Delhi High Court

Delhi Transport Corporation vs Sh.Manmohan on 7 March, 2011

Author: Veena Birbal

*               HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) No.7696/2010 & CM 19998/2010

%                   Date of Decision: March 7, 2011

Delhi Transport Corporation                          ...Petitioner
                  Through Ms.Avnish Ahlawat with Ms.Latika
                            Chaudhary, Advocates

                               Versus

Sh.Manmohan                                        .... Respondent
                    Through Mr.Som Dutt Kaushik, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.   Whether reporters of Local papers may be
     allowed to see the judgment? No
2.   To be referred to the reporter or not? Yes
3.   Whether the judgment should be reported in
     the Digest? Yes



 VEENA BIRBAL, J.

1. By way of this petition under Article 226 read with 227 of the

Constitution of India petitioner-DTC has challenged the impugned

order dated 18th May, 2010 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi (hereinafter referred to as `the

Tribunal‟) in T.A.No.843/2009 wherein the order dated 27th June,

1997 passed by the petitioner retiring the respondent prematurely on

medical grounds and asking him to collect the cheque of

compensation, is set aside. By the impugned order, the Tribunal has

directed the petitioner to continue the respondent on deemed basis

on a supernumerary post in an equivalent grade of Conductor

protecting his pay till he attains the age of retirement and the

superannuation may be personal to him. The Tribunal has further

directed the petitioner that if the respondent is reinstated in service

on deemed basis, he would be entitled to all the consequential

benefits including back wages from 27.6.1997 till date which would

be paid to him within a period of three months.

2. Briefly the facts relevant for disposal of present petition are as

under:

Respondent was employed as a conductor with the petitioner

in May, 1982. On 7th January, 1991, the respondent met with an

accident while he was on duty and was taken to hospital where he

was admitted upto 7th June, 1991. On 8th June, 1991, the

respondent joined his duties after getting a medical fitness certificate

and was posted in the ticketing section where he worked upto 25th

January, 1992. It is alleged that the respondent was not performing

his duties properly as he was not fit to do the same and was sent to

the DTC medical board for examination. The DTC medical board

declared him medically „unfit‟. Against the order of the DTC medical

board, the respondent filed an appeal before the CMD for having him

medically examined from another Board. Petitioner was again

examined by the DTC medical board and vide its report dated 16th

July, 1992 the Board declared him permanently unfit for the post of

Conductor. It is alleged that thereafter the petitioner asked the

respondent to give his consent for re-designation in Class IV or a

lower post vide memo dated 22nd August, 1992 but he did not reply

to the same. Thereafter, the respondent filed a WP(C) No.3113/1992

before this court praying for issuance of appropriate directions

restraining the petitioner from terminating the services of the

respondent or forcing the respondent to retire voluntarily and also

allowing the respondent to perform light duties.

In the said writ petition, this court ordered for a medical

examination of the petitioner by the Medical Board of the petitioner

in order to see whether he was fit to perform his duty as a conductor

or not. The Medical Board as per its report dated 23rd May, 1995

declared the respondent unfit for the post of Conductor permanently.

This court vide order dated 16th October, 1996 disposed of the said

writ petition directing the petitioner that as the respondent was unfit

for the conductor‟s post, in case there was any other equivalent or

lower post on which the respondent could be accommodated, the

petitioner would examine the respondent‟s case and provide such

employment to him protecting his salary, failing which the

petitioner‟s case will be duly considered and examined under the

Scheme which has been formulated by the petitioner for providing

compensation to any of the employees who are medically found unfit

for performing their jobs and for whom no alternative jobs are

available. As no alternative job was available, the Competent

Authority of petitioner approved a compensation amount of Rs.

39,278.40 but the same was not collected by the respondent.

Respondent had filed a contempt petition alleging therein non-

compliance of order of this court dated 16.10.1996 which was

disposed of by the learned Single Judge of this court vide order dated

20th April, 2004 with the direction that since the respondent had

been found unfit for any equivalent or lower post and if he was

aggrieved by the said decision, it would give rise to a fresh cause of

action and it was open for him to challenge the said decision in

accordance with the law. Thereafter, the respondent filed another

writ petition being W.P.(C) No.5393/2005 praying for quashing the

order dated 27th June, 1997 declaring the respondent unfit for the

post or any other lower post and was asked to collect the

compensation for his premature retirement.

3. On account of change of jurisdiction, the said writ petition was

transferred to the Tribunal and was renumbered as T.A.

No.843/2009.

4. Before the Tribunal, the petitioner had contended that the case

of the respondent was considered for an adjustment to Class IV post

as no post was available and as per the staffing norms the

respondent did not fulfil the requisite qualifications, an order was

passed on 3rd April, 1997 prematurely retiring him and offering

compensation which he had not taken.

5. The stand of the respondent before the Tribunal was that his

case was covered under Section 47 of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act,

1995 (hereinafter referred to as `the Act‟), as he incurred disability

during the service, as such, as per the aforesaid Act even if an

alternate employment was not available, the employee could be

continued on a supernumerary post till an attainment of age of

retirement. As this has not been done in his case, the same is in

violation of Section 47 of the aforesaid Act which has an overriding

effect on all the Schemes, law etc. on the subject.

6. The Tribunal relying on the judgment of the Supreme Court in

Kunal Singh Vs. Union of India 2003 SCC (L&S) 482, vide order

dated 18th May, 2010 had allowed the petition of the respondent by

holding that the case of respondent was covered under the aforesaid

Act and quashed the order of premature retirement and directed the

petitioner to reinstate the respondent in service on a deemed basis

with all consequential benefits as is stated above.

7. Aggrieved with the same, the present writ petition has been

filed by the petitioner/DTC.

8. Learned counsel for the petitioner has contended that the

dispute raised before the Tribunal has already been decided in the

earlier writ petition being W.P.(C) 3113/1992 filed by respondent and

is covered vide order of this court dated 16th October, 1996, which

was not challenged by the respondent and had become final. It is

further contended that the Tribunal has decided the matter on the

basis of applicability of Section 47 of the Act. It is contended that

such a stand was never raised in the TA nor the same was argued, as

such petitioner did not have any occasion to deal with the same, as

such respondent is not entitled to any further relief.

9. On the other hand, learned counsel for the respondent has

argued that the matter has been decided by the Tribunal on the

basis of contentions raised before it. It is contended that whether

Section 47 of the Act is applicable or not is a legal issue and even if

the same was not stated in the T.A. filed before the Tribunal, there

was no bar for raising the same at the time of arguments before the

Tribunal. It is further contended that respondent never accepted the

amount of compensation of Rs. 39,278.40 as was offered to him.

10. It is not the case of the petitioner that the "disability" of

respondent does not fall within the meaning of the Act nor any such

stand is taken before this court.

It is also an admitted position that after the accident and after

having suffered the disability, the respondent had rejoined the duty

on 08.07.1991 in Ticketing Section where he had worked uptil

25.01.1992. Even in August, 1992, the petitioner had offered the

post of Class IV to respondent and thereafter he was put off duty as

a result of which respondent had approached this court by filing

C.W. No. 3113/1992 with the following prayer:-

"It is, therefore, prayed that an appropriate writ be issued to the respondents restraining them from terminating the services of the petitioner or forcing the petitioner to retire voluntarily. A writ of prohibition be also issued, restraining the respondents from not allowing to perform light duty as the petitioner is doing now. To issue appropriate writ or writs directing the respondents to allow the petitioner to change his cadre from Conductor to Ancillary worker and such order or orders be passed as the Hon‟ble Court deem fit and proper."

The aforesaid writ petition was disposed of on 16.10.1996

wherein the following order was passed:-

"16.10.96 Present : Mr. Pradeep Gupta for the petitioner.

Mr. Jayant Tripathi for the respondent.

CW.3113/92

The petitioner had come to the Court at the stage when it was proposed by the respondent to terminate his services since he was found unfit for

performing the duties of conductor. After filing of petition, on petitioner‟s application an interim order was passed on 10.9.1992 for maintaining status quo. By a further order passed on 21.2.1995, it was directed that the petitioner be got examined by a Medical Board of the respondent in order to know whether he is fit to perform his duties as a conductor. The petitioner appeared before the Medical Board on 23.5.1995 and as per the affidavit of Shri Taranjeet Singh, Secretary D.T.C. I.P. Estate, New Delhi the Medical Board has opined :-

"Examined Shri Manmohan, Conductor Badge No. 15805 on ...... May, 1995. He is an old case of crush injury Left upper limb with non-united and mal- united fractures of shaft of humerus (L) and shaft of ulna and radius of left side with shortening of upper limb, left elbow joint movement restricted. Board opines that he is unfit for conductor‟s post permanently w.e.f. 23.5.95."

As per the above opinion of the Medical Board the petitioner is unfit for conductor‟s post permanently w.e.f. 23.5.95.

In the facts and circumstances that the petitioner is unfit for conductor‟s post, in case there is any other equivalent or lower post on which the petitioner can be accommodated, the respondents will examine the petitioner‟ case and provide such employment to him protecting his salary, failing which the petitioner‟s case will be duly considered and examined under the Scheme, which has been formulated by the respondents for providing compensation to such of the employee, who are medical found unfit for performing their jobs and for whom no alternative jobs are available. The writ petition with these directions stands disposed of."

11. When the petitioner did not comply with the aforesaid order,

respondent had to file a contempt petition on 16.09.1997 being

Contempt Petition No. 314/1997 alleging therein that the petitioner

had not complied with the order of this court dated 16.10.1996 and

as such had committed contempt of court. The directions were

sought from this court to direct the petitioner to strictly comply with

order dated 16.10.1996 passed by this court in aforesaid writ

petition.

12. In the said contempt petition, the petitioner had taken a stand

that in compliance of order of this court dated 16.10.1996,

compensation had been offered to the petitioner and a letter dated

27.06.1997 had been issued to him wherein the respondent was

informed that he was at liberty to collect the cheque of compensation

on account of premature retirement on medical grounds on any

working day during office hours. It is the respondent who did not

come to collect the cheque as such no contempt was committed by it.

The said contempt petition was disposed of on 26.04.2004. The

relevant portion of the said order is reproduced below:-

"...........................A perusal of the Order of the Division Bench shows that in terms thereof the respondent in its wisdom has found the petitioner unfit for an equivalent or a lower post. If the petitioner is aggrieved by the decision, it would give rise to a fresh cause of action and it is open to the petitioner to impugn the said decision in accordance with law.

Needless to say, if the petitioner is satisfied with the consideration of his case under the scheme, it is open to him to go and collect the compensation.

The contempt petition stands disposed of with the aforesaid liberty and the contempt notices stand discharged."

13. By the aforesaid order, liberty was granted to the respondent

that if he was aggrieved by the decision of petitioner as was stated in

the contempt proceedings, it would give rise to a fresh cause of

action and it was open for him to challenge the said decision in

accordance with law. In terms thereof respondent had availed the

liberty granted and had filed WP(C) 5393/2005 on the basis of fresh

cause of action which had accrued in not providing him equivalent or

lower post. The said petition was ultimately transferred to the

Tribunal wherein the impugned order dated 18th May, 2010 has been

passed.

Further, vide order dated 16.10.1996 of this court, the

directions were given to the petitioner to examine the case of the

respondent for any other equivalent or lower post protecting his

salary as he was unfit for conductor‟s post, failing which his case

was to be considered under the relevant Scheme formulated by

petitioner in this regard. The above order does not mean that

respondent could not have agitated the outcome of said decision of

petitioner any further as is contended. Thus, the contention of the

petitioner that the issue involved was already decided in Civil Writ

No.3113/1992 and the petitioner could not have been permitted to

raise the same again has no force and is rejected.

It may also be noted that the letter dated 27.06.1997, by which

his case has been rejected, holding that any other equivalent lower

post could not be given to respondent, does not give any cogent or

rational reasons. The said letter only mentions that on account of

premature retirement, he is requested to collect the cheque of

compensation. Further, when the directions were passed by this

court for consideration of the case of the respondent on 16.10.1996,

the Act had already come into force. Section 47 of the Act casts

statutory obligation on the employer to protect employee acquiring

disability during service. Petitioner ought to have considered the

case of respondent under the aforesaid Act. No reasons are given as

to why the case of the respondent was not considered under Section

47 of the Act which provides that:-

"47. Non- discrimination in Government employment.

(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post With the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall he denied to a person merely on the ground of his disability; Provided that the appropriate Government may, having regard to the type

of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

As regards not taking specific plea about the applicability of

Section 47 of the Act in the application before the Tribunal, it may be

mentioned that the basic issue raised by the respondent before the

Tribunal was not to prematurely retire him but to give him a job on

account of disability suffered. The Tribunal in its wisdom has

permitted the respondent to raise the contention in this regard under

Section 47 of the Act which is dealt at length in the impugned order.

The petitioner has not been able to show as to how Section 47 of the

Act is not applicable to the facts and circumstances of the case either

before the Tribunal or before this Court despite the fact that full

liberty was given to the petitioner. Rather, considering the facts and

circumstances of the case, a duty was cast upon the petitioner to

consider on its own the case of the respondent under Section 47 of

the Act. The Tribunal relying upon the provisions of Section 47 of

the Act as well as judgment of the Supreme Court in Kunal Singh v.

Union of India (supra) has allowed the petition of the respondent

and has granted relief to him as has been stated above.

14. In Kunal Singh v. Union of India (supra), it has been held by

the Apex court that a person acquiring disability during service is

entitled to be protected under section 47 of the Act. It is also held

that provisions of Section 47 of the Act are mandatory in nature.

The relevant paragraph of the judgment is reproduced which is as

under:-

"9.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this promotion shall be denied to a person merely on the ground of his disability as is evident from sub section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."

15. The Act had come into force on 07.02.1996 but even prior to

the said Act the Courts have been passing appropriate orders for

rehabilitation of such employees who suffered disabilities during the

course of employment. In Special Leave Petition (Civil) No. 1575 of

1991 entitled Shri Vedi Prakash Singh, Conductor Vs. DTC and

Others, Supreme Court gave directions vide order dated 5th August,

1991 to the effect that he should be posted against an equivalent

post and be also paid salary for the intervening period. Similarly, in

the case of State of Haryana Vs. Narendra Kumar Chawla

MANU/SC/0106/1995 : [1994] 1 SCR 657 the Apex Court held that

in case of employees rendered physically handicapped due to

disease, the court has the power to give directions regarding the