Gujarat High Court
Mahendrabhai Savjibhai Ozat vs Paschim Gujarat Vij Company Limited on 3 September, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5307 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MAHENDRABHAI SAVJIBHAI OZAT
Versus
PASCHIM GUJARAT VIJ COMPANY LIMITED
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Appearance:
NAMAN H KINKHABWALA(8831) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 03/09/2021
ORAL JUDGMENT
Heard learned advocate Mr.Naman Kinkhabwala for the petitioner and learned advocate Mr.Dipak Dave for the respondent.
2. Rule returnable forthwith. Learned advocate Mr.Dipak Dave waives service of notice for rule for the respondent.
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3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
"(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or an appropriate writ, order or direction to quash and set aside the impugned order at Annexure-A dated 21.12.2020 passed by the respondent;
(B) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or an appropriate writ, order or direction and be pleased to direct the respondent authorities to grant an alternative employment to the petitioner in the establishment of respondent.
(C) Pending the admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to stay of the execution, implementation and operation of the impugned order at Annexure-A to the petition dated 04.05.2019 passed by respondent and further be pleased to temporary provide an alternative employment to the petitioner under respondent authority, pending, admission, hearing and final disposal of the present petition;
(D) Any other and further relief of reliefs to which this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted."
4. The brief facts of the case are as under :
4.1 The petitioner was appointed as an Apprentice under the provisions of the Apprentice Act, 1961 (for short "the Act of 1961") on 8th September, 2014 as Lineman for the period of two Page 2 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 years by the respondent - Paschim Gujarat Vij Company Limited.
4.2 The petitioner has passed SSC & HSC examination and has also completed the course of trade test in the trade of wire-man and has also obtained vocational training from the Industrial Training Institute, Rajkot. The petitioner has also successfully completed the course of Apprenticeship Training under the provisions of the Act of 1961 and has also passed the trade test in the Trade of Lineman held in the month of April, 2017 and accordingly, the petitioner was issued Provisional National Apprenticeship Certificate for the training period from 12th September, 2014 to 11th September, 2016.
4.3 When the petitioner was serving as apprentice with the respondent, the petitioner met with an accident on 24th May, 2015 while working as wire-man and lost his one hand.
4.4 The respondent Company paid compensation of Rs.8,24,258/- before the Commissioner under the Workmen Compensation Act to the petitioner.
4.5 Thereafter, the petitioner was called for giving physical test on 12th January, 2018 and again on 9th September, 2019 for pole climbing, however, as the petitioner had suffered with an accident while performing his duty during his Page 3 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 training period and had become 45% disabled, he was not able to climb the pole.
4.6 It is the case of the petitioner that he made several oral requests along with written request dated 23rd May, 2018 for granting him an alternative employment, but the respondent did not respond to such requests.
4.7 The petitioner, thereafter, made a detailed representation on 17th September, 2018 before the General Manager (H.R.) of the respondent Company requesting that he being physically handicapped, be given any other alternative appointment.
4.8 The petitioner once again made a representation before the Court of Commissioner (For Disabled Persons) under the provisions of the Physically Handicapped (Rights of Persons with Disabilities) Act, 2016.
4.9 The Commissioner for the Physically Disabled Persons considered the provisions of the Recruitment Rules prevailing in the respondent Company as well as taking into consideration the provisions provided under Section 3(5) of the Rights of Persons with Disabilities Act, 2016 directed the respondent to consider the the case of the petitioner for alternative employment.Page 4 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022
C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 4.10 The respondent Company being aggrieved of the order passed by the Commissioner preferred Special Civil Application No.21036 of 2019 before this Court which was summarily dismissed vide order dated 2nd December, 2019, wherein it was held that the Commissioner has not committed any error by directing the petitioner (respondent herein) to consider the case of the respondent No.1 (petitioner herein) to provide alternative employment and to consider the his case against the reserved vacancies for disabled handicapped persons.
4.11 It appears that the respondent by order dated 21st December, 2020 rejected the claim of the petitioner for alternative appointment on the ground of Section 22(1) of the Act of 1961, which provides that it is not obligatory on the part of the employer to offer employment to any apprentice who has completed the period of his apprenticeship training in his establishment.
4.12 The petitioner has therefore, challenged the order dated 21st December, 2020 by preferring this petition with the aforesaid prayers.
5. Learned advocate Mr.Kinkhabwala for the petitioner submitted that in the facts of the case, the petitioner has not completed his training but he has also cleared the trade test successfully.
Page 5 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 5.1 Learned advocate for the petitioner further submitted that the petitioner has suffered an accident and lost his one hand while he was duly performing his duty and therefore, the respondent ought to have considered the case of the petitioner for alternative employment on sympathetic ground instead of rejecting his plea on some hyper-technical grounds relying upon Section 22(1) of the Act of 1961.
5.2 It was also pointed out by the learned advocate Mr.Kinkhabwala that several such employees who have become disabled while in service of the respondent, have been given employment in the establishment of the respondent and hence, the petitioner also should be given alternative appointment on the ground of parity.
5.3 Learned advocate Mr.Kinkhabwala referred to the provisions of Section 3(5) of the Rights of Persons with Disabilities Act, 2016 which makes it mandatory for the Government to ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.
5.4 Reference was also made to Sub-section 3 of Section 3 of the said Act to point out that the respondent has discriminated the petitioner just because he has become disabled. It was also Page 6 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 submitted that in similar facts, this Court allowed the Special Civil Application No.13246 of 2004 and the petitioner of the said petition was granted alternative employment by the respondent. It was pointed out that the decision in case of Ramsi Naranbhai Chandera in Special Civil Application No.13246 of 2004 was also considered by this court while dismissing the Special Civil Application No.21036 of 2019 filed by the respondent challenging the order dated 4th May, 2019 passed by the Court of Commissioner under the Disabilities Act, 2016.
5.5 It was further submitted that the respondent company has passed the impugned order contrary to the provisions of Section 3(5) of the Disabilities Act, 2016 as the respondent Company who being a Government Company ought to have granted reasonable alternative employment to the petitioner as the petitioner was not demanding for appointment in a particular cadre or position.
5.6 Learned advocate Mr.Kinkhabwala submitted that the petitioner has completed his training as well as cleared the trade test with very good grade inspite of his injury and hence, the respondent ought to have considered the case of the petitioner against 4 % reservation for disabled persons as per the provisions of the Disabilities Act, 2016.
Page 7 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 5.7 It was also pointed out that there can never be a comparison between the case of the petitioner and other disabled persons and therefore, the provisions of Apprenticeship Act, 1961 relied upon by the respondent Company for not granting alternative employment is not tenable in law as such provisions would not have any applicability in the facts of the present case.
5.8 Learned advocate Mr.Kinkhabwala in support of his submissions relied upon the decision of the Apex Court in case of Narendra Kumar Chandla Vs. State of Haryana1, wherein the Apex Court held that when an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge his duties.
6. On the other hand, learned advocate Mr.Dipak Dave appearing for the respondent Company submitted that the petition is not maintainable as no fundamental much less any legal right of the petitioner has been violated by the respondent as the petitioner was appointed as Apprentice in the trade of Apprentice lineman 1 1994 (4) SCC 460 Page 8 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 under Section 18 of the Apprenticeship Act, 1961 and during the apprenticeship training, the petitioner met with an accident in which the petitioner lost his one hand.
6.1 It was submitted by learned advocate Mr.Dave that due to such accident though successfully completed the Apprenticeship training, he could not appear in the physical as well as written examination in view of his disablement.
6.2 It was pointed out that the respondent is a Government Company having statutory rules and regulations for the purpose of recruitment to any post in the establishment and Lineman was placed in the General Standing Order - 3 issued by Gujarat Urja Vikas Nigam Limited - the holding company of the respondent for making appointment to the candidates who have successfully completed and undergone the apprenticeship training and who have given written test for recruitment in the cadre of Vidhyut Sahayak (Electrical Assistant), and to such successful candidates appointments are offered on merit basis.
6.3 It was submitted that the petitioner could not undergo physical as well as the written examination due to disablement and he was not able to climb the pole, which is must for a helper during physical examination as per the Page 9 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 provisions of GSO - 3, the petitioner was not offered appointment.
6.4 It was also submitted that pursuant to the order passed by this Court in Special Civil Application No.21036 of 2019, confirming the order dated 4th May, 2019 passed by the Court of Commissioner under the Disabilities Act, 2016, the respondent considered the case of the petitioner in accordance with their rules and regulations and it was found that the the petitioner has not undergone recruitment process and therefore, it was not possible to offer any alternative employment to the petitioner and accordingly, the case of the petitioner was rejected by the respondent.
6.5 With regard to the reliance placed upon the order passed by this court in Special Civil Application No.13246 of 2004, it was submitted that at the relevant time, the Apprentice who had completed training were being appointed automatically in order or their seniority for the post of Helper and accordingly, the petitioner in the said petition was appointed pursuant to the order passed by this Court by considering the case against reservation of physically handicapped person.
6.6 It was submitted that the case of the petitioner can be considered against physically Page 10 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 handicapped person and for that purpose the petitioner is required to apply for the suitable post and is also required to undergo written examination, if any, prescribed for the said post and merely because the petitioner has completed Apprenticeship training, he would not be entitled to be appointed on any other post of Class IV.
6.7 Learned advocate Mr.Dave also relied upon the provisions of Section 22 of the Apprenticeship Act, 1961 to submit that it is not obligatory on the part of the employer to offer any employment to any Apprentice who has completed period of his apprenticeship training in the establishment. It was submitted that the petitioner has no right to claim employment as a matter of right of completion of the apprenticeship training and the petitioner has only limited right as per the scheme for the purpose of appointment as Apprenticeship Trainer.
6.8 It was therefore, submitted that the decision taken by the respondent is in accordance with the applicable rules and the petitioner cannot be appointed contrary to the recruitment rules. It was also pointed out that the respondent has paid the compensation to the petitioner under the Employees' Compensation Act and all medical expenses are borne by the respondent. In such circumstances, it was submitted that the petition should not be Page 11 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 entertained as it is open for the petitioner to apply for the post reserved for the physically disabled persons.
7. Having heard the learned advocates for the respective parties and having gone through the materials on record, it appears that though the petitioner has lost his one arm in the unfortunate accident which took place on 24th May, 2015 while working as wire-man wit the respondent, the respondent has denied the alternative employment to the petitioner on hyper-technical grounds.
7.1 The respondent has not denied that the petitioner lost his arm while he was working with the respondent. In such circumstances, the stand taken by the respondent relying upon the provisions of Section 22(1) of the Apprenticeship Act, 1961 is not tenable. Section 22(1) of the Apprenticeship Act, 1961 reads as under :
"It shall not be obligatory on the part of the employer, to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment, nor shall it be obligatory on the part of the apprentice to accept an employment under the employer"
7.2 From the above provisions of the Act of 1961, it is true that it is not obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of Page 12 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 his apprenticeship training, however, in the facts of the case, due to accident which took place with the petitioner while working with the respondent on apprenticeship training, he could not appear in physical as well as written examination so as to make him legible for employment as per the General Standing Order - 3 relied upon by the respondent.
7.3 This Court in Special Civil Application No.13246 of 2004 in case of Ramsi Naranbhai Chandera (Supra) in similar facts has held as under :
"6. Considering the peculiar facts of the case, where the petitioner had successfully completed the apprentice training for the post of Helper, his case would have been considered along with the other trainees for appointment as a Helper as per the requirement of the board which opportunity the petitioner lost on account of the accident, it would be appropriate that his case be considered for other alternative employment. As noted earlier, the petitioner has lost his left arm from below the elbow. This happened on account of injury that the petitioner received while discharging his duty for the board. This has rendered him unfit for the post of Helper. He is, however, of unfit to discharge lighter duty of other posts mentioned above. It is not in dispute that there would be some reservation for physically handicapped person. Surely the case of the petitioner can be considered for any alternative employment for which reservation that may be available.
7. Considering the above facts of the case, respondents are directed to consider the Page 13 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 case of the petitioner for any other tighter alternative employment and if possible to consider his case against the reserved vacancies for the physically handicapped persons. The above exercise be completed within a period of three months from the date of receipt of write of this order. Rule is made absolute. No order as to costs.
7.4 This Court, while dismissing the petition filed by the respondent against the order dated 4th May, 2019 passed by the court of commissioner under the Disabilities act, 2016 directing the petitioner to consider the case of the respondent, has also referred to the aforesaid decision and after considering the said decision as well as the provisions of Sections 79 and 80 of the Rights of Persons with Disabilities Act, 2016, it was held as under :
"15. From the above provisions, it is clear that the respondent no. 2 has jurisdiction to entertain the application filed by the respondent no. 1 as the petitioner company is 100% Government company and as such it is bound by the provisions of the Act, 2016. Moreover, Section 3(1) and 3(2) of the Act, 2016 clearly provides that the appropriate Government shall take steps to utilize the capacity of persons with disabilities by providing appropriate environment and also to ensure reasonable accommodation to the persons with disability so as to permit them to live a life with dignity. The provision of Section 3 of the Act, 2016 reads as under:-
3. Equality and non-discrimination.
--"(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to Page 14 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 equality, life with dignity and respect for his or her integrity equally with others.
(2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment.
(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.
(4) No person shall be deprived of his or her personal liberty only on the ground of disability.
(5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities."
16. From the above provisions of the Act, 2016, it is clear that the respondent no. 2 Commissioner has not committed any error by directing the petitioner to consider the case of the respondent no. 1 to provide alternative employment and to consider his case against the reserved vacancies for disabled handicap persons.
17. In view off foregoing reasons, the petition is without any merits and the same is dismissed summarily. No order as to costs."
7.5 Even the Supreme Court in case of Narendra Kumar Chandla (Supra) has held that in case of employees afflicted with disabilities and if he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge his duties. The relevant observations of the Apex Page 15 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 Court are as under :
"4. The Medical Board also attempted to find whether he can be posted as Sub-Station A.F.M., Foreman, Grade III, Chargeman, Rigger, Crane Driver, Welder, etc. It recommended that the duties to those posts are similar to the Sub- Station Attendant. Under these circumstances, the Medical Board felt that the appellant who failed to perform his duties as Sub-Station Attendant cannot also discharge the duties of alternative posts as mentioned above. They have also stated that the appellant has been able to write English and Hindi with his left hand and if the Board feels, he can be considered for clerical or non-technical post subject to his meeting educational administrative requirements of the Board.
5. In the objections filed by the appellant he mentioned that he was performing the duties in 33 KV and that there is no prior practice given to him for handling 66 KV and his advocate was not permitted to attend at the time when he was examined thereby sought to make some allegations against the Medical Board. We pay no heed, nor countenance such unwarranted allegations against an impartial Board which has no axe to grind against the appellant. The Medical Board sympathetically considered the appellant's capability pursuant to the directions given by this Court. Therefore, he may not be justified in making such allegations against the Board. Suffice to state that in view of the findings given by the Medical Board assisted by the Engineers, we do not think that we can direct the Board to give suitable post to absorb the appellant either as Sub-Station Attendant or any equivalent post on the technical side.
6. However, we have considered the material placed before us by the respondents relating to qualifications etc., for working on the clerical or non-technical side as suggested by the Medical Board. Though, Shri M.C. Bhandare, learned counsel for the appellant has attempted to argue for directing the respondents to appoint the appellant as UDC which carry equal pay scale, we think that we cannot give such directions. The reasons are that there are two Page 16 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 channels of appointment to the post of UDC. One is promotion and another is direct recruitment in the ratio prescribed at 75% and 25%. For a direct recruit, graduation or post-graduation or law graduation is the minimum educational qualification required apart from other requirements mentioned therein. Admittedly, the appellant is not possessed of the qualifications. He is only matriculate. As a result we cannot give any direction to appoint him as UDC.
7.Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as an LDC. Admittedly on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs 1400-2300 and direct to pay all the arrears of salary."
7.6 As the case of the petitioner claiming the alternative employment with the respondent is squarely covered by the decision of this court in case of Ramsi Naranbhai Chandera, the contentions raised on behalf of the respondent that at the relevant time rules of recruitment were different Page 17 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022 C/SCA/5307/2021 JUDGMENT DATED: 03/09/2021 cannot be accepted as considering the peculiar facts of the case the respondent ought to have given alternative employment to the petitioner in view of the provisions of the Disabilities Act, 2016, as this Court also considered the reservation for physically handicapped persons.
8. In view of the foregoing reasons, the petition succeeds and the same is accordingly allowed. Considering the above facts of the case, the impugned order dated 21st December, 2020 passed by the respondent is hereby quashed and set aside. The respondent is directed to consider the case of the petitioner for any other alternative employment against the reserved vacancies for physically handicapped persons. Such exercise shall be completed within a period of three months from the date of receipt of the writ of this order.
9. Rule is made absolute. No order as to costs.
(BHARGAV D. KARIA, J) dolly Page 18 of 18 Downloaded on : Sun Jan 16 12:05:34 IST 2022