1 40 caw 986.11 987.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY srk CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 986 OF 2011 IN WRIT PETITION NO.5996 OF 2010 WITH CIVIL APPLICATION NO. 987 OF 2011 IN WRIT PETITION NO.6022 OF 2010 Shri Vilas M. Suryavanshi .. Applicant V/s. Thane Municipal Transport .. Respondent. Mr. S.N.Deshpande with Swarna P Munsuri for the Applicant. Mr. Mandar Limaye for Respondent. (Both civil applications) CORAM : K.K.TATED, J. DATED : 13TH JUNE, 2011. P.C. 1 Heard learned counsel for the parties. 2 Both the civil applications are preferred by original complainant- worker. 3 A few facts of the matter are as under: The applicant-worker joined the services of the Respondent- Corporation with effect from 12 th August, 1991. Three months prior to 2 40 caw 986.11 987.doc August, 1996, the Applicant was given continuous night shift which adversely affected his health and the applicant got paralysis attack on 31 st August, 1996. He was admitted in Civil Hospital at Thane, from there he was shifted to ESIC Hospital, Thane and ultimately he took treatment in J.J.Hospital at Mumbai. Till September, 1998 he was paid wages pertaining to the post of driver and with effect from 5 th October, 1998 the Respondent-Corporation started paying him wages pertaining to the post of Helper. 4 After taking treatment from the doctor, the Applicant started feeling well from the year 1998 and therefore, he requested the Respondent to allow him to work as a driver. Therefore, the Respondent-Corporation directed him to bring fitness certificate from the Civil Surgeon, Thane. After taking all the required tests, the Civil Surgeon, Thane gave fitness certificate on 4 th October, 1999. Again the Respondent asked the Applicant to undergo medical examination from the Medical Board of J.J. Hospital, Mumbai. The said Board also vide certificate dated 12 th February, 2002 certified him fit for driver’s job. Inspite of the said certificate, the Respondent – Corporation failed to provide the Applicant’s driver’s job. On the contrary the Respondent sent the Applicant to All India Institute of Physical Medicine and Rehabilitation for confirming whether the Applicant is fit to do the 3 40 caw 986.11 987.doc work of driver. The said institution also certified that the applicant can do the work of driver. Inspite of all these certificates, the Respondent – Corporation failed and neglected to provide the Applicant, the duty as driver. Therefore, the Applicant filed Complaint (ULP) No. 108 of 2007 before the Hon’ble Industrial Court, Thane. In the said Complaint, the Industrial Court granted relief to the applicant directing the Respondent-Corporation to pay the Applicant wages of the post of driver and arrears of wages for the post of driver from 5 th October, 1998. 5 Being aggrieved by the said order passed by the Industrial Court, the Respondent-Corporation preferred writ petition no. 1316 of 2009 before this Hon’ble Court mainly on the ground that despite framing issue of limitation the court had not decided the same. After hearing both the sides this Hon’ble Court remanded the matter to the Industrial Court. After remand, again the Industrial Court passed an order dated 20 th April, 2010 granting the Applicant the wages of driver with effect from 6 th July, 2005. 6 Being aggrieved by the order dated 20 th April, 2010 passed by the Industrial Court, the Respondent-Corporation preferred Writ Petition no.6022 of 2010 and the Applicant also preferred Writ Petition no. 5996 of 2010. Both the writ petitions were admitted by 4 40 caw 986.11 987.doc this Court (Coram: Smt. Nishita Mhatre, J.) by an order dated 25 th October, 2010 and granted ad-interim relief in terms of prayer clause (b) of the Writ Petition no.6022 of 2010 till further orders. Prayer clause (b) reads as under: “(b) pending the hearing and final disposal of the present Writ Petition, the execution, operation and implementation of the judgment and order dated 20.04.2010 passed by the Member, Industrial Court, Thane in Complaint (ULP) No. 108 of 2007 be stayed;” 7 The Applicant - original Complainant preferred Civil Application No.986 of 2011 in Writ Petition no. 5996 of 2010 for following reliefs: (a) In view of the above the Hon’ble High Court is prayed to exercise the jurisdiction vested under Article 226 of the Constitution of India and call for record and proceeding from the Hon’ble Industrial Court in Complaint (ULP) No. 108 of 2007 and after going through the same, be pleased to issue writ of certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the Impugned order dated 20.04.2010 passed in Complaint (ULP) No. 108 of 2007 to the extent of denial of full back wages and other benefits to the Petitioner for the period w.e.f. 05.10.1998 and modify it to that extent and be pleased to direct the 5 40 caw 986.11 987.doc Respondents to pay full back wages and other monetary benefits to the Petitioner for the period w.e.f. 05.10.1998 along with costs, compensation and interest @ 12% and be pleased to direct the Respondents to provide the work and wages to the Petitioner pertaining to the post of driver. b) Pending the hearing and final disposal of the Petition the Respondent be directed to provide the work to the Petitioner of the post of driver, along with wages of the post of Driver. c) Pending the hearing and final disposal of the Petition the Respondents be directed to forthwith with implement the order of Hon’ble Industrial Court dated 20.04.2010. d) Pending the hearing and final disposal of the Petition the Respondent be directed to deposit in the Court full back wages of the Petitioner w.e.f. 05.10.1998 to 05.07.2005. 8 He also preferred Civil Application No. 987 of 2011 in Writ Petition No. 6022 of 2010 for vacating ad-interim relief granted by this court in favour of Respondent-Corporation dated 25 th October, 2010. 6 40 caw 986.11 987.doc 9 The learned counsel appearing on behalf of Applicant- Complainant submits that though he obtained fitness certificate from competent authority the Respondent-Corporation failed and neglected to act on the same. They intentionally declined to the Applicant pay scale of driver. He further submits that as per the order dated 27 th September, 2010, the Respondent-Corporation conducted driving trial test as recommended by the All India Institute of Physical Medicine and Rehabilitation. He submits that though he successfully completed the said test, Respondent-Corporation’s Officer submitted the report against the Applicant. He also submitted that the Respondent’s Officer Ashok Dhurapalle filed his affidavit in reply dated 16 th October, 2010 stating that the Applicant is not able to drive the bus in crowded area. The Applicant denied these facts by filing an affidavit in rejoinder dated 21 st October, 2010. The learned counsel appearing on behalf of Applicant submits that even if the case is taken as per the Respondent’s affidavit and their stand that Applicant is handicapped to perform the duties as driver then also he is entitled to salary as a driver in view of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He relies on the judgment in the matter of Municipal Corporation of Greater Mumbai vs. Shrirang Anandrao Jadhav reported in 2010 II CLR 7 40 caw 986.11 987.doc 601. In that case, our High Court held that under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is entitle full wages of the post which he was holding before occurring disability. In view of these facts, the learned counsel appearing on behalf of Applicant submits that ad-interim relief granted by this court on 25 th October, 2010 in Writ Petition No.6022 of 2010 to be vacated and the Respondent- Corporation be directed to provide the Applicant the work of the post of driver along with the wages of the post of driver and to deposit in the court full back wages of the Applicant with effect from 5 th October, 1998 to 5 th July, 2005. 10 On the other hand, the learned counsel appearing on behalf of Respondent-Corporation vehemently opposed the Civil Application. He submits that this court granted ad-interim order after hearing both the sides at length. He further submits that in a driving test the Applicant failed and therefore, there is no question of allowing him to run the passenger bus in the interest of justice at large. He further submits that the Applicant no where raised the issue of the Persons with the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 before lower court. He further submits that if the Civil Application preferred by the Applicant is allowed, it 8 40 caw 986.11 987.doc would amount the allowing of the Applicant’s Writ Petition no. 5996 of 2010 and dismissal of the Respondent’s Writ Petition no. 6022 of 2010 which is not allowed as per the law. Therefore, there is no substance in both the writ petitions and the same are liable to be dismissed. 11 It is to be noted that though the Applicant produced certificate from the Civil Surgeon, Thane, certificate from J.J. Hospital, Mumbai and from All India Institute of Physical Medicine and Rehabilitation, the Respondent-Corporation failed to provide him his duty as a driver. Not only that the Respondent-Corporation started paying him salary as Helper. One thing is clear that whether the Applicant is fit to drive the passenger bus or not, can be decided by the Respondent- Corporation only. It is not proper in the interest of public at large to direct the Respondent – Corporation to allow the Applicant to drive the passenger bus. But in any case, if in the eyes of the Respondent- Corporation the Applicant is disabled to act as driver then in any case, he is entitled his wages/salary as a driver in view of section 47 of the said Act and judgment of this court in the matter of Municipal Corporation of Greater Mumbai (supra). 12 Considering these facts and the laws, both the Civil Applications are partly allowed as under: 9 40 caw 986.11 987.doc i) Respondents are directed to deposit the Applicant’s wages as driver with effect from 6th July, 2005 till July, 2011 adjusting the amount already paid in this court within a period of six weeks. ii) On depositing the said amount, applicant is allowed to withdraw the amount by furnishing security to the satisfaction of the Registry except bank guarantee. iii) The Respondent-Corporation is also directed to pay further salary from the month of August, 2011 to the Applicant as driver till the hearing and final disposal of the present writ petition and/or superannuation date of Applicant, whichever is earlier. iv) Both the civil applications are disposed of accordingly. v) No order as to costs. (K.K.TATED, J.)