Karnataka High Court
Thandesh K L vs The Chief Personnel Manager on 25 January, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.22867 OF 2021 (S-KSRTC)
BETWEEN:
THANDESH K.L
S/O LAKSHMEGOWDA
AGE 40 YEARS
DRIVER BADGE NO.18635
22ND DEPOT, BMTC
NORTH DIVISION, PEENYA
2ND STAGE,
BENGALURU-58 ... PETITIONER
(BY SRI. L.SHEKAR, ADVOCATE)
AND:
1. THE CHIEF PERSONNEL MANAGER
B.M.T.C
CENTRAL OFFICES
K.H. ROAD
BENGALURU-560027.
2. ASSISTANT ADMINISTRATIVE OFFICER
(ADMINISTRATION & SENIORITY)
CENTRAL OFFICES, K.H. ROAD
BENGALURU-56007.
3. THE DIVISIONAL CONTROLLER
B.M.T.C
NORTH DIVISION/REGION
2
CENTRAL OFFICES, K.H. ROAD
BENGALURU-560027. ... RESPONDENTS
(BY SMT. H.R. RENUKA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Sri.L.Shekar, learned counsel for petitioner and Smt.H.R.Renuka, learned counsel for respondents have appeared through video conferencing.
2. It is stated the petitioner is working as a permanent Driver in the establishment of the respondent - Corporation. The petitioner maintained a blemish less service record. The petitioner suffered 'Giant Cell Tumor of Lt. acetabulum+Illium'. Petitioner took treatment at various hospitals including HCG Hospital. After treatment, the Doctor advised him not to continue with driving job and advised to pursue less physically demanding activities 3 / office job. Considering the disability suffered by the petitioner, the respondent - Corporation provided him light work for a period of six months vide order dated 04.07.2019.
It is stated that after the completion of six months, respondents again extended the light work for another six months from 23.01.2020. Based on the opinion of the HCG Hospital, the respondent - Corporation referred the petitioner to Sanjay Gandhi Institute of Trauma and Orthopaedics, Bengaluru for medical examination and assessment of disability suffered by the petitioner. Based on the request made by the Chief Personnel Manager, the Chief Medical Officer, BMTC referred the petitioner to the Medical Board, Sanjay Gandhi Hospital, Bengaluru with a request to examine the petitioner and submit a report to the extent of disability suffered by the petitioner and further clarify that the disability was permanent or not.
Based on the request made by the Chief Personnel Manager, the Medical Board, Sanjay Gandhi Hospital, 4 examined the petitioner on 05.06.2020. After considering all the previous medical records of Marthas Hospital, HCG Hospital and the physical condition of the petitioner, Medical Board opined that the petitioner suffered 45% disability and the condition is not likely to improve and reassessment of disability is not necessary.
It is stated that the petitioner suffered 45% disability and in terms of the circular No.1491 dated 10.05.2003 and the circular dated 26.03.2014, the petitioner filed representation with a request to provide him light work in terms of the disability suffered by him. Considering the opinion of the Medical Board and the physical condition of the petitioner, the respondent extended light work from 07.10.2020. Thereafter, the respondent extended light work from time to time vide order dated 12.01.2021 and 01.03.2021. Likewise, the respondent vide order dated 21.08.2021 extended the light work for a period of three months. Finally, the respondent vide order dated 29.10.2021 extended the light work for a period of six 5 months. Aggrieved by the Office order dated 29.10.2021, the petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India.
3. Sri.L.Shekar, learned counsel submits that the office order dated 29.10.2021 at Annexure -M is illegal, arbitrary and unsustainable in law.
Next, he submitted that petitioner is suffering from 'Giant Cell Tumor of Lt. acetabulum+Illium' resulting which he is not in a position to discharge his duty as a Driver and the Doctors who treated him have recommended the petitioner for light work.
A further submission was made that the order is contrary to the Circular No.1491 dated 10.05.2013. It is submitted that as per the Circular, the respondent directed all the concerned Authorities to provide alternative employment in terms of the Disabilities Act, 1995. According to the said Circular, the respondent issued certain guidelines to provide alternative employment. 6 Hence, it is submitted that the petitioner is entitled to get alternative employment.
Counsel further submitted that the respondent issued a Circular dated 26.03.2014, modified certain instructions issued in Circular No.1491 dated 10.05.2013 and modified Circular dated 20.05.2013. The relevant portion of the circular dated 26.03.2014 issued by the Managing Director, KSRTC, Bengaluru reads as under:-
"±Á±ÀévÀ CAUÀ«PÀ®vÉ ºÉÆA¢gÀĪÀ PÀÄjvÀÄ ªÉÊzÀåQÃAiÀÄ ªÀÄAqÀ½AiÀÄ zÀÈrüÃPÀgÀt ¥ÀvÀæ ¤ÃrzÀ ¥ÀæPÀgÀtUÀ¼À°è CAzÀgÉ wherever the Medical Board Certificate states in clear terms that the disabilities which the person is suffering is non progressive/not likely to improve and reassessment of disability is not necessary.
And wherever the medical board certificate does not say that it is a permanent in nature and silent of re-assessment of disability in such cases the Circular dated 20.5.2013 is applicable".7
Learned counsel strenuously urged that the case of the petitioner is fully covered under Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Counsel has also drawn the attention to Section 47 of the Act. It is contended that the second respondent ought to have accommodated light work to the petitioner permanently and ought to have been acted on the opinion given by the Medical Board. Hence, the office order dated 29.10.2021 vide Annexure-'M' is illegal, arbitrary and unsustainable in the eye of law.
The petitioner is aged about 40 years and he is willing to discharge the light work in the Corporation, in the event if the petitioner is not continued in the light work, he will be put to great financial hardship besides mental agony.
8
It is further submitted that the respondents without following the Circular/Guidelines has decided to accommodate light work only for a period of six months.
It is also submitted that right from the date of disability the petitioner is discharging his duty to the satisfaction of his superiors, but there is a threat by the respondents with their consequences to stop the light work provided to him at any point of time.
Lastly, counsel submitted that viewed from any angle the office order is un-sustainable in law. Hence, the petitioner is entitled for the relief. Accordingly, he prayed that the office order dated 29.10.2021 at Annexure-'M' is liable to be quashed by issue of a writ of certiorari.
4. Smt.H.R.Renuka, learned counsel for respondents submits that the respondents vide order dated 29.10.2021 have extended the light work for a period of six months.
9
It is submitted that the period of six months will come to an end only on 29.04.2022. Hence, she submitted that the petitioner cannot have any grievance before the completion of six months. Therefore, she submitted that the writ petition may be dismissed.
5. Heard the contentions urged on behalf of petitioner and respondents and perused the Annexures with care.
6. The petitioner has sought for a writ of certiorari to quash the office order dated 29.10.2021 at Annexure-'M'.
It is the case of the petitioner that he is suffering from 'Gaint Cell Tumor of Lt. acetabulum+Illium' resulting which he is not in a position to discharge his duty as a Driver and the Doctors who treated him have recommended the petitioner for light work. He is suffering from disability. The disability assessed at 45%. Hence, the petitioner was assigned light work on the recommendation of the first respondent.
10
It is pivotal to note that the respondents have assigned light work to the petitioner and accordingly, issued an office order on 29.10.2021. The Office order is at Annexure-'M'.
I have perused the same with utmost care. As could be seen from the Office order, the second respondent has issued an Office order directing the petitioner to do the light work for a period of six months with effect from 29.10.2021. The period of six months will come to an end on 29.04.2022. However, the petitioner has initiated action against the respondents before the completion of the period. There is no cause of action to initiate action. I have no hesitation in saying that the writ petition is premature.
While addressing argument, learned counsel Sri.L.Shekar, strenuously urged that there is threat by the respondents with dire consequences to stop the light work provided to him at any point of time.
11
I have considered the said contention urged on behalf of petitioner. I am unable to accept the said contention. The petitioner has initiated action against the petitioner and has approached this Court "because he fears". It is only the apprehension of the petitioner that the respondents may take coercive steps and stop him from doing the light work.
It is needless to say that there must be an immediate threat to do something. But in the present case, the state of affairs does not warrant the exercise of power under Articles 226 and 227 of the Constitution of India. Hence, I find no reason to exercise the original and supervisory power.
6. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE TKN