Central Administrative Tribunal - Delhi
Sh. Ranbir Singh vs Delhi Transport Corporation on 31 January, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2383/2010
Reserved on : 20.01.2012.
Pronounced on : 31.01.2012.
Honble Dr. A.K. Mishra, Member (A)
Honble Sh. A.K. Bhardwaj, Member (J)
Sh. Ranbir Singh,
S/o Sh. Fateh Singh,
Drive Badge No. 15414,
P. Token No. 49901.
Nangloi Bus Depot,
Delhi. . Applicant
(through Sh. N.S. Dalal, Advocate)
Versus
1. Delhi Transport Corporation
Through its Depot Manager,
Nangloi Depot,
New Delhi.
2. Delhi Transport Corporation
Through Its Chairman,
I.P. Depot, New Delhi. . Respondents
(through Sh. Ajesh Luthra, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 17.06.2010 of the Competent Authority by which he was superannuated from the service of the respondent Corporation on completion of 55 years of age. He has made the following prayers:-
(i) Set-aside the impugned order dated 17.06.2010 (ANNEXURE A-1) passed by the respondent no.1, vide which the services of the applicant have been ordered to be superannuated at the age of 55 years on the ground of his being found medically unfit.
(ii) Award costs of the present original application in favour o the applicant and against the respondents; and
(iii) Pass any other or further orders as this Honble Tribunal deems fit and proper in the facts and circumstances of the case, in favour of the applicant and against the respondents.
2. The applicant was appointed with the respondent Corporation as a Driver in the year 1985. He received a notice dated 10.06.2010 to the effect that he would be attaining the age of superannuation (55 years) as on 03.07.2010. If he was interested in one years extension he was to appear before the Medical Board on 14.06.2010. On that date he appeared before the Medical Board which found him unfit on account of colour blindness. Accordingly, he retired from the service on 03.07.2010.
3. It is contended by the applicant that the normal age of superannuation for all the other employees of the Delhi Transport Corporation (DTC) is 60 years and the applicant could not have been discriminated against and made to retire at the age of 55 years. Even if he had developed some kind of disability, he should have been given protection under Section-47 of the Disability Act, 1996 by way of alternative engagement. He places reliance on the order dated 30.03.2010 of this Tribunal in OA-1044/2010 in the case of Sukhbir Singh Vs. DTC in which the respondent organization was restrained from giving effect to their order of superannuating the Driver with a direction to re-examine the applicant therein by an independent Medical Board.
4. At the time of hearing, learned counsel for the applicant assailed the action of the respondent authority to superannuate him on attaining the age of 55 years on the following grounds:-
(i) No document was given to the applicant showing that he was medically unfit. In the absence of any such document, he was prevented from getting a reasonable opportunity to give an effective reply to the allegation of his medical unfitness. The action of the respondent authority, having violated the fundamental principle of natural justice, cannot be sustained.
(ii) He has submitted a copy of the medical certificate issued by Bharti Eye Foundation placed at annexure A-4 (page-11 of the rejoinder-affidavit) testifying that his colour vision is normal and safe. In view of this certificate, it is submitted that the applicant was entitled to fresh examination by the Medical Board to come to a correct finding about his alleged colour bliness.
5. Learned counsel for the applicant is placing reliance on the judgment of the Honble Supreme Court in the case of Anand Bihar & Ors. Vs. Rajasthan State Road Transport Corporation, Jaipur through its Managing Director and Anr. Etc., 1990 Supp. 3 SCR 622 to contend that an employee who develops defect in the course of employment would be entitled to relief as per the Scheme formulated by Honble Supreme Court of India. He places reliance on the following judgments to contend that the applicant was entitled to protection under Section 47 of the Disability Act:-
(a) Kunal Singh Vs. UOI & Anr., AIR 2003 SC 1623.
(b) UOI Vs. Devendra Kumar Pant & Ors., (209)14 SCC 546.
6. Respondents, on the other hand, submit that the normal age of superannuation for a Driver with the respondent organization is 55 years. Thereafter, extension is granted on yearly basis to the drivers strictly according to the opinion of the Medical Board about their suitability to perform the duties of a driver. This averment has been made in Paragraph 4.6 of the counter reply. Learned counsel for respondents is also placing reliance on the judgment dated 08.03.2007 of the Honble High Court of Delhi in CM No. 417/2006 in Writ Petition (C) No. 635/2004 in the case of Raj Singh Vs. DTC in which this fact has been noticed at Paragraph-4 of the judgment.
7. Learned counsel for the respondents draws our attention to the Notice No. 8040 dated 10.06.2010 which was issued to the applicant asking him to present himself before the Medical Board on 14.06.2010. The Board examined him on that date and found him colour blind and on that ground unfit. The applicant himself has signed on the margin of this document. Therefore, it does not lie with him to take the ground that he had no knowledge about the medical opinion which disentitled him from extension in service.
8. Learned counsel for respondents submits that the applicant has specifically sought for extension of benefits of Disability Act. He draws our attention to Section-2(d) and Section-2(i) of the Act to contend that the applicant was not suffering from any of the disability which has been enumerated in Section-2(i) of the Act. As such, according to him, the applicant cannot be called a person having disability. Since the Act does not apply to him, the question of extending benefits under Section-47of the Act does not arise in his case.
9. Learned counsel submits that the applicant knew very well that the Medical Board had found him unfit for extension of service as a driver on the ground of his colour blindness. He has not challenged this finding at any stage. As regards the certificate filed by the applicant at Annexure A-4 to the rejoinder-affidavit, it is submitted that the medical authority issuing this certificate was not aware of the fact that the applicant had already been disqualified for extension of his services by the duly constituted Medical Board of the Corporation. He points out that this certificate was obtained on 29.01.2011 shortly before filing the rejoinder-affidavit. In this connection, he draws our attention to paragraph-5 of the observations of the Honble High Court in the case of Raj Singh (supra) which reads as follows:-
5. Learned counsel for the petitioner has vehemently contested this application placing reliance on certain reports given by the other hospitals including the Deen Dayal Upadhyay Hospital and the All India Institute of Medical Sciences to urge that the petitioner does not suffer from any disability which would disqualify him from continuing in service.
6. I have given my considered though to the rival contentions. There is no dispute that the Regulations of the DTC required the petitioner, who was a driver, to be medically examined by the medical board of the DTC. Undoubtedly, this medical board would consist of experts who would be best placed to give an appropriate opinion with regard to a medical disability which may be suffered by a candidate seeking to render service with the DTC. It is this medical board which would be the expert for giving the opinion bearing in view the requirements of the service which an employee of the DTC is required to render and the special needs which the service may demand. Undoubtedly, the opinion given by the medical board would bind this court over and above the medical opinion given by any other experts who may be otherwise competent to opine on fitness of a person.
7. In this view of the matter, in my view, the opinion given by the medical board of the DTC would bind this court. Such medical board having held that the petitioner was not fit to be taken back into service with the DTC, the order dated 16th August, 2005 would require to be modified.
10. In view of the law laid down by the Honble High Court submission of a certificate from any medical institution on a later date will not materially affect the merits of the case.
11. Learned counsel for the applicant submits, in reply, that the retirement age of all employees in DTc is 60 years and not 55 years. There cannot be two ages of superannuation (i) for the drivers who are fit for continuance and the other for those who are not; (ii) It has been specifically alleged that a copy of the medical report was not provided to the applicant and reiterated in the rejoinder.
12. Learned counsel for the applicant cites the following judgments in support his contentions:-
Anand Bihari & Ors. Vs. Rajasthan State Road Transport Corporation Jaipur through its Managing Director, [199] Supp. 3 SCR 622.
Kunal Singh Vs. U.O.I. & Anr., (2003) 4 SCC 524.
Bhagwan Dass & Anr. Vs. Punjab State Electricity Board, AIR 2008 SC 990.
Dalco Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye & Ors., AIR 2010 SC 1576.
Dharam Pal Vs. Delhi Transport Corporation & Anr., 141(2007) Delhi Law Times 237.
DTC Vs. Suraj Bhan & Ors., 168(2010)Delhi Law Times 614.
UOI Vs. Devendra Kumar Pant and Ors., (2009)14 SCC 546.
13. Let us examine the applicability of the ratios laid down in the aforesaid cited judgments:-
(i) The decision in Anand Biharis case (supra) was taken in the context of provisions of the Industrial Disputes Act, 1947 and the Scheme which was earlier evolved by the Hoble Supreme Court itself to give relief to the workmen-drivers either to provide alternative job available or pay additional compensatory amount proportionate to the length of service rendered and taking into account the balance of service left, if a drivers service is to be pre-maturely terminated. It was a decision relating to a period when the Disabilities (Equal Opportunities, Protection of Rights and Full articipation)Act, 1995 had not been passed. The applicant has taken specific ground of being covered by Section-47 of the Disabilities Act, 1995. Besides, the present case is one of retirement not termination from service. As such, this decision is not of much help to the applicant.
(ii) The cases cited under Serial No.(ii),(iii)& (iv) deal with the protection and opportunities available to employees under the Disability Act, 1995. These judgments deal with the definition of an employee with disability in the factual context of the specific case which was under consideration and hold that such employees who have been provided rights of protection as well as opportunities by the aforesaid statute could not be denied their rights by the respective respondent organizations.
13.1 It was brought to our notice by the respondents counsel that the word disability is defined by Section-2(i) of the aforesaid Act, 1995. It reads as follows:-
(i) blindness;
(ii) low vision; leprosy-cured; hearing impairment; locomotor disability; mental retardation; mental illness;
Section-2(t) says person with disability means a person suffering from not less than 40% of any disability as certified by a medical authority. In the present case, the applicant does not suffer from blindness or from low vision. His problem was colour blindness. Therefore, he could not be treated as a person suffering from any degree of disability (40% or more) so as to be entitled for the benefits of Section-47 of the Act, 1995. The impugned order mentions that as per provisions of instructions contained in the Office Order No.99 circulated vide letter No.1150 dated 4-7/10/1963, the age of superannuation of a driver is 55 years. However, a driver is entitled for annual extension of service on the basis of his fitness for the job to be declared by the Medical Board of the Corporation. There is no unreasonable classification in the matter so as to make it repugnant to the provisions of Articles 14 & 16 of the Constitution of India. All drivers retire at the age of 55 only those who are considered fit by the Medical Board are given yearly extension. The validity of these instructions have been tested in several cases and upheld by Honble High Court of Delhi.
14. The case of Dharam Pal (supra) was of a driver who was assaulted by a travelling passenger and on account injury sustained, his right hand got paralyzed and he became unfit to perform the duties of a driver. Denial of the benefit of extended service in such a case upto 60 years was considered unreasonable. No doubt, the facts of this case are different; nevertheless, certain observations of the Honble High Court in this order are significant. An extract of Paragraph-11 is given below:-
The office order No. 99 dated 4/7.10.1963 read with circular dated 30th June, 1988 cannot be faulted with, but shockingly the same has been wrongly interpreted by the respondent. The said clause in the Office Order has an element of public interest of ensuring safety on the roads. The drivers who are not medically fit cannot be permitted to drive the vehicles without there being such medical test of drivers after their attaining the age of 55 years. It would be against the interest of the passengers and pedestrians, if such medically unfit drivers are allowed to drive on the roads. Already, the accidents on roads have reached alarming figures. The pertinent question is that whether the said Office Order is also meant for those drivers, who become disabled prior to their attaining the age of 55 years not on account of any natural deterioration or decay in their health, but on account of any accident met by them during the discharge of their duties of driving the vehicles of the respondent. I do not feel that the aforesaid Office Order is also meant for even those drivers, who receive injuries and are rendered disabled while discharging their duties. The Office Order was interpreted by Honble High Court to mean that it was applicable to all those who became unfit on account of natural deterioration or decay in their health but not to those cases where the disability was caused due to any accident met during the discharge of their duty.
14.1 The case of Suraj Bhan (supra) deals with the case of a driver who was retired from service as on medical examination he was found unfit. He applied for appointment on a post of peon for which he was found fit. But, his request was not considered on the ground that there was no vacancy. He raised an Industrial Dispute which was decided in his favour. The award of back wages and interest thereon was challenged in the Petition, which was rejected.
14.2 The case of Devender Kumar Pant (supra) was about denial of promotion of a railway employee to the post of Chief Research Assistant and as such factually distinguishable. However, observations made by the Honble Supreme Court about blindness low vision and colour blindness in paragraphs 26 and 27 of this judgment are significant. These are extracted below:-
26. Blindness is a disability defined in clause (b) of Section 2 and refers to (i) total absence of sight; or
(ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or Worse. 40% disability referred to in Section 2(t) to identify persons with disabilities will apply to Categories (ii) and (iii) of Section 2(b) but will be irrelevant in regard to persons with total absence of sight falling under Category (i) of Section 2(b).
Section 2(ii) defines a person with low vision as a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device.
Lack of colour perception is neither blindness nor low vision and is therefore apparently not a disability under the Act. It is therefore, doubtful whether a person lacking colour perception can claim to be person entitled to any benefit under the Act. 14.3 Learned counsel for the applicant has placed reliance on the order dated 30.03.2010 of a Co-ordinate Bench in OA-1044/2010 to contend that in cases where other medical institutes of repute declare a driver as medically unfit in that event he should be re-examined by an independent medical board.
15. On the other hand, learned counsel for the respondents places reliance on the judgment/order dated 08.03.2007 in Writ Petition (C) No. 635/2004 of Honble Delhi High Court to contend that the opinion of the duly constituted medical board of the Corporation is binding and has to be given cognizance above opinion by any other medical experts. The observations of the Honble High Court of Delhi are as follows:-
6. I have given my considered thought to the rival contentions. There is no dispute that the Regulations of the DTC required the petitioner, who was a driver, to be medically examined by the medical board of the DTC. Undoubtedly, this medical board would consist of experts who would be best placed to give an appropriate opinion with regard to a medical disability which may be suffered by a candidate seeking to render service with the DTC. It is this medical board which would be the expert for giving the opinion bearing in view the requirements of the service which an employee of the DTC is required to render and the special needs which the service may demand. Undoubtedly, the opinion given by the medical board would bind this court over and above the medical opinion given by any other experts who may be otherwise competent to opine on fitness of a person.
7. In this view of the matter, in my view, the opinion given by the medical board of the DTC would bind this court. Such medical board having held that the petitioner was not fit to be taken back into service with the DTC, the order dated 16th August, 2005 would require to be modified. We are bound to follow the principles laid down by the Honble High Court and to that extent the precedent of OA-1044/2010 becomes in applicable.
16. The question whether provisions of the Disability Act, 1995 would apply in respect of an employee who is not suffering from any of the disabilities specified in Section 2(i) of the Act has been clearly answered in the observations of the Honble Supreme Court in the case of Devender (supra). The observations lend support to the contention of the respondents that colour blindness is not a specified disability under the Act. Therefore, a driver who has been retired on account of defective colour perception cannot claim privileges guaranteed under the Act.Besides, as has been observed by Honble High Court of Delhi in the case of Dharam Pal (supra) a driver having defective colour vision cannot be entrusted with the responsibility of driving public buses as it would jeopardize not only the safety of passengers but other commuters also. As far as the decision of the Honble High Court in the case of Suraj Bhan (supra) is concerned, suffice it to say that the facts of the present case are distinguishable. The driver in that case made a specific application to consider engaging him even on a peons post, whereas no such application has been made by the applicant; there was an award by the Labour Court in his favour to pay salary of a peon, the validity of which was under consideration of Honble High Court, the main issue being the award for back wages and interest thereon.
17. This is a case of retirement of a driver in terms of the Office Order No. 99 of 1963, the validity of which has not been called into question. Rather it has stood the test of judicial review as seen from the observations of Honble High court in the case of Dharam Pal (supra) extracted in paragraph-14.
18. For the foregoing reasons, we do not see any infirmity in the impugned action of respondents. Resultantly, the O.A. fails and is dismissed. No costs.
(A.K. Bhardwaj) (A.K. Mishra)
Member (J) Member (A)
/vinita/