Telangana High Court
D. Gangadhar, vs Telangana State Road Transport ... on 21 July, 2023
Author: Juvvadi Sridevi
Bench: Juvvadi Sridevi
Justice Juvvadi Sridevi
WP No.39800 of 2016
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No. 39800 of 2016
ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner, wherein, the following prayer is made:
"....to issue an appropriate writ order or direction, particularly one in the nature of writ of Mandamus, declaring the impugned Proc.No.L1/785(37)/14-RM:NB, dated 25.02.2016 as arbitrary, unjust and in violation of Art.14 & 21 of the Constitution of India also in violation of Section 47 of the Persons With Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 and consequently the petitioner pray this Hon'ble Court may be pleased to direct the respondents to provide any suitable alternative post duly treating the period from the date of declaring him unfit w.e.f.29.01.2013 till he was provided with alternative employment as on duty along with all consequential benefits and pass such other orders''.
(reproduced verbatim).
2. Heard Sri V. Narsimha Goud, learned counsel for the petitioner, Sri Thoom Srinivas, learned standing counsel for TSRTC appearing for respondents and perused the record.
3. Learned counsel for the petitioner would submit that the petitioner joined the service of the respondents' corporation as conductor on 01.03.1987. His services were regularized with effect from 01.01.1989. While the petitioner was in service, he fell sick and accordingly he was referred to RTC Hospital, Tarnaka, Hyderabad for treatment. The doctors at the said hospital declared the petitioner unfit for the post of conductor due to Chronic 2 Justice Juvvadi Sridevi WP No.39800 of 2016 Obstructive Pulmonary Decease (COPD) on 24.01.2013. Basing on the same, respondent No.3 made the petitioner to retire from service vide order, dated 06.02.2013. However, while retiring the petitioner from service prematurely, the respondent No.3 did not consider for providing alternative employment to the petitioner. While the petitioner was taking treatment at RTC Hospital, Nizamabad, he was referred to RTC Hospital, Tarnaka, Hyderabad vide Letter, dated 14.09.2012 for special treatment by the Pulmonologist. During the treatment of the petitioner, the RTC Hospital, Tarnaka declared the petitioner unfit for the post of conductor due to Chronic Obstructive Pulmonary Decease (COPD) and the same was endorsed on his medical case sheet. The said disease developed after the petitioner entered into service of the respondents' corporation and as such, the respondents' corporation, instead of retiring the petitioner from service prematurely, ought to have provided alternative employment, as the petitioner could not get any employment outside at the advanced stage. Further, the petitioner needs continuous medication, which he could not get due to his unemployment. Due to the premature retirement of the petitioner, his family is also facing many problems. Hence, the petitioner made a representation, dated 18.11.2013, to the respondent No.2 3 Justice Juvvadi Sridevi WP No.39800 of 2016 requesting him to provide alternative employment. Since there was no response to the said representation, the petitioner filed Writ petition No.21694 of 2014 before this Court. The said writ petition was disposed of by this Court vide order, dated 04.08.2014, directing the respondents to consider the representation of the petitioner, dated 18.11.2013. Accordingly, the respondent No.2 has passed the impugned order, dated 25.02.2016, stating that the case of the petitioner for providing alternative employment cannot be accepted, as the deceased with which the petitioner was suffering would not come within the meaning of "disability" contained in the Persons With Disabilities Act, 1995 and that the petitioner received his retirement benefits and that there is no provision under the rules in vogue to provide alternative employment. The impugned action of the respondents is not sustainable as they ought to have enlightened the petitioner about Section 47 of the Persons With Disabilities Act 1995. Hence, the order of rejection is bad in law. Further, the respondents ought to have appreciated the fact that the additional monetary benefits as provided under regulation 65(A) of the APSRTC Employees (Service) Regulation, 1963 would not be equated on par with the alternative employment. Hence, the petitioner requested the respondents' corporation to take back the monetary benefits paid 4 Justice Juvvadi Sridevi WP No.39800 of 2016 to him and provide alternative employment. The petitioner remained unemployed from the date of his retirement from the respondents' corporation and he and his family are facing untold hardship due to the unemployment of the petitioner and ultimately prayed to allow the writ petition as prayed for. In support of his contentions, learned counsel for the petitioner relied on a decision of the Hon'ble Apex Court in Narender Kumar Chandla Vs. State of Haryana and others1.
4. The respondents filed counter. Learned standing counsel for the respondents' corporation would submit that the contention of the petitioner that he was made to retire from services prematurely is not tenable. After due process and based upon the request of the petitioner expressing his inability to discharge duties only, the petitioner was retired with effect from 06.02.2013 on medical grounds. Prior to the retirement of the petitioner, he submitted representation, dated 07.12.2012 stating that due to his ill health and suffering from lungs infection, the petitioner wants to take medical retirement and requested to direct him to Tarnaka Hospital, Hyderabad. Therefore, the petitioner was sent for medical examination to Tarnaka, Hyderabad. The Personnel Officer, Tarnaka, vide letter, dated 29.01.2013 informed that the petitioner 1 AAR 1995 SC 519 5 Justice Juvvadi Sridevi WP No.39800 of 2016 was found unfit for the post of conductor in A2 category vide M.C No.115691, dated 21.01.2013 due to COPD. Further, the disability suffered by the petitioner is not a "disability" under Section 2(i) of the Persons With Disabilities Act, 1995. Thus, the petitioner cannot be treated as a person with disability and the benefits provided under the said Act cannot be made applicable to the petitioner. The petitioner retired on medical grounds at his own request when he expressed his inability to discharge duties. All the terminal benefits i.e., P.F, Gratuity, SBT, Permanent Encashment etc., were paid to the petitioner. Apart from the benefit of the regulation 5(a) of TSRTC Employees (Services) Regulations, 1964 i.e., P.F and Gratuity for notional service and Additional Monetary benefit in lieu of alternative employment amounting to Rs.2,84,989/- were paid to the petitioner. The benefit of monthly cash benefit from SRBS was also extended to the petitioner as being provided to the retired employees on attaining the age of superannuation. Further, the TSRTC CCS loan amount outstanding against the petitioner (due to the society) was also written off keeping in view of his retirement on medical grounds. In the writ petition filed by the petitioner in W.P No.21694 of 2014, this Court, vide order, dated 04.08.2014 passed in WPMP No.27554 of 2014, directed the respondents' Corporation to consider the petitioner representation, 6 Justice Juvvadi Sridevi WP No.39800 of 2016 dated 18.11.2013 and pass appropriate orders. In compliance of the said order, the representation, dated 18.11.2013, submitted by the petitioner was examined by the respondent No.2 and necessary proceedings were issued vide proceeding No.L1/785(37)/14-RM-NZB, dated 25.02.2016. All the benefits for which the petitioner was entitled were extended to him. Now, there is no provision to provide alternative employment to the petitioner as per the guidelines in vogue, therefore, the request of the petitioner for providing alternative employment cannot be accepted. The contentions raised on behalf of the petitioner are not tenable and ultimately prayed to dismiss the Writ petition. In support of his contentions, the learned Standing Counsel relied on the decision of the Hon'ble Apex Court in Andhra Pradesh State Road Transport Corporation and others Vs. BS Reddy 2 and a decision of the Division Bench of the composite High Court for the States of Telangana and Andhra Pradesh in W.A Nos.380 of 2017 and batch3.
5. I have considered the above rival contentions and gone through the material placed on record.
2 AIR 2017 SC1621 3 Decided on 05.06.2017 7 Justice Juvvadi Sridevi WP No.39800 of 2016
6. The main contention of the petitioner is that since he was made to retire from service prematurely on medical grounds, the respondents' Corporation has to provide alternative employment to him under the provisions of Persons With Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 and accordingly sought direction to the respondents Corporation to provide alternative employment duly treating the period from the date of declaring him unfit till the date of his alternative employment as on duty. Contrary to this, the case of the respondents' Corporation is that the petitioner sought retirement under medical grounds voluntarily and that having received the entire retiremental benefits, the petitioner now cannot contend that the respondents' Corporation ought to have provided alternative employment to him and that the disability suffered by the petitioner is not covered under the "disabilities" mentioned in Section 2(i) of the persons with disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 and as such, the case of the petitioner for providing alternative employment cannot be considered.
7. It is not in dispute that the petitioner herein was referred to RTC Hospital, Tarnaka, where, he was admitted as in-patient. Ultimately, the said hospital declared the petitioner unfit for the 8 Justice Juvvadi Sridevi WP No.39800 of 2016 post of conductor due to COPD. The same was endorsed on the medical case sheet of the petitioner. Thus, the petitioner was declared unfit by the RTC Hospital, Tarnaka on 24.01.2013. Thereafter, the respondent No.3 issued a notification No.E3/469 (2)/13-NZB-II, dated 06.02.2013 ordering retirement of petitioner from service w.e.f 06.02.2013 as per regulation 6A-4 of APSRTC Service Regulations 1964. There is a categorically mention in the said notification that the petitioner submitted the application for voluntary retirement on medical grounds as he was suffering from ill health. This clearly shows that the petitioner himself voluntarily made application to the respondents' Corporation seeking voluntarily retirement on medical grounds. Hence, it is not open to the petitioner to contend that the respondents' Corporation made him to retire prematurely from the service. Further, there is a categorical mention in the counter filed by the respondents that all the monetary benefits, pursuant to the retirement of the petitioner on medical grounds, were extended to him and the petitioner received the same. The petitioner did not dispute the same anywhere in his affidavit. On the other hand, his case is that he requested the respondents' corporation to take back the amount given to him and provide alternative employment, which cannot be countenanced.
9 Justice Juvvadi Sridevi WP No.39800 of 2016
8. Be that as it is. The petitioner contends that the action of the respondents' corporation in not providing him alternative employment is in violation of Section 47 of the Persons With Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995. Section 47 of the said Act reads as follows:
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 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 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 provision of this section.
9. According to the first proviso of Section 47(1) of the Act, if an employee, after acquiring disability, is not suitable for the post he was holding, he can be shifted to some other post with the same pay scale and service benefits. The word "disability" is defined under Section 2(i) of the said act, which reads as follows:
10 Justice Juvvadi Sridevi WP No.39800 of 2016 Section 2(i) in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1) "disability" means--
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(viii) mental illness;
10. In Civil Appeal No. 3529 of 2017 and batch, dated 23.02.2017, the Hon'ble Supreme Court observed that even though Section 2(i) of the Act do not cover every disability, the scheme of the Andhra Pradesh and Telangana Transport Corporations covered even those employees who were not covered by Section 2(i) of the Act; thus those who were disabled within the meaning of Section 2(i) of the Act were not without any benefit whatsoever; and they were thus entitled to invoke such schemes, but not Section 47 of the Act. It is further held that the benefit of Section 47 of the Act would only be available to those who were covered by Section 2(i) of the Act. Thus, the benefit of Section 47 of the Act is available only to those who suffer from such of the disabilities as mentioned in Section 2(i) of the Act. The law declared by the Hon'ble Supreme Court in the aforesaid Judgment is binding on the High Courts. In the instant case, admittedly, the disability by the petitioner i.e., Chronic Obstructive Pulmonary Decease is not covered under Section 2(i) of the Act.
11 Justice Juvvadi Sridevi WP No.39800 of 2016
11. A identical question came up before the Division Bench of the composite High Court for the States of Telangana and Andhra Pradesh in W.A No.380 of 2017 and batch ( 1 supra), wherein, the Division Bench of this Court held as follows:
"Following the order of the Supreme Court, in Civil Appeal No.3529 of 2017 and batch, dated 23.02.2017, these Writ Appeals are also disposed of holding that the benefit of Section 47 of the Act shall be available only to those who are covered by the disabilities specified in Section 2 (i) of the Act, it is open to the appellant-Corporation to take a decision, on individual grievances of the respondent-writ petitioners, with utmost expedition preferably within three months from the date of receipt of a copy of the order; and the respondent-writ petitioners are at liberty thereafter to avail their remedies in terms of the Judgment of the Supreme Court.
12. Further, in B.S Reddy's case (2 Supra) the Hon'ble Apex Court categorically held that the benefit of Section 47 of the Act will be applicable only to those who are covered by Section 2 (i) of the Act.
13. Viewed, thus, the respondents' Corporation is justified in rejecting the request of the petitioner to provide alternative employment to the petitioner. Further, it is apt to extract the relevant paragraph of the impugned order, dated 25.02.2016 which reads as follows:
"The disease suffered by Sri D. Gangadhar is not the one covered by the above Act, thus, he cannot be treated as a person with disability and the benefits provided in the said Act are not applicable to him. Therefore, Sri D. Gangadhar, Conductor was retired on medical grounds on 06.02.2013 vide notification No.E3/469(2)/13-NZB-2, dated 06.02.2013, as per Regulations 6A-4 & 5 of APSRTC Employees (Service) Regulations 1964.
12 Justice Juvvadi Sridevi WP No.39800 of 2016 The petitioner has submitted a representation, dated 13.02.2013 requesting the settlement amounts since he was found unfit for the post of Conductor in A2 category vide MC No.115691, dated 21.01.2013 and retired on 06.02.2013.
Further, apart from all terminal benefits i.e., P.F, SBT, Gratuity, Terminal Encashment etc., he was also extended the benefit of Reg.5(a) of APSRTC Employees (Service) Regulations 1964 i.e., PF and Gratuity for notional service and Additional Monetary benefit in lieu of alternative employment amounting to Rs.2,84,989/-.
As all the benefits for which he was entitled were extended, now there is no provision to provide him with alternative employment as per guidelines in vogue.
Therefore, the request of Sri D.Gangadhar, E.301841, Rtd.Conductor, NZB-II Depot through his representation, dated 18.11.2013 for providing alternative employment is not accepted under the above circumstances. Thus, the representation, dated 18.11.2013 is disposed accordingly.
These proceedings are issued in compliance with the orders of the Hon'ble High Court, dated 04.08.2014 in WPMP No.27554 of 2014 in WP No.21964 of 2014".
14. In Narendra Kumar Chandla's case (1 supra) relied by the learned counsel for the petitioner, the appellant therein was operated and his right arm was completely amputated. However, the employer had absorbed the appellant therein as carrier attendant. Aggrieved by the same, the appellant therein approached the High Court and the High Court dismissed the Writ Petition in limine. Thus, the appellant therein approached the Hon'ble Apex Court and the Hon'ble Apex Court held that when an employee is afflicted with unfortunate disease due to which he is unable to perform the duties of the post he was holding, the employer must make every endeavor to adjust him in post in 13 Justice Juvvadi Sridevi WP No.39800 of 2016 which the employee would be suitable to discharge the duties. The Hon'ble Apex Court further held that asking appellant to discharge the duties as carrier attendant was unjust and he is eligible for the post of LDC. Hence, the facts of the cited decision are completely different to the facts of the case on hand and as such, the said decision is not helpful to the case of the petitioner herein.
15. For the foregoing decision, I am of the considered view that the submissions made on behalf of the petitioner cannot be countenanced. The Writ petition is devoid of merit and is liable to be dismissed.
16. Resultantly, the Writ petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ petition, shall stands closed.
___________________ JUVVADI SRIDEVI, J Date: 21.07.2023.
mmr 14 Justice Juvvadi Sridevi WP No.39800 of 2016 THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI WRIT PETITION No. 39800 of 2016 21.07.2023 mmr