M. Shivakumar Vs Board of Directors, Bescom

NO.86/08 DTD.27.12.2017 OF THE R1 BOARD OF DIRECTORS MEETING RESOLUTION IN SO FAR AS IT RELATES TO THE PETITIONER VIDE ENCLOSURE TO ANNEXURE-K1 TO THE W.P.DIRECT THE RESPONDENTS TO CONSIDER THE REPRESENTATION OF THE PETITIONER DTD.14.5.2017 VIDE ANNEXURE.G TO THE W.P. AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING

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IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioner has filed this petition seeking the following reliefs:

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i. Issue a writ of certiorari, quashing the Resolution No.86/08 dated 27.12.2017 of the 1^st respondent - Board of Directors Meeting Resolution in so far as it relates to the petitioner vide enclosure to Annexure-K1 to the Writ Petition.

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ii. Issue a writ of mandamus directing the respondents to consider the representation of the petitioner dated 14.05.2017, vide AnnexureG to the writ petition and consequently to absorb the service of the petitioner as Probationary Mazdoor and to allot work in any other equivalent post with all other service benefits including seniority and arrears of salary.

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iii. Pass any other appropriate order, orders or directions as this Hon'ble Court may deem fit to pass under the facts and circumstances of the case, in the interest of justice and equity.

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HC-KAR

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Brief facts leading rise to the filing of this writ

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petition are as follows:

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The petitioner was initially appointed as a Gangman in April, 2001, and the petitioner was reclassified as Bill Distribution Boy. A settlement was entered into between the KPTCL and KPTCL Employees Union as per Section 2(P) of the Industrial Dispute Act for the absorption of about 7528 Gangmen, including 315 Bill Delivery Boys. In December 2005, the petitioner was orally terminated from service without any notice and opportunity. About 315 Bill Delivery Boys were appointed and subsequently, terminated from service on 01.04.2006. The petitioner worked temporarily in the Technical Division in N-2 SubDivision from 2006 to January 2008. The petitioner, after completion of his duties, had met with a road traffic accident, and as a result of that, the left leg of the petitioner was amputated on 26.01.2008. The petitioner had worked through the outsourcing agency and worked in the office under respondent No.5. To process the

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HC-KAR

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absorption of the Bill Distribution Boys, respondent No.3 had written to the Division Heads and directed them to furnish the details of the Bill Distribution Boys who worked in that particular division, and the name of the petitioner was included in the said list and it was forwarded to respondent No3. The Medical Board constituted in the K.C. General Hospital has certified that the petitioner is suffering from 75% of the bodily disability. The Board of Directors of the respondent company in its resolution dated 20.09.2016 had resolved to reinstate all the terminated Bill Delivery Boys and to absorb them as Probationary Mazdoors on 14.05.2017. The petitioner submitted a representation requesting to absorb the service of the petitioner as Probationary Mazdoors. As discussed in the Board of Directors meeting, they rejected the representation of the petitioner as per Annexure-K1. Hence, this writ petition.

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HC-KAR

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The respondents filed a statement of objections

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admitting that the petitioner worked as a gangman from 2000 to 2005, and that he worked as a telephone operator through M/s Golden Facility Services. He met with a road traffic accident on 26.01.2008, and his left leg was amputated above the knee. The petitioner's name is in the list of 382 gangmen. The Board of Directors in its meeting held on 27.12.2017 perused the documents regarding conversion of gangmen/Bill delivery boys as probationary mazdoors, and after deliberation resolved that the cases pertain to the period 15-16 years earlier and there are no provisions in the existing rules/regulations and, after detailed discussion, rejected the proposal. It is also contended that the petitioner has not completed the minimum working days of 240 in a year continuously for 6 years. Hence, on these grounds, prays to dismiss the writ petition.

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HC-KAR

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Heard the arguments of the learned counsel for

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the petitioner, and also the learned counsel for the respondents.

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Learned counsel for the petitioner submits that the petitioner was appointed as a gangman in April 2001, and subsequently, his post was reclassified as a Bill Distributor Boy. He submits that 315 Bill Delivery Boys were terminated from service, and subsequently, the Board of Directors resolved to reinstate all the terminated Bill Delivery Boys, and to absorb them as Probationary Mazdoors. The name of the petitioner was found in the said list, however, the Board of Directors have rejected the representation of the petitioner as per Annexure-K1. He submits that in case the petitioner has suffered any permanent disability, the respondents should provide an alternative suitable post as per Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act of 1995'). The said aspect was not adequately considered by

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HC-KAR

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the respondents, and they committed an error in rejecting the representation of the petitioner. He also submits that the respondents have not assigned any reasons for rejecting the application, except on the ground that the said representation was made after 15-16 years. He

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submits that the impugned resolution passed by the respondents is arbitrary, and erroneous. Hence, on these grounds, he prays to allow the writ petition.

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Per contra , the learned counsel for the respondents submits that although the petitioner was appointed as a gangman in April 2001 and his post was reclassified as a Bill Distributor Boy, his name was included in the list for absorption. Meanwhile, he met with an accident, and his left leg was amputated, and the petitioner has suffered a permanent disability. Hence, the petitioner is not entitled to an absorption, and the Board of Directors has rightly rejected the representation of the petitioner. Hence, on these grounds, he prays to dismiss the writ petition.

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HC-KAR

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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There is no dispute that the petitioner was

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appointed as a gangman in April 2001, and subsequently, his post was reclassified as a bill delivery boy. Apart from the petitioner, there were 314 other employees who were appointed as bill delivery boys. Thereafter, 315 Bill delivery boys were terminated from service and subsequently, the respondents have decided to absorb the services of the employees, i.e., 315, including the petitioner. Meanwhile, the petitioner met with an accident, and his left leg was amputated. Thereafter, the respondents did not absorb the service of the petitioner. The petitioner submitted a representation dated 14.05.2017 vide Annexure G requesting the respondents to consider the case of the petitioner for absorption. The said representation was placed before the Board of Directors meeting held on 27.12.2017. I have perused the

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HC-KAR

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impugned order vide Annexure-K. The Board of Directors,

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after deliberation, have rejected the proposal of the petitioner and Sri S. Justin Chinappa on the ground that the cases pertain to the period earlier than 15-16 years, and based on the opinion given by the Director (A & HR) dated 26.12.2017 who has given a clear opinion that there are no provisions under the existing regulations/rules, and accordingly, rejected it. Even for the respondents, while absorbing 315 employees, such a rule was not in existence. However, the respondents have absorbed 313, excluding the petitioner and S. Justin Chinappa. The rule was not in existence. However, the respondents have absorbed 313 employees. The petitioners are also entitled to absorption. Further, from the perusal of the Board Resolution, it does not disclose the reasons for rejecting the proposal of two representations submitted by S. Justin Chinappa and M. Shivakumar i.e., the petitioner. Thus, the petitioner is also entitled to the absorption on the ground of parity. Admittedly, the petitioner met with an accident,

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HC-KAR

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and his left leg was amputated above the knee. If the petitioner has suffered a permanent disability, the respondents would have acted as per Section 47 of the Act of 1995, which reads as follows.

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47. Non-discrimination in Government Employment - (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

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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:

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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.

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(2) No promotion shall be denied to a person merely on the ground of his disability:

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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 provisions of this section.

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HC-KAR

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Section 47 of the Act of 1995 provides that no

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establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service.

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Admittedly, the petitioner has suffered

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permanent disability during his service. The respondents could have provided an alternative post that is suitable for him to discharge his duty in view of the law laid down by

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the Hon'ble Apex Court in the case of C.H.JOSHI VS. TELANGANA STATE ROAD TRANSPORT CORPORATION AND OTHER in SLP(C) 36278/2017 disposed off on 01.08.2025. The Board of Directors, without considering the said aspect, have rejected the representation of the petitioner vide Annexure-G. The impugned resolution vide Annexure-K1 is arbitrary, erroneous, and of a nonapplication of mind. Hence, the representation submitted by the petitioner requires reconsideration by the Board of Directors.

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HC-KAR

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In view of the above discussions, I proceed to

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pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The resolution dated 27.12.2017 of respondent No.1-Board vide Annexure-K1 is set aside.

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iii. The respondents are directed to reconsider the representation of the petitioner dated 14.05.2017 vide Annexure-G, and also while considering the representation, the respondents are also directed to consider Section 47 of the Act of 1995 and pass an appropriate order in accordance with law within a period of 8 weeks from the date of receipt of a copy of this order.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

M. Shivakumar v. Board of Directors, Bescom

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M. Shivakumar v. Board of Directors, Bescom

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