Hawa Singh vs Delhi Transport Corporation
2012 Latest Caselaw 743 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 7880 OF 2011

                                       Reserved on: 22.11.2011
%                                      Pronounced on: 03.02.2012

HAWA SINGH                                        ....PETITIONER
                         Through:      Mr. Ravindra S. Garia, Advocate.

                                VERSUS

DELHI TRANSPORT CORPORATION          . . . RESPONDENT

Through: Ms. Avnish Ahlawat, Advocate with Mr. Ajit Nair, and Mr. S.K.

Bansal, Advocates.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE

1. The petitioner herein joined the duties with Delhi Transport

Corporation (DTC) as a Driver in the year 1980. He worked in that

position till the end of 2006. However, in January, 2007, the petitioner

developed serious heart ailment. He was treated in AIIMS. An Automatic

Implantable Cardioverter Defibrillator (AICD) was implanted. The

Doctor advised light duties to the petitioner. The petitioner‟s request for

grant of light duty was declined by the respondent Corporation and its

Medical Board and the petitioner was told that if he did not perform his

duty as driver of passenger bus, he would be put on rest and thus would

lose all his salary and allowances. The petitioner was put on rest instead

of being granted light duty and the period of rest was repeatedly

extended. The petitioner was not paid the salary etc. during the period for

which he was put on rest.

2. This was done on the advice of Medical Board of the DTC. After

examining the petitioner, the Medical Board refused to give him light

duties finding that if he could not perform regular driving duties, he

should be put „on rest‟. The petitioner kept on making representations

for assignment of light duties to him. . When his request was not

acceded to, he filed Writ Petition (C) 8129/2007 claiming full pay wages

and compensation. In this writ petition, DTC appeared. On 15th

September, 2008 statement was made by the DTC that it was willing to

give light duty to the petitioner. Accordingly, the petitioner started

getting light duties. The dispute therefore is from the date when he was

put „on rest‟ till 15th September, 2008 when he was assigned the light

duties. For the intervening period, he was not paid any salary. The writ

petition was transferred to Central Administrative Tribunal (CAT) and

the DTC was brought under the purview of CAT. The contention of the

petitioner was that he was entitled to the benefit of Disabilities (Equal

Opportunities, Protection of Rights and full Participation) Act, 199 and as

per Section 47 thereof, it was incumbent upon the DTC to give him other

light duties or in any case release the salary to him. He relied upon the

judgment of this Court in the matter of Kumar Bharat Prasad Narain

Singh Vs. Airport Authority of India, 2005 (V) AD Delhi 513 wherein

the learned Single has held that heart ailment or adverse condition is

also covered by the provisions of the Disabilities Act. The CAT

dismissed this petition on 17th July, 2009. Challenging that order, the

petitioner filed writ petition in this Court in which orders dated 17th

February, 2010 were passed granting liberty to the petitioner to file

review petition. The said review petition was dismissed by the Tribunal

holding that heart ailment resulting from a heart attack followed by

implanting of an AICD does not find mention in the list of disabilities

mentioned in the Act. The present writ petition is filed against the order

dated 17th July, 2009 passed in passed in OA and order dated 24 th

March, 2011 passed in the review petition.

3. At the outset we would mention that the words "disability" and

"person with disability" is defined in Section 2 of the Act itself and is

extracted below:-

"2 (i) "disability" means-

(i)blindness;

(ii)Low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability

(vi) mental retardation

(vii)mental illness;

"2(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority."

4. It is clear from the above that, only a person with disability of the

nature suffering mentioned in Section 2 (i) of the Act is entitled to the

benefit of Section 47 of the Disabilities Act. No doubt, in Kumar

Bharat Prasad Narain Singh (supra) the learned Single Judge of this

Court had held that even when a person suffers heart ailment, be as a

consequence of his working with the employer, he would be entitled to

the benefit of the Act. However, this judgment of the learned Single

Judge was over ruled by the Division Bench in LPA 1601/2005 decided

on 14th December, 2005. The Division Bench held that the definition of

Disability and Section 2(i) is an exhaustive one and not an inclusive one

and since heart ailment is not mentioned therein, a person suffering such

ailments would not be treated as disabled within the meaning of

Disabilities Act. In view thereof, the judgment of the Tribunal cannot

be faulted with. It is clear that the approach of the Tribunal in the

impugned order is in tune with the law laid down by this Court and,

therefore cannot be faulted with.

5. We may mention here that the learned counsel for the petitioner

had referred to the judgment of the Madras High Court in the case of G.

Muthu Vs. Management of Tamil Nadu State Transport Corporation

(Madurai) Limited (2006) 4 MLJ 1669. In that case, the appellant was

also working as a Driver in the State Transport Corporation. Since

Medical Board reported that he was suffering from "colour blindness"

and hence unfit to work as a driver, the appellant was discharged from

service on medical grounds. In this context, the question arose about the

applicability of Disability Act. Section 2 (i) of the Act does not cover

"colour blindness". However, the Division Bench of the Madras High

Court held that liberal interpretation is to be given to the provisions of

Section 47 of the Act and the term „disability‟ used in Section 47 can

draw support not only in respect of defined „disability‟ contained in

Section 2 (i) of the Disability Act, but will also encompass such other

disabilities which would disable a person from performing the work

which he held immediately prior to acquisition of such „disability‟ and

thereby entitled him to avail the benefits conferred under the said

provisions for having acquired such a „disability‟. In fact, for this very

reason, the learned Single Judge had decided the said issue which has

been over ruled by the Division Bench of this Court.

6. Since we are bound by the judgment of the Division Bench of our

Court, it is not possible to rely upon the judgment of Madras High Court

in this behalf.

7. We would be failing in our duty if we do not refer to the judgment

of Division of this Court to which one of us (A.K.Sikri,J) was a Member.

In that case, entitled Union of India and Ors. Vs. Suresh

Kumar,(W.P.(C) 9443/2007 dated 17.12.2007) the aforesaid extracts

from G. Muthu (supra) was referred to and relied upon. However, that

was not on the interpretation of Section 47 of the Act but on the

interpretation of "blindness" which is one of the disabilities mentioned in

Section 2 (i) of the Disabilities Act. The „blindness‟ was held to include

"colour blindness" and in that context, the aforesaid judgment of the

Madras High Court in G. Muthu (supra) was relied upon. Insofar as

issue at hand is concerned, it is squarely covered by the Division Bench

judgment of this Court in Airport Authority of India Vs. Kumar Bharat

Prasad Narain Singh (LPA 1601/2005 decided on 14.12.2005) and since

judgment of a Coordinate Bench is binding, we find no merit in this writ

petition which is accordingly dismissed.

8. There shall be no order as to costs.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE FEBRUARY 03, 2012 skb