M/S Delhi Transport Corporation vs Surendra Pal
2018 Latest Caselaw 832 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 6691/2017 and CM APPL. 27870/2017

       M/S DELHI TRANSPORT CORPORATION               ..... Petitioner
                     Through: Mr. Vibhor Mathur and
                     Mr. Salil Srivastava, Advocates.

                          versus


       SURENDRA PAL                                    ..... Respondent
                          Through: Mr. Anuj Aggarwal, Advocate with
                          Ms. Deboshree Mukherjee, Advocate.

       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI
       HON'BLE MS. JUSTICE PRATIBHA RANI

                          ORDER

% 05.02.2018

1. The petitioner/DTC is aggrieved by the order dated 08.11.2016, passed by the Central Administrative Tribunal in O.A. No.3348/2014 filed by the respondent working on the post of a Driver in the DTC praying inter alia for quashing and setting aside the order dated 22.05.2014 whereunder, his plea for reinstatement in service stood rejected.

2. By the impugned order, the Tribunal allowed the O.A. filed by the respondent and quashed and set aside the order dated 22.05.2014 passed by the petitioner/DTC with directions to reinstate him w.e.f. 01.08.2013 with notional benefit of seniority and pay fixation and with a further direction

that the actual salary and allowances would be paid to the respondent from the date he assumes the charge on the post of a Driver.

3. A brief glance on the facts of the case is considered necessary. The respondent was appointed as a Driver by the petitioner/DTC vide appointment letter dated 17.01.1988. In the year 2007, the respondent sustained an injury in his top phalange of the little finger of his right hand, which is described in medical terms as "Flexion Deformity". The petitioner/DTC served a Memo dated 23.05.2013 on the respondent in terms of Regulation No.10 of the DRTA (Conditions of Appointment and Services) Regulations, 1952 (in short, „Regulations‟), for conducting his medical examination. The said examination is undertaken in respect of Drivers employed by the petitioner/DTC on their attaining the age of 55 years and only on their clearing the said examination, are their services extended on a year-to-year basis, in terms of the aforesaid Regulation.

4. The respondent was examined by the Medical Board of the petitioner/DTC on 27.05.2013 and he was advised to get his X-Ray conducted. The respondent appeared before the Medical Board on 06.06.2013 along with the X-Ray Report. Based on the said report, the Medical Board declared him unfit on the ground of suffering from "Flexion Deformity" in the little finger of his right hand. This was followed by a notice dated 18.6.2013 intimating the respondent that he would be retired on 31.07.2013, on attaining the age of 55 years. A few days therefrom, on 21.06.2013, the respondent on his own went to the All India Institute of Medical Sciences Hospital, Delhi and got himself examined by a Specialist as an OPD patient and the concerned Doctor opined that the respondent "may be considered fit to drive six wheeler vehicle". A certificate dated

21.6.2013 to the said effect was issued by the Senior Resident, Department of Physical Medicine and Rehabilitation at AIIMS Hospital.

5. Armed with the aforesaid report, the respondent filed O.A. 2502/2013 before the Tribunal in July, 2013 seeking reinstatement in service. Vide order dated 09.01.2014, the Tribunal issued a direction to the Chief Secretary, GNCTD to constitute a Medical Board to get the respondent examined in consultation with the petitioner/DTC at the earliest. In terms of the aforesaid direction, a Review Medical Board was constituted and the respondent appeared before the said Board on 21.05.2014.

6. In the course of arguments, when we tried looking for the report dated 21.05.2014 submitted by the Review Medical Board, which finds mention in the order dated 22.05.2014 passed by the petitioner/DTC, rejecting the respondent‟s representation, learned counsel for the petitioner/DTC states that he has not filed the entire pleadings before the Tribunal. The said statement runs contrary to the certificate dated 17.07.2017 filed by the counsel for the petitioner in these proceedings, certifying inter alia that the complete trial record has been enclosed with the present petition.

7. At this stage, learned counsel for the respondent has handed over his copy of the paper book filed before the Tribunal and on perusing the same, we find that the report of the Review Medical Board states as follows:-

"The candidate is examined by the above mentioned Medical Board on 21.5.2014 as per the Medical Standards of DTC as sent and requested by DTC management.

The candidate is examined and found to be having flexion contracture of PIP jt. of little finger of Rt. hand of about 45 Degree. As per the medical standards of physical fitness of DTC VII (h) no contracture of any part of the body is allowed. Hence the candidate Sunrender Pal is

declared unfit by the board for the post of driver in DTC UNFIT Sd/- Sd/- Sd/-

21/5/14 21/5/14 Dr. S.P.Gupta Manager PLD (DTC) Dr. Harish Mansukhani"

8. The aforesaid document is taken on record. Based on the aforesaid medical report of the Review Medical Board, the petitioner/DTC passed the order dated 22.05.2014 rejecting the respondent‟s request for reinstatement in service. Aggrieved by the said order, the respondent approached the Tribunal by filing a second O.A. which has been allowed by the impugned order. The petitioner has filed the present petition against the said order.

9. Learned counsel for the petitioner submits that the impugned order is erroneous inasmuch as the Tribunal has failed to consider that the respondent had retired from the service only upon attaining the age of 55 years in terms of the Regulations; that the Tribunal has overlooked the medical examination of the respondent conducted by an independent Medical Board, which had reported that he is suffering from "Flexion of Deformity", which makes him unfit to drive any heavy vehicle; that the Tribunal failed to acknowledge that the respondent was driving a public bus and the deformity in his little finger could endanger the life of a large number of passengers. In support of his submission, learned counsel for the petitioner/DTC seeks to place reliance on the judgment dated 23.08.2017 passed by a Division Bench of this Court in W.P.(C) No.7290/2017 entitled Jai Singh Vs. Delhi Transport Corporation and Another".

10. Learned counsel for the respondent counters the arguments advanced by the learned counsel for the petitioner/DTC states that the respondent had continued serving in the petitioner/DTC as a Driver for a period of over 6

years after he had suffered the injury to his little finger in the year 2007 while in harness, and in all those years, he had not caused any accident and nor has any such allegation been levelled against him and that the petitioner/DTC overlooked the fact that one of the members of three Members Review Medical Board constituted by the Chief Secretary, GNCTD comprised of the same doctor, who had submitted a report adverse to the respondent on the first occasion.

11. Learned counsel for the respondent has also relied on the provisions of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 read with Articles 14 and 16 of the Constitution of India to contend that the petitioner/DTC could not have terminated the services of the respondent, even if he was suffering from a deformity/disability. Instead, he ought to have been shifted to some other post with the same pay scale and service benefit, till his superannuation.

12. We have examined the documents filed by learned counsel for the petitioner/DTC and carefully perused the impugned judgment. What appears to have prevailed with the Tribunal for allowing the O.A. filed by the respondent was that he had continued working as a Driver with the petitioner/DTC for over six years before he was retired. Weightage was also given to the certificate issued in favour of the petitioner by the Department of Physical Medicine and Rehabilitation of AIIMS Hospital, declaring him fit to drive a six wheel vehicle.

13. We have examined the certificate dated 21.06.2013 issued by the AIIMS Hospital. The OT assessment of the concerned Doctor states that "patient should be able to drive six wheeler vehicle in the present condition". It was on account of the said certificate that the previous O.A.

filed by the respondent (O.A. No.2502/2013) was disposed of by the Tribunal by issuing direction to the Chief Secretary, GNCTD to constitute a Medical Board to have the respondent examined in consultation with petitioner/DTC. The only role assigned to the petitioner/DTC in the said order was to fix a convenient date for the respondent to appear before the Medical Board. It was not as if any liberty was granted to the Chief Secretary, GNCTD to join the petitioner/DTC‟s Doctors in the Review Medical Board. Contrary to the directions issued by the Tribunal, the Review Medical Board was constituted which comprised of three members out of which one of the Members, was Mr. S.P. Gupta, CMO of DTC Hospital, who had earlier declared the respondent unfit. The report submitted by the Review Medical Board had recorded the deformity of the respondent and gone on to take a note of Regulation VII (h) that refers to Standard of Physical Fitness but had failed to give any finding in respect of free and perfect motion of all joints in the case of respondent and his capability of performing the duties of a driver.

14. It is for the said reason that the Tribunal elected to ignore the report of the Review Medical Board and instead, preferred to rely on the report of AIIMS Hospital where the respondent was examined by a specialist in the field. Further, the anxiety expressed by the petitioner/DTC that the life and limbs of the passengers must not be put at stake by permitting the respondent to discharge his duties as a Driver, would have cut ice had the petitioner/DTC withdrawn the respondent from the subject post immediately after conducting his medical examination on 06.06.2013 and retiring him from service. However, vide Memo dated 18.6.2013, the petitioner/DTC informed the respondent that he would be retiring from service w.e.f.

31.07.2013, on attaining the age of 55 years without withdrawing him from duty. Since the respondent had suffered a deformity while on duty, it cannot be urged by the petitioner/DTC that the management was unaware of the said deformity for seven long years i.e. w.e.f. 2007, when in all this duration he had continued discharging his duties as a Driver and continued driving six wheeler vehicles and was not found deficient in any manner.

15. We are of the opinion that the decision in the case of Jai Singh (supra) relied upon by the learned counsel for the petitioner cannot be of any assistance in the light of the fact that it does not refer to the nature of disability that the petitioner therein was suffering from due to which he was superannuated on attaining the age of 55 years. The said judgment only mentions that he was not found fit for further extension and it was in this background that the Division Bench observed that an employee cannot claim service upto 60 years as a matter of right. There can be no quarrel with the aforesaid legal proposition but given the facts of the present case as narrated above, where the respondent was not found with a physical disability but only a deformity of the phalange of the little finger of his right hand and nothing has been filed to demonstrate that the said deformity had impaired his driving skills. The aforesaid judgment is therefore distinguishable on facts and would not apply to the present case.

16. In the above facts and circumstances, we are of the opinion that the impugned judgment does not warrant any interference. Accordingly, the present petition is dismissed along with the pending application with costs of Rs.10,000/- imposed on the petitioner/DTC. The said costs shall be paid to the respondent within four weeks from today.

17. As we are informed that the respondent has not attained the age of 60 years yet and shall superannuate only on 31.7.2018, he is directed to report for duty to the Regional Manager, DTC (HQ) within ten days from today. The petitioner/DTC shall make compliance of the impugned judgment forthwith.

18. Before parting with the present case, we wish to express our concern on the stand taken by the petitioner/DTC that once a person is employed to the post of a Driver in the DTC, he is medically examined only when he attains the age of 55 years. In other words, if after the date of his induction, a Driver suffers from a medical condition/physical disability of a nature that would make him unfit to perform his duties, there is no procedure laid down for testing his fitness, by assigning a standard of physical fitness for a Driver. The aforesaid aspect is of great importance since a Driver of a bus is responsible for the safety of all the passengers and any laxity on his part can result in loss of precious lives of those on board and on the road, apart from causing damage to the vehicle.

19. This being the position, we deem it appropriate to direct the petitioner/DTC to examine the rule position and if there are no norms, lay down norms with regard to conducting regular medical examination of a Driver posted in the DTC. The petitioner/DTC must ensure that all its drivers undergo regular medical check-ups annually/bi-annually or over a reasonable time as may be considered appropriate and if found physically unfit to discharge their duties as a Driver, they be shifted to some other post, as per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 particularly, Section 47 of the said enactment, which is a beneficial legislation and should be

given effect to in the broadest possible sense.

20. A copy of this order shall be placed before the Chairman, DTC for perusal and compliance. Affidavit of compliance be filed within eight weeks.

21. List on 18.04.2018 for the said purpose.

HIMA KOHLI, J

PRATIBHA RANI, J FEBRUARY 05, 2018 na/charu