State of Haryana vs Gurbachan Singh And Another

Augustine George Masih, J.—Prayer in the present writ petition is for setting aside of the Award dated 29th August, 2008 (Annexure P-1) passed by the Labour Court. Ambala,-- vide which the reference has been answered in favour of the workman holding him entitled to 50% back wages from the date of compulsory retirement till the date of actual retirement along with all consequential service benefits.

Counsel for the petitioner contends that respondent No. 1 workman was appointed as a Driver on regular basis on 21st December, 1989. The bus which was being driven by respondent No. 1 workman, met with an accident on 1st June, 1992, as a result whereof, his right leg up to the thigh was amputated. He was declared unlit for the post of Driver by the Civil Surgeon. Ambala and based upon the report of the Civil Surgeon. Ambala, the petitioner was retired from service under Rule 5.18 of the Civil Services Rules Vol. II Part-I in public interest with effect from 30th September, 1993 (A.N.) vide order dated 29th September, 1993 (Annexure P-4). On retirement, he was given benefit of the Policy Instructions dated 20th August, 1992 issued by the Transport Commissioner. Haryana. Chandigarh, which were based upon a judgment of the Hon''ble Supreme Court in the case of Anand Bihari and others Vs. Rajasthan State Road Transport Corporation, Jaipur and another, .

The order of retirement was questioned through a demand notice submitted by respondent No. 1--workman. When conciliation proceedings failed, reference was made to the Labour Court for adjudication. The Labour Court, on the basis of the pleadings of the parties, framed four issues and proceeded to decide the same in favour of respondent No. 1 -- workman. The Labour Court primarily relied upon the provisions, as contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Lull Participation) Act. 1995 (hereinafter referred to as the ''Disabilities Act. 1995). The order of retirement of respondent No. 1 -- workman is dated 29th September, 1993 (Annexure P-3) which is much earlier to the coming into force of Disabilities Act, 1995 and, therefore, reliance on the same by the Labour Court is not in accordance with law. His further contention is that Rule 5.18 of the Civil Services Rules Vol. II Part-I, under which respondent No. 1 -workman has been retired, has been considered by a Division Bench of this Court in the case of Satya Pal versus Transport Commissioner/Controller Haryana and another, 1999 (4) R.S.J. 520 wherein this Court, in the case of a similarly placed Driver, has held that the respondents can retire the workman from Government service and he would be entitled to the benefit of the Instructions dated 20th August, 1992. He contends that the petitioner--Management has taken a specific stand that no alternative job was available with the Management on which respondent No. 1--workman could be engagaed, therefore, left with no option, provisions under Rule 5.18 of the Civil Services Rules Vol. II Part-I were pressed into service to retire respondent No. 1-workman. He on this basis, contends that the Award deserves to be set aside as the same cannot be sustained. --is further contention is that the learned Labour Court. Ambala has totally misread the factual aspect as well, as it has been observed in the Award that respondent No. 1 --workman could have attained superannuation by the date the Award was passed i.e. 29th August, 2008, which factually is incorret as respondent No. 1--workman, if taken back in service, would attain the age of superannuation on 30th June, 2013. He, accordingly, prays that the present writ petition may be allowed and the impugned Award may be set aside.

Notice of motion was issued in this ease on 10th February, 2010 for 12th March, 2010 pursuant to which Mr. Suresh Kumar. Advocate, had put in appearance for Mr. Shailender Sharma. Advocate, for respondent No. 1 and the case was adjourned to 22nd April, 2010 and four weeks" time was granted to file reply to the writ petition. On 22nd April, 2010, the case was called twice. None had put in appearance on behalf of respondent No. 1 nor any reply was filed on his behalf and the ease was adjourned to 19th May, 2010 i.e. today for arguments. Today also, this is the second call but none has cared to put in appearance on behalf of respondent No. 1--workman.

I have heard the counsel for the petitioner and have gone through the records of the case.

As per the Award itself, respondent No. 1 workman was retired, vide dated 29th September, 1993 with effect from 30th September, 1993 (Annexure P-3).The Disabilities Act. 1995 came into force on 7th February, 1996. It is thus apparent that the said Act would not be applicable to the case of respondent No. 1 workman, who admittedly was retired vide order dated 29th September, 1993 and thus could not claim the benefit under the said Act. Thus, the observation of the Labour Court while placing reliance on Section 47 of the Disabilities Act. 1995 is totally misplaced. The provisions as contained under Rule 5.18 of the Civil Service Rules Vol. II, Part-I, under which respondent No. 1 workman has been retired, are fully applicable to the case of respondent No. 1 workman. According to the said Rule, the petitioner has been invalidated from service and therefore, the observation of the Labour Court that respondent No. 1--workman has been prematurely retired from employment on the ground of medical unfitness is totally against the rules and the records.

In a similar situation, a Division Bench of this Court, while considering the case of a Driver, had upheld the order of retirement and as the petitioner was claiming that he should be granted an alternative job, the Management had taken a specific stand that no alternative job was available with them on which the workman could be engaged. In the present case as well the specific stand of the Management is that there was no job available with them on which respondent No. 1--workman could be adjusted. There is nothing on the record to suggest that indeed an alternative job was available with the Management on which the workman could have been adjusted. On this basis also and in the light of the Division Bench Judgment of this Court in the case of Satya Pal (supra), the findings recorded by the Labour Court cannot be sustained. That apart, the factual aspect, which has been taken into consideration by the Labour Court while granting 50% back wages to the workman from the date of his compulsory retirement to the date of his actual retirement on the presumption that the workman had attained the age of superannuation, is also without any basis.

In view of the above, the impugned Award passed by the Labour Court cannot be sustained. The present writ petition is allowed. Award dated 29th August, 2008 (Annexure P-1) passed by the Labour Court. Ambala is hereby set aside.