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Judgment
A.M. Badar, J—Heard. Rule. Rule made returnable forthwith. By consent of the parties, heard finally.
By this petition, the petitioner who was working as driver with respondents is praying for directing the respondents to pay all his back wages from the date of termination and for directing the respondents to provide him alternate job on the post of peon or security guard in view of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("Act of 1995" for the sake of brevity).
It is the case of the petitioner and rather undisputedly that he was serving with respondents No. 1 and 2 as driver. While in service, the petitioner met with an accident on 22.5.2011 and had suffered 54% permanent disability. As such, he was not in a position to work as driver with his employer - Maharashtra State Road Transport Corporation ("the Corporation" for the sake of brevity). Respondent No. 2 - Divisional Controller of the Corporation then referred the petitioner to Civil Surgeon, General Hospital, Akola vide his letter dated 2.9.2011 (Annexure-C). Consequently, the petitioner was medically examined by the Civil Surgeon, General Hospital, Akola and the said authority on 9.11.2011 certified that the petitioner is permanently and totally incapable to perform duties on the post of driver with the Corporation. This certificate is at Annexure-D to the petition. Relying on this certificate issued by the Civil Surgeon, respondent No. 2 - Divisional Controller vide his order dated 22/27.12.2011 (Annexure-E) terminated services of the petitioner. The petitioner then applied to respondent No. 2 - Divisional Controller for alternate employment on compassionate ground and he was again referred for medical examination. The Medical Board of V.N. Government College, Yavatmal again declared the petitioner unfit to work by issuing certificates to that effect on 24.7.2011 (Annexure-H) and 4.5.2013 (Annexure-J). The petitioner is, therefore, challenging the action of termination of his services because of disability suffered by him in the course of his employment.
Respondents No. 1 and 2 resisted the claim of the petitioner by contending that as per Resolution of the Corporation dated 20.6.2012, an employee who suffered colour blindness or who is declared medically unfit is entitled for alternate employment of security guard but the petitioner could not be provided with alternate job as the Civil Surgeon has not certified that the petitioner suffered from colour blindness. Respondents No. 1 and 2 further contended that as per Circular No. 8/2008, if an employee suffers disability because of accident caused while on duty he can be provided with alternate job on top priority by taking him on waiting list. According to the respondents, the Act of 1995 is not applicable and the petitioner is not suffering from colour blindness.
We heard learned Counsels appearing for the parties. According to the learned Counsel for the petitioner, while serving as driver with respondent No. 2 the petitioner met with an accident on 22.5.2011, thereby causing permanent disability to him which ultimately resulted in termination of his services. Therefore, according to the learned Counsel for the petitioner, he is entitled for protection granted by the Act of 1995.
Per contra, Shri Wankhede, learned Counsel appearing for respondents No. 1 and 2 vehemently argued that there is settlement between employer and the recognized union, which provides that in such eventuality the concerned employee can be kept on waiting list till availability of alternate light job. According to him, because of this settlement, provisions of the Act of 1995 are not applicable.
Upon hearing the rival submissions, we are of the view that the impugned order dated 22/27.12.2011 (Annexure - E), terminating the services of the petitioner w.e.f. 8.11.2011 cannot be sustained. Respondents No. 1 and 2 have not controverted averment of the petitioner that while working as driver with respondent No. 2 - Divisional Controller the petitioner met with an accident on 22.5.2011. It is, thus, clear that the petitioner met with an accident arising out of his employment as driver in the course of his employment with respondent No. 2 - Divisional Controller of the Corporation.
Undisputedly by letter dated 2.9.2011 (Annexure-C) respondent No. 2 - Divisional Controller referred the petitioner to the District Civil Surgeon, Akola for medical examination. Vide certificate dated 9.11.2011 (Annexure-D), the Civil Surgeon, General Hospital, Akola found that the petitioner is permanently disabled and totally incapacitated to perform duties on the post of driver in the Corporation. Thereafter, again the petitioner was examined by the Medical Board at Shri V.N. Government Medical College, Yavatmal on 24.7.2012 and 4.5.2013 as seen from the certificates at Annexure H and J to the petition. The Medical Board upon examination of the petitioner found that the petitioner suffered dislocation of right shoulder and it was again reiterated that he is unfit to perform duty as driver permanently.
At this juncture, it would be apposite to look into the provisions of Act of 1995. This act was enacted with a laudable object spell out in Statement of Objects and Reasons, which reads thus:-
"(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against person with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmers and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream."
A bare look to the provisions of this Act of 1995 shows that it is for the welfare and safeguard the rights of the persons with disabilities. It would be apposite to reproduce the provisions of Section 2(i), 2(k), 2(o) of the Act of 1995 which defines disability, establishment and locomotor disability. They read thus:-
"Section 2(i) "disability" means:-
i. blindness;
ii. low vision;
iii. leprosy-cured;
iv. hearing impairment;
v. locomotor disability;
vi. mental retardation;
vii. mental illness"
"(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government;"
"(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;"
It is not in dispute that the respondent-Corporation is the Corporation owned, controlled and aided by the State Government and as such, it is an establishment as defined by Section 2(k) of the Act of 1995. Locomotor disability is one of the disabilities enumerated in inclusive definition of the term found in Section 2(i) of the said Act.
In the case in hand, the petitioner has suffered dislocation of right shoulder which is covered by definition of the term "Locomotor Disability" defined in Section 2(o) of the Act of 1995. Because of dislocation of right shoulder the petitioner suffered disability of the bone and as such incurred disability as defined in Section 2(i) of the said Act.
At this juncture, it is apposite to quote provisions of Section 47 of the Act of 1995, which reads thus:-
"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:
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:
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.
(2) No promotion shall be denied to a person merely on the ground of his disability:
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."
In view of this provision of welfare legislation, it was not at all open to respondents No. 1 and 2 to dispense with the services of the petitioner by impugned termination order. As the petitioner was declared permanently unfit to work as driver by the Civil Surgeon, he ought to have been shifted to some other post with the same pay scale and service benefits. If that was not possible, then respondents No. 1 and 2 ought to have been kept the petitioner on a supernumerary post till availability of suitable post or till the petitioner attains the age of superannuation, whichever contingency occurs earlier. At this juncture, it is apposite to refer to the judgment of the Hon''ble Apex Court in the case of Anil Kumar Mahajan Vs. Union of India (UOI) and Others, (2013) 8 AD 241 : (2014) 173 PLR 678 : (2013) 8 SCALE 366 : (2013) 7 SCC 243 : (2013) 2 SCC(L&S) 665 : (2013) 4 SCT 167 : (2013) 3 SLJ 15 , wherein it is held by the Hon''ble Apex Court that the prohibition imposed under Section 47 of the Act of 1995 against dismissal or reduction in rank of an employee is total prohibition and services of such employees acquiring disability while in service cannot be dispensed with. The ratio of the said judgment applies with full force to the case in hand.
It is well settled that when there is conflict between the settlement or award at one hand and legislation on the other hand, provisions of legislation will prevail. Even if it is assumed that there is settlement between the employer of the petitioner and the recognized union, such settlement cannot override the expressed provisions of the Act of 1995. Such agreement, if any, contrary to the provisions of law is void and cannot be acted upon. As such, the respondent - Corporation cannot press into service so called settlement in order to dislodge claim of the petitioner which is based on the Act of 1995.
In the result, writ petition is allowed. The impugned order dated 22/27.12.2011 passed by respondent No. 2 - Divisional Controller of the respondent - Corporation at Annexure-E to the petition, terminating services of the petitioner w.e.f. 8.11.2011 is quashed and set aside. Respondents No. 1 and 2 are directed to reinstate the petitioner with continuity in service with full back wages on some other suitable post having light work with the same pay scale and service benefits. It is further directed that if this is not possible then respondents No. 1 and 2 shall adjust the petitioner against any post or he should be kept on supernumerary post until the suitable post is available or until he attains the age of superannuation, whichever happens earlier.
Rule is made absolute in the above terms with no order as to costs.