Gujarat High Court
Gujarat State Road Transport ... vs Kantibhai Jivanbhai Prajapati on 3 March, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/4675/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4675 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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GUJARAT STATE ROAD TRANSPORT CORPORATION....Petitioner(s)
Versus
KANTIBHAI JIVANBHAI PRAJAPATI....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Petitioner(s) No. 1
MR KISHOR M PAUL, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 03/03/2014
ORAL JUDGMENT
By judgment and award dated 31.08.2004, Industrial Tribunal, Surat decided Reference(I.T.) No.10 of 2000, directing the Gujarat State Road Transport Corporation and declaring that the respondent-workman is entitled to be paid salary of Page 1 of 6 C/SCA/4675/2005 JUDGMENT the category of the Driver from April,1998. The first party employer-Gujarat State Road Transport Corporation was further directed that the workman be given employment in Class-IV cadre as Helper or Peon by protecting his pay-scale of the cadre of Driver. Aggrieved Corporation filed the present petition against the aforesaid judgment and award.
2. Heard learned advocate Mr. Ashish Dagli for the petitioner and learned advocate Mr. Kishor Paul for the respondent-workman.
3. The facts stated in nutshell were that the respondent-workman who was working as Driver employed by the petitioner-Corporation, invoked the jurisdiction of the Tribunal, claiming that he was required to be given work as Helper or Peon in Class-IV cadre in view of order dated 28.09.1998 of the Medical Board, Civil Hospital, Surat. It was also prayed that the Corporation was liable to pay the salary of Driver to the workman from April, 1998 from which month, the Corporation stopped paying the salary.
4. It appears that the workman came to be declared unfit for the post of Driver as per Certificate dated 28.09.1998 given by the Medical Board, Civil Hospital, Surat. He was unable to perform the duties as Driver due to physical disability. It appears that due to high blood pressure and paralysis suffered in the left hand, the workman was rendered unfit to perform the duties as Driver. The Corporation passed Page 2 of 6 C/SCA/4675/2005 JUDGMENT administrative order dated 14.03.2000 discontinuing and terminating the services of the workman on that count. Before the Labour Court, it was the case of the workman that in terms of the settlement dated 21.12.1989 with the employer, as per Clause-37(7) thereof, he was entitled to be recategorized and provided suitable job. It appears that vide letter dated 10.07.1998, he had requested the Corporation to give him duty on the post of Helper or Peon, but the Corporation retorted with termination order.
5. The relevant Clause-37(7) of the settlement provides for giving recategorized duty to the employees/workmen who are rendered unfit to perform their original jobs. The contention of the Corporation that the petitioner was not entitled to said recategorization and benefit under Clause-37(7) of the settlement did not apply to him, was rightly negatived by Industrial Tribunal. The said clause has not prevented recategorization in cases of the workmen who become permanently disable due to accident suffered in course of service.
6. In addition to above, learned advocate for the respondent relied on section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. During the pendency of the petition, the workman reached the age of superannuation in May, 2009 and thus, as on today, he stands retired. It was pointed out by learned advocate for the petitioner that the total amount payable as per the award of the Tribunal from Page 3 of 6 C/SCA/4675/2005 JUDGMENT 01.04.1998 to October, 2004, towards arrears of salary in the pay-scale of Driver comes to Rs.5,53,500-00. He also submitted that the calculation for the cadre of Helper if is calculated, with reference to pay-scale applicable to the Helper, the amount would be Rs.4,91,200-00. It was submitted that the workman is entitled to be paid in the scale of Helper only. It was submitted that the Corporation would be fastened upon additional burden by the petitioner if the arrears on the basis of scale of driver as directed by the Industrial Tribunal is required to be paid to him.
7. As noted above, it was clearly found that the workman was entitled to the benefit of Clause-37(7) of the settlement between the petitioner-employer and its employees and he having rendered unfit, he is entitled to recategorization and protection of it. The arrears of pay would be available to the workman by virtue of statutory mandate contained by section 47 of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation)Act, 1995.
8. In Katarbhai Keshlabhai Rathva vs. Assistant Geologist & Ors.[2014(1)G.L.R.70], this Court dealt with similar controversy. Inspite of Doctor's Certificate which certified that the petitioner was not fit for Driver work, but he was fit for other works, the respondent authority did not shift the petitioner to other works, instead the services of the said petitioner were dispensed with. In the circumstances, the Court held that it was an obligation and duty on the respondent to act in Page 4 of 6 C/SCA/4675/2005 JUDGMENT accordance with the provisions of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and obligation passed thereunder could not have been disregarded. Section 47 of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation)Act, 1995 reads as under:-
"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 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 this section."
9. In the present case, there is no dispute that the Medical Board certified the petitioner physically unfit. The workman had suffered paralysis and was not able to discharge duties of the Driver. The disability was caused to the workman in course of service. He was entitled to pay and recategorization with protection of pay.
10. For the foregoing reasons and discussion, impugned judgment and award was eminently just, proper Page 5 of 6 C/SCA/4675/2005 JUDGMENT and legal and does not call for any interference. The workman, who is now retired employee, is required to be paid as expeditiously as possible the benefits arising out of the award. The same shall be paid to the workman by the Corporation within a period of four weeks on production of certified copy of this order.
11. The petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(N.V.ANJARIA, J.) Chandrashekhar Page 6 of 6