SCA/3021/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3021 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION - Petitioner(s) Versus RAMANBHAI BHAGVANDAS BHATIYA - Respondent(s) ========================================================= Appearance : MS JYOTI MEHTA FOR MR HARDIK C RAWAL for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, MR VINOD P VAISHYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 15/09/2008 ORAL JUDGMENT 1. Heard learned advocate Ms.Jyoti Mehta for Mr.H.C. Rawal for the petitioner and Mr.V.P. Vaishya, learned advocate for the respondent-workman. 2. The Gujarat State Road Transport Corporation (petitioner herein) has preferred this petition under SCA/3021/2007 2/5 JUDGMENT Article 227 of the Constitution of India challenging award dated 28.02.2006 passed by learned Labour Court, Bharuch in Reference (LCB) No.386 of 1998 whereunder, the learned Labour Court has partly allowed the reference and directed the petitioner to pay 70% back wages and Rs.1001/- towards cost. However, the reinstatement was not ordered, as in the meantime, the workman had attained the age of superannuation. 3. Learned advocate Ms.Jyoti Mehta for the petitioner submitted that the Labour Court ought not to have allowed the reference inasmuch as the petitioner had incurred physical disability though during the service, but not on account of duty which he was performing. Therefore, he had no right to seek any re-categorization and, in fact, the service is required to be put an end because he had produced the certificate indicating that he was unable to discharge his duties as conductor. In the alternative, she submitted that granting of back wages to the tune of 70% is also on a higher side, bearing in mind delay in raising the dispute and inaction during the pendency of the reference. She submitted that, therefore, the order deserves to be quashed and set aside. 4. Mr.Vaishya, learned advocate for the respondent- workman submitted that the workman did not produce certificate to the effect that he has incurred disability to discharge any duty. In fact, his toe SCA/3021/2007 3/5 JUDGMENT was amputated and, therefore, the disability was there to work as a conductor but it was a duty cast upon the Corporation to ascertain and assign him appropriate another duty under the re-categorization Scheme promulgated in the Corporation in view of the mandatory provisions of the Persons with Disability (equal opportunities, protection of rights and full participation) Act, 1955. (hereinafter referred to as “the Act”). He further submitted that reference cannot be said to have been filed belatedly as the workman has been vigilantly pursuing his remedy with the Corporation. The so-called delay of two years cannot be said to be the delay. In fact, the Civil Surgeon had declared him to be unable only for discharging his duties as conductor and, therefore, as he was not incapable of doing other duties, or alternative employment, he has made an application on 16.09.1996 which had not been replied to nor has it been rejected by the Corporation. He further submitted that discharge order dated 24.07.1996 was absolutely illegal and improper as it was made without following the mandatory provision to offer him alternative employment, without exploring this possibility, straightway the discharge order was made contrary to the mandatory provisions and, therefore, the workman has to raise industrial dispute. The payment of 70% back wages from the workman's duty is sufficient for making up delay and, therefore, this Court may not interfere under Article 227 of the Constitution of India. SCA/3021/2007 4/5 JUDGMENT 5. This Court has heard the learned counsel for the parties. The learned counsel appearing for the petitioner-Corporation fairly conceded that as per the provisions of the Act, the Corporation was under the duty to explore the possibility of offering any alternative employment in case of person incurring disability during the service. However, she attempted to defend inaction on the part of the Corporation by submitting that the disability incurred by the person should have nexus with the duty to be discharged. In other words, the disability incurred by the person should have been the result of some duty which he was performing. This submission deserves to be rejected as having no merits. A plain and simple reading of Section 47 of the aforesaid Act, inevitably makes it clear that the disability be incurred during the period of service but the “disability shall be the result of his duty” are the words not found in the Section and, therefore, plain and simple reading of the said Section go to show that the duty is cast upon the Corporation to explore the possibility of alternative employment in the instant case as it was not done despite there was a specific request made by the workman. The order of learned Labour Court cannot be said to be such as to warrant an interference from this Court. The petition, therefore, deserves to be rejected and is accordingly rejected. Rule is discharged. However, there shall be no order as to costs. SCA/3021/2007 5/5 JUDGMENT (S.R.BRAHMBHATT, J.) Hitesh