( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1999 OF 2008 The Divisional Controller, Maharashtra State Road Transport Corporation/MSRTC, Division Latur, District Latur. PETITIONER VERSUS Baburao s/o Dhondiram Gunthe, R/o Shelhal Road, Udgir, Taluka Udgir, Dist. Latur. RESPONDENT ..... Mrs. Ranjana D. Reddy, advocate for the petitioner. Mr. G.O. Wattamwar, advocate holding for Mr. S.G. Rudrawar, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 28th January, 2010] ORAL JUDGEMENT : 1. The Maharashtra State Road Transport Corporation (for short, “MSRTC”) has filed this petition, challenging judgement and order rendered by learned Member of Industrial Court, Latur, in revision (ULP) No. 16/2005 whereby and whereunder judgement rendered by Labour Court in complaint (ULP) No. 76/1999 ( 2 ) was reversed. 2. It is undisputed that respondent Baburao was working as driver on establishment of the petitioner – MSRTC. He was injured during course of an incident of dacoity, road-robbery and assault caused by some culprits after obstructing the S.T. bus on the road. He became disabled due to injuries sustained on right leg. His one eye was totally impaired. He had limping effect due to the injuries caused to the right leg. Since he became disabled to work as S.T. driver, he was declared unfit to continue on the post. He urged to provide for alternate work. The petitioner accepted his request and posted him as a cleaner in the lower scale of pay available to Class-IV servants. He requested the Depot Manager of Udgir S.T. Depot to provide some other work because it was not possible for him to do the work as a cleaner due to the physical inability and because perhaps, he felt that he would be rather uncomfortable to clean S.T. buses which he used to drive. Instead of acceding to his request, the Depot Manager, Udgir referred him to the Divisional Controller, Latur ( 3 ) alongwith a letter. The Divisional Controller did not take any serious steps to accommodate him in any other suitable post. He remained absent from duty as a cleaner for period 04-02-1998 till 18-08-1998. A notice dated 04-08-1998 was served on him by registered post A.D. and thereby he was called upon to resume the duty. He did not comply with the directions. Another notice dated 11-08-1998 was sent to him for the similar purpose. He gave reply to that notice and informed that due to physical disability, it was not possible for him to continue work as a cleaner. He was relieved by the Depot Manager of Udgir S.T. depot. 3. The petitioner served chargesheet on the respondent on 27-10-1998 under clauses 11 and 35 of Schedule-A of the disciplinary and appeal procedure envisaged by the MSRTC. As a result of the disciplinary enquiry, he was removed from service. Feeling aggrieved due to the dismissal, he filed complaint (ULP) No. 76/1999 in Labour Court, Latur, challenging the said order. The Labour Court dismissed his complaint application. He thereafter preferred revision petition ( 4 ) vide revision (ULP) No. 16/2005. The Industrial Court allowed his revision petition and held that the dismissal order was bad in law. In the meanwhile, he had retired from the service due to attaining age of superannuation. The Industrial Court directed that he shall be paid full backwages from date of the dismissal till attaining of the age of superannuation. The petitioner seeks to challenge the said order. 4. Heard learned counsel for the parties. 5. Before I proceed to consider the rival submissions, let it be noted that the respondent had become disabled while working as S.T. driver of infated S.T. bus which was obstructed by some dacoity during transit. He was victim of the road-robbery/dacoity and had become disabled to work as the driver. The injuries sustained by him were caused during the course of his employment. He was not at fault. The respondent was ready and willing to continue with the petitioner on some other post, after he was declared unfit to work as S.T. bus driver. It is not the case of the petitioner ( 5 ) that the respondent was unable to undertake any alternate work. It is of common knowledge that alternate work like announcer at the S.T. bus stand, sitting work in the office of S.T. Deport, etc. could be provided in the same scale. Even then, no suitable arrangement was made to accommodate him in any post equivalent to that of the post of S.T. driver. There is no dispute about the fact that he was appointed as cleaner in the lower scale of pay. Naturally, it was a kind of back-door demotion caused to him without there being any fault on his part. 6. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, “the Disabilities Act”) provides that an employee who acquires disabilities during his service shall be provided with suitable work on any post carrying the same pay scale and service benefit. The petitioner is a Corporation and is bound to comply with section 47. The intention of the Legislature is clear from the preamble of the enactment. It is manifest that the conventions by the ( 6 ) Economic and Social Commission for Asian and Pacific Region, held in Beijing on 1st to 5th December, 1992 were adopted and, therefore, in order to give protective umbrella to the disabled employees, the special provisions were made in the said Act. The very caption of section 47 makes it clear that the purpose of said provision is to alleviate any discrimination in the Government employment on ground of physical disability caused to the employee during his service. Needless to say, the respondent could not be discriminated because he became disabled during course of the employment. The assignment of work as a cleaner and his employment in the post, carrying less pay scale was nothing but adding insult to the injury caused to him. The petitioner humiliated the respondent by appointing him as a cleaner when his request was to provide some other work in the same pay scale that is one available to the post of S.T. driver. In fact, he was asking for mere protection of pay scale. He had already suffered financial loss due to the injuries caused to him during the course of dacoity because while accepting the alternate post in similar pay scale, he would not have been able to get ( 7 ) the daily allowance available to a S.T. driver, after the particular period of the work or as and when he is required to stay at outstation. 7. The Apex Court in “Kunal Singh v. Union of India” (AIR 2003 SC 1623), held that a disabled employee, acquiring disability during course of employment, if is not protected, would not only suffer himself, but possibly all those depend on him would also suffer. It is held that section 47 is of mandatory nature. Needless to say, the respondent could not be left at mercy of the administration. 8. Faced with the difficulty arising out of non- compliance of section 47 of the Disabilities Act, Mrs. Reddy would submit that the respondent had no justification for remaining absent from the duty. She would further submit that the enquiry held against the respondent was fair and, therefore, the Industrial Court had no substantial reason to interfere with the findings of the Labour Court. She would submit that the ( 8 ) Industrial Court exceeded the limits of the revisional jurisdiction by upsetting findings of the Labour Court. She invited my attention to certain observations in “Employers in relation to the Management of West Bokaro Colliery of M/s. TISCO Ltd. v. The Concerned Workman, Ram Pravesh Singh” (AIR 2008 SC 1162). It is contended that absenteeism by itself was misconduct and, therefore, the dismissal could be held as proportionate to the act of misconduct. Reliance is placed on certain observations in “Delhi Transport Corporation v. Sardar Singh” (AIR 2004 SC 4161). I find it difficult to countenance the submissions of Mrs. Reddy. Ordinarily, absenteeism of habitual nature may be regarded as grave misconduct which may justify order of dismissal from service in a given case. The fact situation in the present case is, however, quite different. Herein, the respondent remained absent because he was unable to cope with the work assigned to him due to physical disability. He was humiliated due to a kind of treatment inflicted on him for no fault on his part and, therefore, the absenteeism could not be regarded as ( 9 ) serious misconduct on his part. The fact situation is peculiar one and, therefore, the Industrial Court was justified in reversing the judgement of the Labour Court because the Labour Court did not take into consideration the purport of section 47 of the special enactment – the Disabilities Act. As stated before, the respondent has retired from the service and, therefore, now it would be more improper to reverse the impugned judgement of the Industrial Court which gives him certain monetary benefits. 9. For the reasons aforestated, I do not find any merit in the petition. The petition is accordingly dismissed. The amount deposited by the petitioner is allowed to be withdrawn by the respondent. No costs. 10. In view of disposal of the writ petition, civil application No. 12822/2009 stands disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/wp1999-08 ( 10 )