Telangana High Court
Col.Satyanaryana Prasad Putchala, ... vs C. Parthasarathy, Hyd And 3 Others on 13 December, 2023
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HONOURABLE SRI JUSTICE P. NAVEEN RAO
W.P.NO.19847 OF 2013, C.C.NOs. 604 OF 2016 AND
1863 OF 2017
Date : 01.03.2017
WP No. 19847 of 2013:
Between :
Mohd. Allauddin S/o. late Md.Azeemuddin,
Aged 47 years, Occu: Driver APSRTC No.800033
of Gawel Pregnapur Depot, Medak District,
r/o. H.No.6-36/2, Yerrakuntam, Barkas,
Hyderabad.
.... Petitioner
And
The Vice Chairman & Managing Director,
APSRTC, Bus Bhavan, Musheerabad,
Hyderabad and others.
.... Respondents
The Court made the following:
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2
HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION No.19847 of 2013, CONTEMPT CASE
NOS.604 OF 2016 AND 1863 OF 2017
COMMON ORDER:
Writ Petition No.19847 of 2013 is filed praying to grant the
following relief:
"to issue an appropriate Writ or order or direction more
particularly one in the nature of WRIT OF MANDAMUS
declaring the 2nd respondents action in not finalizing the case
of the Petitioner by the 2nd respondent declaring "FIT' OR
"UNFIT" for the post of driver under Al category since 25-4-
2013 is illegal, arbitrary, unjust and violation of Principles of
Natural Justice and consequently direct the respondents to
pay the sick salary to the petitioner till providing an any
alternative emplacement under Section 47 of Disabilities Act
keeping in view of the Sangareddy and Tarnhaka Hospital
Doctors Opinion who declared unfit to the petitioner for A-1
category.
2. With the consent of learned counsel for petitioner as well as
learned standing counsel, the writ petition and contempt cases are
disposed finally by this common order.
3. Heard learned counsel for petitioner and learned standing
counsel for respondent corporation.
4.1. Learned counsel for petitioner contended that Medical Officer
declared him as unfit to be a driver; on a request made by
petitioner, he was referred to Medical Board and as per the
direction, petitioner appeared before the Medical Board on
24.04.2013 and the allegation that petitioner did not appear is
false.
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4.2. He would submit that after he was declared as unfit, all
along he was kept out of duty, by compelling him to exhaust sick
leave and other leaves to his credit causing lot of hardship and
suffering.
4.3. He would submit that since petitioner was declared as
medically unfit, till alternative job was provided, petitioner is
entitled to salary and allowances for the period he was put off duty
and sick leave and earned leave be credited to petitioner's account.
Petitioner is entitled to pay and allowances in the cadre of Driver.
4.4. By referring to several directions issued by the Court, he
would submit that by their action, respondents have disobeyed the
orders of this Court with impunity and are liable to be punished
under the Contempt of Courts Act.
5.1. The learned standing counsel primarily contended that
cause in the writ petition does not survive and these issues cannot
be gone into in the present writ petition.
5.2. He further contended that praying to vacate order dated
19.09.2013, made in WP MP No.24336 of 2013, WVMP No.368 of
2015 is filed and the same is not considered and without
considering the WVMP, respondent Corporation cannot be hauled
up for contempt and be directed to comply with the orders.
5.3. He would further submit that as petitioner was declared as
medically unfit, he is not entitled to salary and allowances for the
period he was put off duty and the said period would be treated as
leave to which petitioner was entitled.
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5.4. He would further submit that petitioner did not appear
before the Medical Board in spite of several notices and, therefore,
he is to be blamed for delay in assessment by Medical Board and
he, therefore, cannot claim salary for the said period.
5.5. He would submit that as petitioner has not worked during
January to May, 2016, he is not entitled to salary by applying the
principle of no work no pay.
5.6. He further submitted that though petitioner was not
entitled to salary for the period from September, 2013 till May,
2016 as he did not work, in compliance of Court orders, he was
paid basic salary attached to the post and is not entitled to
increments for this period as he did not work.
6. The facts in brief are as under:
Petitioner was appointed as Casual Driver Grade-II and later
regularized w.e.f. 31.07.1997. With effect from 17.10.2012,
petitioner reported sick. Petitioner was subjected to medical
examination on 31.12.2012 by the Medical Officer at Sangareddy
and was also examined in Tarnaka hospital on 06.02.2013 and he
was declared as unfit to work as Driver A1 category as he was
diagnosed with, 'right sensori motor axonal neuropathy'. Petitioner
submitted his representation dated 20.02.2013 requesting to refer
him to re-medical examination at Board level. The said request
was accepted and he was directed for re-medical examination by
the Medical Board of the respondent corporation hospital at
Tarnaka. According to Petitioner, the Medical Board also declared
him unfit to work as Driver.
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7. Petitioner filed the writ petition alleging that there was total
inaction in taking further decision as a consequence to the
declaration given by the respondent Corporation hospital at
Tarnaka, causing lot of hardship and suffering.
8. This Court by order dated 19.09.2013 made in
W.P.M.P.No.24336 of 2013, directed the respondent Corporation to
release the salary of the petitioner from that date on words
including for the month of September, 2013 until further orders.
9. Alleging that this direction was not complied with, petitioner
filed C.C.No.1862 of 2013.
10. The stand of the respondent Corporation on the allegation of
non- compliance of the directions of this Court, dated 19.09.2013,
was that in spite of request made and directions issued, petitioner
did not appear before the Medical Board and unless he is declared
as unfit by the Medical Board, no action can be taken.
11. This Court by order dated 09.11.2015 directed the petitioner
to appear before the Medical Board, which was scheduled to be
held on 18.11.2015 and further directed the Medical Board to
examine the petitioner and to place before the Court the report of
Medical Board. Petitioner was accordingly examined. On
assessment by the Medical Board, petitioner was declared as unfit
to continue as Driver. It is now beyond pale of doubt that petitioner
was unfit to continue as Driver.
12. The writ petition came up for consideration along with
contempt cases on 07.01.2016. The Court noticed that even
though on 19.09.2013, this Court directed payment of salary from
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September, 2013 onwards but the salary was not paid. However,
stand of the respondent Corporation was that salary sent through
the Demand Draft to the petitioner was returned unserved.
Whereas counsel for petitioner while accepting the fact that some
amount was paid, but amount sought to be paid is not as per his
entitlement and does not amount to full compliance of the interim
orders dated 19.09.2013.
13. Having regard to these submissions, this Court by order
dated 07.01.2016 directed the respondent Corporation to work out
the amounts payable to the petitioner till December, 2015 and
draw the said amount in the form of demand draft and to produce
the same before the Court.
14. Petitioner filed CC No.604 of 2016 alleging non compliance of
the directions issued by the Court on 07.01.2016.
15. When CC No.604 of 2016 was taken up for consideration on
13.12.2016, Court was informed by learned standing counsel that
arrears of amounts payable to the petitioner applying the revision
of pay scales was quantified, but according to the decision of the
Corporation in all the cases of payments of arrears of amounts
payable as per revised pay scales was split-up into three
installments. The first two installments of 33,256/- and
25,356/- were paid vide cheque dated 31.08.2016 and
13.10.2016 respectively and third installment was converted into
bonds as per the policy, to be released to the petitioner like all
other employees after completion of the specified period.
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16. In view of this clarification, the issue of payment of arrears of
amounts by applying revised pay scales is resolved. After the
report of the Medical Board, petitioner was provided alternate
employment as Shramik by order dated 5.5.2016 and petitioner is
working as Shramik. According to the learned standing counsel
for respondent Corporation, salary is being paid from June, 2016
regularly. In view of the fact that petitioner is declared as
medically unfit to work as Driver and that he is provided
alternative employment as Shramik, the primary grievance of the
petitioner stood resolved.
17. During the course of hearing of CC No.604 of 2016 on
13.12.2016, Court noticed that as per the statement at page 77 of
the material papers appended to the counter affidavit, it was seen
that continuously from April, 2013 to June, 2016 the basic pay of
the petitioner is shown as Rs 10,230/-, implying thereby annual
increments were not added and that salary from January to May,
2016 was not paid. By order dated 13.12.2016, Court directed the
respondents to explain as to why increments are not added while
undertaking fixation of pay and arriving at payment of arrears.
They were also directed to explain the increment payable to the
petitioner prior to the revised pay scales 2013 and also directed as
to why the salary was not paid from January to May, 2016.
18. The only issue remains for consideration is whether action of
the respondent Corporation in denying increments to the petitioner
since 2013 and denying the salary for the period from January to
May, 2016 is valid, more so in view of the directions of the Court
dated 19-09-2013 ?
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19. In this factual background, to appreciate the contentions of
learned standing counsel, it is necessary to have a brief look at the
Persons with Disabilities (Equal, Opportunities, Protection of
Rights and Full Participation) Act, 1995 (Act 1 of 1996) and
various administrative decisions/regulations of the respondent
Corporation on the issue of medical invalidation and consequential
measures.
20. Section 47 of the Act 1 of 1996 reads as under:
S. 47. (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 be 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.
21. In Kunal Singh vs. Union of India and another1, applicant
suffered injury to his left leg while on duty resulting in amputating
the leg. He was declared permanently incapacitated for further
service. Challenging the same and claiming alternative job he filed
writ petition. The said writ petition was dismissed. In Supreme
Court reliance was placed on Section 48(1) of the Act, 1996 in
support of appellant. Respondents opposed said claim on the
ground that in accordance with definitions contained in Section 2,
(2003) 4 SCC 524
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appellant is not a person with disability. Supreme Court held as
under:
"9. Chapter VI of the Act deals with employment relating to
persons with disabilities, who are yet to secure employment.
Section 47, which falls in Chapter VIII, deals with an
employee, who is already in service and acquires a disability
during his service. It must be borne in mind that Section 2 of
the Act has given distinct and different definitions of
"disability" and "person with disability". It is well settled that
in the same enactment if two distinct definitions are given
defining a word/expression, they must be understood
accordingly in terms of the definition. It must be remembered
that a 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.
.......
In construing a provision of a 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.
10. The argument of the learned counsel for the respondent
on the basis of the definition given in Section 2(t) of the Act
that benefit of Section 47 is not available to the appellant as
he has suffered permanent invalidity cannot be accepted.
Because, the appellant was an employee, who has acquired
"disability" within the meaning of Section 2(i) of the Act and
not a person with disability.
.........
12. ...... Once it is held that the appellant has acquired
disability during his service and if found not suitable for the
post he was holding, he could be shifted to some other post
with same pay scale and service benefits; if it was not possible
to adjust him against any post, he could be kept on a
supernumerary post until a suitable post was available or he
attains the age of superannuation, whichever is earlier. "
22. In G.Muthu vs. Tamilnadu State Transport Corporation2, the
petitioner/appellant was declared as unfit to perform his duties as
Driver as he was diagnosed as suffering from colour blindness. He
was discharged from service and was not provided alternative job.
(2007) ILLJ 9 Mad
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Single Judge dismissed the writ petition on the ground of delay.
Division Bench allowed the Writ Appeal. The SLP filed against said
decision is dismissed. On elaborate consideration of the precedents
on the term 'unless the context otherwise requires' occurring in
other Statutes and significance of different terminology used in
Section 47 and other provisions in chapters IV to VII, the Madras
High Court, succinctly put as under:
"14. ..... On a close reading of such provisions contained
in Chapters IV to VII, we could discern that the benefits
which are conferred under those provisions are to be made
available to persons who already suffer a disability. In
other words, the two categories, namely a person 'with a
disability' is always distinguishable from a person who
later on 'acquires a disability'. Viewed in that respect, it
will have to be held that the expression 'disability' used in
Section 47 of the Act can, by no stretch of imagination, be
equated with a case of a person 'with the disability'. A
close reading of section 47 of the Act would show that the
benefit granted under the said provision was to be
conferred on a serving employee in an establishment who
acquires a 'disability' during such service. When such
'disability' was acquired by him during his service, the
Parliament thought it fit to ensure that his service is not in
any way affected because of acquisition of such a
'disability' and with that view directed that he should be
shifted to some other post with the same pay scale and
service benefits and in the event of such alternate post not
being available, to create a supernumerary post until a
suitable post is available or till he attains the age of
superannuation.
15. ..... In other words, the term 'disability' used in
Section 47 can draw support not only in respect of the
defined 'disabilities' as contained in Section 2(i) of the Act
but will also encompass such other 'disability' which
would disable a person from performing the work which
he held immediately prior to acquisition of such
'disability' and thereby entitle him to avail the benefits
conferred under the said provision for having acquired
such a 'disability'.
.......
17. ...... In the same line of reasoning, it will have
to be held that the specific expression contained in
Section 47 to the effect that 'a person who acquires a
disability' should be applied with particular reference to
the context in which the said expression was used. We
also do not find any scope of comparison of those
provisions with that of Section 47 when we consider the
submission of the learned counsel for the appellant,
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according to whose submissions the definition of
'disability' under Section 2(i) was not exhaustive and that
the expression 'disability' used in Section 47 will have to
be independently applied to the facts of the each case."
23. This issue has come up for consideration in this Court on
several occasions. Series of judgments are rendered. In all the
cases, respondent corporation is party. It was unsuccessful in its
challenge and has complied with the orders. In several decisions
this court directed payment of pay and allowances for the period
when driver was put off duty after he was declared unfit.
24. In Abdul Asad (W.A.No.739 of 2013) the issue for
consideration was whether respondent was entitled to count the
period when he was put off duty for the purpose of seniority,
payment of salary and other attendant benefits. Learned single
Judge directed to treat the period as on duty. The decision of
learned single Judge was upheld. Division Bench also held that
petitioner is entitled to count his seniority from the initial date of
regular appointment as Driver notwithstanding the fact that he
was thereafter shifted to the post of Record Tracer. The case on
hand is identical.
25. Anand Bihari and others vs. Rajasthan State Road
Transport Corporation, Jaipur3 is a case prior to Act 1 of 1996.
Several drivers working in Rajasthan State Road Transport
Corporation were prematurely terminated from their services on
the ground that they became medically unfit to drive the heavy
vehicles as they developed defective eyesight and not meeting the
required vision for driving the heavy motor vehicles.
(1991) 1 SCC 731
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26. Drivers contended that the said termination violates Section
2(oo) of the Industrial Disputes Act, 1947 and also contrary to an
agreement between the drivers' union and the corporations, where
under it was agreed to provide alternative job to the drivers
declared as unfit. While rejecting both contentions, Supreme
Court, however, found that the action of the respondent
corporations therein was not proper, equitable and justified on the
touch stone of the constitutional mandate. The Court noticed that
the drivers developed defect in their eyesight due to the nature of
job undertaken by them. They were required to drive the heavy
motor vehicles during hot sun, rain, dust and dark hours of night.
They require high degree attention and concentration and,
therefore, there would be lot of strain on the eyes. Thus, the
Supreme Court was of the view that the defects developed by the
drivers were directly attributable to the nature of employment. The
Supreme Court found fault in treating such drivers on par with
any other employee in invoking provision in Section 2(oo) (c) of the
Act. As suggestion made by the Court to formulate a scheme to
ameliorate their suffering was not properly responded, the
Supreme Court itself formulated the scheme. Salient features of
the scheme formulated by the Supreme Court were, (i) to provide
alternative job that may be available tow which a driver is eligible;
(ii) in case no alternative job is available, the driver should be paid
retirement benefits and additional compensatory amount; the
Supreme Court indicated payment of amounts depending on the
left over service; (iii) Supreme Court further directed that if the
alternative job was not immediately available, it should be offered
as and when such job is available. The scheme formulated by the
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Supreme Court in the above case is now incorporated in Section
47of the Act.
27. In Narendra Kumar Chandla vs. State of Haryana and
others4, Supreme Court held that Article 21 protects the right to
livelihood as an integral facet of right to life. When an employee is
afflicted with unfortunate disease due to which, when he is unable
to perform the duties of the post he was holding, the employer
must make every endeavour to adjust him in a post in which the
employee would be suitable to discharge his duties. This case was
also decided prior to Act 1 of 1996.
28. Thus, even before the Act 1 of 1996 was notified, Supreme
Court was of the opinion that having regard to the constitutional
mandate, an employer cannot throw the employee to hindrance on
account of disability suffered by him during the course of the
employment, which disability is directly attributable to the nature
of the employment.
29. Having regard to the above discussion, it is necessary to
notice various decisions taken by the respondent corporations over
a period of time to extend special benefits to Drivers declared
medically unfit to drive.
30. The respondent Corporations formulated schemes for
provision of alternative job and other financial packages exclusively
to Drivers. As noticed by the Supreme Court in Kunal Singh case
(supra), Act 1 of 1996 intend to provide some sort of succor to the
disabled persons. Section 72 of the Act, makes it clear that what
(1994) 4 SCC 460
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is provided in Act 1 of 1996 is in addition to and not in derogation
of any other law. Having regard to the provisions contained in
Section 72 of the Act, Regulation 6A of the Regulations, 1964 and
the Circular Instructions issued from time to time assume
significance.
31. Original Regulation 6A did not provide for alternative job,
but only dealt with the additional financial component on account
of retirement on medical invalidation grounds. The provision was
also general and applicable to all employees. Having realized that
drivers of the Corporations constitute a separate class and they
need to be provide additional safeguards, Regulation 6A was
amended and special provision is incorporated in the form of
Regulation 6A(5)(b) which envisages additional monetary
component to the drivers.
32. Relevant provision in Regulation 6A reads as under:
Regulation 6A: Retirement due to failure to conform to
the requisite standard of physical fitness:
(5)(a) In the case of retirement on medical grounds,
the employee may be extended all terminal benefits
including the following benefits;
(i) employer's contribution to provident fund and
payment of gratuity will be regulated as if the employee
had put in 5 more years of service or the remainder service
upto the date of normal superannuation whichever is less.
(ii)(a) Employees whose left over service is 5 years or
below: 15 days wages for each year of service leftover.
(b) Employees whose leftover service is above 5
years and below 10 years: 20 days wages for each year of
service leftover.
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(c) Employees whose leftover service is 10 years
and above: 25 days wages for each year of service leftover,
subject to a maximum of 10 years.
Service of more than six months shall be treated as
one year.
The Pay & DA for the above purpose however be the
same as those drawn on the actual date of retirement on
Medical grounds.
For employees who have not completed 20 years of
service or attained the age of 48 years (forty eight) as on the
date of retirement, the compensation should be reduced in
proportion to the service rendered by them in the
Corporation as shown hereunder:-
No. of years of service rendered by employee in the
Corporation X 10/20.
(5)(b) In the case of retirement of a Driver on medical
grounds he may be extended all terminal benefits apart
from an Ex-gratia payment equivalent to one and half
month's emoluments (Pay + DA) last drawn, for each
completed year of service or the monthly emoluments at the
time of retirement on medical grounds multiplied by the
balance months of service left before normal date of
retirement whichever is less.
Service of more than 6 months shall be treated as
one year.
33. Sub-regulation (5)(a) deals with the benefits payable to the
employee retired on medical grounds. Specific provision is made in
sub-regulation (5)(b) covering the Drivers. Having regard to the
peculiar nature of the job of a Driver, in addition to grant of all
terminal benefits as mentioned in sub-regulation (5)(a), he is also
granted Ex-gratia payment equivalent to 1½ months emoluments
last drawn, which include pay and dearness allowance for each
completed year or service or the monthly emoluments at the time
of retirement on medical grounds multiplied by the balance
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months of service left before normal date of retirement. Thus, the
Ex-gratia is the additional component given to the driver.
34. However, having realized its Ex-gratia component is not
sufficient to deal with injustice meted out to the drivers on account
of their retirement on medical invalidation grounds further
instructions are issued. The policy decisions notified in the form of
Circular Instructions extensively referred hereunder recognize the
necessity to extend the provision of Section 47 of Act 1 of 1996 and
to provide for alternative employment as Conductor Grade-II
subject to educational qualifications or as Shramik/Routine
Clerks/Record Tracers.
35. Though regulations are not amended further, by way of
policy decisions notified from time to time, certain benefits are
extended to the drivers.
36. In Circular No.PD-144/1989, dated 06.11.1989 a decision
was taken to provide alternative employment as Cleaners subject
to ceiling of 10% and fitness to hold the post. It also prescribes
formula for pay fixation on such appointment. In Circular No.PD-
55/1990, dated 21.04.1990 it was clarified that if there is no
vacancy in the cadre of Cleaner readily available, the Driver who is
declared unfit to hold a post of driver should be shown in the
muster.
37. In circular No.PD-64/1997 dated 19.9.1997 further
clarifications are issued on pay protection. A table is appended to
the circular on mode of pay fixation.
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38. In order to improve further the benefits extendable to the
drivers, in Circular No.PD-105/1999, dated 18.11.1999, the
Corporation extended provision of alternative employment to the
post of Conductor subject to the person possessing requisite
qualifications. Circular also deals with regulation of pay in the
Conductor Grade-II post on such appointment. The instructions
would imply that pay protection is required to be given on such
appointment and if there is variation in the pay the difference is to
be treated as personal pay. Initially higher educational
qualification was prescribed for such appointment.
39. On further representation by the recognized Unions, the
qualification is also relaxed to 8th class pass vide circular No. PD-
70/2000 dated 11.12.2000.
40. After the approval given by the Government for amendment
of regulation 6A (5), Circular No.PD-40/2005, dated 26.08.2005
was issued. Annexure-A is appended to the circular which is a
proforma to be submitted by the driver on being declared as unfit
to hold the post of driver for additional monetary benefits in lieu of
alternative employment.
41. On 25.2.2008, Circular No. PD-16/2008 was issued which
comprehensively deals with all aspects. The scheme of alternative
employment is extended to the posts of Routine Clerks/Record
Tracers.
42. Taking the welfare measures further, vide circular No. PD-
19/2015 dated 3.6.2015, scheme of compassionate appointment to
dependant family member is also introduced.
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43. It is appropriate to note clause 11 of this Circular. It reads
as:
"A clear undertaking must be obtained from the employees
retired on medical grounds that by opting for employment to
the spouse or child, he/she discharges the Corporation from
the liability under Section 47 of Persons with Disabilities Act
or for payment of Additional Monetary Benefit in future. The
option once exercised by them will be treated as final and
irrevocable under any circumstances."
44. In the additional counter affidavit filed on behalf of
Telangana State Road Transport Corporation (for short TSRTC) in
W.P.No.36337 of 2012 and batch, deposed on 23.12.2015 by Sri
R.Shiva Kumar, working as Law Officer, it is stated as under;
"3. It is submitted that keeping in view the safety of the
passengers, the Corporation subjects the Drivers to
periodical medical examination so as to assess their
physical fitness for the post of Drivers. The drivers who
do not fulfill the requisite medical standards prescribed
by the Corporation will not be allowed to discharge
their duties as drivers. To mitigate the hardship of such
drivers the Corporation has adopted several measures and
the circular instructions issued from time to time..........
4. It is submitted that the above cited circular
instructions demonstrates that the corporation has been
treating the medically unfit drivers as a special category by
extending the additional monetary benefits or in
considering their cases for providing alternative
employment in the Corporation. The benefits under the
policies are extended without reference to Act 1 of
1995.........."
45. Reading of Annexure-A to circular No. PD-40 /2005 and
the consolidated Circular no.PD-16/2008, dated 25.02.2008,
amply demonstrates resolve of the Corporations to extend the
scheme of Section 47 to Drivers declared unfit to work as Drivers,
provides alternative employment and extends the pay protection.
This would amply demonstrate that the Corporations intend to
protect and safeguard the interest of drivers who were forced to
retire on medical invalidation grounds on account of higher
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standard of medical fitness required to the post and they have
voluntarily extended the scheme of Section 47 to the category of
Drivers. The Drivers of respondent corporations are a class by
themselves and deserve special treatment, which is rightly
extended. The resolve of the Corporation to extend special benefits
to Drivers is reiterated in the affidavit filed before this Court,
extracted above.
46. Ordinarily, a driver once appointed to service is entitled to
continue in service until he attains the age of superannuation or
disciplinary action initiated against him ends in abrupt
termination of his service. The medical invalidation only advanced
his retirement, a premature retirement. Such medical invalidation,
in most cases, is on account of higher standards of fitness required
for a driver but such employee is suitable to any other job. Such
medical invalidation is acquired during the course of employment.
The employer recognizes this fact and therefore formulated special
schemes to drivers.
47. In the RTC, high standard of fitness is required for a person
to hold the post of driver. On an average the Driver carries with
him several passengers. Any slackness in the driving of the vehicle
can cause danger to life of the passengers traveling in the Bus in
addition to the road users. Therefore, high degree of competence
and alertness is required. The RTC monitors the fitness of the
drivers. They are subjected to periodical medical examination. At
the initial stage of medical examination, if a Driver is found as
unfit to drive, he will not be allowed to drive and he will be put off
duty, till further medical examination is made. This measure is
PNR,J
WP No.19847 of 2013,
CC Nos.604 of 2016 & 1863 of 2017
required to protect the passengers from any untoward incident if
driver is not fit to drive.
48. As seen from the letter No.SP/19(M.B.II)/2013.TH dated
18.07.2013 of the Tarnaka Hospital, at least petitioner has
appeared before the Medical Board on 18.07.2013. The Medical
Board advised review after treatment. It is relevant to note at this
stage that on 02.01.2013 petitioner was declared as unfit to drive,
by the Medical Officer. On appeal, this was affirmed on
06.02.2013. Though, initially Medical Board advised treatment,
finally affirmed the assessment of Medical Officer as unfit.
Respondents admit in the counter affidavit that petitioner
appeared before the Medical Board on 25.04.2013, but the Medical
Board could not examine him. Reasons are not forthcoming. He
was again examined on 18.07.2013. At this stage, he was advised
treatment and further review. It appears, after this date petitioner
did not appear before the Medical Board even though he was asked
to appear. This conduct of petitioner could have been seen as
dilatory tactics to cover up his health condition, but for the fact
that he was declared as unfit by the Medical Board after he was
examined on 18.11.2015. This report confirms original assessment
made on 06.02.2013. He has not gained any undue advantage by
such delay. He had his own assessment for not appearing. He has
in fact suffered as proper salary and allowance were not paid. He
had to litigate and pursue his grievance. Counter affidavit do not
point out any deliberate mischief played by petitioner on his health
condition and Corporation do not dispute the assessment made by
Medical Officers. For all this period, petitioner was not allowed to
work as Driver. It is also approplriate to note that during this
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WP No.19847 of 2013,
CC Nos.604 of 2016 & 1863 of 2017
period petitioner has submitted several representations and
caused legal notices and has been pursuing his grievance. Thus,
no adverse inference can be drawn to deny the benefits to which
petitioner is entitled.
49. As per the policy of the respondent corporation, once a driver
is declared as unfit, he would not be allowed to perform his duties.
Petitioner was not allowed to work and was put off duty. However,
until a final decision was taken on his fitness and alternative
employment was provided, he was asked to be on leave and no
salary and allowance was paid, till a direction was issued by this
court and Contempt Case is filed. It is not a case of unauthorized
absence without just cause or reason. Petitioner never refused to
work. Petitioner was not allowed to work as he was declared
medically unfit. Having regard to safety of the passengers,
Corporation does not allow drivers to perform their duties once
they are declared as medically unfit.
50. Thus, when employer puts employee off duty on the ground
that he is unfit to drive, non-payment of salary and allowances for
the period employee was put off duty is contrary to the mandate of
Act, 1995, the regulations and the policy of the Corporation and
the principle of law laid down in several decisions by this Court
and by the Apex Court. Thus, denial of pay and allowances for the
period he was put off duty with annual increments is ex facie
illegal and amounts to arbitrary exercise of power. Further, no
satisfactory explanation is offered why petitioner was not paid
salary from January, 2016 to May, 2016. On account of flawed
policy of treating the employee as on leave when he was put off
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WP No.19847 of 2013,
CC Nos.604 of 2016 & 1863 of 2017
duty, if the payment schedule is not updated by the employer in
the computer data base, employee cannot be faulted. It is an
internal administrative problem of the employer, for which
employee is no way responsible. Since employee was put off duty
by the management, employee cannot be denied increments for the
period. The principle of no work no pay is also not attracted to
case of this nature. Thus, petitioner is entitled to salary and
periodical increments for the period when he was put off duty till
he was provided alternate employment and is entitled to salary for
the period from January, 2016 to May, 2016. The arrears of
amounts due and payable shall be worked out and paid to
petitioner within eight weeks from the date of receipt of the order.
51. With the above directions, writ petition and contempt cases
are disposed of. There shall be no order as to costs. Miscellaneous
petitions if any pending shall stand closed.
__________________________
JUSTICE P.NAVEEN RAO
Date: 01.03.2017
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PNR,J
WP No.19847 of 2013,
CC Nos.604 of 2016 & 1863 of 2017
HONOURABLE SRI JUSTICE P. NAVEEN RAO
W.P.NO.19847 OF 2013, C.C.NOs. 604 OF 2016 AND
1863 OF 2017
Date : 01.03.2017
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