Delhi High Court

J.K. Satija vs Indian Oil Corporation & Anr. on 11 May, 2010

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHIs

+                           W.P.(C) 3113/1995

%                                            Date of decision: 11th May, 2010

J.K. SATIJA                                                ..... Petitioner
                            Through: Mr. V.K. Rao, Sr. Advocate with Mr.
                                     Vaibhav Kalra, Advocate

                                    Versus

INDIAN OIL CORPORATION & ANR.               ..... Respondents
                 Through: Mr. Jagat Arora & Mr. Rajat Arora,
                          Advocates

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    yes

2.       To be referred to the reporter or not?             yes

3.       Whether the judgment should be reported            yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition impugns the order dated 4th

August, 1995 of the respondent Indian Oil Corporation (IOC) retiring the

petitioner from service with effect from 31st August, 1995 on medical

grounds. The petitioner also sought a direction against the respondent IOC

to allow the petitioner to work till he attains the age of superannuation i.e.

58 years on 31st December, 2002.

2. It is the case of the respondent IOC that it has a "Premature

Retirement Scheme on Medical Grounds"; under the said Scheme the

competent authority of respondent IOC on the basis of the

recommendations made by the Medical Board can order premature

retirement of the employees falling under the category mentioned in the

Scheme; this premature retirement is given by offering adequate monetary

compensation to the concerned employee; that the Medical Board consists

of eminent doctors; that after the examination of the petitioner, it was

reported that the petitioner cannot perform his duties effectively; that the

report of the Medical Board was considered by the competent authority

which then took the decision to retire the petitioner from services in

accordance with the Scheme aforesaid. It is further informed that in

accordance with the said Scheme the petitioner had been paid terminal

benefits of Rs.4,64,620/-. It is further pleaded that the decision to retire on

medical grounds does not constitute a disciplinary action or taking any

punitive action and has no bearing to the past records / conduct of the

employee. The respondent IOC has along with its counter affidavit also

filed the report of the Medical Board which found that the petitioner "has

disturbed mental functions; his comprehensions and understanding is poor;

he cannot give straight answers to simple questions; gets lost during

conversations and drifts away from the points on the discussion; his speech

comes indistinct as well as incoherent while he is talking and he cannot

write simple sentences to dictation and gets lost."

3. The petitioner in the petition, besides contending that the order of

such premature retirement has never been served on him, has contended

that he is not suffering from any such ailment or illness because of which

he could not perform his duties; that the result of the Medical Board was

not disclosed to him and no show cause notice was given to him. The

petitioner has also in the petition referred to his career and promotions in

the respondent IOC. He has thus contended the action of his premature

retirement to be illegal.

4. Notice of the petition was issued on 28th August, 1995. Rule was

issued in the petition on 14th May, 1996. On 14th July, 1998 this Court

directed production of the record of the medical examination of the

petitioner and which was on the next date directed to be placed on record.

The writ petition was dismissed for non prosecution on 24th February, 2009

and thereafter restored on 20th July, 2009. The writ petition was again

dismissed for non prosecution on 17th December, 2009 and restored on 6th

January, 2010.

5. The senior counsel for the petitioner commenced his submissions on

16th April, 2010. It was enquired from the counsels whether the Scheme

aforesaid of the respondent IOC would not be contrary to The Persons with

Disabilities (Equal Opportunities, Protection of Rights & Full

Participation) Act, 1995. The counsel for the respondent IOC on that date

contended that the premature retirement of the petitioner was on 31 st

August, 1995 while the Act aforesaid came into force on 7th February, 1996

and hence the provisions of the said Act would not be applicable to the

petitioner. However, the attention of the counsels was drawn to the

judgment of the Division Bench of this Court in Delhi Transport

Corporation Vs. Sh. Harpal Singh 156 (2009) DLT 481 holding that the

benefit of the said Act shall also be extended to the pending proceedings.

The counsels however informed that they had not considered the matter in

the said perspective and sought time to address.

6. The senior counsel for the petitioner on the next date contended that

that "disability" as defined in Section 2(i) of the Act means inter alia

mental retardation and mental illness and which would cover the grounds

on which the petitioner was found unfit by the Medical Board constituted

by the respondent IOC. I may notice that the notes of the Personnel

Section of the respondent IOC, filed as Annexure-R2 to the counter

affidavit, record that the petitioner is suffering from "dementia".

7. The counsel for the respondent IOC however on that date sought

time to take instructions. The counsel for the respondent IOC has today

contended that he has instructions to oppose the petition.

8. The Premature Retirement Scheme on Medical Grounds has been

approved by the Board of Directors of the respondent IOC. However, the

same is not a statutory scheme. The said Scheme empowers the Competent

Authority constituted thereunder to refer an employee to Medical Board

inter alia when an employee owing to physical and mental infirmity or

deterioration in general health is unable to effectively discharge his duties;

it also enables the employees to voluntarily seek premature retirement on

medical grounds. The Scheme also provides for payment of full PF

contribution of the employer, gratuity, encashment of Earned Leave,

encashment of sick leave, resettlement concession, notice period pay,

superannuation benefit, post retirement medical facility etc. to an employee

prematurely retired under the said Scheme.

9. The Disability Act was enacted to give effect to the Proclamation on

the Full Participation and Equality of the People with Disabilities in the

Asian and Pacific Region adopted in December, 1992 to which India is a

signatory. Section 47 of the said Act provides that no establishment shall

dispense with or reduce in rank, an employee who acquires a disability

during his service. If the employee after acquiring the disability is not

suitable for the post he was holding, it requires the establishment to shift

the said employee to some other post with the same pay scale and service

benefits. It further provides that if it is not possible to adjust the employee

against any post, he is to be kept in supernumerary post until a suitable post

is available or he attains the age of superannuation, whichever is earlier.

An "establishment" is defined in Section 2(k) of the Act as a corporation

established by or under a Central, Provincial or State Act, or an authority or

a body owned or controlled or aided by the Government or a local authority

or a Government company as defined in Section 617 of the Companies Act,

1956 and includes Departments of a Government. There is no doubt that

the respondent IOC is an establishment within the meaning of the said Act.

10. The Supreme Court in Kunal Singh Vs. Union of India AIR 2003

SC 1623 has held that if an employee acquring disability is not protected,

not only the employee but possibly all those who depend on him would

also suffer. Section 47 has also been held to be mandatory.

11. The Premature Retirement Scheme on Medical Grounds of the

respondent IOC enabling the respondent IOC to prematurely retire an

employee acquiring disability during the course of employment is thus

clearly contrary to Section 47 of the Disability Act. The action of the

respondent IOC of prematurely retiring the petitioner is also violative of

Section 47 of the Act and has to be struck down on this ground alone.

12. I have already observed above that even though the petitioner was

prematurely retired prior to coming into force of the Disability Act but

since this writ petition challenging the action of the respondent IOC is

pending, as per the dicta in Harpal Singh (supra), benefit of the Act has to

be extended to the petitioner. I may even otherwise notice that even prior

to the enactment of the said Act, the Courts were interfering in the action of

termination of employment on medical grounds. Reference in this regard

may be made to Anand Bihari Vs. Rajasthan State Road Transport

Corporation, Jaipur AIR 1991 SC 1003 and to DTC Vs. Suraj Bhan

MANU/DE/0419/2010.

13. The counsel for the respondent IOC has contended that though this

petition has remained pending for nearly 15 years and even after the

coming into force of the Disability Act, the petitioner has neither made any

pleadings with respect to the said Act nor sought support from the same.

However, such inaction of the petitioner would not prevent this Court from

extending the benefit under the said Act to the petitioner if found entitled

to. I also find the material on record to be sufficient for extending the said

benefit. I have enquired from the counsel for the respondent IOC also

whether any other pleadings are necessary for determining the applicability

of the Act; if so, opportunity therefor can be given. The counsel has

however fairly stated that no further pleadings are necessary.

14. The counsel for the respondent IOC has also drawn attention to

Kanshi Ram Sharma Vs. Union of India 2002 (4) SLR 292 where a Single

Judge of the Punjab & Haryana High Court has upheld the action of the

respondent IOC of premature retirement of another employee under the

said Scheme and further held that there is no mandate under the regulations

of IOC to offer a job in a lower category to such an employee. However,

in the said judgment the provisions of the Disability Act were not even

considered.

15. The counsel for the respondent IOC next invites attention to Union

of India Vs. S.B. Vohra AIR 2004 SC 1402 to contend that ordinarily the

Courts ought not to exercise the power of the authorities and ought to, in

the first instance allow the authorities to perform their functions and should

not usurp the said jurisdiction to themselves. The counsel contends that the

matter ought to be remanded to the authorities of the respondent IOC to

decide afresh in the light of the provisions of the Disability Act.

16. The aforesaid observations in S.B. Vohra (supra) were made with

respect to the statutory authorities. As aforesaid, the Scheme aforesaid of

respondent IOC is not a statutory scheme. I have nevertheless considered

the viability of so remanding the matter but do not find it to be appropriate

in the present case. The action of the respondent IOC of prematurely

retiring the petitioner as aforesaid has to be necessarily struck down. The

only question which remains for consideration is the relief to be granted to

the petitioner. The petitioner was prematurely retired on 31st August, 1995

instead of 31st December, 2002 on which date he would have retired on

attaining the age of superannuation. The effect of striking down the order

of premature retirement would be that the petitioner would have continued

to be in service and would have been entitled to emoluments till the date of

superannuation on 31st December, 2002. However, now the equities have

to be balanced considering:-

(i) That the petitioner received the terminal benefits in the sum of

Rs. 4,64,620/- in 1995 instead of on 31st December, 2002 /

2003.

(ii) The petitioner has availed of pension from 31st August, 1995

onwards.

(iii) The petitioner has not worked for the respondent IOC.

(iv) It is quite possible that the petitioner owing to his disabilities

aforesaid could not have continued to work and may have

been required to avail of leave without pay also.

(v) The petitioner failed to invoke the provisions of the Disability

Act and which if invoked could have made the respondent

IOC consider the matter in the correct perspective.

17. It is felt that if the matter is remanded back to the authorities of the

respondent IOC to take the decision on the aforesaid aspect, it may start

another round of litigation between the parties and which course is not

found expedient. This Court has therefore considered the matter in the

light of the aforesaid. In my opinion, equities would be balanced by, while

quashing / setting aside of the order of premature retirement of the

petitioner, granting the following reliefs to the petitioner:-

(i) The petitioner would be entitled to pension at such rates as if

he had continued to remain in employment till the age of

superannuation. The petitioner be paid enhanced pension, if

any, on the said basis with effect from 1st January, 2003. The

arrears, if any, of pension from 1st January, 2003 till 30th April,

2010 be paid within eight weeks of today failing which the

same shall incur simple interest at 9% per annum. The

pension with effect from 1st May, 2010 be paid at the

enhanced rates.

(ii) The petitioner for the period 1st September, 1995 to 31st

December, 2002 be paid 60% of the emoluments which he

would have earned if continued in service of the respondent

IOC by virtue of Section 47 (supra) of the Disability Act. The

said percentage has been arrived at after considering the

factors mentioned hereinabove. Out of the amounts so

payable, the amount received as pension will have to be

deducted. The amounts so found due to be also paid within

eight weeks of today failing which the same shall incur simple

interest at 9% per annum.

(iii) The additional terminal benefits, if any, payable to the

petitioner, treating the petitioner to have retired on attaining

the age of superannuation on 31st December, 2002 be also paid

to the petitioner within eight weeks of today failing which the

same shall incur simple interest at 9% per annum.