Karnataka High Court
Saibanna S/O Shantappa vs The North East Karnataka Anr on 1 October, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
WRIT PETITION No.83645/2011 (L-KSRTC)
Between:
Saibanna S/o Shantappa
Age: 55 Years, Occ: Ex. Driver
(P.No.5354 Yadgir Depot)
R/o Neelahalli, Post: Kanekal
Tq. & Dist. Yadgir
... Petitioner
(By Sri P. Vilaskumar, Advocate)
And:
1. The North East Karnataka
Road Transport Corporation
Through its Managing Director
Sarige Sadana, Main Road
Gulbarga
2. The North East Karnataka
Road Transport Corporation
Through its Divisional Controller
Yadgir Division, Yadgir
... Respondents
(By Sri R.V. Nadagouda, Advocate)
2
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to issue a writ of
certiorari for quashing the award of Labour Court Gulbarga
passed in Ref.No.134/2009 dated 10.02.2011 which is at
Annexure-A in so far as payment of compensation of
Rs.75,000/- instead of providing alternative employment
and order for reinstatement of the petitioner in any
alternative post along with full back wages, continuity of
service and all other consequential benefits.
This petition having been heard, reserved for orders
on 16.09.2020 and coming on for pronouncement of order
this day, the Court made the following:-
ORDER
The petitioner was appointed as a driver in the establishment of the respondents. The petitioner claimed that due to unfair labour practices and the exploitation of the labour force, the petitioner came under severe stress and on 02.12.2005 he was not given off but was sent to duty without any kind of break or rest. He claimed, that as a result, his blood pressure increased and he suffered a paralytic attack during the course and arising out of 3 employment. As a result, the left side of the petitioner was fully paralyzed and he was disabled and crippled. He claimed that no amount of treatment restored normalcy and therefore, he was declared unfit to discharge the duties of driver. The petitioner claimed that he requested the respondents to provide him alternate employment. Instead of providing him alternate employment and keeping his scale intact, the respondents started treating him as unauthorizedly absent. Instead of giving him alternate employment, the respondents started to threaten him that if he did not tender his resignation, he would be treated as absent unauthorizedly and that he would be dismissed from service. The petitioner claimed that because of the threat of dismissal and the mounting pressure of the management of the respondents, he submitted his resignation on 01.10.2006. He claimed that the resignation was not voluntary but was submitted under compelling circumstances. He claimed that in his resignation also, he had mentioned about the paralytic 4 attack that he had suffered and also that he was unable to the attend to the duties of a driver.
2. The counsel for the petitioner would contend that the respondent-establishment which was bound to grant him alternate employment and acceptance of resignation amounted to illegal termination.
3. The petitioner is stated to have sought reference of a dispute under Section 10(1)(c) of the Industrial Disputes Act, 1957 and on reference, the petitioner filed his claim petition to set aside the order accepting the resignation and further to provide alternate employment to the petitioner.
4. The respondent-establishment contested the claim before the Labour Court contending that the resignation was voluntary and the petitioner had obtained the retirement benefits as per the rules and regulations of the respondent. In addition to the retirement benefits, the petitioner was entitled to a sum of Rs.75,000/- as per the 5 circular bearing No.1335/2005. The petitioner had accepted all the retirement benefits and the additional benefit of Rs.75,000/- and therefore, the petitioner had done so voluntarily and thus the claim made by the petitioner was false. The respondents contended that since the petitioner had himself submitted the resignation voluntarily, the question of providing alternate employment did not arise. The respondent also denied that the petitioner had suffered a paralytic attack during the course of employment.
5. Before the Labour Court, the claimant was examined as WW.1 and he marked the resignation letter as Ex.M1; the order of relieving him as Ex.M2; the payment made pursuant to the Circular No.1335/2005 as Ex.M3; the payment of retirement benefits as Ex.M4; the medical certificate produced by the petitioner as Ex.M6; the leave certificate as Ex.M7; the Circular No.1335/2005 as Ex.M9 and the Service Record of the petitioner as Ex.M10.
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6. The Labour Court considered the case of the petitioner and held that the petitioner is not entitled to the benefit of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (henceforth referred to as 'the Act of 1995'). The Labour Court held that the resignation submitted by the petitioner was voluntary and thus allowed the reference in part and directed the respondents to pay an additional sum of Rs.75,000/- as ex gratia to the petitioner in addition to the ex gratia amount already paid.
7. Feeling aggrieved by the aforesaid award of the Labour Court, the petitioner has filed this writ petition.
8. The learned counsel for the petitioner submitted that the resignation letter submitted by the petitioner itself indicated that he had suffered paralysis as a result of which, he was disabled during the course of employment and that therefore, he was entitled to be provided with alternate employment. He also submitted that he had produced the requisite medical certificate 7 before the respondents and that it was incumbent upon the respondents to provide him alternate employment rather than accepting his resignation.
9. The learned counsel for the petitioner invited the attention of this Court to Section 47 of the Act of 1995 which reads as follows:
"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 8 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."
10. The learned counsel for the petitioner also relied upon the judgment of this Court in W.P.No.84123/2011 and the judgment of the Apex Court in the case of Bhagwan Dass and another vs. Panjab State Electricity Board reported in (2008) 1 SLT 406, the relevant portion is extracted below:
"6. In view of Section 47 of the Act and the Circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the appellant the 9 Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the appellant was declared completely blind on 17-1-1994 he was not covered by the provisions of the Act that came into force on 7-2-1996. Such plea cannot be raised because on 7-2-1996 when the Act came into force the appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act.
17. From the materials brought before the court by none other than the respondent Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had 10 himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated 17-7-1996. The letter was written when a charge-sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement.
18. Appellant No.1 was a Class IV employee, a lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about 11 his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the officers concerned of the Board, to our mind, was deprecable.
19. We understand that the officers concerned were acting in what they believed to be the best interests of the Board. Still under the old mindset it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty-bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law 12 permits to them is no charity or largesse but their right as equal citizens of the country."
11. On the other hand, the learned counsel for the respondents did not file the objection to the writ petition but contended that the impugned order passed by the Labour Court could be supported from the reasons found in the order passed by the Labour Court. The learned counsel would submit that the resignation was voluntary and that the petitioner had accepted the retirement benefits without any demur. The learned counsel for the respondent contended that he was not disabled as the petitioner did not place any medical record before the respondents and therefore contended that the petitioner after having accepted the retirement benefits, and after nearly two and half years from the date of retirement has now sought for the present reference. He would therefore contend that the claim of the petitioner is not honest but is driven by an attempt to make unlawful gain. 13
12. It is not in dispute that the petitioner was employed as a driver with the respondents. It is also not in dispute that the petitioner had submitted his resignation and he had mentioned in his resignation letter that he had suffered a paralytic attack as a result of which he was crippled and disabled. The word disabled is defined under Section 2(i) of the Act of 1995 as follows:
"(i) Disability" means -
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;"
13. Under Section 47 of the Act of 1995, every establishment in the country is liable in law to provide alternate employment, if any person suffers disability during the course of employment. Soon after the respondents received the resignation letter, it was incumbent upon the respondents to have subjected the 14 petitioner to medical examination to ascertain whether his claim that he had suffered paralysis was genuine or not and as to whether the petitioner could be accommodated in any alternate employment. The respondents did not do so, but merely accepted the voluntary resignation of the petitioner. Section 47 of the Act of 1995 lays a positive obligation on the part of the respondents to consider the request of the petitioner for alternate employment. It was in this context that the Apex Court had considered in the case of Bhagwan Dass that a person who is disabled during the course of employment has to be provided employment and that he cannot be dumped as someone who has become useless. The Apex Court in the case of U.P. State Road Transport Corporation and Another vs. Mohd. Ismail and Others reported in (1991) 3 SCC 239 has held as follows:
"The purpose of discretionary decision making under Regulation 17(3) was intended to rehabilitate the disabled drivers to the extent possible and within the abovesaid 15 constraints. The Corporation therefore, cannot act mechanically. The discretion should not be exercised according to whim, caprice or ritual. The discretion should be exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment with fairness and equity. Those drivers would have served the Corporation till their superannuation but for their unfortunate medical unfitness to carry on the driver's job. Therefore, it would not be improper if the discretion is exercised with greater concern for and sympathetic outlook to the disabled drivers subject of course to the paramount consideration of good and efficient administration. These are some of the relevant factors to be borne in mind in exercising the discretion vested in the Corporation under Regulation 17(3)."
14. The learned counsel for the respondents relied upon the Judgment of the Apex Court in the case of T. Nagaraja Gowda vs. State of Karnataka and others reported in 2017 (1) Kar. L.J. 89 (DB) and contends 16 that disability is not a ground for seeking alternate employment. The Judgment relied upon by the respondents is not applicable to the facts of the case since in that case the petitioner was diagnosed with Chronic allergic Bronchitis which in the opinion of this Court was not a disability stricto sensu as provided in Section 2(i) of the Act of 1995.
15. In view of the above, the respondent who was duty bound to consider the accommodation of the petitioner in a suitable employment, failed to comply with its statutory obligation. Thus as rightly contended by the counsel for the petitioner, acceptance of the voluntary resignation of the petitioner tantamounted to illegal termination. In that view of the matter, this writ petition is allowed. The order accepting the resignation of the petitioner is set aside and the respondents are directed to forthwith treat the petitioner as employed in any non- executive post and without affecting his scale. In view of the fact that the petitioner has attained the age of 17 superannuation, the respondents shall recalculate all his service benefits and pay all the retirement benefits that the petitioner is entitled to. While doing so, the respondent is at liberty to deduct the amounts already paid to the petitioner. This shall be complied by the respondents within a period three months from the date of receipt of certified copy of this order.
If the respondents fail to comply with the same, the petitioner is at liberty to approach this Court for initiating suitable proceedings against the officer concerned for not complying the order passed by this Court.
Sd/-
JUDGE NB/RSP