
Establishment Sub Committee in their meeting held on 15.10.1973
which reads as under:
"That the employees who are rendered unfit on
medical grounds, to perform their duties may be
considered for re-employment on lower post or
equivalents posts on which they may be found suitable
keeping in view the merits of each case."
9. It is not denied by the petitioner that the respondent
developed low vision during the period of service and he is covered
under sub-section (u) of Section 2 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995. The decision for premature retirement by the petitioner
is prima facie arbitrary and against the law as the respondent
developed low vision to the extent of 30% during the course of his
service. As per the medical certificate the said low vision does not
affect prima facie the working potential of the respondent. The trial
court, in lieu thereof, has granted Rs. 1,50,000/- as compensation
apart from the payment already received by the respondent from
the petitioner.
10. Considering the overall facts and circumstances of the
matter, it appears that the said amount of compensation awarded
by the trial court in the order dated 26.05.2007 is reasonable and
the finding cannot, therefore, be interfered with. The petitioner is
directed to pay the said amount of Rs. 1,50,000/- along with
interest at the rate of 9% from the date of award till the date of
payment within six weeks from today.
11. The writ petition is dismissed with cost of Rs. 5,000/-
which shall be paid by the petitioner to the respondent along with
the abovementioned amount.
MANMOHAN SINGH, J.
AUGUST 06, 2010
Jk/dp
