Andhra Pradesh High Court - Amravati
M. Chennaiah, vs Andhra Pradesh State Road Transport ... on 26 December, 2023
THE HON'BLE SRI JUSTICE HARINATH.N
WRIT PETITION No.26359 OF 2014
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to declare the action of respondent No.4 in terminating the petitioner from employment, vide order No.P2/468(01)/2013-MCL, dated 10.06.2014, on medical grounds without providing alternative employment as per Section 47(1) of the Persons with Disabilities Act, 1995 (for short, 'the Act, 1995'), as illegal and consequently to direct the respondents' Corporation to provide suitable alternative post to the petitioner with all consequential benefits, including payment of salary, from the date of declaration of medically unfit till the date of providing alternative post.
02. Heard the learned counsel for the petitioner and the learned standing counsel for the respondents' Corporation.
03. The petitioner's case is that on 08.10.2010, the Respondents' Corporation, after due selection process by the Selection Committee, engaged the petitioner as a driver on contract basis. After completion of three years of service, on 23.10.2023, the petitioner underwent a periodic medical examination, where he was found unfit for the A1 category driver post due to colour blindness. On appeal, the petitioner was -2- WP_26359_2014 directed to A.P.S.R.T.C. Hospital, Tarnaka, Hyderabad, where he was also declared unfit for the driver post and the petitioner was further subjected to a medical examination before the Medical Board, where the Superintendent, Tarnaka Hospital, declared the petitioner as unfit for the driver post due to colour blindness, vide letter No. SP2/19(MVB)/2014-TH, dated 21.05.2014. Due to the said disability, the petitioner was terminated from employment. Aggrieved by the illegal termination, the petitioner preferred the writ petition and relied upon the provision of Section 47(1) of the Act, 1995, and claims that the respondents' Corporation did not consider his case for alternative employment.
04. The respondents filed their counter stating that the colour blindness disability is not covered under Sections 2(b) and 2(i) of the Act, 1995 and draws the attention of this Court to the judgment, dated 23.02.2017, in S.L.P. Civil Appeal No.3529 of 2017,whereby the Hon'ble Apex Court allowed the S.L.P. confirming the order, dated 29.01.2016, passed by the learned single Judge in W.P. No.36337/2012 and batch cases by setting aside the common order passed by the Hon'ble Division Bench in W.A. No1120 of 2015 and batch, holding that the benefit of Section 47 of the Act would be available to only those who are covered by Section 2(i) of the Act and directed the Corporation to -3- WP_26359_2014 take a decision on the individual grievance of the employees and the employees are at liberty to take their remedies in terms of the above judgment.
05. During the course of hearing, the learned counsel for the petitioner drawn the attention of this Court to the Judgment, dated 06.11.2017, in W.A. No.1635 of 2017, passed by the Hon'ble Division Bench of the composite High Court for the State of Telangana and Andhra Pradesh, wherein it was held that under Section 12(3) of the Industrial Disputes Act, 1947 a settlement arrived between the A.P.S.R.T.C. employees' union and the Managementin the presence of the Joint Commissioner of Labour. Clause (14) of the said settlement deals with colour- blind drivers, is extracted in the order at paragraph 11, which reads as under:
'11. Paragraph No.14 of the said settlement reads as under:
"14. Colour blind drivers:
a) The long pending issue has been decided and it was agreed to given alternate job to the Drivers found colour blind during the periodical examination. While giving the alternate job, the time scale and pay drawn by the Driver at the time of disqualification would be protected.
Circular instructions would be issued in this regard incorporating the cases arising after the issue of circular No.P1/210(1)/76-PD, dt.16-08- 1976.
b) Having been the alternative job, the seniority of Drivers will, however, be continued in the Drivers cadre, and they shall take their further -4- WP_26359_2014 promotions at appropriate time as per Cadre & Recruitment Regulations.
c) Drivers who are found Colour Blind during periodical Medical Examination would be given day duties subject to availability of such duties in the Depots.
d) Regarding the suggestion of the Union for finding out an alternate test for Ishara test, the VC & GM agreed to request the Eye Specialist of RTC Hospital Dr.E.Babu Rao and after hearing the views of few other eye Specialists, the decision would be taken whether to continue the Ishara Test or a suitable alternate test is available for determination of colour blindness keeping in view the safety of passengers and the vehicle.'
06. The Hon'ble Division Bench further observed that the settlement arrived under Section 12(3) of the Industrial Disputes Act was not brought to the notice of the Hon'ble Apex Court and whereas before the Hon'ble Apex Court, the Corporation relied only on the aspect, i.e., whether the colour-blind drivers would be entitled to the benefit under Section 47 dehors Section 2(i) of the Act, 1995. The Hon'ble Division Bench dismissed the writ appeal upholding the order of the learned Single Bench in granting relief to the respondent as a settlement under Section 12(3) of the Industrial Disputes Act is sacrosanct and is placed on a higher pedestal than the settlement under Section 18(1) of the Industrial Disputes Act. The respondents-Corporation has not taken up this matter in appeal. As such, the order of the -5- WP_26359_2014 Hon'ble Division Bench in W.A. No.1635 of 2017 has attained finality.
07. Considering the facts and circumstances, I deem it appropriate to allow the writ petition with a direction to the respondents' Corporation to consider the case of the petitioner for providing alternative employment as per Section 47(1) of the Act, 1995 and also in terms of the settlement reached amongst the APSRTC Employees' Union with the Management under Section 12(3) of the Industrial Disputes Act, 1947,more particularly, referring to Clause (14) of the Settlement entered between them.
08. Accordingly, the writ petition is allowed and the respondents' Corporation is directed to consider the petitioner's case and provide alternative employment in a suitable post to which the petitioner is entitled. It is made clear that the petitioner is not entitled to any back wages or ancillary benefits accruing thereto. No costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________ JUSTICE HARINATH. N Dt.26.12.2023 KGM -6- WP_26359_2014 THE HON'BLE SRI JUSTICE HARINATH.N WRIT PETITION No.26359 OF 2014 Dt.26.12.2023 KGM