Gujarat High Court
Ahmedabad Municipal Transport Service vs Mohanbhai Shakrabhai Patel & on 13 April, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/5382/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5382 of 2017
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AHMEDABAD MUNICIPAL TRANSPORT SERVICE....Petitioner(s)
Versus
MOHANBHAI SHAKRABHAI PATEL & 1....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
MR YOGEN N PANDYA, CAVEATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 13/04/2017
ORAL ORDER
The respondent-workman was employed as a conductor and came to be appointed on permanent basis with effect from 01/11/1995. He suffered paralysis in 2003 and as per medical certificate produced by him from L J Hospital dated 28/07/2004, he was declared as a disabled person. After being on long leave, on his resumption of duty, eventually a settlement under Section 2(p) of the Industrial Disputes Act, 1947 (for short the ID Act) came to be arrived at on 29/03/2005, wherein a fresh appointment as a peon to the workman was offered. After a period of five years, the respondentworkman made a grievance in that regard while relying upon the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act of 1995) by seeking a reference (IT) No.164 of Page 1 of 5 HC-NIC Page 1 of 5 Created On Tue Aug 15 23:59:57 IST 2017 C/SCA/5382/2017 ORDER 2010 which was answered in his favour by the impugned judgment and award.
2. It was submitted by the learned Counsel for the petitioner that settlement under Section 2(p) of the ID Act was binding upon the petitioner and having accepted the same, without any grievance for a period of five years, there was no existing live industrial dispute and in fact the reference ought not to have been made.
2.1 Learned Counsel also contended that as agreed by the workman, fresh appointment as peon was given to him and therefore, it was not open for him to invoke the provisions of the Act of 1995. Learned Counsel also submitted that provisions of the Act of 1995 would not override the settlement arrived at between the management and the workman recorded under Section 2(p) of the ID Act and finding to the contrary by the tribunal were erroneous.
3. As against that, the learned Counsel for the respondent-workman would support the impugned judgment and award with the submission that the rights under the Act of 1995 are absolute and statutorily conferred upon the employee in public services and that such a protection could not have been denied to the workman on mere settlement under Section 2(p) of the ID Act. He would contend that even if the settlement was to be accepted, the protection under the Act of 1995 was statutorily available to the workman and has rightly Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Aug 15 23:59:57 IST 2017 C/SCA/5382/2017 ORDER been reiterated in the reference in favour of the workman.
4. Having considered the rival contentions, a reference to Act of 1995 is required to be made. Undisputedly, the Act applies to the petitioner- Corporation. There is also no dispute on the fact that the workman had suffered a paralytical attack which has been defined as Loco motor disability under Section 2(o) of the Act of 1995 thus:
"2(o) "Loco motor disability" means disability of the bones, joints muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy,"
4.1 The Act of 1995 contemplates the protection to the persons with disabilities as also equal opportunities and rights and full participation is protected under the said Act. Section 47 of the Act of 1995 is relevant which reads thus:
"47. (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 is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Aug 15 23:59:57 IST 2017 C/SCA/5382/2017 ORDER 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."
4.2 Thus, it can be noticed that the workman has been immunized against dispensation of his service, as also the protection is conferred upon him in the matter of promotion, if available and if eligible, reduction in rank, payscale and the post; even by creation of supernumerary posts in absence of the post on which the workman may be required to be adjusted having regard to the nature of disability acquired by him.
4.3 Thus, in fact the settlement under Section 2(p) of the ID Act was not permissible as the rights of the workman were already protected in terms of Section 47 on the date of the settlement itself. By settlement, the position contrary to Section 47 of the Act of 1995 could not have been attained.
4.4 Moreover, breach of Section 47 being a continuous wrong, the workman cannot be nonsuited for having consumed a period of five years in raising industrial dispute.
5. In view of the above discussion, no infirmity is found in the impugned judgment and award passed by the Tribunal wherein reliance is placed upon Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Aug 15 23:59:57 IST 2017 C/SCA/5382/2017 ORDER Section 47 of the Act of 1995. The petition is liable to the dismissed; accordingly the petition fails and is dismissed. Notice is discharged. The award shall be implemented by 31/05/2017.
Direct Service is permitted.
(G.R.UDHWANI, J.) sompura Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Aug 15 23:59:57 IST 2017