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2021 DIGILAW 1697 (BOM)

Deepak Mahadeorao v. Vice-president

2021-12-09

DIPANKAR DATTA, V.G.JOSHI

body2021
JUDGMENT DIPANKAR DATTA,C.J. 1. The petitioner was appointed as a 'driver' by the Maharashtra State Road Transport Corporation (hereafter "the Corporation", for short) on April 01, 2011. By an order dated February 08, 2014, the Divisional Controller of the Corporation terminated the petitioner's service as 'driver' w.e.f. December 30, 2013 on the ground that upon medical examination, he was found to be colour blind. 2. The petitioner instituted this writ petition on October 23, 2018. It has been pleaded in paragraph 4 of the writ petition that the aforesaid order terminating the petitioner's service was not served on him but he was orally informed of such termination. Be that as it may, the prayer in this writ petition is for a direction on the respondents, namely the Vice-President and Divisional Director and the Divisional Controller of the Corporation to grant alternate appointment to the petitioner on the post of Security Guard in terms of the provisions contained in sec. 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter "the 1995 Act", for short), in the interest of justice and to pay arrears of salary w.e.f. the date of termination, i.e., December 30, 2013. 3. The writ petition was considered by a co-ordinate Bench of this Court on January 21, 2021. Objection was raised to the maintainability of the writ petition by the respondents citing the belated approach of the petitioner. The co-ordinate Bench, while noting that the subject matter of the writ petition was otherwise covered by a decision of the Supreme Court dated November 3, 2020, affirming the decision dated July 16, 2020 of another co-ordinate Bench of this Court in Writ Petition No. 9762/2019, passed an order on that date calling upon the respondents to file an affidavit as to whether they proposed to stand by the objection that the writ petition ought not to be entertained on the ground of delay and laches, despite the provisions of the 1995 Act as well as the said decision of the Supreme Court. We have found, from a subsequent order dated June 28, 2021 passed on this writ petition that the respondents were directed to clarify whether or not medical fitness test is conducted before appointing an individual as a driver. We have found, from a subsequent order dated June 28, 2021 passed on this writ petition that the respondents were directed to clarify whether or not medical fitness test is conducted before appointing an individual as a driver. Having regard to the aforesaid orders, we need to look at the affidavits that have since been filed before the Court by the parties. 4. In the affidavit of the respondents titled "written submissions", the respondents have reiterated that the writ petition ought not to be entertained since it suffers from inordinate delay and laches. Certain other disclosures made in such written submissions also deserve to be noted. In paragraph 4, it has been contended that the petitioner has an alternative remedy under sec. 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 before the Labour Court at Akola and that he ought to be relegated to such forum. It is further evident from such paragraph that the respondents have pleaded complex questions of facts being involved in the present case for which the writ petition is not maintainable. The further contention is that the disability of colour blindness from which the petitioner suffers, is not due to the nature of work performed by him but was there from birth. Also, an allegation of fraud has been levelled against the petitioner. The suggestion seems to be that despite suffering from colour blindness, he had withheld the same from the respondents while obtaining appointment as a driver. 5. The petitioner, after receiving the written submissions, has filed a rejoinder dated July 14, 2021. It is pleaded therein that before the petitioner's appointment as a driver, the Divisional Controller of the Corporation by a communication dated December 18, 2020 called upon the petitioner to appear for medical examination. Referring to Exhibit 'L' of the affidavit, it has been pleaded in paragraph 3 thereof that the petitioner was examined by the Civil Surgeon, Akola who issued a certificate dated December 27, 2010 certifying that he could not discover the petitioner having any disease (communicable or otherwise), constitutional weakness or bodily infirmity. In paragraph 4, reference has been made to two documents, Exhibits 'N' and 'O'. Exhibit 'N' is a certificate dated December 24, 2010 issued by Dr. N.K. Maheshwari stating that the petitioner is physically and mentally fit for the job. In paragraph 4, reference has been made to two documents, Exhibits 'N' and 'O'. Exhibit 'N' is a certificate dated December 24, 2010 issued by Dr. N.K. Maheshwari stating that the petitioner is physically and mentally fit for the job. More importantly, Exhibit 'O' is a certificate dated December 25, 2010 issued by Dr. S.V. Tare, Ophthalmic Surgeon which does not refer at all to the petitioner suffering from colour blindness. If indeed the petitioner was suffering from colour blindness from birth, it would not have been missed by Dr. S.V. Tare. The entire endeavor of the petitioner, therefore, has been to demolish the stand of the respondents that he was color blind from birth, and that physically he was perfectly fit to discharge the duty of a driver. 6. The petitioner has claimed relief referring to sec. 47 of the 1995 Act which restrains any establishment from dispensing with or reducing in rank an employee who acquires a disability during his service. Such enactment was in force when the petitioner's service was terminated. Indeed, on the date the writ petition was instituted, the 1995 Act was repealed and the Rights of Persons with Disabilities Act, 2016 (hereafter "the 2016 Act, for short) had been enacted and given effect from April 19, 2017. However, nothing really turns on reference to a provision of the repealed enactment. Sec. 47 of the 1995 Act corresponds to sec. 20 of the 2016 Act. Sub-sec. (4) of sec. 20 ordains that no Government establishment shall dispense with or reduce in rank an employee who acquires a disability during his or her service. Such sub-sec. has two provisos. The 1st proviso is that if an employee after acquiring disability is not suitable for the post he was holding, he shall be shifted to some other post with the same pay-scale and service benefits. The 2nd proviso is to the effect 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. 7. The 2016 Act, which repeals the 1995 Act, is no doubt a beneficial piece of legislation bearing in mind the rights of the persons with disabilities. 7. The 2016 Act, which repeals the 1995 Act, is no doubt a beneficial piece of legislation bearing in mind the rights of the persons with disabilities. In a case of the present nature, where circumstances point to the petitioner (who was otherwise physically fit) having suffered colour blindness after his appointment, what was expected of the respondents was a humane approach instead of attempting to resist the writ petition on the ground of technicalities that the writ petition ought not to be entertained on the ground of inordinate delay or laches or that complex facts are required to be examined or that the petitioner should be relegated to the Labour Court or that he had committed fraud while applying for appointment. We are indeed at a loss to comprehend as to how and on what basis the respondents could have taken the stand that the petitioner committed fraud. Nothing has been brought on record by the respondents to either prove that the petitioner was colour blind even prior to his appointment or that the medical certificates, which the petitioner has annexed to his rejoinder affidavit, are not genuine. Such stand shows the respondents in very poor light. Having regard to the will of the legislature expressed in the 1995 Act as well as the 2016 Act, the respondents would have done better to identify a suitable post for accommodating the petitioner. We would expect that while dealing with cases of similar nature in the future, the respondents would restrain themselves from taking stands which do not have any substance. 8. Turning to the case of the petitioner, we are more than satisfied on the basis of the materials on record that he was not colour blind at the time of his appointment and also that the disability that he has been detected to suffer from in 2013 is presumed to have occurred because of the nature of work that he was performing. In the light of the same and having regard to the purposes that the 2016 Act seeks to achieve, and particularly in terms of sec. In the light of the same and having regard to the purposes that the 2016 Act seeks to achieve, and particularly in terms of sec. 20 of the 2016 Act, the respondents were under a solemn duty to identify a suitable post on which the petitioner could be accommodated/adjusted; and if such suitable post is not vacant, to create a supernumerary post on which the petitioner could be allowed to continue till he attains the age of superannuation. 9. We are however ad idem with the learned advocate for the respondents only on one count and that is, the petitioner is not entitled to full back wages having delayed his approach to the Court and having not worked from December 31, 2013. We, however, propose to mould the relief in this regard in the manner as follows. The writ petition, accordingly, stands allowed with the following directions: - "(I) the respondents shall identify a suitable post on which the petitioner can be employed with the same pay-scale and service benefits and reinstate him in service; (II) if such post as is referred to above is not available, a supernumerary post shall be created and the petitioner upon being adjusted thereagainst shall be allowed to continue till such time he attains the age of superannuation; (III) if the aforesaid option is exercised, the petitioner must be placed in the same pay-scale and be entitled to the same service benefits, had he continued on the post of driver; (IV) the petitioner shall be entitled to continuity of service, as if his service had not been terminated; (V) there being a statement in paragraph 8 of the petitioner's rejoinder affidavit to the effect that since termination of service he has not been gainfully employed anywhere, and having regard to the beneficial nature of the relevant legislation with the statutory mandate therein which the respondents have failed to abide by, we direct that from the date of institution of the writ petition, i.e., December 23, 2018 till date he is reinstated in service in terms of this order, the petitioner shall be entitled to 50% of the back-wages; (VI) however, the petitioner shall not be entitled to any back-wages during the period December 31, 2013 till institution of the writ petition." 10. Let the aforesaid exercise of reinstatement of the petitioner in the manner indicated above be initiated and concluded as early as possible but not later than a fortnight from date of receipt of a copy of this order. 11. The writ petition stands allowed to the extent mentioned above. No costs.