Om Prakash Kapoor vs Managing Director, U.P. State Road Transport Corporation, Lucknow and others

Rakesh Tiwari, J.—Heard Counsel for the petitioner and Sri V.K. Singh appearing for the respondents.

Facts of the case in nutshell are that petitioner was appointed as driver in the year 1972. Due to an accident in 1998, he became unfit to render his services as driver. In view of guidelines dated 13.10.1989, the petitioner was thereafter directed to work in the workshop and he worked there upto 6.6.2002 when his services were terminated on the ground that he was unfit to drive a vehicle. Aggrieved the petitioner has come up in this writ petition challenging validity and correctness of impugned orders dated 24.5.2002 and 6.6.2008 appended as Annexure Nos. 7 & 9 to the writ petition.

By the order dated 24.5.2002, the petitioner was informed that after medical investigation, a medical report has been received in which he was been found unfit to work as driver and by order dated 6.6.2002 his services have been terminated on that ground.

By its order dated 29.7.2002, the Court stayed operation of the termination order dated 6.6.2002, pursuant to which the petitioner was provided with alternate job on 3.10.2002 and he worked upto 30.9.2008 when he attained the age of superannuation.

Counsel for the petitioner has urged that since the petitioner has remained in service of respondent-Corporation upto his date of superannuation, he is entitled for retrial benefits also as he was a permanent employee of the Corporation. The petitioner has also submitted a supplementary affidavit with the prayer to direct the respondents to pay his post retrial benefits in respect of continuous work from 7.11.1972 to 30.9.2008 within a specified period that may be filed by the Court.

Copy of the application alongwith supplementary affidavit was served upon the Counsel for respondents as bar back as on 16.10.2008. The Court by its order dated 18.10.2008 has directed the application to be listed before appropriate Court after two weeks. It was expected that within two weeks, counter affidavit to the aforesaid supplementary affidavit will be filed by the respondents which has not been filed till date.

Counsel for the respondents submits that in the facts and circumstances of this case, the writ petition appears to have become infructuous as the petitioner continued in service and there is no prayer in the writ petition for payment of retiral benefits. He urges that it was duty of the petitioner to move an application for amending the prayer in the writ petition seeking the relief which he has sought in the application alongwith the supplementary affidavit.

Counsel for the petitioner does not dispute this fact that amendment has not been sought by him in the prayer made the writ petition for a direction with regard to payment of retiral benefits. He submits that prayer is already there in the shape of application alongwith supplementary affidavit which may be considered by this Court under Clause (4) of the prayer in the writ petition which is as under:

(4) Issue any other writ, order or direction which this Hon. Court may deem fit and proper under the circumstances of the case.

After hearing Counsel for the parties and on perusal of the record, I am of the opinion that petitioner has worked since 1972 in the respondent-Corporation as driver till he met with accident. It is not in dispute that he was provided alternate job by the Corporation before they terminated his services on the ground that he was not medically fit. Considering this aspect of the matter, the Court by order dated 29.7.2002 stayed operation of the termination order and alternate job was provided to the petitioner thereafter. It is also not disputed that petitioner continued in service till he attained the age of superannuation on 30.9.2008. Amount of group insurance is also said to have been paid to him after his retirement.

Counsel for the respondents may be technically correct in his argument that prayer for retiral benefits ought to have been made in an application for amending prayer of the writ petition. However since this prayer already exists in the shape of application alongwith supplementary affidavit, considering facts & circumstances of the case, the Court in its discretionary jurisdiction, to secure ends of justice and equity, can always grant any relief on a separate application with I affidavit or under aforesaid Clause (4) of the prayer. Therefore, without entering going into petty technicalities as raised by the Counsel for respondent, this writ petition is being finally disposed of with a direction to the respondents to consider payment of retiral benefits to the petitioner expeditiously within a period of three months from the date of receipt of a certified copy of this order, in accordance with law. No order as to costs.