Himachal Road Transport Corporation, Parivahan Bhawan, Shimla vs Jatinder Pal

Justice Dharam Chand Chaudhary, J.—The appellants (hereafter referred to as the respondents) have preferred the present appeal, against the judgment dated 19.5.2011, whereby learned Single Judge, while quashing and setting aside the impugned order, Annexure A-20, has held the respondent (hereafter referred to as the petitioner) entitled to all monetary, pensionary and other benefits. Facts of the case, in a nutshell, are that the petitioner was working as Driver with the respondents, since 1983. In the month of January, 2004, he fell sick and proceeded on medical leave. He did not recover from sickness and had been seeking extension in leave. On the direction of respondent-Corporation, he appeared before the Medical Board on 27.3.2004, which issued a certificate to the effect that he had become completely and permanently incapacitated for further service of any kind, because of his ailment of heart. Consequently, the respondents had decided to retire him compulsorily and he was informed about the decision so taken. He submitted reply and requested the respondents to allow him to remain on medical leave till 31.8.2004, the date of his retirement on superannuation. The request so made by the petitioner did not find any favour with the respondents and he was ordered to be retired compulsorily from service, vide order dated 9.7.2004.

The petitioner had assailed the order retiring him compulsorily from service by filing Original Application in the erstwhile H.P. State Administrative Tribunal, which, on abolition of the Tribunal, was transferred to this Court and registered as CWP (T) 11561 of 2008.

The respondents had raised the sole plea in the reply to the writ petition that since the petitioner had become permanently and completely incapacitated for any kind of service, therefore, there was no option left with them, except to retire him compulsorily.

Learned Single Judge, after taking into consideration various provisions under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 attracted in the given facts and circumstances of the case, concluded that the order whereby petitioner had been retired compulsorily from service, is illegal and ultra vires of Section 47 of the Act ibid. The same was, thus, quashed and set aside and the petitioner held entitled to all monetary, pensionary and other retiral benefits.

The legality and validity of the impugned judgment has been assailed on the grounds, inter alia that the factum of the petitioner having not worked at all has not been appreciated by the learned Single Judge and to the contrary, held him entitled to all the consequential benefits. An instance, where the Hon''ble Apex Court, in a similar matter, has directed the writ petitioner, a similarly situated person, to invest the back wages in the shape of FDR, has also been pressed in service.

We have carefully considered the entire record and heard learned counsel on both sides.

The writ petitioner, who is an Ex-serviceman, was appointed as driver by the respondent-Corporation in the year 1983. He was due to retire on attaining the age of superannuation on 31.8.2004. However, well before that, he fell sick in the month of January, 2004. He was allowed to avail medical leave. The respondent Corporation had referred the petitioner to a Medical Board and he appeared before such Board on 27.3.2004. Undisputedly, the Medical Board had found the petitioner to have become completely and permanently incapacitated for rendering further service of any kind, because of his ailment relating to heart. The respondent Corporation, instead of allowing him to continue in service till 31.8.2004, the date on which he was to retire on superannuation, had retired him compulsorily vide order dated 9.7.2004, i.e. just before one month and twenty two days before his retirement. Otherwise also, he was certified by the Board to have become completely incapacitated to do any work on 27.3.2004 i.e. about five months before his actual retirement on 31.8.2004. There was only a gap of about five months between his having become incapacitated and retirement on superannuation.

The present is thus a case where the respondent Corporation is liable to pay a paltry amount to the petitioner, on account of salary and other allowances.

We are, therefore, not inclined to interfere with the judgment rendered by the learned Single Judge, assailed in the present appeal.

This appeal thus fails and the same is accordingly dismissed, in limine. However it is made clear that this judgment is based only on the peculiar facts of this case and it is not to be treated as a precedent.