Central Administrative Tribunal - Delhi
Yogesh Kumar vs Delhi Transport Corporation (Dtc) on 7 March, 2025
1
OA No. 998/2024
Item No. 35 (C-4)
Central Administrative Tribunal
Principal Bench
New Delhi
O.A. No. 998/2024
Order reserved on: 13.02.2025
Order pronounced on:
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Yogesh Kumar, Driver, TKD, B.No.25257,
Aged about 45 years, Group-'C'
s/o Sh. Bijender Singh,
r/o House No.166, Gali No.61-A, Molarband Extension,
Badarpur, New Delhi-110044.
...Applicant
(By Advocates:Mr. Anil Mittal)
Versus
Delhi Transport Corporation,
I. P. Estate, New Delhi-110002.
(through Chairman-Cum-Managing Director)
...Respondent
(By Advocate:Mr. Amit Sinha)
2
OA No. 998/2024
Item No. 35 (C-4)
ORDER
Hon'ble Mrs. Harvinder Kaur Oberoi, Member(J) The present OA has been filed by the applicant seeking the following reliefs:-
"(i) Quash notice dated 29-2-2024 (Annexure A. 1)
(ii) direct the respondent to give the benefit of section 47 of the Act and/or the benefit of section 20 of the New Act and to assign him duty to whatever posts he is found fit for in the same pay scale that he was drawing as a driver;
(iii) direct the respondent to pay to applicant arrears of salary with interest from December, 2023 till payment."
2. The applicant had been employed with DTC as a Driver since the year 2010. On 29.02.2024, he has been issued the impugned Show Cause Notice (SCN) whereby the respondents have granted him 10 days' time to give reply to the SCN as to why his services as Driver in DTC be not terminated/removed from service as per Rule 50(2) of the DRTA (Conditions of Appointment & Services) Regulation,1952.
3. Counsel for the applicant, explaining background of the case submitted, that some other drivers, 119 in number, suffering from Color Blindness had approached the Hon'ble Apex Court in Surender Singh and Ors. Vs 3 OA No. 998/2024 Item No. 35 (C-4) Delhi Transport Corporation and Ors. in CA No. 11154/2016. The Hon'ble Apex Court vide their judgment dated 22.11.2016 had directed the respondents to grant one opportunity to Show Cause to the petitioners and /or conduct an inquiry before terminating their services. Counsel submits that a detailed medical examination was to be conducted as part of this inquiry, to conclude whether the disability of Colour Blindness was acquired pre- or post-their services.
4. Counsel for the applicant submitted that although the applicant is not part of the 119 drivers who were party in that case however, a similar process should have been adopted by the respondents in this case also. Instead, the respondents, singularly based on the medical report dated 17.10.20218 of the applicant, noting him to be color blind, issued him the SCN on 29.02.2024.
4OA No. 998/2024 Item No. 35 (C-4)
5. That on 28.03.2024, when the OA was taken up at the admission stage, the Tribunal had restrained the respondents from taking any consequential action pursuant to the SCN. He submits that the applicant has been discharging duties other than that of a driver since then.
6. Learned counsel for the applicant further drew our attention to the Order dated 30.06.1998, issued by the Deputy Manager of the DTC, which stipulates a medical examination every year after attaining the age of 55 yrs. The same is reproduced herein below:-
"The Board further resolved that the drivers of the DTC shall get the benefit of enhanced retirement age subject to their being found fit in every respect after a thorough medical examination by the Medical Officer of the DTC every year after they have attained the age of 55 years. The first examination shall be carried out immediately after or before they have attained the age of 55 years. If as a result of such medical examination they are found unfit for further service, they would be retired from the service of the Corporation without any notice."
He submitted that as per this, once the driver has attained the age of 55 years, he can continue up till the age of 60 subject to his fitness being declared in a medical 5 OA No. 998/2024 Item No. 35 (C-4) examination/test to be conducted every year. He submitted that the applicant at present, is 46 years old and that he should be treated in terms of the Order dated 30.06.1998, meaning thereby that he be allowed to serve without a medical test till attaining age of 55 years.
7. Counsel further relies on the circular dated 20.06.2006 as per which the DTC in terms of Section 47 of the Persons with Disabilities Act, 1995 had directed that the provisions of Section 47, shall be complied with in all cases where the employees acquired disability during his service career and/or being declared unfit by the DTC medical board. Section 47of the Persons with Disabilities Act, 1995 is being reproduced herein below:-
""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 the 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 6 OA No. 998/2024 Item No. 35 (C-4) 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." He therefore submits that if the applicant is to be treated as acquired colour blindness, during service, then as per Section 47 of the Act, his services cannot be dispensed with or reduced in rank. On the other hand, if he is declared unfit by the DTC medical board then even as per the circular dated 20.06.2006, he cannot be terminated or removed from service till his age of superannuation. He therefore submits that given the circular of 20.06.2006, the SCN deserves to be quashed and the applicant is to be given the benefit of Section 47 of the PwBD Act.
8. Learned counsel for the applicant further submitted that since the SCN itself has been invoked based on the directions issued by the 7 OA No. 998/2024 Item No. 35 (C-4) Hon'ble Apex Court, when approached by the 119 drivers, the respondents are duty-bound to act in terms of the directions of the Hon'ble Apex Court therein. He submits that the Hon'ble Apex Court has held that in the case of facing a medical board, the medical opinion is that the employee is disabled/suffering from color blindness before his engagement/appointment then the question as to whether the said employee has obtained the appointment by deceitful means shall also have to be gone into by the administration. He therefore submits that merely by invoking the decision of the Hon'ble Apex Court the respondents cannot be absolved of their duty to hold a proper enquiry.
9. He further submitted that he was declared medically unfit in the year 2018 and he continued to serve as a Driver till December 2023, when the SCN was issued. The applicant had rushed immediately to the Tribunal even without filing any reply to the SCN, owing to the 8 OA No. 998/2024 Item No. 35 (C-4) very fact he had been working without any objections and complaints and then suddenly the SCN was issued which appears to be fait accompli.
10. The respondents are opposing the OA and have filed their reply.
11. Learned counsel for the respondents, at the outset, while opening his arguments, stated that an inadvertent error occurred in the show cause notice, specifically in paragraph 10, wherein reference was made to the Dean, MAMC College. He submits that a corrigendum dated 20.03.2024 was issued to rectify the said error, and instead of "Dean, MAMC College," it should correctly read as "Medical Director, Chairman, Medical Board, Lok Nayak Hospital, New Delhi."
12. On merits, learned counsel for the respondents submitted that the OA is premature, as it has been filed challenging the show cause notice without the applicant having 9 OA No. 998/2024 Item No. 35 (C-4) submitted a reply thereto. He contends that responding to the SCN is an essential procedural requirement and, the grounds raised herein in the OA can be raised by the applicant before the competent authority.
13. In support of his submissions, he placed reliance on the judgment of the Hon'ble Supreme Court in Union of India & Anr. vs. Kunisetty Satyanarayana AIR 2007 SUPREME COURT 906 wherein it was held that ordinarily, a writ petition should not be entertained against a mere show cause notice, as it does not give rise to a cause of action and does not amount to an adverse order at that stage.
14. Learned counsel for the respondents further relies on the order dated 22.01.2019, pursuant to which the Delhi Transport Corporation (DTC) decided to subject its drivers to regular medical tests upon attaining the ages of 45 and 50 years. He submits that the applicant, having 10 OA No. 998/2024 Item No. 35 (C-4) reached the age of 45, underwent a medical examination, during which it was discovered that he was suffering from colour blindness. He also draws attention to the medical report issued by the Chief Medical In charge, Medical Board, which states that colour blindness is a congenital condition, existing since birth, and is a ground for permanent rejection under the Corporation's medical standards. Accordingly, he submits that the respondents were justified in issuing the impugned show cause notice to the applicant.
15. He further submits that a committee was constituted to examine how a significant number of drivers suffering from colour blindness and other medical conditions were recruited into DTC. He refers to paragraph 6 of the show cause notice, which reads as under:-
"6. WHEREAS, a Committee under the chairmanship of the Dean, MAMC was constituted by the Health Department, GNCTD to fix the responsibility of the doctors of Guru Nanak Eye Centre with respect to medical fitness certificates issued to DTC drivers who were subsequently declared 11 OA No. 998/2024 Item No. 35 (C-4) medically unfit by the DTC Medical Board. The Committee observed that, in the majority of cases, a single-member Board had examined the candidates during OPD days in the years 2008-2010. During vacations, only senior residents were conducting medical examinations. Some doctors did not even specifically recall conducting medical tests of DTC drivers."
16. In view of the above, learned counsel for the respondents contended that the action of the respondents is entirely lawful. He further submitted that all the grounds raised by the applicant in the present OA could have been adequately addressed in his reply to the show cause notice, which would have been duly considered by the competent authority.
17. We have considered the rival submissions. The Respondent's DTC is the organization charged with running the local transport public buses. The applicant is serving as a driver therein and is responsible for the smooth running of the bus being driven by him. Being free from Color Blindness is an essential requirement for a driver. Respondents being the employer have the right to get their drivers medically examined from time to time. In such exercise, the applicant was 12 OA No. 998/2024 Item No. 35 (C-4) examined and found to suffering from color blindness. Respondents have issued the SCN to the applicant. The applicant has taken many grounds, challenging the SCN. However applicant ought to have taken the same before the competent authority, in reply to the SCN. It is also a well-settled law that the disciplinary/appellate authority is required to apply its own mind to the facts and circumstances of the case and to come to its own conclusions. There is no indication in any of the actions of the respondents to suggest that the applicant is not likely to get a fair chance. We are sanguine that the respondents shall consider the reply submitted to the SCN in a fair and just manner. We would like to recall the Hon'ble Apex Court decision in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others (2009) 4 SCC 240, wherein exhibiting the necessity of passing speaking orders, in para 8 it was held as under:- 13 OA No. 998/2024
Item No. 35 (C-4) "8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation".
18. Given the above we feel the ends of justice would be met if the OA is disposed with direction to respondents to afford one opportunity to the applicant to submit his reply to the SCN. The reply to the SCN shall be submitted by the applicant within three weeks of the receipt of the certified copy of this order. Respondents shall then take a final decision on the SCN within two months thereafter by passing a reasoned and speaking order.
19. The OA is disposed accordingly. Any pending MA's also stand disposed.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member(A) Member(J)
/ss/