Allowed

R.B.Naik, E-427158, Apsrtc Driver S/o.Gopal Naik v. The Apsrtc rep by its Vice Chairman and

Telangana HC11 Jun 2014WP/33800/2012

Case brief

AI extract

What is this about?

The court disposed of two writ petitions filed by a medically invalidated contract workman against his employer regarding delayed alternative employment. Upholding his entitlement under the Disabilities Act despite contract status, the court struck down the termination order and directed continuation in an alternative post.

What did the court decide?

Proceedings dated 05.10.2012 set aside; petitioner to continue in alternative cadre with consequential benefits.

R.B.Naik, E-427158, Apsrtc Driver… — Pension and Retirement Benefits | Telangana HC (2014)

¶1

THE HON’BLE SRI JUSTICE DAMA SESHADRI NAIDU

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WRIT PETITION Nos.8924 and 33800 of 2012

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COMMON ORDER:

¶4

These two writ petitions filed by the same petitioner, a workman, against the same set of respondents, the employer, proposed to be disposed of through a common order, since the second writ petition is only consequential in nature. The same set of learned counsel has advanced arguments on identical factual position in both the writ petitions. As such, for the felicity of adjudication, both the writ petitions are taken up together and are being disposed of by a common order.

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Shorn of extraneous particulars, the facts in brief are that the petitioner was initially appointed on 28.03.2009 in the respondent Corporation as a contract driver. Though he was appointed on a contract basis, the appointment was said to be against a substantive vacancy by way of filling up of backlog vacancy of scheduled tribe, to which the petitioner belongs.

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In 2009, when Kurnool town suffered unprecedented floods, the petitioner as a driver was assigned special duty as part of the rescue operations. The case of the petitioner is that at that time when there was a technical snag in the bus, the petitioner attempted to set it right. During the course of his efforts, the petitioner was severely injured in his right eye. Though the respondent Corporation referred him for proper medical treatment to the hospital of the Corporation, eventually given the gravity of the injury his right eye sustained, the petitioner was medically invalidated through medical certificate dated 26.04.2010.

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The record reveals that questioning the medical invalidation, the petitioner is said to have filed an appeal before the Medical Board and later a review, but on both the occasions, the plea of the petitioner was turned down and the initial finding of the Medical Officers

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invalidating the petitioner on medical grounds for defective eye was affirmed at both the stages. Having applied for alternative employment, when the petitioner was waiting for a positive measure on the part of the respondent Corporation, through proceedings dated 25.06.2010, the services of the petitioner were regularised.

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Ventilating a grievance that despite regularisation of his services and, more particularly, when the petitioner was medically invalidated only owing to the fact that he had sustained injury during the course of employment, the petitioner approached this Court by filing W.P.No.8924 of 2012 questioning the delay on the part of the respondent Corporation in providing alternative employment. On 17.09.2012, an interim direction was given in the said writ petition to the effect that the petitioner’s case shall be considered for providing alternative employment. It is the grievance of the petitioner that instead of providing alternative employment in terms of the interim direction granted in W.P.No.8924 of 2012, the respondent Corporation terminated the services of the petitioner through proceedings dated 05.10.2012. Once again aggrieved thereby, the petitioner filed W.P.No.33800 of 2012 wherein yet again an interim direction was given on 30.10.2012 to the respondent to provide alternative employment in terms of the earlier interim order passed by this Court in W.P.No.8924 of 2012. Predictably, as the respondent Corporation did not choose to implement the repeated directions of this Court, the petitioner was constrained to file a contempt case in C.C.No.1372 of 2013. Under the pain of contempt, it appears, eventually the Corporation provided alternative employment to the petitioner as a Shramic through proceedings dated 26.02.2014.

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Aggrieved by the interim directions given by this Court in W.P.No.33800 of 2012, the respondent Corporation came up with a vacate petition in W.V.M.P.No.2506 of 2013. Since the pleadings have been completed, this Court proposes to dispose of both the writ

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petitions through a common order and accordingly heard both the learned counsel at length.

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Taking this Court through the entire material on record, the learned counsel for the petitioner has stated that the action of the respondent Corporation is iniquitous. The termination of the petitioner from service is indefensible, more particularly when it has not been disputed that the petitioner sustained the injury and got medically invalidated only owing to accident that had occurred during the course of employment. Placing heavy reliance on Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and also the repeated directions of this Court concerning providing to the petitioner alternative employment, the learned counsel has stated that once the services of the petitioner stood confirmed, without providing a proper opportunity to the petitioner by way of notice and hearing, the respondent authorities ought not to have acted unilaterally. Eventually, the learned counsel for the petitioner has contended that the respondent authorities ought to continue the petitioner in service without further ado.

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Per contra, the learned Standing Counsel for the respondent Corporation has strenuously opposed the claims and contentions of the petitioner and has stated as a preliminary objection, that the petitioner has an efficacious alternative remedy in the form of an intradepartmental appeal. The learned Standing Counsel has also stated that neither Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, nor any other provision in the Regulations of the Corporation governing the service conditions of the petitioner, provides for alternative employment to a medically invalidated contract workman. The learned Standing Counsel has eventually defended the order of termination with a specific reference to the provision in para-1 in proceedings dated 25.06.2010 stating that since the petitioner had not

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been working after the time of accident, confirmation was only due to oversight and as soon as they came to know of the same, they got it rectified by passing the subsequent orders, impugned in the writ petition, terminating the services of the petitioner. Accordingly, the learned Standing Counsel has strenuously contended that the order of the respondent Corporation does not call for any interference.

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Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record.

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Without fear of contradiction, it can be stated that the facts are not in controversy. On the appreciation of the respective pleadings and the rival submissions of the learned counsel for both the petitioner and the respondent Corporation, the issues required to be determined are whether the services of the petitioner were regularised through proceedings dated 25.06.2010 and whether the petitioner is entitled to alternative appointment in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The consequential issue that may have to be decided is whether the termination of the services of the petitioner through proceedings dated 05.10.2012 is sustainable.

¶17

As has already been observed hereinabove, the facts being not in dispute, the singular contention of the learned Standing Counsel for the respondent Corporation is that the regularisation proceedings were issued on 25.02.2010 to certain workmen who include the petitioner as well, despite the fact that the petitioner had not been in service by then. According to the learned Standing Counsel, those proceedings were issued, insofar as the petitioner is concerned, by oversight. As a matter of reparation, the respondent Corporation, contends the learned Standing Counsel, issued orders of termination, having realised that the proceedings of regularisation are non est. The learned Standing

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Counsel, in the alternative, submitted that even as per the regularisation proceedings dated 25.06.2010 there was no absolute regularisation of the petitioner’s services, inasmuch as it was conditional. In that regard, the learned Standing Counsel has drawn the attention of this Court to one of the conditions in the said proceedings, which is as follows:-

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"If any of the above Contract Driver is not working/under put off duty/absenteeism of facing serious disciplinary action, such cases shall be referred to this office for further directive, keeping the appointment orders as Driver Gr.II in abeyance."

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Incontrovertibly, the petitioner, at no point of time, has been under put off duty, nor has he faced any serious disciplinary action on account of absenteeism. What remains to be seen is whether the petitioner was not working by the date of the regularisation proceedings. In my considered view, the expression working in the above extract has not been employed in the temporal sense, but as a condition of employment, or in other words, as the status of the workman during the relevant period expression. If the ‘working’ is given a literal interpretation, if any of the workman whose services were regularised through the proceedings in question was to be physically absent on that particular day, he would not have the benefit of the proceedings. Once a person ceases to be an employee or has been under suspension, put off being the expression used in the place of suspension for contract employees, or facing disciplinary proceedings, he could not have the benefit of regularisation. In that sense, the expressions ‘not working, on a put off duty and facing disciplinary action for absenteeism’ are governed by the well entrenched interpretive principle of ejusdem generis.

¶21

Once we examine the sequence of events, it is evident that the petitioner sustained a very grievous injury to his eye during the course of discharge of his official duty as a conductor. Despite the best efforts

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of the Medical Officers of the Corporation, impairment of vision in one of the eyes of the petitioner could not be presented. At no point of time has the petitioner been absent from duty on his own volition, but has in fact been under medical treatment. This Court could not persuade itself to hold that the absence of an employee under those invidious circumstances would amount to ‘not working’ at that particular time. In the light of the above discussion, this Court does not have any hesitation to hold that the condition of not working at the material point of time when the regularisation proceedings were issued could not be sustained; ipso facto, the regularisation is perfectly valid and subsisting. It is of some significance to note that, even assuming that the regularisation proceedings were issued inadvertently in the face of the alleged disqualification of the petitioner, yet a summary removal from service would not cure the said defect, unless corrective orders were issued by the respondent Corporation. In any event, it is not the case of the respondent Corporation that any such measures have been taken by it.

¶23

Chronologically viewed, on 17.09.2012, this Court issued an interim direction in W.P.No.8924 of 2012 to continue the petitioner in any alternative post like Helper/Cleaner/Shramic under the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, pending the disposal of the said writ petition. Strange as it may sound, the respondent Corporation has neither complied with the direction, nor has it questioned it by taking out proper proceedings on time; yet, it went ahead by issuing proceedings dated 05.10.2012 terminating the services of the petitioner. The gravemen of the proceedings dated 05.10.2012 is that the petitioner suffered from defective distant vision of the right eye, that his appeal and review petitions were also rejected by the authorities concerned, and that in the face of the said medical invalidation, the petitioner, not being eligible for alternative

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appointment in the Corporation, had his services terminated. Though the termination proceedings do not specify how the petitioner is not eligible to be provided alternative appointment, the said missing information has been supplied by the learned Standing Counsel for the respondent Corporation by stating that since the petitioner was only a contract employee without having his services regularised by then, his services were terminated. In the light of the finding of this Court concerning the validity of the regularisation proceedings dated 25.06.2010, the order of termination shall also be declared illegal and unsustainable. It may further be seen that questioning the order of termination dated 05.10.2012, the petitioner yet again approached this Court by filing W.P.No.33800 of 2012, wherein once again an interim direction was given by this Court on 30.10.2012 to the following effect:

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"The office order dated 25.06.2010 passed by the Regional Manager, APSRTC Kurnool, reflects that the petitioner’s services were regularised in the post of Driver, Grade II and he was placed on a time scale. The impugned proceedings dated 05.10.2012 however state to the effect that the petitioner is a contract Driver and therefore cannot be provided alternative employment as he was found medically unfit. The said order did not even refer to the interim order dated 17.09.2012 passed by this Court in W.P.No.8924 of 2012, filed by the petitioner herein, directing the APSRTC to consider his case for alternative employment as per Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

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There shall accordingly be interim suspension of the impugned proceedings dated 05.10.2012. The APSRTC shall continue the petitioner in a suitable alternative post in accordance with the interim direction granted earlier in W.P.No.8924 of 2012."

¶27

The record reveals that the respondent authorities persisted with non-implementation of the interim directions issued in both the writ petitions. Under those circumstances, the petitioner invoked the contempt jurisdiction of this Court in C.C.No.1372 of 2013. Eventually,

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the respondent authorities, under the pain of contempt, provided the petitioner alternative appointment in which he presently re-continuing.

¶29

The Courts time and again have held that the provisions of the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 squarely apply to the respondent Corporation and that those workmen who have been medically invalidated in terms of Section 47 r/w Section 3 of the said Act shall be provided compassionate appointment. At this juncture, this Court may have to advert to the contention of the learned counsel that neither the Act, 1995 nor the service regulations governing the petitioner specifically mandate that a contract employee shall be extended the said benefit. I am afraid, this contention cannot be accepted for the simple reason that any benefit which is conferred on a particular class of people cannot be denied to them by implication on a specious plea that a subcategory falling under the same class has not been specified. In other words, the employee or workman being a genus, different grades of employment shall be treated as the species, and unless there is an express bar, a benefit cannot be denied by implication. It is trite to observe that any beneficial piece of legislation calls for an expansive interpretation in an inclusive manner.

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In the above facts and circumstances, both the writ petitions are allowed setting aside the Proceedings No.P2/468(10)10-KNL-2, dated 05.10.2012. Consequently, it is further declared that the petitioner shall be continued in the alternative cadre in which he is presently working with all consequential service benefits, to which he is otherwise entitled. There shall be no order as to costs.

¶31

As a sequel, miscellaneous petitions, if any pending in both the writ petitions, shall stand closed.

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DAMA SESHADRI NAIDU, J

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11^th June, 2014

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siva

¶35

THE HON’BLE SRI JUSTICE DAMA SESHADRI NAIDU

¶36

WRIT PETITION Nos.8924 and 33800 of 2012

¶37

11^th June, 2014

¶38

siva

R.B.Naik, E-427158, Apsrtc Driver S/o.Gopal Naik v. The Apsrtc rep by its Vice Chairman and

Case brief

What is this about?

What did the court decide?

R.B.Naik, E-427158, Apsrtc Driver S/o.Gopal Naik v. The Apsrtc rep by its Vice Chairman and

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