IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 22681 of 2001 Between: B.Shyam Sundar S/o. Sri Muthaiah R/o. Hyderabad. ..... PETITIONER AND 1 The Andhra Pradesh Forest Development Corporation Ltd., Rep. by its Vice Chairman & Managing Director, Masab Tank, Hyderabad. 2 The Regional Manager, Andhra Pradesh Forest Development Corporation Ltd., Hyderabad Region, Masab Tank, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue any appropriate, Writ, Order or direction more particularly in the nature of Writ of Mandamus setting aside the orders Ref.No.PD/3107/86/250 dated 13.1.2001 as arbitrary, illegal and without jurisdiction and consequently direct the respondents herein to protect the petitioner's pay and service as the driver of the 1st respondent in the alternative post of attender w.e.f. 4-11-1987 with all consequential beneﬁts including arrears in the interest of justice and equity and pass Counsel for the Petitioner: MR.V.TULASI REDDY Counsel for the Respondents: MR.P.SREE RAMULU NAIDU The Court made the following : ORDER: The petitioner seeks to set aside the proceedings of the ﬁrst respondent dated 13.01.2001 in rejecting his request for protection of his pay and service as driver of the ﬁrst respondent in the alternative post of attender w.e.f. 4.11.1987 with all consequential benefits including arrears. The undisputed facts are that the petitioner joined as a Driver in the respondent-Corporation on 24.01.1981. While he was working in the Project Division of the ﬁrst respondent- Corporation at Warangal, he suﬀered an injury on his right eye in an accident, which occurred on 22.07.1986 while passing through the plantation of Jakaram along with the Project Oﬃcer, and subsequently, the injured eye was removed at Sarojini Devi Eye Hospital, Hyderabad to save the other eye. It is stated that the petitioner made an application for payment of ex-gratia and reimbursement of medical expenses. The Board of Directors, took a compassionate view of the matter, and approved full reimbursement of medical expenses over and above the permissible limit of Rs.300/- per annum for his treatment, and entire period of his absence till the date of his reporting to duty was treated as in duty. Thus it is not in dispute that the petitioner met with an accident and suﬀered injury to his right eye and the same was removed during the course of his employment. It is also not in dispute that the petitioner was given an option either for compensation amount of Rs.40,770/- under the Workmen’s Compensation Act, 1923 (for short ‘the Act’) and discharge from the service, or for employment in the Corporation as Attender in lieu of compensation with due protection of his pay and seniority and also ex-gratia of Rs.5,000/- subject to the consent and approval of the agreement by the Deputy Commissioner of Labour, Warnagal, who is appropriate authority under the Act. It is also not in dispute that in response to the said option given by the respondent, the petitioner in fact opted the second option for alternate employment as Attender in the Corporation with pay protection and seniority in service and also ex-gratia payment of Rs.5,000/- through a form of agreement unde the provisions of the Act. It is stated that the matter was referred to the Deputy Commissioner of Labour, who is said to have advised the respondent-Corporation to pay the compensation of Rs.40,770/- as per the provisions of the Act as part payment of ex-gratia amount of Rs.5,000/- cannot be taken into consideration for registering the Memorandum of Agreement and alternate employment as Attender was not admissible under the provisions of the Act. As per the said advise, it is stated that the Board of Directors of the ﬁrst respondent- Corporation in its 67th meeting held on 12.06.1987 decided for arrangement of compensation of Rs.40,770/- under the provisions of the Act and also decided to consider the case of the petitioner to continue him in the post of Attender subject to condition that the petitioner shall continue to work in the Corporation as Attender w.e.f. 01.09.1987 with ﬁxation of pay in the pay scale of Attender; he shall be treated as a junior most among the category of Attender; and his appointment shall be deemed to have been a fresh candidate in the category of Attender. However, leave standing to his credit will be safeguarded. Sri Tulasi Reddy, learned counsel appearing for the petitioner submitted that the option exercised by the petitioner was only for the alternate employment in the post of Attender with protection of pay and service as Driver and ex-gratia amount of Rs.5,000/-, and not for the payment of compensation of Rs.40,770/- under the provisions of the Act. Therefore, the petitioner immediately made representations on 22.02.1988 and 19.09.1990 for protection of his pay as driver in the category of Attender, but the said representations were rejected by proceedings dated 18.04.1988 and 26.10.1990. Against the said proceedings, the petitioner ﬁled an appeal before the Board of Directors of the respondent-Corporation. The Board of Directors of the respondent-Corporation have considered the appeal and informed the petitioner vide Lr.No.PD/3107/86/3021, dated 02.08.1995 stating that as he was already paid compensation as per the provisions of the Act as well as given an appointment as a fresh candidate in the post of Attender, his request cannot be considered. It is the case of the petitioner that in fact, the amount paid under the provisions of the Act as per the advise of the Deputy Commissioner of Labour, has been recovered by the respondent by way of reimbursement from the Insurance Corporation, and therefore, there was no loss or any ﬁnancial expenditure for the respondent and the payment of compensation under the provisions of the Act, cannot deprive his right for pay protection as Driver in the post of Attender. However, it is also submitted that the petitioner never exercised the ﬁrst option for payment of compensation amount of Rs.40770/- and the Deputy Commissioner of Labour also never obtained the consent of the petitioner for entertaining the reference made by the respondent, and therefore, the alleged advise of the Deputy Commissioner of Labour is not binding on the petitioner. It is further stated that payment of compensation amount Rs.40770/- was voluntarily paid by the respondents without any demand or request, and therefore, the petitioner is entitled to pay protection in the lower category as well as the ex-gratia amount of Rs.5000/- as per law and the petitioner has no objection for recovery of compensation amount as his only request in the representation submitted by him was the pay protection of driver and seniority in the post of Attender and ex-gratia amount of Rs.5000/-. I have considered the rival contentions. A perusal of the record would go to show that for registering the Memorandum of Agreement, the Deputy Commissioner of Labour, Warangal, unilaterally insisted and advised the respondent for payment of compensation under the provisions of the Act. Admittedly, the said advise was opted by the respondents without any consent or agreement of the petitioner as there was no provision with regard to the alternate employment of Attender. It is only under the service rules of the Corporation alone for the pay protection and service in the lower category whenever any accident occurs, if the workman is not able to attend the earlier job, he is entitled to work in the lower category. In the instant case, pursuant to the option given by the respondent, admittedly the petitioner exercised the second option for the employment as Attender in lieu of his compensation with due protection of his pay and seniority and ex-gratia amount of Rs.5000/- alone. In fact, when the respondents declined to pay protection of driver in the alternate post of Attender, the petitioner ﬁled W.P.No.7943 of 1996, which was disposed of by this Court by order dated 21.11.2000 holding that as the compensation amount has been reimbursed by the Insurance Company the Corporation has not suﬀered any ﬁnancial loss, as such, this Court is of the opinion that it is a ﬁt case where the Board of Directors of the respondent-Corporation should reconsider the case of the petitioner and decide as to whether the petitioner is entitled for protection of his pay and seniority in view of the fact that the Corporation had already realized the money paid to the petitioner from the Insurance Company. Pursuant to the said direction of this Court, the matter was reconsidered and rejected by the impugned letter dated 13.03.2001 stating that in view of the payment of compensation of Rs.40,770/- under the provisions of the Act, only on the ground that the Deputy Commissioner of Labour advised the Corporation to pay the compensation and he did not accept the other option, the question of accepting the other option exercised by the petitioner for the alternate employment and ex-grtia amount of Rs.5000/- by the Deputy Commissioner of Labour does not arise. If the petitioner accepts the ﬁrst option for payment of compensation, the acceptance of the Deputy Commissioner is required as he is the competent authority to calculate the amount of compensation payable under the Act. Providing alternate employment and payment of ex-gratia is not within the ambit of the Act or the Deputy Commissioner of Labour. The whole issue has been misunderstood by the respondents, declining to grant the relief to the petitioner on the ground that on the advise of the Deputy Commissioner of Labour as the payment of compensation under the Act was paid, the petitioner is not entitled. I am of the opinion that since the petitioner is not at all opted the payment of compensation, he is entitled for pay protection of Driver and the service in the alternate post of Attender but not the compensation amount under the Act. Accordingly, the Writ Petition is disposed of directing the respondents to pass appropriate orders protecting the petitioner’s pay and service of the post of the driver in the alternate post of Attender w.e.f. 4.11.1987 with all consequential beneﬁts including arrears of pay and ex-gratia amount of Rs.5000/- and recover a sum of Rs.40,770/-, which was paid to the petitioner towards compensation under the provisions of the Act. __________________ (V. ESWARAIAH, J.) 25th August, 2008 Js. ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Dist. Collector (TW), W.G. District, Eluru. 2 The Special Deputy Collector (TW), K.R.Puram. 3 The Mandal Revenue Officer, Buttaigudem Mandal. 4 2 CCs to G.P. for Social Welfare, High Court of A.P. Hyderabad. (OUT) 5 2CD copies.