1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.267 of 1995 The Transport Manager, Pune Municipal Transport Petitioner Vs. Shri Suresh Maruti Gaikwad Respondent Mr.R.G.Ketkar for petitioner. Mr.Nitin Kulkarni for respondent. CORAM: B.H.MARLAPALLE, J. February 6, 2008 ORAL JUDGMENT: 1. This petition filed by the Pune Municipal Transport, an establishment of the Pune Municipal Corporation, takes exception to the judgment and order rendered by the Industrial Court at Pune on 25th August 1994 thereby allowing Complaint (ULP) No.41 of 1992 filed by the present respondent. The Industrial Court directed to assign light duty to the complainant and pay his backwages for the intervening period from 26/11/1991 till the date he has been reinstated. 2. The respondent was appointed in the post of conductor and he was a confirmed employee. It 2 appears that on 26/7/1984 he met with an accident and sustained head injuries. After a long drawn treatment he reported for duty sometimes in 1985 and was assigned light duty viz. stand booking. However, the said facility was withdrawn in the year 1990. The employee proceeded on sick leave and on 27/9/1991 he resumed his duties but was assigned the line duty i.e. the duty of a conductor. He submitted an application to the Depot Manager as well as to the General Manager to assign light duty (Exh. U-12). He submitted similar representations on 19/12/1991 (Exh. U-13) as well as on 1/2/1992 (Exh. U-14). Similar representations were submitted on 23/3/1992, 9/8/1992 and 3/9/1993 (Exhibits U-15 to U-17). He had also submitted a medical certificate issued by the ESI doctor advising that the complainant should be assigned light duty and despite this medical certificate dated 26/11/1991, he was not assigned light duty. The complaint further alleged that he was not even allowed to resume his line duty and, therefore, he approached the Industrial Court and filed Complaint (ULP) No.41 of 1992 under Section 28(1) read with Items 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971 ("the Act" for short). The complaint was opposed by the present petitioner. The 3 complainant examined himself in support of his case. Whereas the Corporation examined three witnesses viz. Suryakant Mate - Depot Manager, Dr.Ujawala Sardesai who was the Honorary Surgeon at Kamla Nehru Hospital and Dr.Rajesh Kapadia, Consulting Physician and member of the Medical Board of Pune Municipal Corporation. The doctors confirmed that the complainant was required to be given light duty. Even while the complaint was pending before the Industrial Court, on the application filed at Exhibit U-7 by the complainant the Industrial Court had directed the Chief Medical Officer of the Corporation to examine the complainant and submit a report. The doctor examined and recommended light duty to be given to the complainant. On the basis of the said evidence the learned Member of the Industrial Court was pleased to allow the complaint and issued directions against the Corporation as noted hereinabove. 3. Admittedly the Corporation is a huge establishment employing about 5000 permanent employees. The complainant had put in more than 18 years of service when he approached the Industrial Court. The accident that had taken place on 4 26/7/1984 was while on duty or while proceeding for duty. The complainant was given light duty for about five years. The medical certificates placed on record went to show that the complainant was fit for light duty. While in the witness box the complainant stated that when he was put on line duty in the year 1991 he had vomitted and fallen unconscious. It is also not disputed that the complainant had sustained head injury and his hearing capacity was affected on account of the said injury. On or about 19/10/1993 the Corporation issued an internal circular calling for applications to fill in the post of stand booking conductor from amongst its employees (conductors) who had been declared medically unfit for a line duty. At no point of time even during the pendency of the complaint the Corporation called upon the complainant to apply in response to the said circular and offered him the post of stand booking conductor. 4. In the case of Kunal Singh Vs. Union of India & anr. [(2003) 4 SCC 524] [(2003) 4 SCC 524] [(2003) 4 SCC 524] the Supreme Court considered the obligation of the State in respect of its permanent employees who had become incapacitated due to accident while on duty. If a driver or conductor meets with an accident while on duty or in 5 the course of duty and as a result thereof if he is medically found to be unfit to continue in the original post, the Corporation is required to absorb such employee in a suitable lower post on the recommendations of the Medical Officer but by protecting his basic salary so that the retiral benefits are not affected. Mr.Ketkar relied upon Clause 14 of the settlement signed between the Corporation and the Union representing its employees in the year 1986 and pointed out that as per the said settlement the light duty could be assigned for a maximum period of three months. This clause in the settlement does not deal with the light duty being assigned on account of an accident while on duty. When the permanent employee meets with the accident while on duty it becomes obligatory on the part of the Corporation to absorb him on a lighter duty if he is found to be permanently incapacitated to perform the duties for which he was originally employed as per the law laid down by the Apex Court in the case of Kunal Singh (Supra). 5. Having regards to the well settled position in law and the evidence, more particularly the medical evidence placed on record before the Industrial 6 Court, the reasoning set out by the Industrial Court cannot be faulted with. The view taken by the Industrial Court could neither be termed as perverse nor erroneous so as to call for interference under Article 227 of the Constitution and hence this petition fails and the same is hereby dismissed. 6. Rule discharged with no order as to costs. (B.H.MARL