SOHAN LAL Vs STATE OF HARYANA .
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: C.A. No.-004169-004169 / 2013
Diary number: 32136 / 2006
Advocates: Vs
KAMAL MOHAN GUPTA
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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
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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.
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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
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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
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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
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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
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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.
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NON-REPORTABLE IN THE SUPREME COURT OF INDIA
CIVILL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4169 OF 2013 (Arising out of SLP (Civil) No.612 of 2007)
Sohan Lal .......Appellant
Versus
State of Haryana & Ors. ......Respondents
O R D E R
Having taken of the matter suo moto today, we
substitute paragraph 11 of the judgment delivered on May 01,
2013 in this matter by the following paragraph:
"In so far as the provision of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 are concerned, we are of the view that the appellant having retired in the meantime the said provisions of the Act will have no application. As the appellant has already been granted additional compensation under the scheme in force, we do not consider it appropriate to examine the entitlement of the appellant to any further benefits under the Act."
.....................J.
(P.SATHASIVAM )
....................J. (RANJAN GOGOI )
NEW DELHI; MAY 06, 2013.
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