The General Manager Northern ... vs Dharam Pal
2010 Latest Caselaw 2665 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 11134/2004

%                                            Date of decision: 19th May, 2010

THE GENERAL MANAGER
NORTHERN RAILWAYS                           ..... Petitioner
               Through: Kumar Rajesh Singh, Advocate

                                    Versus

DHARAM PAL                                            ..... Respondents
                            Through: Mr. Ravi Prakash Gupta, Advocate
                                     with Mr. Suman Gupta, Mr. Mehul
                                     Miland Gupta & Mr. S.K. Chauhan,
                                     Advocates

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    NO

2.       To be referred to the reporter or not?             NO

3.       Whether the judgment should be reported            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner Railways by this writ petition impugns the award

dated 19th April, 2004 of the Labour court holding the order of termination

of services of the respondent workman by the petitioner Railways to be

illegal and bad and directing reinstatement of the respondent workman with

the petitioner Railways along with 25% back wages from the date of

discharge till the date of reinstatement. This Court vide order dated 16 th

July, 2004, while issuing notice of the petition stayed the operation of the

award. The said order remains in force till date. No application under

Section 17B of the I.D. Act has been filed by the respondent workman.

2. The respondent workman was employed with the petitioner Railways

as a substitute Safaiwala, according to the petitioner Railways from 15th

March, 1978 and according to the respondent workman since 16 th May,

1977. The respondent workman claims that he in the course of

performance of his duties was exposed to the sun during the Solar Eclipse

in the year 1980 and owing whereto he started losing his eye sight; he

claims that inspite of treatment in the Railway Dispensary, Railway

Hospital and other hospitals, his eye sight continued to deteriorate. The

respondent workman was examined by the Medical Board of the petitioner

Railways on 13th May, 1983 when he was found medically unfit for all

categories of employment with the petitioner Railways. The respondent

workman was discharged from service on 13th May, 1983. The respondent

workman on or about 21st March, 1990 challenged the order dated 13th

May, 1983 of his discharge from service before the Central Administrative

Tribunal. The Tribunal however vide its order dated 24 th December, 1991

though finding that the respondent was working on a regular scale of pay

and that his total effective service with the petitioner Railways was for the

period from March, 1978 to January/February, 1980 when he lost his eye

sight and though of the view that since the respondent was medically de-

categorized, he should have been regularized in service after due screening,

dismissed the petition of the respondent workman for the reason of the

respondent workman having failed to agitate his case at the appropriate

time; the Tribunal did not find any satisfactory ground to condone the delay

for the reason of the respondent workman having not explained the same

properly. The application of the respondent workman was thus dismissed.

3. The respondent thereafter approached the authorities under the

Industrial Disputes Act and a reference dated 18th October, 1994 was made

to the Labour Court leading to the award impugned in this petition.

4. The counsel for the petitioner has contended that the respondent

workman having elected to the jurisdiction of the Central Administrative

Tribunal and having not elected to the jurisdiction of the Labour Court,

cannot be permitted now to invoke afresh the jurisdiction of the Labour

Court after having been unsuccessful before the Central Administrative

Tribunal; it is contended that if the respondent workman is so allowed, it

would encourage forum shopping. It is further contended that the

respondent workman could not have invoked the jurisdiction of both the

Central Administrative Tribunal and the Labour Court for the same cause

of action. It is further the plea of the petitioner Railways that the

respondent workman did not challenge the finding of the Medical Board

and which had attained finality and thus had no right to challenge the

consequent order of his termination. It is further contended that the

provisions of Section 25F of the I.D. Act were not available to the

respondent workman once he had submitted himself to the jurisdiction of

the Central Administrative Tribunal.

5. The Labour Court has decided in favour of the respondent workman

only for the reason of the provisions of Section 25F having not been

followed and has further held that even if the respondent workman was

medically unfit for the post on which he was working, he could have been

continued / posted on any other alternative post to perform a work which

he could do inspite of his deteriorated eyesight.

6. The petitioner Railways has relied on "Master Circular on

Absorption of Medically de-categorized Non-gazetted Staff in Alternative

Jobs" issued by the Ministry of Railways. However, the said Circular is

also not found to provide for dismissal from service. A perusal of the letter

dated 13th May, 1983 of discharge of service issued by the respondent

workman also shows that he was entitled to be considered for absorption in

alternative posts in terms of the said Circular. There is however no

explanation whatsoever as to why the respondent workman was not

absorbed in any other post.

7. The writ petition was listed for hearing on 10th March, 2010. It was

put to the counsel for the petitioner Railways as to why the provisions of

The Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995 will not be applicable to the respondent

workman. The counsel for the petitioner Railways contended that the

disability in the present case was incurred way back in 1980 and the

respondent workman was discharged from service on the said ground on

13th May, 1983 i.e. much prior to the coming into force of the said Act on

7th February, 1996 and thus the present case would not be covered by the

provisions of the said Act. The attention of the counsel for the petitioner

Railways was however invited to the dicta of the Division Bench of this

Court in DTC Vs. Harpal Singh 156 (2009) DLT 481 holding that

provisions of Section 47 of the said Act cannot be given retrospective

operation but in pending proceedings the benefit thereof can certainly be

extended. The counsel for the petitioner Railways had sought time to study

the said judgment.

8. The counsel for the petitioner Railways has today at the outset urged

that the judgment in Harpal Singh (supra) would not apply because the

respondent workman in the present case had first approached the wrong

fora i.e. Central Administrative Tribunal and that too after nearly seven

years of the order of his discharge. It is contended that 27 years have

elapsed since the dismissal of the respondent workman from service and in

all probability the respondent workman would have superannuated by now.

It is urged that for this reason alone the respondent workman is not entitled

to any relief. On a query as to why the respondent workman was not

absorbed in any other category as per the Master Circular (supra), it is

contended that the respondent workman was not a regular employee and

the said Circular was not applicable to him.

9. Per contra, the counsel for the respondent workman informs that the

respondent workman is now about 54 years of age. He further urges that

the Central Administrative Tribunal has not decided the matter on merits

and thus the respondent workman was entitled to invoke the jurisdiction of

the Labour Court.

10. The letter dated 13th May, 1983 declaring the respondent workman

medically unfit does not show that the respondent workman was not a

regular employee of the petitioner Railways. Rather it states that till the

case of the respondent workman for absorption in an alternative post is

decided, he will be treated as on leave. No other decision of the petitioner

Railways to the effect that the respondent workman was not so entitled to

be absorbed in alternative posts has been placed on record. A perusal of the

order dated 24th December, 1991 of the Central Administrative Tribunal

also does not show that any such plea was taken then by the petitioner

Railways. No such plea is found in the reply filed by the petitioner

Railways to the claim before the Labour Court also. Thus the reason now

given of the respondent workman having not been absorbed in an

alternative job as per the Circular aforesaid, for the reason of not being a

regular employee of the petitioner Railways is clearly an afterthought.

Though the petitioner Railways has also filed an additional affidavit before

this Court on 17th April, 2009 but no document in support of the same has

been given therewith also.

11. As far as the plea of the petitioner Railways of the award being

erroneous for the reason of the respondent workman having earlier

approached the Central Administrative Tribunal is concerned, I may notice

that Section 28 of the Administrative Tribunals Act makes the jurisdiction

of the Central Administrative Tribunal concurrent to the foras under the

I.D. Act. The Central Administrative Tribunal has not adjudicated the

claim of the respondent workman on merits. The said claim was rejected

only for the reason of having been made after the period of limitation

provided for preferring the claim. No limitation is prescribed for reference

of a dispute under the I.D. Act. Nothing wrong can thus be found in the

respondent workman, after the rejection of his case by the Central

Administrative Tribunal for the reason of being barred by time, preferring

the same under the I.D. Act. The said claim of the respondent workman

was pending on the date of coming into force of the Disabilities Act and as

per the dicta aforesaid of the Division Bench of this Court, the benefit of

Section 47 of the said Act has to be necessarily extended to the respondent

workman. I may notice that the Disabilities Act was enacted in compliance

of the international commitment made by India much prior to the coming

into force of the Act. Even without the Disabilities Act, the Courts had

taken a view that an employee who suffers disability during the course of

his employment cannot be turned out for the reason of the disability and

has to be absorbed in another job. I have recently in DTC Vs. Suraj Bhan

MANU/DE/0419/2010 discussed the said aspect in detail and need is not

felt to reiterate the same in this judgment also. Thus viewed from any

angle, the action of the petitioner Railways of removing the respondent

workman from service for the reason of the disability of blindness (which

is covered by the Disabilities Act) having been suffered by him is bad in

law and no error can be found in the award of the Labour Court and the

same calls for no interference.

12. It is considered whether this Court owing to such long lapse of time

should modify the award to that of payment of lumpsum amount to the

respondent workman. Upon the same being put to the counsel for the

respondent workman, he invites attention to the recent dicta in Harjinder

Singh Vs. Punjab State Warehousing Corporation AIR 2010 SC 1116

which has reiterated the importance of reinstatement. Having even

otherwise considered the matter, this Court feels that grant of a lumpsum

compensation may not provide relief to the respondent workman. The

lumpsum amount is likely to be frittered away. The respondent workman

who is now informed to be totally blind requires monthly subsistence. The

counsel for the respondent workman informs that the respondent workman

has been reduced to a state of begging. In the circumstances, it is felt that

monthly payments by way of wages would provide appropriate relief to the

respondent workman.

13. The petition is therefore dismissed. The petitioner having enjoyed

the stay of operation of the award for the last six years is now directed to

comply with the award within six weeks of today failing which the

petitioner shall also be liable for payment of simple interest at the rate of

7% per annum on the arrears due to the respondent workman. The cost of

litigation having already been directed to be paid, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 19th May, 2010 gsr