Bombay High Court
Arvind Shankarrao Khodke vs The Regn. Director Of Muncl. Admn. & 2 Ors on 10 January, 2017
Author: V.M.Deshpande
Bench: Vasanti A Naik, V.M.Deshpande
1001WP3496.07-Judgment 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3496 OF 2007
PETITIONER :- Arvind S/o Shankarrao Khodke, Aged about
46 years, Resident of Sindhi (Rly), Tq. Seloo,
Distt. Wardha.
...VERSUS...
RESPONDENTS :- 1. The Regional Director of Municipal
Administration, Nagpur Division, Nagpur.
ig 2. The Chief Officer, Municipal Council, Sindhi
(Rly), Tq. Seloo, Distt. Wardha.
3. The Head Master, Municipal Nehru
Vidyalaya, Sindhi (Rly), Tq. Seloo, Distt.
Wardha.
---------------------------------------------------------------------------------------------------
Mr.R. S. Parsodkar, counsel for the petitioner.
Mr. K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondent No.1.
Mr. D.M.Kakani, counsel for the respondent Nos.2 and 3.
---------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK &
V.M.DESHPANDE, JJ.
DATED : 10.01.2017 O R A L J U D G M E N T (Per Smt. Vasanti A Naik, J.) By this writ petition, the petitioner challenges the communication of the Chief Officer of the Municipal Council dated 19-25/04/2005 suspending the petitioner from service. The petitioner challenges the order dated 02/12/2005, compulsorily retiring the ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 2/9 petitioner from service. The petitioner has also challenged the order of the Regional Director of Municipal Administration dismissing the revision filed by the petitioner against the orders of the Chief Officer of the Municipal Council.
2. Few facts giving rise to the petition are stated thus -
The petitioner was qualified for appointment to the post of Assistant Teacher and was appointed as such by the respondent-
Municipal Council on 02/08/1985. According to the petitioner, the petitioner worked as an Assistant Teacher continuously till he fell in the bathroom on 19/10/2002 and suffered a brain injury. The petitioner was admitted to the C.I.M.S. Hospital at Nagpur and the petitioner, went on leave for a period of six months. The petitioner joined the services on 02/05/2003 after he was declared 'fit'. Since the petitioner was allegedly not performing his duties to the satisfaction of the respondent-Municipal Council, the petitioner was sent to the Medical Board on 28/04/2003 for examination. The Medical Board declared the petitioner 'fit' for his duty. Again, as there were some complaints against the petitioner, the respondent Municipal Council called for remarks from the Medical Board and the Board issued a certificate in January, 2005 that the petitioner was medically 'fit' to perform his duties. On 31/03/2005, a show cause notice levelling several allegations was served on the petitioner. The petitioner sought for some documents ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 3/9 and did not tender his explanation to the show cause notice. The petitioner was suspended from service by the impugned order, dated 19-25/04/2005 and was again referred to the Medical Board. The Medical Board opined in the month of October and November, 2005 that the petitioner was not 'fit' for duties as an Assistant Teacher, but the petitioner was 'fit' for some other job of clerical nature. After the opinion of the Medical Board was secured, the petitioner was compulsorily retired from service by the impugned order dated 02/12/2005. After his suspension and before he was compulsorily retired, the petitioner filed a revision before the Regional Director of Municipal Administration. The revision filed by the petitioner was however dismissed. The petitioner has challenged all the three orders in the instant petition.
3. Shri Parsodkar, the learned counsel for the petitioner, submitted that the respondent-Municipal Council was duty bound to provide an alternate job to the petitioner and protect his pay in view of the provisions of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is submitted that the establishment of the respondent, i.e. the Municipal Council is covered by the provisions of the Act and the said Act is applicable to the Municipal Councils also. It is stated that in view of the provisions of section 47 of the Act, an establishment is not entitled to ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 4/9 dispense with the services of an employee, who suffers a disability during his service. It is submitted that no establishment is permitted to dispense with the services of the employee or reduce him in rank, if he acquires a disability during his service. It is submitted that if the employee is not suitable for the post that he is holding, he can be shifted to some other post with the same pay scale and same benefits.
It is submitted that the action on the part of the respondent-Municipal Council in dispensing with the services of the petitioner is bad-in-law and violative of the provisions of section 47 of the Act. The learned counsel relied on the judgments of the Hon'ble Supreme Court, reported in (2003) 4 SCC 524 (Kunal Singh v. Union of India) and (2013) 7 SCC 243 (Anil Kumar Mahajan v. Union of India) to substantiate his submissions. It is stated that the petitioner would be entitled to the arrears of salary for the period during which the petitioner was out of service.
4. Shri Kakani, the learned counsel for the Municipal Council, supported the orders of the Chief Officer as also the order in revision. It is submitted that a show cause notice levelling several allegations was served on the petitioner and the petitioner did not tender his explanation to the same. It is submitted that the petitioner was suspended from service and after the opinion of the Medical Board was sought, his services were dispensed with, by passing an order of ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 5/9 compulsory retirement. It is submitted that the certificate tendered by the petitioner to show his disability is not the certificate as is required under the Act and the Rules, as the extent of the disability suffered by the petitioner is not mentioned in the same. It is submitted that since the petitioner has not worked for a period of more than ten years, even if this court is inclined to reinstate the petitioner in service, by directing the respondent-Municipal Council to provide an alternate job to the petitioner, this court may not grant the entire monetary benefits to the petitioner. It is submitted that in the circumstances of the case, the impugned orders may not be interfered with.
5. On a perusal of the documents annexed to the writ petition and the affidavit-in-reply filed on behalf of the Municipal Council, it is apparent that the Municipal Council referred the petitioner to the Medical Board time and again, as the petitioner was not able to perform his duties as an Assistant Teacher to the satisfaction of the Municipal Council. It appears that there were several complaints against the petitioner in respect of the performance of his duties as an Assistant Teacher. The petitioner was referred to the Medical Board by the respondent-Municipal Council from time to time. The petitioner suffered a head injury in the year 2002, but in the opinion of the Medical Board, the petitioner was 'fit' to perform his duties as an Assistant Teacher in the years 2002, 2003 as well as in the year 2004.
::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 6/9For the first time, in the midst of the year 2005, according to the opinion of the Medical Board, the petitioner was not 'fit' for performing his duties as an Assistant Teacher and was 'fit' for performing the duties of a clerical nature. The Medical Board held in three consecutive reports that the petitioner was not 'fit' to perform his duties as an Assistant Teacher, but was 'fit' to perform the duties of a clerical nature.
It appears that the respondent-Municipal Council sought to dispense with the services of the petitioner after the said reports were secured.
After the coming into force of the Act of 1995, an establishment like the respondent, i.e., a local body, is not entitled to dispense with the services of an employee, or reduce him in rank, if he acquires disability, while in service. Admittedly, the petitioner was in service when he acquired the disability. Though the petitioner was not 'fit' for doing the job of Assistant Teacher, according to the opinion of the Medical Board, the petitioner was 'fit' to perform the duties of clerical nature. The Municipal Council was obliged, in view of the provisions of Section 47 of the Act to give an alternate job to the petitioner and protect his pay scale. Instead of complying with the provisions of section 47 of the Act, the Municipal Council illegally dispensed with the services of the petitioner solely on the ground that the petitioner was not 'fit' for performing his duties as an Assistant Teacher. It is rightly submitted on behalf of the petitioner that the services of an employee cannot be dispensed with, and if an employee is not suitable for performance of ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 7/9 the duties of the post that he is holding after acquiring the disability, he should be shifted to some other post with the same pay scale and service benefits. Instead of asking the petitioner to perform the duties of a clerk or any other job which the petitioner could have performed, the Chief Officer of the Municipal Council illegally terminated the services of the petitioner by passing the order of compulsory retirement.
Unfortunately, the petitioner did not canvass before the Regional Director of Municipal Administration that he was entitled to remain in service, if not as an Assistant Teacher on some other post, in view of the provisions of section 47 of the Act. The provisions of the Act were not brought to the notice of the authority and hence without considering the provisions of the Act, the authority dismissed the revision filed by the petitioner by considering the other submissions made on behalf of the parties.
6. Though in the circumstances of the case, a direction to the respondent-Municipal Council to reinstate the petitioner on some other post would be necessary, we are not inclined to accept the submission made on behalf of the petitioner that the petitioner would be entitled to the entire arrears of salary and the other monetary benefits for the period during which he was out of service. On a reading of the documents annexed to the petition and the affidavit-in-reply, we find that it was not the case of the petitioner at any point of time before any ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 8/9 of the Authorities that the petitioner should be permitted by the Municipal Council to perform a clerical job and the pay of the petitioner should be protected. This was not the case canvassed by the petitioner even before the Regional Director of Municipal Administration and for the first time in this writ petition, the petitioner has relied on the provisions of section 47 of the Act for protection of his services. Had the petitioner referred to the provisions of section 47 of the Act and had asked the respondent-Municipal Council to absorb the petitioner on some other post or job, which the petitioner could have performed and protect his pay, the Municipal Council may have applied its mind to the said provisions and the submission of the petitioner. However, this was not done. In fact, in some of the communications, it is the case of the petitioner that the petitioner was 'fit' to perform his job as an Assistant Teacher and his services should not be dispensed with. Admittedly the petitioner has not worked for a period of more than ten years and considering the weak financial condition of the Municipal Council, where even the salary of the regular employees is not paid regularly, it would not be proper to direct the Municipal Council to pay the entire arrears of salary to the petitioner. In the circumstances of the case and in the interest of justice, in our view, the Municipal Council could be directed to pay 50% of the arrears of salary and the other monetary benefits to the petitioner for the period during which he was out of service.
::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 ::: 1001WP3496.07-Judgment 9/97. Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned orders are quashed and set aside. The Municipal Council is directed to reinstate the petitioner in service within two weeks and grant him an alternate job on which he can effectively work. If the respondent-Municipal Council does not have a vacancy, the respondent-Municipal Council should adjust the petitioner against a post, which may be supernumerary, until a suitable post is available or till he attains the age of superannuation in terms of the second proviso to section 47 (1) of the Act. It is needless to mention that the petitioner would be entitled to the regular salary on the expiry of period of fifteen days even if he is not reinstated. The petitioner would be entitled to only 50% of the arrears of salary. The Municipal Council is directed to pay the arrears of salary to the petitioner within ten weeks. The pension paid to the petitioner should be adjusted towards the amount payable to the petitioner towards the arrears of salary. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:55 :::