1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.39/1997 Bhura Lal vs. The Judge, Labour Court & Anr. Date of order : 23/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sunil Samdaria for the petitioner. Shri Virendra Lodha for the respondent. ****** This writ petition was filed by the petitioner against the award of the Labour Court dated 27.11.1996, by which the reference made in the case of removal of the petitioner was answered in the terms that though his removal was valid but in view of the judgement of Supreme Court in Jaswant Singh vs. State of Punjab-1996 (7) Supreme Today page 660, the respondent-management should give alternative employment to the workman. Despite the award passed by the Labour Court, the respondent-management did not provide any alternative employment to the petitioner. Petitioner aggrieved by the award, filed the present writ petition. The writ petition was originally decided by judgement of this Court dated 3.12.2001 in which it was held that the Labour Court erred in law in confirming the order of 2 removal. The respondents in any case should provide him alternative employment in terms of judgement of Supreme Court in Jaswant Singh, supra and if they decide to do otherwise, they should pass a specific order within one month from the date copy of that judgement is produced before them. In case the petitioner has attained the age of superannuation during the pendency of the writ petition, he would be entitled to all those benefits only upto the date of superannuation and also pension and necessary order in that behalf be issued within one month and arrears etc. be also paid. If otherwise, the respondent Corporation decides not to grant such relief to the petitioner, he would be at liberty to get the writ petition revived by making a suitable application. The Corporation by its order dated 2.2.2002 held that since petitioner Bhura Lal had attained the age of superannuation on 31.7.2000, it was not possible to provide him alternative employment in terms of the judgement of Supreme Court dated 3.12.2001. However, on the basis of option, he may be paid pension 3 and its arrears. Dissatisfied with that order, the petitioner applied for revival of this writ petition and the writ petition was ordered to be revived. In the meantime, the original writ petitioner expired on 9.10.2005 and his widow substituted him as petitioner. In those circumstances, the matter was heard afresh so as to examine the validity of the award dated 27.11.1996 and subsequent order passed by the respondents on 2.2.2002. Shri Sunil Samdaria, learned counsel for the petitioner has cited the judgement of the Supreme Court in Anand Bihari & Ors. vs. Rajasthan State Road Transport Corporation, Jaipur & Anr.-AIR 1991 SC 1003. It is argued that the aforesaid judgement was stayed by the Supreme Court on 20.12.1990 in which it was held that it was clear from the provisions of the Employees' State Insurance Act that sub-normal eye-sight or loss of the required vision to work as a driver would not be covered by that Act as an employment injury or as an occupational disease, for no provision is made there for compensation for a disability to carry on a particular job. 4 The workmen cannot be said to have suffered either a permanent, total or partial disablement to carry on any job or to have developed cataract due to infrared radiations. The workmen would be able to work other than a driver with the eye-sight they possess. The Supreme Court therefore evolved a scheme which would give relief as best as it can to the workmen such as the ones in that case keeping in view that workmen had an advanced stage of their life would find it hard to get a suitable alternative employment outside. It was directed that in addition to giving each of the retired workmen retiring benefits, the Corporation shall offer him any alternative job which may be available and which he is eligible to perform and if no such job is available, each of the workmen shall be paid along with his retirement benefits, an additional compensatory amount as follows as per the formula given therein. Learned counsel argued that the option was with the employee concerned whether to accept the alternative employment or to accept the compensation but in any case the 5 respondent-Corporation was first required to get offer of alternative employment, but despite the judgement delivered by Supreme Court on 20.12.1990, the petitioner's services were terminated on 19.1.1991 on the alleged basis of defective eye vision. Petitioner represented against the opinion expressed by the Medical Board and on his request, another Medical Board was constituted at the instance of Depot Manager, Bhilwara, Depot, Bhilawa, wherein he further requested the Principal Medical Officer, Bhilwara to constitute a Board for subjecting the petitioner again for medical examination for the test of his vision. Such Medical Board submitted its report on 12.10.1991 wherein he found the vision in the right eye of the petitioner to be 6/9 with glasses and left eye to be 6/6 without glasses and thus declared him normal and fit. Despite the respondents having received such report, no action was taken by them to reinstate the petitioner in service. Learned counsel submitted that this was an additional factor which ought to have weighed, firstly with the respondent- 6 Corporation and thereafter with the Labour Court because the judgement of Supreme Court in Jaswant Singh was in fact based on Anand Bihari, supra, a judgement rendered by the Supreme Court in the case of RSRTC itself and those judgements proceeds on the assumption that workman concerned was not fit to discharge the duties on the post of Driver due to defective eye vision, which was not a case so far as the original petitioner is concerned. Learned counsel submitted that the impugned order dated 2.2.2002 is also bad in law and liable to be quashed because action of the respondents in terminating his services could not be held to be valid on the question of payment of pension. Learned counsel admitted that the respondents have filed an affidavit before this Court stating that original petitioner has been paid the CPF in the sum of Rs.1,40,460/-, which included the contribution of the employee in the sum of Rs.59,637/- and employer contribution Rs.80,823/-. If he refunded the employer contribution of Rs.80,823/-, the widow could be paid pension. 7 Shri Virendra Lodha, learned counsel for the respondents opposed the writ petition and submitted that there was no work immediately with the respondents and therefore in terms of the judgement in Anand Bihari and Jaswant Singh, a compensation was offered to the petitioner, which he accepted without protest. It was argued that petitioner since he was not in employment for the period from 19.1.1991, till he got superannuated on 31.7.2000, he could not be entitled to any back wages of salary for this period on the principle of no work no pay. Learned counsel argued that the job of a driver was very sensitive and the driver has to have fitness to work for such a job. If the petitioner had defective eye vision, the respondents could not afford to have him as driver and ply the vehicles carrying on large number of passengers. It was argued that if the work was not available, the workman could not insist on being given employment. It was not the option of the workman as to which of the two i.e. alternative employment or the compensation, 8 he should accept, but in any case, the petitioner in the present case have not accepted the compensation, cannot be subsequently allow to say that he did so either under misconception or on being mislead. Shri Sunil Samdaria, learned counsel for the petitioner rejoined and submitted that as per the judgement of Supreme Court in Anand Bihari and Jaswant Singh, if alternative job was not immediately available and compensation is offered and accepted by the workman, he could be given alternative job even at a later point of time whenever it becomes available. In that event, the workman would be required to refund the amount of compensation. If such job was offered to the petitioner he would have refunded the amount of Rs.25,041/- received as compensation. Upon hearing the learned counsel for the parties and perusing the material on record, I find that apart from the first question that the petitioner was removed on the ground of his medical fitness due to defective eye vision, there was an 9 additional factor in the present case that petitioner was subjected to medical examination again and second time, when he was found to be fit by report of the medical board dated 12.10.1991. This question was specifically pleaded by the petitioner in his statement of claim and taken note of by the Labour Court in para 2 of its award. Even then, no finding on this aspect of the matter is given and the Labour Court has completely confined the scope of its discussion in the award as to the applicability of the judgement of Supreme Court in Anand Bihari and Jawant Singh. The petitioner has before this Court also produced the copies of the order dated 5.10.1991 from which it appears that the Depot Manager, Bhilwara requested the Principal Medical Officer, Bhilwara to constitute another Medical Board for examination of the petitioner's eye sight and it was confined with order dated 5.10.1991 that fresh Medical Board was constituted. The CMHO, Bhilwara by its letter dated 7.11.1991 forwarded the report of this Medical Board which is on record at 10 Annexure-4. This report dated 12.10.1991 clearly show that petitioner's eye vision to be normal and fit. The respondents have not denied this fact in their counter affidavit. The acceptance of compensation by the petitioner shall have to be therefore viewed in the light of this additional factor and also keeping in view that the petitioner ultimately expired and respondents started making payment of pension to his widow. It is however not clear whether the period from the date of termination to the date of superannuation has been taken as part of qualifying service for grant of pension. The element of service for this period of about 10 years has to be taken into consideration for computing pension and other retiral dues of the original writ petitioner. In view of above discussion, the writ petition is allowed. The impugned award of the Labour Court dated 27.11.1996 is set aside. It is however directed that the termination of the petitioner is held to be illegal. The respondents are further directed to pay to the widow of the petitioner 50% of the back wages for the 11 aforesaid period and in doing so, they would be entitled to deduct the amount of compensation paid to the petitioner. The petitioner shall however be deemed to have served the respondents throughout from the date of termination till the date of superannuation and accordingly his retiral benefits and pension etc. be computed. The respondents would also be at liberty to deduct from the dues payable to the widow of the petitioner, the amount of the employer's contribution to provident fund i.e. the sum of Rs.80,823/-. Neither would they charge any interest from the petitioner on the said amount, nor the petitioner would be entitled to receive any interest on the arrears found payable consequent upon this order. In case after completion of the formalities, if any further amount is found payable by the petitioner, the same shall be conveyed to the widow of the petitioner by the respondents, who shall be within four weeks from the date of receipt of such communication, be liable to deposit such amount with the respondents. If however the amount payable to the petitioner is found in 12 excess of the deductions to be made i.e. the amount of Rs.25,041 + Rs.80,823 totaling Rs.1,05,864/-, such amount shall be liable to be adjusted against the dues so payable. Compliance of the judgement be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/