Central Administrative Tribunal - Delhi
Hawa Singh. vs Delhi Transport Corporation. on 24 March, 2011
Central Administrative Tribunal Principal Bench R.A.No.127/2010 M.A.No.1272/2010 in T.A.No.1336/2009 New Delhi, this the 24th day of March, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Shri Shailendra Pandey, Member (A) Hawa Singh. Applicant (By Advocate: Shri Yarun Kapoor for Sh. Anil Mittal) Versus Delhi Transport Corporation. Respondents (By Advocate: Sh. Manish Garg) O R D E R
By Shailendra Pandey, Member (A) This Review Application has been filed by the applicant seeking review of the order dated 17.07.2009 passed by a Coordinate Bench of this Tribunal in TA No.1336/2009. MA No.1272/2010 has also been filed for condonation of delay in filing of the RA, wherein it is stated that the applicant under the bonafide advice of his counsel had challenged the Tribunals order dated 17.07.2009 in the High Court of Delhi by filing Writ Petition (C) No.13247 of 2009 which was disposed of on 17.02.2010 by giving liberty to the applicant to withdraw his petition and approach this Tribunal for review of the order in view of the Circular dated 20.03.2006 (Page 8 of the RA) which allegedly came to the notice of the applicant after the decision of the Tribunal. Therefore, according to the learned counsel for the applicant, the delay in filing the RA is without any ulterior motive and is on account of reasons beyond the control of the applicant.
2. An RA is required to be filed within 30 days from the date of the receipt of a certified copy of the order of this Tribunal. In the instant case, the order of the Tribunal was passed on 17.07.2009 but the RA has been filed only on 25.03.2010, i.e., after over seven months. It is stated that a certified copy of the order dated 17.02.2010 of the High Court of Delhi was made available to the applicant on 08.03.2010 after which he filed the RA on 25.03.2010. In the interest of justice, the MA for condonation of delay is allowed.
3. The RA has been filed only on the ground that, during pendency of the TA, the applicant was not aware of the Circular dated 20.03.2006 wherein the respondents had declared that henceforth the provision of Section 47 of the Persons with Disability Act, 1995 should be complied in all cases where an employee acquires Disability during his service career and or being declared unfit by the DTC Medical Board. Therefore, the Circular could not be brought to the notice of the Tribunal.
4. It is submitted that as the DTC had decided in March 2006 itself (as per the Circular) to give the benefits of Section 47 of Persons with Disabilities Act, 1995 to its employees, the order passed in TA No.1336/2009 needs to be reviewed and the respondents be directed to pay backwages and other benefits from 16.05.2007 till 10.10.2008 along with interest.
5. On notice, the respondents have filed their reply to the RA and have categorically asserted that the said Circular dated 20.03.2006 is not applicable in the case of the applicant. Further, it is submitted that in para 4 of the order dated 17.07.2009, this Tribunal had already considered the case of the applicant in the light of the Disability Act. It is also stated that the applicants prayer for backwages and other benefits along with interest had already been rightly rejected by the order of the Tribunal dated 17.07.2009 in the facts and circumstances of the case, and, therefore, there is no ground made out for review and the relief prayed for by the applicant and the RA should be dismissed.
6. On the RA, we have heard both the learned counsel and perused the material on record.
7. We may briefly recall the facts of the case which are that the applicant, a Driver in the DTC, with almost 30 years of service, had suffered a heart attack on 12.2.2007, and had to be hospitalized and was admitted to AIIMS where he was operated and a pacemaker (AICD) was implanted in his body. Thereafter, the applicant had made a request to his Depot for grant of light duty, which had been finally given to him on 10.10.2008. He had, therefore, filed the TA claiming backwages for the period from 16.05.2007 to 10.10.2008 (along with interest) during which he was advised from time to time to go on rest and then report again to the Medical Board and was not given light duty. However, in TA No.1336/2009, the Tribunal declined to grant the relief of back wages claimed by him.
8. The relevant portion of the Tribunals Order dated 25.05.2010 is extracted below:
2. However, the respondents submit that maximum leniency has been shown to the applicant. As long as the Medical Board did not certify him for light work he could not have been engaged. It is claimed that they had been acting in consonance with the Office Order dated 20.01.1992, as only on the recommendations of the DTC Medical Board light work could be granted. And since the applicant has been granted light work, the OA has become infructuous. There is also contention that this is not a case where Persons with Disabilities ( Equal opportunities, Protection of Rights and Full Participation) Act is applicable. The applicant had been suffering from heart condition, which had necessarily reduced his capacity to work or engagement, he was not to be treated as disabled as coming under the purview of the Act. 4. Though the applicant has a case that his condition comes within a disablement postulated by the Act, and refers to judgments of the Supreme Court, we do not find that the argument as above could be supported. There is nothing to indicate that there was casual or real connection with his employment in his developing heart condition. To cite an extreme case, even eczema may disable a person to attend to his work and reduce his efficiency, but to contend that in such cases, the provisions of the Act spring to operation may be far too illogical. Although a beneficial statute, as it imposes very heavy burden on the counterpart, to retain an unproductive person on the rolls, perhaps even affecting the optimum production ratio, the provision of the Act has to be construed with a certain amount of strictness. Only if the establishment exists and enjoys financial strength, employment be there might be at all.
9. The applicant has sought a review of the above order on the basis of the Circular dated 20.03.2006 in terms of which the DTC had declared that the provision of Section 47 of the Persons with Disability Act, 1995 should be complied in all cases where an employee acquires Disability during his service career and or being declared unfit by the DTC Medical Board.
10. The question for our consideration is whether the Circular dated 20.03.2006 would be applicable in the case of the applicant and if so, what would be the effect thereof on the order of the Tribunal. In this connection, we extract below the relevant portion of the Circular dated 20.03.2006:
The Honble High Court of Delhi vide its order dated 12.09.2005 in CWP No.869 of 2000 has directed the DTC to comply with the provisions of Section 47 of the Persons with Disability Act, 1995. A copy of the aforesaid order is enclosed herewith.
The Corporation has decided to comply with the aforesaid order of Honble High Court.
It is further directed that henceforth the provision of Section 47 of the Persons with Disability Act, 1995 should be complied in all cases where an employee acquires Disability during his service career and or being declared unfit by the DTC Medical Board.
11. It is our considered view that, as contended by the respondents counsel, the above Circular would not be applicable in the facts and circumstances of the case of the applicant, for the reasons discussed below.
12. The Disability Act of 1995 was enacted to provide for equal opportunities and full participation and protection of rights of people with disabilities.
Section 47 of the ACT reads as under:-
47.Non-discrimination in Government employment-
(I) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if any 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 the section.
13. However, the provisions of the Act and the benefits prescribed therein would be admissible only to `persons with disability as defined in the Act and in respect of `disabilities as defined in the Act. The words disability and person with disability is defined in Section 2 of the Act itself, as extracted below:
2(i) disability means blindness;
low vision;
leprosy-cured;
hearing impairment;
locomotor disability mental retardation 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; Thus, the benefits under Section-47 of the Act would accrue to persons suffering from any of the aforementioned disabilities subject also to a medical authority certifying that such disability in that person is not less than 40%.
14. It is noticed that the disability suffered by the applicant in this case - a `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. Therefore, the Circular dated 20.03.2006 would not be of help to the applicant in this RA. In this connection, we may also usefully refer to the following observations of the Honble Supreme Court in Civil Appeal No.4668 of 2007 [Union of India v. Devendra Kumar Pant & Ors.] decided on 9.07.2009 and relied on by the respondents:
What is significant is all persons with disability are not treated equally or similarly under the Act and the benefits extended under the Act depends upon the nature of disability and extent of disability. ..Therefore, the provisions of the Act cannot be applied mechanically to all persons with any and every kind of disability and it will be necessary to keep in view the object of the Act, identification of the category of persons for whom a particular beneficial provision has been made, and the extend of the benefit provided.
15. Also, this Tribunal in its order dated 17.07.2009 had already considered the case of the applicant under the Disability Act (based on the applicants submissions in the TA) but had declined to give him the relief of back wages.
16. In view of the above discussion, no interference with the order already passed is warranted, as there is no error apparent on the face of the record. In this connection, it would be pertinent also to recall that the scope for review is limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh order and rehearing of the matter to facilitate a change of opinion on merits [See: Honble Supreme Court in Union of India v. Tarit Ranjan Das, 2004 SCC (L&S) 160].
17. The Review Application is dismissed, with no order as to costs.
(Shailendra Pandey) (Mrs. Meera Chhibber) Member (A) Member (J) /nsnrsp/cc