Delhi District Court
The Govt. Of Nct Of Delhi Has Referred ... vs Punjab State Electricity on 9 August, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
ID No. 29/06/03
Unique case no. 02402C0139212003
IN THE MATTER OF :
Delhi Transport Corporation
DTC Head Quarters,
I.P. Estate, New Delhi ..............Management
versus
Sh. Kumarl Pal S/o Sh. Sobha Ram,
C/o G169/3, Dilshad Colony, Delhi ...................Workman
DATE OF INSTITUTION : 15.11.03
ARGUMENTS CONCLUDED ON : 14.07.2010
DATE OF AWARD : 09.08.2010
A W A R D
1. The Govt. of NCT of Delhi has referred this dispute bearing reference number F.24
(2826)/03/Lab./ 35013505 dated 04.11.03, with the terms of reference as under :
'Whether the action of the management in prematurely retiring Sh. Kumarl Pal
S/o Sh. Shobha Ram vide its order dated 15.04.99 is illegal and / or unjustified ; and if
so to what relief is he entitled and what directions are necessary in this respect?'
2. The case of the workman as per the amended claim statement (as allowed by an
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order dated 09.12.2005) is that the workman joined the management on 17.03.83, as
conductor and his last drawn salary was Rs. 6,500/ per month. The workman who
suffered TB, got treated himself at Safdarjung hospital and the doctor declared him fit to
resume the duties. The workman submitted his fitness certificate but the management
directed him to appear before the medical board, where he was declared unfit. The
workman was removed on 15.04.99, on the basis of the medical report. He further avers
that he was physically handicapped with 50 % disability after the attack of TB. This
disability led the management to severe the employment relationship, which is opposed to
Section 47 of The Persons with Disability (Protection of Rights and Equal Opportunities)
Act, 1996, hereinafter referred to as the Act. Thereafter, the workman approached the
Hon' High Court in WP No. 6590/99 which was disposed by the Hon' High Court directing
constitution of fresh medical board. Accordingly, the medical board was constituted again
on 25.10.2002. This board did not submit any report to the management. The
management refused to reinstate the workman. He made representations by letter dated
05.12.2002 to no avail. Hence, he sent the demand notice dated 23.12.2002, which was
never considered. The conciliation also failed.
3. It is his further case that the medical board of DTC has no infrastructure of
equipment to assess the disability and he was not even examined by the board. It has
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passed mechanical opinion. The conditions precedent for termination was not followed by
the management. Therefore, the workman submits that dispensing his services by the
management is illegal and thus prays for reinstatement along with consequential benefits.
4. The written statement filed to the amended claim shows that the name of the
workman as in the reference is not their workman and one Kumar Pal S/o Shobha Ram, is
their employee. According to the management, the services of Kumar Pal, was never
terminated. Management submits that in the writ petition, a direction was issued to the
workman to appear before the medical board and if he was found fit, to consider him for
employment. Kumar Pal, was examined by the board and it was revealed that he was
medically unfit. Hence, the management submits that the orders of the Hon' High Court
were duly followed. It further states that because of the above order, the present claim is
hit by resjudicata / constructive resjudicata. According to the management, the claim is
malafide and filed only to make unfair gains. On merits, it contends that Kumar Pal,
joined as a RC conductor on 17.07.1984. He was absent between 28.03.1993 to
13.05.1998. He submitted a private medical certificate. He was required to join duty or
report to the medical board by 30.04.1998. He did not report despite letters dated
14.05.1998 and 29.05.1998. Kumar Pal, again submitted private medical certificate for the
period between 13.05.1998 to 28.05.1998. Medical board directed him to appear on
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16.06.1998. Thereafter, the workman reported to the medical board on 25.06.1998. After
examination, he was advised rest of 90 days with effect from 25.06.1998. Again for 60
days on 07.01.1999.
5. It is further stated in the written statement that on 05.04.1999, after complete
medical checkup, the said Kumar Pal, was declared unfit and thus the management retired
him from the services by a memo dated 15.04.1999. Management denies that the doctors
of Safarjung Hospital declaring Kumar Pal, as medically fit and the submissions of such
certificate by the claimant. As regards the disability pleaded, management denies such
disability as having been acquired by the claimant during the employment. The
management only retired him prematurely on medical grounds and not on disability.
Management contends that Section 47 of the Act, is not applicable to the present case.
Therefore, the management prays for dismissal of the claim. Rejoinder is filed by the
workman.
6. Based on the pleadings, the following three issues were framed by my Ld.
Predecessor on 16.02.2005 :
a) Whether the reference in the name of Kumarl Pal, is maintainable as the name of
the workman is Kumar Pal ? OPW
b) Whether the claim is barred by the principles of resjudicata/constructive as pleaded
ID No.29/06/03 4/19
in the WS ? If so, its effect ? OPM
c) As per terms of reference.
7. The workman examined himself as WW 1 and his evidence was closed on
23.01.2009. On behalf of the management, MW 1 GP Kaushik, was examined and the
management evidence was closed on 03.03.2010. The workman had filed the written
submissions and he relied on the following rulings :
a) 2008 I LLJ 696 (SC) Bhagwan Dass and Another v/s Punjab State Electricity
Board ;
b) DTC v/s Harpal Singh 2009 II LLJ 475 (Del.) ;
c) State Bank of India and Ors. and v/s Ranjit Kumar Chakraborty and Anr. 2009 II
LLJ 487 (SC) ;
d) DTC v/s Rajbir Singh 2003 I LLJ Hon' High Curt of Delhi 865 ;
e) Dharampal v/s DTC & Anr. 2007 III LLJ 888 ;
f) 2007 III LLJ 597 Jaikumar v/s State Of Maharashtra Bom. High Court ;
g) Management of Regional Plant Resources Centre, Nayapali v/s Workmen of
Regional Plant Resources Centre, 2007 III LLJ Orissa High Court ;
h) Kumar Bharat Prasand Narain Singh v/s Airprts Authority of India 2005 III LLJ
590 Hon' High Court of Delhi ;
ID No.29/06/03 5/19
i) 2008 II LLJ 565 (Mad.) Shriff E. v/s Tamil Nadu State Express Transport
Corporation, DivisionI ;
j) 2005 II LLJ Chairman and Managing Director, Hindustan Teleprinters Limited,
Chennai v/s M Rajan Isaae 610 ;
8. I have also heard the Ld. AR for the management. It was argued by the AR for the
management that the provisions of Section 47 of the Act, do not come into play in this
case. According to him, the disability if any, having arisen not owing to the employment,
the workman can not seek any protection under the above provisions. It was also argued
that the management having complied the orders of the Hon' High Court, nothing remains
to survive since the workman was found medically unfit. The employment of the
workman is governed by terms of employment which prescribes a condition of the
employee to be medically fit to perform the duties. Therefore, it was argued that the
management has taken the discretionary step to dispense with the service and there is no
illegality in the order of the management.
9. I have given careful thought to the submissions on either side. Perused the record
and the evidence available. With the available material on record, I am to answer the
issues as under.
10. ISSUE NUMBER 1 : The name of the workman in the reference is Kumarl
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Pal. The claim statement filed in this case reflect the name of the claimant as also Kumarl
Pal. The badge number cited in the reference is 18743, PT No. 40025. The badge number
and the PT are the numbers assigned by the management to its employees. Workman in
his examination in chief deposed that he is Kumar Pal, as seen from his affidavit and he
has also clarified that his name is misspelt in the reference, as deposed by him in his
affidavit at Ex. WW 1/A. In the crossexamination, the identity is not seriously
questioned. MW 1 GP Kaushik, relied on Mark A which is relied by the workman. Mark
A shows the name as Kunwar Pal, with badge number 18743. In view of the above, there
is no serious dispute with regard to the name of the claimant Kunwar Pal, which is
wrongly spelled in the reference as Kumarl Pal. Further, the Ex. WW 1/5 relied by the
workman being the order of premature retirement which is admitted by both the sides
shows his name as Kumar Pal, badge number 18743, PT No. 40025, S/o Shobha Ram,
which is matching with the description of the claimant in the claim statement and the
badge number also matches with regard to the identity of the persons as found in the
reference. Therefore, issue number 1 is answered as not fatal to the maintainability of the
present claim.
11. ISSUE NUMBER 2 : The onus to prove this issue is on the management
which contended that the claim is hit by principles of resjudicata. It is admitted case that
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the workman had filed a writ petition before the Hon' High Court. The documents
produced by the workman at Ex. WW 1/ 2 to 1/8 do not contain the orders of the Hon'
High Court. The management which took up this contention has produced the order of the
Hon' High Court. However, in the crossexamination by the management, it is elicited
through WW 1 that he had filed a writ petition before the Hon' High Court on the ground
that he was fit and that the management declared him unfit for duty. It is also elicited that
the Hon' High Court directed him to report to the medical board of the management and in
case found medically fit to consider for reemployment. Considering the above admission
of the workman as drawn in the crossexamination conducted by the management, it is
becoming clear that the Hon' High Court only directed the constitution of the medical
board for the purposes of reexamining the medical fitness of the claimant. What is
gathered from the crossexamination is that the Hon' High Court has not completely
adjudicated on the aspect of legality of the order of the management retiring the workman
prematurely. The order of the Hon' High Court in CW 6590/99 disposed on 18.09.2002,
reads as under "the matter is called out twice but there is no appearance on behalf of the
respondents. According to the Ld. Counsel for the petitioner, his client who was earlier
suffering from TB has since recovered and is now physically fit and is in a position to join duty. Reliance is placed upon a medical certificate issued by the All India Institute of ID No.29/06/03 8/19 Medical Sciences sometime in 1999. It is the contention of the Ld. Counsel for the petitioner that his client was not examined by the medical board of the respondent after the certificate given by the AIIMS. Under the circumstances, it will be appropriate if the respondents are directed to constitute a medical board and to examine the petitioner in respect of his medical fitness. In case, the petitioner is found to be medically fit, he should be considered for suitable employment. The petitioner should report to the Regional Manager (East) on 08.010.2002, at 10 a.m. In view of the above, the writ petition stands disposed of." After going through the complete order as above, I do not find any material to come to a conclusion that the present dispute involving the legality of the premature retirement is adjudicated by the Hon' High Court. In view of the above, I am unable to hold that this claim is hit by the principles of resjudicata as contended by the management. Thus, this issue stands answered in favour of the workman and against the management.
12. ISSUE NUMBER 3 : In this issue, I am to find out the validity concerning the legality and the justifiability of the order of the management in retiring the claimant premature. From the affidavit of the workman at Ex. WW 1/A, I find that workman deposed that he contacted TB during the course of employment and took treatment and Safdarjung Hospital, whereupon the doctors certified him fit to join the duties. Ex. WW ID No.29/06/03 9/19 1/1 is the certificate as stated in the affidavit. I perused Ex. WW 1/1. This is a letter written by the workman to the Labour Commissioner. In fact, Ex. WW 1 /2 is a certificate issued by the RML Hospital showing him as disabled with partial permanent disability of 50 %. In the crossexamination, certain portions of the affidavit are got marked for which the workman expressed no knowledge. What is mentioned in the affidavit is point A to A showing "before even the doctors could see me, the Clerk sitting at the counter told me that I am declared unfit". This is with regard to the deposition made by the workman upon his appearing before the DTC medical board. At point B to B, it is found "it is further submitted that the doctors sitting in the medical board in the DTC normally do not even carry the stethoscope and simply after a cursory look declare the workman fit/unfit.". It is also so with regard to the other assertions of the workman regarding his efforts to secure alternate employment and his submitting the disability certificate to the management but the management not taking him back into the service. These aspects of the cross examination are highlighted by the management to address that the workman had never submitted any application for reinstatement based on the disability certificate. I have gone through the documents produced by the workman. They are :
a) Ex. WW 1/1 - a letter of workman dated 15.03.2007, addressed to Labour Commissioner for corrigendum ;
ID No.29/06/03 10/19
b) Ex. WW 1 /2 - the certificate of disability dated 27.12.2002, issued by RML Hospital ;
c) Ex. WW 1/3 - letter dated 05.12.2002, addressed by the workman to Depot Manager intimating that the DTC medical board having not communicated the result of his undergoing medical examination pursuant to the directions of the Hon' Court ;
d) Ex. WW 1 /4 letter dated 08.10.2002, addressed to Depot Manager, Nand Nagri, by the workman to take him back on duty purusant to the orders of the Hon' High Court ;
e) Ex. WW 1/5 - order of premature retirement of the management dated 15.04.1999 ;
f) Ex. WW 1/6 - fitness certificate issued by the AIIMS dated 18.10.2002, certifying the workman to be fit for w.e.f. 19.10.2002 ;
g) Ex. WW 1/7 - the OPD ticket of the workman of AIIMS dated 04.10.2002 ;
h) Ex. WW 1/8 the discharge summary of Safdarjung Hospital, showing the date of admission as 29.05.1998 ;
i) Mark A - the medical board's opinion showing that the workman was suffering from the treated case of pulmkochs c left side residual haemophlegea c exaggerated jerks of left lower limb c poor weight bearing capability of left leg c abnormal gait. In view of the above, the medical board opines that he is unfit for the post of conductor. This opinion ID No.29/06/03 11/19 is dated 25.10.2002.
13. In the written arguments, it is contended that he acquired the disability during the tenure of service and he had served for 15 years. He also argues that he could have never been terminated on account of the disability for which he relied on the law and the case law which is already mentioned above.
14. As far as the evidence in chief is concerned, workman testified that he was terminated on 15.04.1999, and the proceedings were initiated in the year 2002, since he approached the Hon' High Court. According to him, the medical board of DTC is ill equipped and there is no infrastructure to assess the disability and that he was never examined by the board before he was retired prematurely. He further testifies that he was not given any compensation for such dispensation. The workman admitted that he was examined by the medical board in his crossexamination and such medical test was done on 05.04.1999, where he was declared unfit. To a suggestion that the medical board has not dealt in a mechanical manner, the same was denied. To a suggestion that he has not suffered any disability during the course of employment, the same was also denied. This workman was crossexamined in two instalments. It is further elicited that the medical board again examined him on 25.10.2002. The same is admitted by the witness. It is also admitted that a copy of the report declaring him unfit was also supplied. He further admits ID No.29/06/03 12/19 that before the Hon' High Court, he has sought for alternate employment.
15. In the rebuttal evidence, the management examined G.P. Kaushik, the Depot Manager, who is the disciplinary authority. As regards the terms of reference, this witness in his examination in chief submitted that the workman earlier approached the High Court consequent to which the workman appeared before the medical board. As per the orders of the Hon' High Court, the management examined him on 25.10.2002, by a medical board and found him unfit for employment. MW 1 testifies that the order of the Hon' High Court was complied. According to him, since the order of the Hon' High Court is complied, the workman would have no grouse. MW 1 submits that the contention of the workman that he was fit and later arguing that he suffered 50 % disability is contradictory. Further, it is elicited that the workman remained absent from 28.03.1998 to 13.05.1998. This witness has spoken to with regard to the incidents happened prior to declaring him unfit by the medical board. This witness however, deposed that on 05.04.1999, also the medical board of DTC declared him unfit. MW 1 submits that the termination of the services is justified and the provisions of Section 47 of the Act, are not applicable. MW 1 further states that workman never presented himself before the management after declaring unfit by the medical board. MW 1 submits that the workman was never interested in doing the job and remained absent. Management had followed the principles of natural justice before ID No.29/06/03 13/19 retiring him prematurely. In the crossexamination, it is found that the management does not terminate physically challenged persons only on the ground of their disability and that this workman was prematurely retired based on the medical opinion and acting under the policy of the management. This witness is unable to say whether the claimant suffered 50 % disability in the left leg. It is also admitted by him that the management has not issued any charge sheet for the long absence of the workman.
16. With the available material on record, the only question that would arise is whether the management is justified in prematurely retiring the workman. Earlier the management had retired the workman on the ground of medical unfitness. This was done by an order dated 15.04.1999. This order no longer survives in view of the final order passed by the Hon' High Court for which a photocopy is on record which I now mark as Ex. C1. The Hon' High Court directed the workman report to the Regional Manager (East) on 08.10.2002.
17. It is seen from the evidence of MW 1 himself that the workman appeared consequent to the orders of the Hon' High Court. Mark A which is also relied by MW 1 as found in his examination in chief is the copy of the orders of DTC Noida Depot. The management directed the workman to appear before the medical board on 24/25.10.2002, at 11 hours. I find from the very document that the workman was found unfit for the post ID No.29/06/03 14/19 of conductor. The medical board also noted that his left leg is suffering poor weight bearing capability and workman was suffering from abnormal gait. Ex. WW 1 /2 relied by the workman dated 27.12.2002, declared him as physically challenged with 50 % partial permanent disability.
18. Section 47 of the Act, assumes significance in this context. The Hon' Supreme Court in Bhagwan Dass and Anr. (supra) noted at para 19 as under :
'' We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view of the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens.''
19. In DTC v/s Harpal Singh (supra), the Division Bench of our Hon' High Court, had held as under :
PARA 8 : The said Act was enacted by the Indian Parliament pursuant to having become a signatory to an international convention held in Beijing in December, 1992 which took a decision to launch the Asian and Pacific deed of disabled persons 19932002. In that meeting, a resolution about full participation of equality of people with disabilities in the Asian ID No.29/06/03 15/19 and Pacific region was adopted. The members participated in the convention decided to grant certain benefits to the disabled persons in respect of their services.
Further held that Section 47 of the Act, can not be given the retrospective operation but the benefits of the provision can be extended to in a pending proceeding also.
20. In DTC v/s Rajbir Singh (supra) our Hon' High Court had made it clear that such a disability does not mean that it must occur during the course of employment.
PARA 28 : What was emphasized in the said paragraph was that those who were already in employment should not be uprooted when they incurred disability. It would not mean that such disability must occur during the course of employment which expression finds place in certain statutes, as for example, Workmen's Compensation Act.
21. In Dharampal v/s DTC (supra), the Hon' High Court observed at para 12 as under :
PARA 12 : Based on the above discussion, I feel that the petitioner should get the befit of enhanced age of 60 years, as due to the accident, he has become disabled and due to which alone he stands disqualified to prove his medical fitness on the post of driver. The writ petition of the petitioner is allowed. The respondents are directed to reinstate the petitioner on his assigned post with continuity of service and with all consequential benefits. However, since the petitioner has not been able to perform his duties during the period, 50 % wages instead of full wages are awarded in his favour with effect from December 1, 2004 till the date of his actual reinstatement.ID No.29/06/03 16/19
22. The other rulings of Bombay High Court in Jai Kumar v/s State of Maharashtra, directed that the petitioner should approach the competent authority which reportedly he had not done, with a representation for grant of benefits U/s 47 of The Persons with Disability (Protection of Rights and Equal Opportunities) Act, 1996.
23. In Kumar Bharat (supra), our Hon' High Court had noted as under :
PARA 3 : The Disabilities Act, has the avowed purpose of giving effect to the Proclamation of the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. In Section 2(i) the word "disability" has been defined, regretfully, not in an inclusive manner, since an adverse heart condition, which is as debilitating as the enumerated disabilities, does not find mention in that definition whereas blindness, low vision, leprosycured hearing impairment, locomotor disability mental retardation and mental illness are included it has been argued that the protection of the said stature does not enure to the benefit of the petitioner. Section 47 of the Disabilities Act, reads as follows :
"Nondiscrimination 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 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 on the ID No.29/06/03 17/19 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 notifications, exempt any establishment from the provisions of this Section."
24. The ruling of Madras High Court in Sherif rules that the petitioner was not stopped from invoking Section 47 of the Act, as there could be no estoppel against a statute.
25. In Chairman Hindustan Teleprinters (supra), the point involved was with regard to the assistance of a lawyer to an employee in a departmental enquiry. This ruling is not helpful to the claimant. Except this ruling, all the above rulings are in favour of the physically challenged persons treated inequally at the hands of employers and denouncing such practices, the benefits were accorded to the workman.
26. In the instant case, the order of retiring the present workman prematurely found at Ex. WW 1/5, dated 15.04.1999, is no longer in existence in view of the orders passed by the Hon' High Court at Ex. C1 which is dated 18.09.2002. Consequent to this order, workman was reexamined by the medical board on 25.10.2002. The management ought to have reemployed him in another suitable job, since he was only found unfit for the post of conductor, the management has not done so. Therefore, in the circumstances, I am to pass the following award :
ID No.29/06/03 18/19
A W A R D The management is directed to reinstate the workman in a suitable post within 30 days after publication of this award and is further directed to pay the workman 50 % back wages from 25.10.2002 till reinstatement. The management shall also pay the litigation expenses to the workman which is now quantified at Rs. 50,000/ (RUPEES FIFTY THOUSAND ONLY).
Reference is answered accordingly.
Let requisite number of copies of this award be sent to the appropriate government for publication.
File be consigned to record room.
9th August, 2010 (A.S. JAYACHANDRA) POLC/KKD/DELHI/XVII ID No.29/06/03 19/19