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2013 DIGILAW 2080 (BOM)

Jayram v. Union of India, Ministry of Coal

2013-10-07

A.S.CHANDURKAR, VASANTI A.NAIK

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Judgment : (A.S. Chandurkar, J.) 1. Heard. 2. RULE. Rule made returnable forthwith by consent of the parties. 3. Since common questions arise in these writ petitions, the same are being decided by this common judgment. 4. The challenge in the present writ petitions is to the action of the respondents of placing the petitioners in lower category in view of they becoming unfit for discharging their duties. A direction is also sought for payment of the difference in wages consequent to such reversion on the basis of the provisions of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “the Act of 1995”). According to the petitioners, they have suffered disability during the course of employment on account of the nature of the job. On account of such disability, they have been placed in a lower category in a manner contrary to Section 47 of the Act of 1995. According to the learned counsel for the petitioners, in view of the provisions of Section 47 of the Act of 1995 each of the petitioner is entitled to the protection of service conditions in view of the aforesaid Section and also difference in wages from the date of the impugned orders. The placing in the lower category is in view of the disability suffered during the course of employment. For this purpose the learned counsel for the petitioners has placed reliance upon decisions of this Court in the matter of Dhammadip Bhaurao Mankar Vs. Union of India, reported in 2011(3) CLR 976 as well as judgment of this Court dated 1st August, 2012 in Writ Petition No. 1551 of 2012 (Anil Damodar Bansod Vs. Union of India & oth.) 5. Mr. Mehadia, the learned counsel appearing for the respondents has opposed the petitions. He submitted that the petitioners were given alternate job as per the policy of the respondents. He has submitted that the petitioners in Writ Petition Nos.1830/2013, 3739/2013, 4431/2013, 4434/2013, 4437/2013 and 4808/2013 have not been diligent in approaching this Court for seeking the aforesaid relief. It is submitted that placement of said petitioners in lower category has taken place in the years 2003, 2008 and 2009 and hence, the relief as prayed may not be granted by this Court under Article 226 of the Constitution of India on account of delay and laches. It is submitted that placement of said petitioners in lower category has taken place in the years 2003, 2008 and 2009 and hence, the relief as prayed may not be granted by this Court under Article 226 of the Constitution of India on account of delay and laches. He has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Shiv Dass Vs. Union of India, reported in (2007) 9 SCC 274 and State of M.P. Vs. Yogendra Shrivastava, reported in (2010)12 SCC 538 and submitted that the petitioners are not entitled for any discretionary relief on account of their inaction for so many years. 6. We have heard the respective counsel and also perused the judgments of this Court, reported in 2011(3) CLR 976 as well as in Writ Petition No.1551 of 2012 (supra). The benefit therein has been extended to the petitioners under Section 47 of the Act of 1995. There is also a direction to pay difference of wages to the petitioners therein. 7. The provisions of Section 47 of the Act of 1995 seek to protect the pay scale and service conditions of a person who acquires disability during the course of employment. It is the statutory duty of an employer to extend the benefit of the provisions of Section 47 of the Act of 1995 to an employee who suffers disability. It is not in dispute that on account of the physical condition of each petitioner, he was brought down from Category IV to Category I resulting in reduction in wages. In such situation, as held by this Court in Dhammadip Bhaurao Mankar and Anil Damodar Bansod (supra), the present petitioners are also entitled to the benefit of the welfare provisions of Section 47 of the Act of 1995. 8. We, however, find that in some of the writ petitions the action of reduction in category has been taken in the year 2003, 2008 and 2009. Though the placement of the respective petitioners in the lower category has taken place more than 34 years ago and in one case prior to 9 years, the said petitioners have approached this Court only in the year 2013. There is no explanation furnished by said petitioners for the delay caused in seeking said relief. Though the placement of the respective petitioners in the lower category has taken place more than 34 years ago and in one case prior to 9 years, the said petitioners have approached this Court only in the year 2013. There is no explanation furnished by said petitioners for the delay caused in seeking said relief. Considering the law laid down by the Hon'ble Supreme Court in Shiv Dass and State of M.P. (supra), the discretion in the matter of grant of monetary relief to the petitioners in such cases will have to be exercised judicially and reasonably. Even considering the welfare provisions of Section 47 of the Act of 1995 under which the petitioners are entitled for relief, the plea of delay and laches raised by the respondents cannot be over looked. Hence, the writ petitions in which the reduction in category has occurred in 2003, 2008 and 2009 the relief can be restricted for a period of three years preceding filing of the writ petition. The interest of justice will be served if the relief is moulded accordingly. Hence, the following order. i. The Writ Petitions are partly allowed. ii. We direct the respondents to treat each of the petitioners entitled for benefit under Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 from the date of passing of the respective impugned orders. This would protect the services rendered by the petitioners for all these years. iii. However, insofar as the monetary relief in the form of difference in wages is concerned, we grant relief to the petitioners in Writ Petition Nos. 250/2013, 1830/2013, 3739/2013, 4431/2013, 4434/2013, 4437/2013, 4808/2013 and 4809/2013 only to the extent of the period of three years preceding the filing of the respective writ petitions. The petitioners in Writ Petition Nos. 3598/2013 and 4807/2013 would be entitled to the difference in wages from the date of the order of reduction in category. iv. The respondents are directed to take aforesaid necessary action within a period of three months from today. Rule stands disposed of accordingly, in the aforesaid terms, with no order as to costs.