B. Bhasker, E27044, Nizamabad ... vs The Apsrtc, Nizamabad And Another
2023 Latest Caselaw 3480 Tel

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

            WRIT PETITION No. 20903 OF 2009

ORDER:

This Writ Petition is filed seeking a direction to the

respondents to provide any alternative employment to petitioner

in terms of Section 47 of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995 (for short, 'the Act') with effect from 17.08.2009 and grant

all other consequential benefits duly declaring the order dated

17.08.2009 of the 2nd respondent as illegal and arbitrary.

2. Learned counsel for petitioner Sri K. Vasudeva

Reddy mainly contends that Section 47 of the Act mandates, if

an employee acquires disability during his service, he shall not

be terminated from service but he could be provided alternative

employment duly protecting his wages. At the same time, the

case of respondent Corporation is that the said provision comes

to the rescue of an employee who is found to be disabled, in the

instant case, petitioner was neither on the rolls of the

Corporation nor was declared disabled by any competent

authority. He takes cue from the judgments of the Division

Benches of this Court in Writ Appeal No. 1376 of 2016, dated

27.11.2018, Writ Appeals No. 1254 of 2016 and batch, dated

22.06.2017 and that of Hon'ble Apex Court in Andhra Pradesh

State Road Transport Corporation v. B.S. Reddy 1.

3. In this regard, petitioner submits that though he

was appointed as a driver on contract basis, Section 47 of the

Act equally applies to him. According to him, while on duty,

husk of maize fell in his left eye, resulting in itchiness and

redness. Initially, he took treatment in a private hospital,

thereafter, he was referred to RTC Hospital, Tarnaka, from there

to NIMS, Hyderabad and finally, to LV Prasad Eye Hospital.

However, he lost vision in his left eye permanently. As he was in

sick list with Tarnaka Hospital from 15.10.2008 to 26.05.2009,

he was declared unfit for the post of driver under A1 category.

However, it is stated that show cause notice dated 08.07.2009

was issued alleging absenteeism from 04.05.2009 to

08.07.2009. Even according to Corporation, he submitted sick

certificate from RTC Hospital, Tarnaka last attended on

26.05.2009 which itself establishes that he was sick from

15.10.2008 to 26.05.2009 and he was unlikely to be fit for the

post of driver in A1 category. It is stated that show cause notice

was issued directing him to report to duty; on receipt of which,

AIR 2017 SC 1621

he appeared before the 2nd respondent within two days, but to

his surprise, the impugned order was passed on 17.08.2009

showing the period of absence from 04.05.2009 to 17.08.2009.

Hence, the action of treating his absence either from 04.05.2009

to 08.07.2009 or from 04.05.2009 to 17.08.2009 does not arise.

The case of Corporation is quite contra; petitioner did not

submit any intermediate sick certificate from Tarnaka Hospital

and absented from duties; as there was no information

regarding the incident, they conducted enquiry and obtained

statement of service conductor who stated that there was not

any specific incident; petitioner at about 17.00 hours told him

that something fell in his eye after that also they have completed

two trips; there was no breakage of glass of bus and service

driver was in good condition and completed his spell of duty. It

is stated that petitioner was terminated as per Circular No. PD-

05/2009 issued from Head Office and contract service

agreement at Clause 7 duly following the procedure in toto.

4. The employee in question suffered disability during

the course of employment, hence, he sought benefit under

Section 47 of the Act to the effect that his rank should not be

reduced and he should only be shifted to some other post, with

same pay-scale and service benefits. Section 47 reads as under:

" 47. Non-discrimination in Government employments: (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 such condition, if any, as may be specified in such notification exempt any establishment from the provisions of this section."

In this context, it is pertinent to see the judgments relied on by

the learned standing Counsel, the gist of which is the benefits of

Section 47 of the Act will be available only to those who are

covered by Section 2(i) of the Act. The said law is binding on this

Court.

The word disability is defined in Section 2(i) as

under:

"        2(i) disability means

     (i) Blindness;
     (ii) Low vision;
     (iii) Leprosy-cured;
     (iv) Hearing impairment;
     (v) Locomotor disability;
     (vi) Mental retardation;





     (vii) Mental illness.

5. From the material placed on record, it is clear that

petitioner lost vision in left eye during the course of

employment. Assuming that petitioner did not submit any sick

certificate, even according to the Corporation, the fact that he

was referred to Tarnaka Hospital, NIMS and LV Prasad Eye

Hospital itself shows that he suffered injury for which he took

treatment. It is stated by the petitioner that when he reported

the 2nd respondent on receipt of show cause notice, he also

opined that with vision in one eye, he would not be permitted to

drive the bus which is unsafe not only for the public but also

the property of the RTC. Along with the reply-affidavit, petitioner

filed photo copies of the certificates issued by the above-said

hospitals and the Medical Certificate for Blind dated 19.06.2009

certifying disability at 40% (partially blind). In view of the same,

it can safely be concluded that he falls in the category of Section

2(i)(ii), consequently eligible for the benefit under Section 47. It

is to be noted that the contract employee, if is used as a

substitute for a regular employee, the State must be made to be

bound by the same public law limitations, which are imposed on

it by the Constitution and also the extant statutory enactments.

It is time that the Courts need to protect the interests of the

contract / outsourcing employees working in regular vacancies

also in the same way as the regular employees are protected by

applying the principles underlying Article 311 of the

Constitution of India. (see State of Telangana rep. by its

Principal Secretary, Higher Education Department,

Hyderabad v. M.R. Jyothi Lakshmi 2).

6. Insofar as the other contention that regular

departmental enquiry was not conducted before the Corporation

resorted to such an action, according to petitioner, vide show

cause notice of removal dated 08.07.2009, he was asked to

report to duty and accordingly, reported before the 2nd

respondent who also opined that with vision in one eye, he

would not be permitted to drive the bus. The show cause notice

was issued alleging absenteeism from 04.05.2009 to 08.07.2009

whereas the impugned order was issued for alleged absenteeism

from 04.05.2009 to 17.08.2009; and the impugned order cannot

go beyond the scope of show cause notice. According to

petitioner, vigilance department authorities came during night

time and enquired about the injurie caused to his left eye while

on duty, except the vigilance enquiry which is a prima facie

2017(6) ALT 115(DB)

enquiry, no departmental enquiry was conducted. The case of

Corporation is otherwise in this regard. It submits that based on

the report of TI-II/ARMR dated 08.07.2009, his services were

terminated as per the guidelines issued vide Circular No. PD-

05/2008, dated 23.02.2009. It is stated in the counter that

conductor was examined who stated that there was not any

specific incident; petitioner at about 17.00 hours told him that

something fell in his eye after that also they have completed two

trips; there was no breakage of glass of bus and service driver

was in good condition and completed his spell of duty. That

itself does not fulfill the requirement of enquiry. Hence, this

Court comes to the conclusion that no departmental enquiry

was conducted in this case.

7. While admitting the Writ Petition, this Court by

order dated 15.03.2011 in W.P.M.P.No. 27207 of 2009, directed

respondents to provide alternative employment in terms of

Section 47 of the Act. The Corporation filed vacate Application

and pending the same, petitioner filed C.C.No. 835 of 2012

complaining non-implementation of order dated 15.03.2011.

This Court by order dated 14.12.2015, while making the interim

direction dated 15.03.2011 absolute, directed the respondent

authorities to consider the case of petitioner for alternative

employment and pass appropriate orders in view of the opinion

expressed by the APSRTC Hospital, Tarnaka in the sick

intimation certificate placed at page No.9 of the material papers,

within two weeks from the date of receipt of a copy of that order.

Accordingly, closed the Contempt Case.

8. Learned counsel for petitioner submits that

pursuant to the said direction, petitioner was given alternative

employment vide order dated 13.05.2016 as Shramik on

contract basis and he was directed to be paid minimum basic of

Shramik along with statutory contributions as in the case of

contract drivers and conductors and posted him to Nizamabad-

1 depot. Petitioner filed additional reply affidavit stating that he

was not being paid regular scale of pay, whereas the services of

other colleagues, who were appointed along with him on

contract basis, were regularized and were being paid regular

scale of pay. In this regard, he approached the respondents on

several occasions requesting to regularize his service and pay on

par with his colleagues. Here, it is to be noted that petitioner

prayed in this Writ Petition a direction to respondents to provide

any alternative employment in terms of Section 47 of the Act

duly granting all other consequential benefits. Since petitioner

was already provided with alternative employment as Shramik

which is not equivalent to the post of driver and since petitioner

was not extended the benefit of regularization of service on par

with the employees who were appointed with him on contract

basis, this Court deems it fit to direct respondents to provide

employment befitting his position duly protecting his pay.

9. In the result, the Writ Petition is allowed and order

dated 17.08.2009 is set aside with a direction to respondents to

provide alternative employment to petitioner befitting his

position duly protecting his pay. No costs.

10. Consequently, the miscellaneous Applications, if

any shall stand closed.

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NAGESH BHEEMAPAKA, J

01st November 2023

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