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Friday, May 3, 2013

Section 10 (1) of the Industrial Disputes Act, 1947.= The appellant, Sohan Lal, was employed as a regular driver in the Haryana Roadways having been appointed in the said post on 01.04.1993. According to the appellant, while in service, he sustained certain injuries as a result of a road accident. A medical examination of the appellant was conducted by the Civil Surgeon, Yamuna Nagar to determine the fitness of the appellant to continue to be employed as a driver. He was found to be unfit to discharge his duties. Thereafter, a notice dated 03.03.1997 was issued to the appellant by the General Manager of the Haryana Roadways proposing to retire him from service on medical grounds. The appellant submitted his reply on consideration of which, by order dated 27.03.1997, the appellant was retired from service with effect from 31.03.1997 on ground of medical unfitness. 4. The appellant raised an industrial dispute on the issue of his termination/retirement made by the order dated 27.03.1997. Though initially a reference was refused, the matter was eventually referred to the Labour Court for adjudication under Section 10 (1) of the Industrial Disputes Act, 1947.= The applicability of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 to the case of the appellant, as strenuously urged on his behalf, cannot arise in as much as the appellant does not come within the meaning of the expression "person with disability" as defined under Section 2(t) of the Act. = In the medical certificate dated 14.11.1996 issued by the Civil Surgeon, Yamuna Nagar the appellant has been found to be suffering from disability of the right elbow to the extent of 10% only as against the percentage of not less than 40% spelt out by Section 2(t) of the Act. The facts of the present case clearly go to show that the appellant was found to be medically unfit to continue to work as a driver. His case for alternative employment in terms of the Memorandum dated 20.08.1992 was duly considered. No such alternative employment was available. Consequently, additional compensation payable to the appellant in terms of the Memorandum dated 20.08.1992 was calculated and paid. The materials on record would also go to show that the superannuation of the appellant, if he had continued in service, was due on 30.09.2004. Taking into account the totality of the facts of the present case, we are of the view that the award of the learned Labour Court dated 27.02.2004 affirmed by the High Court by its order dated 22.08.2005 will not require any interference by us. Accordingly, we dismiss the appeal and affirm the aforesaid award dated 27.02.2004 of the learned Labour Court and order dated 22.08.2005 passed by the High Court.


NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4169 OF 2013
(Arising out of SLP (Civil) No.612 of 2007)


Sohan Lal ... Appellant(s)
Versus
State of Haryana & Ors. ... Respondent(s)


J U D G M E N T

RANJAN GOGOI, J.

Leave granted.
2. An award dated 27.02.2004 passed by the learned Labour Court, Ambala,
upholding the termination of service of the appellant was challenged before
the High Court of Punjab & Haryana. The High Court having dismissed the
aforesaid challenge the present appeal has been filed.

3. The brief facts that would be relevant for the adjudication of the
present case may be noticed as hereinbelow:

The appellant, Sohan Lal, was employed as a regular driver in the
Haryana Roadways having been appointed in the said post on 01.04.1993.
According to the appellant, while in service, he sustained certain injuries
as a result of a road accident.

 A medical examination of the appellant was
conducted by the Civil Surgeon, Yamuna Nagar to determine the fitness of
the appellant to continue to be employed as a driver. He was found to be
unfit to discharge his duties. 

Thereafter, a notice dated 03.03.1997 was
issued to the appellant by the General Manager of the Haryana Roadways
proposing to retire him from service on medical grounds. The appellant
submitted his reply on consideration of which, by order dated 27.03.1997,
the appellant was retired from service with effect from 31.03.1997 on
ground of medical unfitness.

4. The appellant raised an industrial dispute on the issue of his
termination/retirement made by the order dated 27.03.1997. Though initially
a reference was refused, the matter was eventually referred to the Labour
Court for adjudication under Section 10 (1) of the Industrial Disputes Act,
1947.



5. Both the parties filed their respective written statements before the
learned Labour Court on the basis of which issues with regard to the
validity of the retirement/termination of the workman and his entitlement
to consequential benefits, if any, were framed for trial.



6. Before the learned Labour Court both parties led their respective
evidence on consideration of which the learned Court came to the conclusion
that the claim of the workman was not tenable and answered the reference
accordingly. In doing so, the learned Labour Court specifically took note
of the fact that in the order dated 27.03.1997, it is mentioned that before
dispensing with the services of the workman, attempts were made to find an
alternative job to accommodate him which attempts, however, did not yield
any positive result. The fact that the appellant was paid all retiral
benefits as well as additional compensation calculated at the rate
equivalent to 21 days salary for each year of the balance period of service
left (7 years), in accordance with the decision of this Court in Anand
Bihari & Ors. Vs. Rajasthan State Road Transport Corporation, Jaipur & Anr.
[AIR 1991 Supreme Court 1003] was also taken note of. With regard to the
above, it would be necessary to notice that following the aforesaid
judgment of this Court, an Office Memorandum dated 20.08.1992 was issued by
the Transport Commissioner, Government of Haryana, formulating a 'scheme'
to deal with cases of medical incapacity of a serving incumbent to
discharge his duties. Under the said scheme, in case such incapacity is
attributable to reasons connected with the employment, alternative
employment is required to be provided, failing which, additional
compensation, at the rate prescribed by the said notification for the
balance period of service left, is payable to the concerned employee.

7. Aggrieved by the award dated 27.02.2004 passed by the learned Labour
Court, the appellant filed a writ petition before the High Court. The same
having been dismissed by the High Court by order dated 22.08.2005, the
present appeal has been filed. The order of the High Court dismissing the
writ petition is based on an order of the same date passed in another writ
petition involving identical facts.

8. We have heard learned counsel for the parties.



9. In Anand Bihari (supra), this Court was confronted with the issue of
termination of the services of a large number of drivers in the Rajasthan
State Road Transport Corporation on account of a singular medical
disability, namely, defective/poor eyesight, a disability attributable to
the stringent nature of the duties performed. On consideration of the
totality of the facts of the case before it in Anand Bihari (supra), this
Court directed the Rajasthan State Road Transport Corporation to frame a
'scheme' to deal with such cases. Specifically, it was directed that
before dispensing with the services of an employee on medical grounds
attributable to the service rendered, an attempt must be made to find
alternative employment to accommodate the workman/employee, failing which,
additional compensation is to be paid for the period of service left at
the rates indicated in the order of the Court.

10. Following the judgment of this Court in Anand Bihari (supra), as
already noticed, a 'scheme' engrafting the essential parameters prescribed
by this Court had been brought into force in the State of Haryana by
Memorandum dated 20.08.1992. The said scheme, as applicable to the State
of Haryana, creates an obligation on the employer (Haryana Roadways) to
find suitable alternative employment for an employee proposed to be
discharged on the ground of medical disability if such disability is
attributable to the service rendered. The norms contained in the
aforesaid Memorandum dated 20.08.1992 also obligates the employer to make
alternative employment available upto one year from the date of cessation
of service. If such alternative employment cannot be provided, compensation
at the rate prescribed in the said Memorandum dated 20.08.1992 is required
to be paid to the concerned employee. In the present case, the order dated
27.03.1997 by which the service of the appellant has been dispensed with
recites that no alternative employment was available under the General
Manager of Haryana Roadways commensurate with the qualifications and skills
of the appellant. The appellant could not also be appointed in the
workshop as he did not have any technical qualification. In the said order
it has also been recited that additional compensation, as prescribed by the
Memorandum dated 20.08.1992, has been calculated and is being paid to the
appellant. There is no dispute that such compensation has since been paid.

11. The applicability of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 to the case of the appellant, as strenuously urged on his behalf, cannot arise in as much as the appellant does not come within the meaning of the expression "person with disability" as defined
under Section 2(t) of the Act. 

In the medical certificate dated 14.11.1996
issued by the Civil Surgeon, Yamuna Nagar the appellant has been found to
be suffering from disability of the right elbow to the extent of 10% only
as against the percentage of not less than 40% spelt out by Section 2(t) of
the Act.


12. The facts of the present case clearly go to show that the appellant
was found to be medically unfit to continue to work as a driver. 

His case
for alternative employment in terms of the Memorandum dated 20.08.1992 was
duly considered. 

No such alternative employment was available.
Consequently, additional compensation payable to the appellant in terms of
the Memorandum dated 20.08.1992 was calculated and paid. 

The materials on
record would also go to show that the superannuation of the appellant, if
he had continued in service, was due on 30.09.2004. 

Taking into account the
totality of the facts of the present case, we are of the view that the
award of the learned Labour Court dated 27.02.2004 affirmed by the High
Court by its order dated 22.08.2005 will not require any interference by
us. 

Accordingly, we dismiss the appeal and affirm the aforesaid award dated
27.02.2004 of the learned Labour Court and order dated 22.08.2005 passed by
the High Court.




.................................J.
[P. SATHASIVAM]




.................................J.
[RANJAN GOGOI]
New Delhi,
May 1, 2013.









ITEM NO.1A COURT NO.13 SECTION XV
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


CIVIL APPEAL NO. 4169 OF 2013
(Arising out of SLP(C) No.612/2007)

SOHAN LAL Petitioner(s)

VERSUS

STATE OF HARYANA & ORS. Respondent(s)


Date: 01/05/2013 This matter was called on for pronouncement
judgment today.


For Petitioner(s) Mr. Vineet Dhanda,Adv.
Mr. J.P. Dhanda,Adv.
Mrs. Raj Rani Dhanda,Adv.
Mr. Abhijeet Shah,Adv.

For Respondent(s) Mr. Manjit Singh,AAG,Har.
Mr. Tarjit Singh,Adv.
Mr. Anil Antil,Adv.
For Mr. Kamal Mohan Gupta,Adv.



Hon'ble Mr. Justice Ranjan Gogoi pronounced the judgment
of the Bench comprising of Hon'ble Mr. Justice P. Sathasivam and His
Lordship.
Leave granted.
The appeal is dismissed and the award dated 27.02.2004 of
the learned Labour Court and order dated 22.08.2005 passed by the High
Court are affirmed in terms of the signed judgment.




(A.S. BISHT) (SNEH LATA SHARMA)
COURT MASTER COURT MASTER


(Non-reportable signed judgment is placed on the file)




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