IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2726 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GUJARAT STATE ROAD TRANS. CORP. Versus GOPAL MOTAMBHAIA PATEL -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2726 of 2003 MR HARESH J TRIVEDI for Petitioner No. 1 .......... for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 10/04/2003 ORAL JUDGEMENT Learned advocate Mr. Trivedi appearing for the petitioner has submitted draft amendment alongwith which, he has produced copy of the policy which has been decided by the Corporation. Considering the averments made in the draft amendment and the contents of the policy, same is allowed with a direction to the petitioner to carry out the same within three weeks from today. Heard learned advocate Mr.H.J. Trivedi for the petitioner for the petitioner Corporation. Before considering the submissions made by the learned advocate Mr. H.J. Trivedi for the petitioner, it would be just and proper to reproduce few observations made by the Hon'ble apex court which were considered by the Bombay High Court in the matter of Standard Chartered Grindlays Bank Ltd.versus Govind Phophale reported in 2003 (96) FLR 145 which are important and squarely applicable to the facts of the present case. Same are, therefore, reproduced as under: "(iv) Consumer Education and Research Centre and others v. Union of India and others, [1996 (72) FLR 479 = 1996 (2) LLN 1] in Para 22 and 24 at page 18: "22. The jurisprudence of personhood or philosophy of the right to life envisaged under Article 21 enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood to sustain the dignity of person and to live a life with dignity and equality. 24. The expression 'life' assured in Article 21 does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. ' (v) Dr. Ashok v. Union of India and others [(1997) 5 SCC 10]: Para 11 Headnote, paras. 4 and 5. "Right to life enshrined in Article 21 means right to have something more than survival and not mere existence or animal existence. It includes all those aspects of life which go to make a man's life meaningful, complete and worth living. By giving an extended meaning to the expression "life" in Article 21 the Supreme Court has bought health hazards due to pollution within it and so also the health hazards from use of harmful drugs. " In this petition, the petitioner Corporation has challenged the award made by the Labour Court, Ahmedabad in Reference No. 1395 of 1996 dated 20th December, 2001 wherein the labour court, Ahmedabad has set aside the order of termination and granted reinstatement on the post equivalent to the post of driver with light work and with continuity of service while protecting the existing wages of the workman respondent and also granted 85 per cent of the back wages for the intervening period. During the course of hearing, learned advocate Mr. Trivedi appearing for the petitioner has raised the contention before this Court that the labour court has committed an error in granting relief in favour of the respondent workman as contrary to the settlement of the corporation and also contrary to the policy laid down by the corporation. He also submitted that in case of accidental injury, if any inability or incapacity has been earned by the workman, the case of such workman can be considered for light duty on any other equivalent post but in other cases, according to the policy laid down by the corporation, such light duty cannot be offered and, therefore, the relief is beyond the policy and settlement and, therefore, award is required to be quashed and set aside. He also submitted that while granting the relief in favour of the respondent workman, the labour court has not considered the settlement. He also submitted that admittedly, the disability or incapacity earned by the respondent workman was not due to any incident during the course of employment and, therefore, in view of the settlement and policy of the corporation, the labour court was not justified in making the award in question. According to him, the labour court has also committed gross error in granting 85 per cent back wages with continuity of service as the same would unnecessarily create financial burden on the corporation. He has also submitted that the labour court has considered some of the decisions cited at the bar which were relating to the injury received during the course of employment and, therefore, the same were not applicable to the facts of the present case and, therefore, the award based on the said decisions is erroneous and requires to be quashed and set aside. He also submitted that the workman cannot claim the equivalent post of light duty and work as a matter of right because of his suffering from paralysis. He has also contended that the financial position of the petitioner corporation is weak and, therefore, the labour court ought not to have made the award against the corporation as the workman is not entitled for such benefit under the settlement as well as under the policy and, therefore, the labour court ought not to have passed such an award against the petitioner. Except that, no other submissions have been made by the learned advocate Mr. Trivedi. In short, the sum and substance of his submissions is that the impugned award made by the labour court is contrary to the law and the policy as well as the settlement of the corporation and, therefore, same is required to be quashed and set aside. He also submitted that recently, the Corporation has passed resolution no. 8344 dated 11th March, 2003 passed by the Board of the Corporation in Meeting No. 532. From the minutes of the said meeting no. 532 produced by Mr. Trivedi, it appears that the proceedings should be initiated for transfer from post only in cases wherein injuries have been received during the course of duty as well as permanent unfitness earned in view of the defect in eyes in reference to the provisions of the settlement. He submitted that earlier, identical provisions were there in the settlement. He also produced on record at Annexure B and pointed out that according to the said policy, the respondent workman is not falling within the ambit and purview of this resolution and, therefore, the award made by the labour court is against law and deserves to be quashed and set aside. He also submitted that because of the stringent financial crisis faced by the corporation, particular policy has been adopted by the corporation. He also submitted that at present,the accumulated losses incurred by the corporation are Rs. 1900.67 crores; staff expenditure are to the tune of 49.69% and the total income and ratio of staff is 7.43 which is higher than the over all ratio of 6.74 of the entire country and, therefore, to curtail the staff cost of the corporation, the corporation has totally banned new recruitment in almost all the cadre and when necessity arise, it is recruiting the persons on fixed wages as a trainee employees. The intention behind such decision is to minimize and curtail the over head expenses. He also submitted that the corporation has come across in the near past more number of such cases and to put cross check on such uncalled for and unwarranted cases, the corporation has been constrained to adopt such policy and to take such decision. Except these submissions, no other submissions have been made by the learned advocate Mr. Trivedi for the corporation. It is necessary to note that the said policy was not produced by the Corporation before the Labour Court but for the first time, it has been produced before this Court. I have considered the submissions made by the learned advocate Mr.Trivedi for the petitioner. I have also perused the entire award made by the labour court which is under challenge before this court. As per the facts of the case, the respondent workman was working as a driver in the petitioner corporation since ten years in Ahwa Depot, district Dang. Reference was referred to for adjudication on 31st August, 1996. The respondent workman had filed statement of claim vide Exh. 4. On 6th June, 1996, the workman, all of a sudden had fallen sick and he was suffering from the attack of paralysis and, therefore, he was admitted in the Hospital at Gandhinagar and, thereafter, was shifted at the civil hospital. As per the facts of the present case, because of the attack of paralysis, he has not been able to work as a driver and he has been declared unfit by the Standing Medical Board and ultimately, as he has been declared unfit by the Medical Board, his services were terminated on 22nd June, 1996. Said order of termination of his services was challenged by the respondent before the labour court after raising an industrial dispute. In his statement of claim filed by the respondent workman before the labour court, it has been pointed out by him that after the medical treatment, it was certified in the medical certificate that he is fit for work in a post having light duty; for that, he made request before the competent authority of the corporation but such request was rejected by the corporation; at the time of termination of his services, no notice or notice pay in lieu thereof has been paid to him and no retrenchment compensation has been paid to the respondent workman. No opportunity was given to the respondent before terminating his services on 22nd June, 1996; he remained unemployed inspite of the efforts made by him. On the basis of such averments made in the statement of claim, the workman has prayed for quashing and setting aside the order of termination and for reinstatement in service with full back wages. Initially, notice was issued by the labour court to the Corporation but vide Exh.5, representative of the Corporation had appeared but no reply was submitted but ultimately their right to file reply was closed by the labour court and the workman was examined vide Exh. 8 and nobody was present on behalf of the corporation to cross examine the workman and the right of the petitioner to cross examine was closed vide Exh. 9. Thereafter, vide Exh. 11, the labour court issued notice to the petitioner that if the petitioner will not remain present, then, the labour court will proceed ex parte. and the said notice was served upon the petitioner corporation and thereafter, the evidence of the workman was also over. Vide Exh. 14, right of the corporation to lead evidence was also closed and vide Exh. 15, the labour court passed ex parte award against the petitioner corporation against which the petitioner filed application for setting aside such an ex parte award and that application was allowed and thereafter, the matter was reheard by the labour court on merits and thereafter reply was filed at Exh. 17 and ultimately, the petitioner raised contention before the labour court that the workman was working at Ahwa as a Driver and because of the paralysis, he was declared unfit by the Medical Board, Civil Hospital, Surat and ultimately, his services were terminated as recategorization was not possible and, therefore, the order of termination was legal and valid and as per the administrative rules. Thereafter, the workman has produced certain documents vide Exh. 7 and 10. The Corporation has also produced certain documents vide list Exh. 21. In the deposition of the workman before the labour court, it was deposed by him that after taking the treatment from the Medical Board, he was to some extent fit for doing the light work and for that, request was made but his request was turned down by the corporation. No doubt, the respondent has admitted one fact that he was not declared unfit in view of any accident occurred during the course of his employment. He also deposed that he remained unemployed from the date of termination. Oral evidence was closed vide purshis Exh. 18 and thereafter, on behalf of the petitioner corporation, one Ramanbhai M. Patel was examined who was working as Establishment supervisor. Witness for the petitioner deposed before the labour court that as the respondent workman was declared unfit by the Medical Board and ultimately, his request for recategorization was rejected, and there was no any provision in the service regulation giving power to the corporation to provide the light work. The settlement is also not applicable to the respondent workman. In short, his evidence is to the effect that there is no such provision to provide light work and that is how, his request was rightly rejected by the corporation. The evidence of the corporation was closed vide Exh. 22 and then vide Exh. 23, written submissions were made wherein it has been contended inter alia by the workman that before terminating his services, no reasonable opportunity was given by the corporation and at the time of termination of his service, no notice or notice pay in lieu thereof or retrenchment compensation has been paid to him as per section 25F of the I.D. Act, 1947; the Medical Board has declared him unfit for the post of Driver but he was declared fit for the post of Helper but the respondent has not reinstated him on the post of Helper. The workman has relied upon certain decisions in respect of his submissions and thereafter, the corporation has also submitted written submissions before the labour court and has relied upon the administrative instructions and circular as well as the labour settlement Exh. 37 which is applicable to the workman who has suffered injury in an accident during the course of employment and not otherwise. Thereafter, the labour court has examined the merits of the matter and ultimately, the labour court has considered the fact after relying upon the decisions which were referred to by the workman before it. The labour court has relied upon the decision of the Division Bench of this Court in case of one conductor at page 13 of the award in question and relying upon the decision of the Division Bench of this Court, the labour court has come to the conclusion that the facts of the present case are also similar and the workman is also entitled for the reinstatement on other equivalent post wherein light work is available. Therefore, considering the decision of the Division Bench of this Court where the identical facts were there and it was against the very same corporation, the labour court has considered the case of the workman and granted relief on reinstatement on any other equivalent post where light work is available with continuity of service. As regards back wages, the labour court has considered the oral evidence of the respondent workman that he remained unemployed and the petitioner has not been able to establish gainful employment of the respondent workman. The labour court has also considered important aspect that initially, the petitioner corporation remained negligent and as a consequence of such negligence on the part of the petitioner corporation, ex parte award was made by the labour court against the petitioner in the year 1999 vide Exh. 15 and thereafter, the matter was examined on merits. The labour court also considered delay occurred for about three years and considering the negligence on the part of the petitioner in not remaining present, the labour court, keeping in mind that the petitioner corporation is a public body, has declined to grant full back wages but has granted 85 per cent of the back wages for the intervening period by award dated 20th December, 2001. As stated earlier, I have perused the award. I have also considered the averments made by the petitioner and the submissions made by the learned advocate Mr. Trivedi on behalf of the petitioner corporation before this Court. The labour court has considered the decision of the Division Bench of this Court in case of Amarsang Abhesang Vaghela versus GSRTC reported in 2002 II CLR 812 and after considering various decisions of the Apex Court as well as this Court, the Division Bench of this Court has taken view that in such a situation, the workman is entitled for the relief of reinstatement with continuity of service with back wages. This Court has considered the decision of this Court reported in 2001 (1) GLR 184 and other relevant decisions and ultimately, this court has allowed the petition of the driver who was declared unfit for the work of driver and was granted relief by this Court. Similarly, very question has been examined by the Division Bench of this Court in case of GSRTC versus H. T. Parmar reported in 2002 (2) Gujarat High Court Judgments 1010. Relevant observations made by the Division Bench of this Court in para 2 and 3 are reproduced as under: "2. Upon a reference, the Labour Court allowed the claim of the appellant to give light duty to the respondent by reinstating him in the service with strong reasons and the grounds emerged from the factual profile of the record. It was in terms clearly found by the Labour Court that the workman who has developed physical ailment in the nature of back problems and entailing a problem for resume his original work of a Driver. The labour court, after considering the facts of the case, directed the corporation to reinstate the workman concerned by giving him light work of the Corporation. Apart from the settlement, a master or the Management in a welfare state cannot be allowed to raise the plea that some bodily impairment rendering one person not serviceable for a particular service or job, it does not necessarily mean that the workman concerned should be condemned once for all by removing him or dismissing him from the service. The role of master in such a situation where a semi undertaking public utility or that to a common welfare state to see that physically impaired or a workman injured, is not in a position to work on his original post, then, he could be given the suitable job and lighter work which he is in a position to work despire the handicapisam. This proposition of law is advanced long before by the catena of judicial pronouncement and has also been done by the parliament in his wisdom in a recent act. The Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation 3 Act, 1995". This benevolent concept has been placed in a Statute book which is nothing but a social welfare measure for State of people who could not be thrown on such occurrence of injury resulting into partial disability. 3. The award made by the labour court is justified and we are satisfied that the rejection of the writ petition by the learned Single Judge in the aforesaid factual and legal background is fully justified requiring no interference and therefore, this LPA being meritless is required be thrown over the Board at the inception without any order as to costs. " Thus, the Division Bench of this court has considered the similar question and has confirmed the order passed by the learned Single Judge where same relief has been granted by the learned Single Judge. Therefore, considering the decisions of the Division Bench of this Court and also considering the facts and circumstances of the present case, the question is whether the workman is entitled for the benefit of reinstatement or not and whether the termination order passed by the petitioner corporation is legal and valid or not. While examining this issue or adjudicating the said question, the labour court is not bound by the settlement or policy of the corporation. All such settlements and/or policy framed by the corporation are binding to the corporation and not to the labour court. If any decision of the corporation where the livelihood of the workman has been taken away, then, the labour court is required to consider this question in accordance with the principles laid down by this court as well as the Hon'ble Apex Court and such settlement or policy of the corporation is not having any binding effect on the labour court. The respondent workman may not be covered by the settlement and policy of the corporation and yet the termination order is found to be illegal by the labour court, then, the labour court is competent to set aside such order and to grant consequential benefits to the workman. The labour court is not bound by any Standing Orders of the Corporation. The labour court is free to create even new conditions of service. Not only that, the labour court is also empowered to vary the contract of service and, therefore, no such limitations are applicable to the labour court, looking to the scheme of the Industrial Disputes Act, 1947. The labour court is required to examine the legality, validity and propriety of the order of termination independently after considering the settled law laid down by this Court and the Hon'ble Apex Court in that regard and, therefore, the contentions raised by the learned Advocate Mr. H.J. Trivedi in that regard that the case of the workman was not covered by the settlement and policy of the corporation and, therefore, the corporation is right in terminating the services of the workman cannot be accepted. In respect of that, the labour court has come to the conclusion and has rightly concluded that when the workman was declared unfit by the Medical Board for the post of Driver and recommended the Corporation that the workman is fit for the post of helper with light duty, the corporation has not been able to justify as to why the request of the workman for light duty has not been accepted. The labour court has considered that the workman has completed ten years service as a driver in the corporation and the attack of paralysis may be the result of hard work put in by the corporation in the services of the corporation or the same may be because of the continuous abnormal working conditions of driver in the State Transport Service. The labour court has also observed that it may be due to stress and strain of the hard work invested by the workman driver in the service of the corporation which has resulted into attack of paralysis. The fact remains that the workman was having the attack of paralysis during the course of employment. Therefore, that has also considered to be the injury to the workman. The law on this point is settled that if the workman is having heart attack during the course of his employment, then, that has also been the injury during the course of employment. In such cases, principles of notional extension is also applicable and, therefore, working conditions of the driver in the State Transport is such a hard, strenuous and abnormal and, therefore, it may happen that the workman may have the attack of paralysis but after ten years, if the corporation is permitted to terminate his service only because of his having been declared unfit for the post of driver though the Medical Board