THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.283 OF 2004 DATED DECEMBER, 2009 BETWEEN R.Shankaraiah … Petitioner and The Managing Director, APSRTC, Musheerabad, Hyderabad. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.283 OF 2004 ORDER: The petitioner, formerly a Driver in the Andhra Pradesh State Road Transport Corporation (APSRTC), challenges the proceedings dated 05.04.2002 issued by the Depot Manager, APSRTC, Vakadu Depot, removing him from service, confirmed in appeal by the Divisional Manager, APSRTC, Gudur, under the proceedings dated 15.12.2003 and seeks a consequential direction to the APSRTC to reinstate him in service by giving him alternative employment with continuity of service and other service benefits. The petitioner was appointed as a Driver in the service of the APSRTC in the year 1990 on casual basis and his services were regularized on 01.08.1992. While so, the bus bearing No.AP-9Z-5322, driven by the petitioner was involved in a head-on collision with another RTC bus on 06.11.2000 on the route Mallam-Gudur. As a result, one lady passenger travelling in his bus died and twenty passengers and three crew members, including the petitioner, sustained injuries. The petitioner lost his right leg as a result of this accident. The petitioner was subjected to disciplinary proceedings under charge sheet dated 23.11.2000 on the following charge: “Charge: For having driven the vehicle No.AP-9Z-5322 without precaution and with lack of anticipation at left turning of the road when performing 07.30 hrs. Mallam service on 06.11.2000 at about 17.20 hrs. roughly on the route of Mallam-Gudur via. Kota resulting in hitting with the opposite coming vehicle bearing No.AP-10Z-4731 of Gudur Depot causing death of lady passenger and injuries to three crew members of both vehicles including driver besides heavy damages to vehicles AP-9Z-5322 and AP-10Z-4731, which constitutes misconduct under Regulation 28(ix)(a) of APSRTC (Conduct) Regulations, 1963.” The petitioner submitted his explanation under letter dated 05.12.2000. Dissatisfied therewith, the APSRTC instituted an enquiry into the matter. The Enquiry Officer submitted his report on 07.03.2002 holding that the charge levelled against petitioner was duly proved. The same was furnished to the petitioner under letter dated 09.03.2002 calling upon him to submit his objections/remarks. The petitioner submitted his reply under letter dated 11.03.2002. After considering the same, the disciplinary authority, being the Depot Manager, APSRTC, Vakadu Depot, passed the order dated 05.04.2002 removing the petitioner from service with immediate effect. Aggrieved thereby the petitioner, in the first instance, approached this Court by filing Writ Petition No.8112 of 2002. The said writ petition was disposed of by order dated 23.09.2002 permitting the petitioner to file an appeal before the Divisional Manager, Gudur, Nellore District, raising all the pleas, including the effect of non-payment of the subsistence allowance and medical bills. The appellate authority was directed to consider all the contentions of the petitioner raised in such appeal and pass a reasoned order. Thereupon, the petitioner submitted appeal-petition dated 20.10.2003, wherein he took the plea that he was not responsible for the accident as he was neither negligent nor rash while driving the bus on the fateful day. He further alleged that the Enquiry Officer had come to an erroneous conclusion, finding fault with him basing on presumptions. He raised the ground that the enquiry was vitiated as no subsistence allowance was paid to him during the period of suspension. He also relied upon Sections 2 and 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity, ‘the Act of 1995’) and asserted that he was entitled to alternative employment as he had lost his leg while in service. The appellate authority, being the Divisional Manager, APSRTC, Gudur, by order dated 15.12.2003 recorded that the evidence placed on record clearly established that the petitioner had driven his bus at high speed and had caused the head-on collision with the other bus, while overtaking a stationary lorry parked on the left side of the road. The oral evidence of the Conductors of both the buses in addition to the evidence adduced by various passengers supported the finding recorded by the disciplinary authority and was therefore accepted by the appellate authority. In such view of the matter, the appellate authority held that the petitioner had failed to take precautionary measures while driving the bus and without anticipating the movement of the oncoming vehicles, had caused the fatal accident. The plea of the petitioner that he had not been paid subsistence allowance was rejected stating the petitioner had not been placed under suspension at all. It was stated that he had not been paid his wages owing to non- availability of leave, and accordingly the said period was treated as leave without pay. With regard to the plea of the petitioner that he was entitled to alternative employment under the Act of 1995, the appellate authority stated that the Depot Manager, APSRTC, Vakadu Depot, being the disciplinary authority, was vested with full powers to examine the case instituted against the petitioner and finalise the punishment. He further stated that notwithstanding the pendency of the representation of the petitioner for alternative employment, his established guilt in the disciplinary proceedings conducted as per due procedure justified his removal from service. With regard to the petitioner’s claim for reimbursement of his medical bills, the appellate authority found that the petitioner had taken treatment at Puttur and was therefore not eligible for reimbursement. Accordingly, the Divisional Manager, APSRTC, Gudur, rejected the appeal giving rise to this writ petition. This Court by interim order dated 01.02.2005 granted suspension of the proceedings impugned in the writ petition but it is stated by the petitioner in his affidavit filed in support of WPMP No.18407 of 2007, seeking an early hearing of the writ petition, that he was not reinstated in service despite such interim orders. Smt.Usha N.Kiran, learned counsel for the petitioner, submitted that the petitioner was entitled to the protection afforded by Section 47 of the Act of 1995 and therefore, he ought not to have been removed from service. She pointed out that the petitioner had approached the Depot Manager, APSRTC, Vakadu Depot, the disciplinary authority in this regard and the said Depot Manager had himself referred the petitioner to the Senior Medical Officer, APSRTC, Taranaka Hospital, for medical examination under his letter dated 19.09.2001. She also referred to the letter dated 19.11.2001 addressed by the Depot Manager, APSRTC, Vakadu Depot, to his superior at Hyderabad wherein he referred to the fact that the petitioner had sought medical retirement and that he had been sent for necessary medical approval to the Regional Manager, APSRTC, Nellore. The learned counsel further placed reliance on the communication dated 12.10.2001 addressed by the Personnel Officer-I of the APSRTC at Hyderabad, whereby the petitioner was informed that the matter pertaining to his reinstatement in an alternative job was under examination and that action would be taken in due course. The learned counsel submitted that having held out a promise to the petitioner that his case would be considered for alternative employment consequent upon his losing his limb, it was illegal and arbitrary on the part of the very same Depot Manager, who had initiated the said process, to remove him from service pursuant to the disciplinary proceedings. Per contra, Sri K.Srinivasa Rao, learned counsel for the APSRTC, contended that this Court would not interfere with the punishment imposed upon the petitioner after following the due procedure, in exercise of judicial review under Article 226 of the Constitution. He pointed out that there was sufficient material and evidence on record to support the findings of the disciplinary authorities and therefore, no case was made out warranting interference with such findings. As regards the applicability of Section 47 of the Act of 1995, the learned counsel submitted that the provisions of the said Act would have no application in the present case as the removal of the petitioner was not consequent upon or linked to his disability but was the result of the independent disciplinary proceedings initiated against him. He accordingly prayed for dismissal of the writ petition. Though several grounds were raised in the affidavit filed in support of the writ petition challenging the disciplinary action taken against the petitioner, the learned counsel did not stress upon the same and rightly so. This Court, in exercise of its jurisdiction under Article 226 of the Constitution, would not sit in appeal over the findings of fact recorded by the disciplinary authorities. It is only in cases where such findings are perverse or completely opposed to the evidence on record that this Court would enter into the factual realm. In the unreported Judgment dated 10.08.2007 of a Division Bench of this Court in THE DEPUTY CHIEF SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTH CENTRAL RAILWAY, RAIL NILAYAM, SECUNDERABAD v. T.RAJ[1], it was observed as under: “It is settled law that the High Court’s power of judicial review of the disciplinary action against the delinquent employee is very limited. The High Court can interfere with the order of punishment if it is found to be vitiated due to violation of the statutory rules or regulations or the principles of natural justice and such violation is found to have prejudiced the cause of the delinquent. The High Court can also nullify the order of punishment if the finding of guilt recorded by the enquiring/disciplinary authority is based on no evidence or is influenced by extraneous factors/considerations. The doctrine of proportionality and Wednesbury Rule can be invoked by the High Court if it is convinced that the punishment imposed by the employer i s per se arbitrary/capricious or wholly disproportionate to the misconduct found proved. Of course, the last mentioned ground is not available in cases involving fraud, misrepresentation or misappropriation/embezzlement of public funds.” No such case has been made out presently and a reading of the proceedings impugned in this writ petition clearly demonstrates that the authorities below considered the matter in extenso and found that there was sufficient evidence to sustain a finding of guilt against the petitioner. It is however to be noticed that the appellate authority was not correct in stating that the petitioner had never been placed under suspension. The proceedings dated 23.11.2000 are placed on record, clearly demonstrating that the petitioner was placed under suspension in connection with the subject accident. That being so, even if subsistence allowance had not been paid to the petitioner during such suspension period, the same would not have the effect of automatically vitiating the entire disciplinary proceedings. The petitioner has to establish that prejudice was caused to him thereby. Mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the disciplinary proceedings. It has to be specifically pleaded and established as to in what way the employee was handicapped because of non-receipt of subsistence allowance. [U.P. STATE TEXTILE CORPN. LTD. v. P.C.CHATURVEDI[2] and STATE GOVERNMENT OF MADHYA PRADESH v. SHANKARLAL[3]]. In the present case, the petitioner did not assert or establish that he was in any manner prejudiced or adversely affected in the presentation of his defence during the disciplinary proceedings because of non- payment of the subsistence allowance. The petitioner cannot therefore assail the impugned proceedings on the sole ground that no subsistence allowance was paid to him during his suspension period. The only issue that arises for consideration is as to whether the petitioner is entitled to the protection of the Act of 1995, more specifically Section 47 thereof, and consequently seek alternative employment in the APSRTC as a matter of right? In this regard, the petitioner placed reliance on the Judgments of this Court in N.SIVA KUMAR v. APSRTC[4]; M.V.RAMANA RAO v. APSRTC[5] and SK. MOULANA v. DEPOT MANAGER, APSRTC, BANSWADA DEPOT, NIZAMABAD DISTRICT[6]. In N.SIVA KUMAR4, a Division Bench of this Court observed that the Act of 1995 was a benevolent legislation which had been enacted for persons who had become disabled and that Section 47 thereof, being a benevolent provision, has to be read keeping in mind the protection of rights of the disabled to lead a normal life. In M.V.RAMANA RAO5, a learned Judge of this Court held that it was not open to the APSRTC to dispense with the services of a driver on the ground that he suffered from hearing impairment, without providing suitable alternative employment to him. Such action was construed to be contrary to the scheme of the Act of 1995. The learned Judge also held that “disability during his service” in Section 47 of the Act of 1995 has to be construed meaningfully, keeping the objects of the Act in mind, and accordingly rejected the plea of the APSRTC that the disability sustained by the driver in that case was not occasioned during the course of employment. In SK. MOULANA6, a learned Judge of this Court, interpreting Section 47 of the Act of 1995, took the same view and held that “during his service” should not be interpreted in a narrow compass and that it was not necessary that the disability should be acquired in actual service. In the said case, a driver in the ASPRTC met with an accident while travelling as a passenger and was retired on medical grounds without providing him alternative employment. The learned Judge took the view that the driver was entitled to the protection of Section 47 of the Act of 1995. It was observed that it would be sufficient if the employee is on the rolls of the organization when he met with the accident and that the organization had a duty to create alternative employment as per Section 47 of the Act of 1995. The learned Judge placed reliance on the Judgment of the Supreme Court in KUNAL SINGH v. UNION OF INDIA[7]. Therein, the Supreme Court pointed out that a person does not acquire or suffer disability by choice and an employee who acquires disability during his service is sought to be protected under Section 47 of the Act of 1995 specifically. The Supreme Court observed that Section 47 contained a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. The learned Judge also referred to the Judgment of a learned Judge of this Court in MD. SUKUR MIYA v. SINGARENI COLLIERIES COMPANY LIMITED, ADILABAD[8]. Therein, it was observed that once the Medical Board declared that the employees are medically unfit to carry on the job which they were carrying on as on the date of the accident and basing on which their services were terminated, it was not open to the employer to contend that they are not disabled, so as to deny them the protection of Section 47 of the Act of 1995. The Act of 1995 was passed in furtherance of the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, adopted in the meeting held at Beijing, China, between 1st and 5th December, 1992. India, being a signatory to the said Proclamation, enacted the said statute so as to give effect to it. Section 2(t) of the Act of 1995 defines “persons with disability” to mean a person suffering from not less than forty per cent of any disability as certified by a medical authority. Section 2(i) defines “disability” to mean, amongst others, locomotor disability. Section 2(o) defines “locomotor disability” to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. In the present case, the petitioner, having lost his right leg owing to the subject accident, is clearly a ‘person with disability’ within the meaning of Section 2(t) of the Act of 1995. It is however to be seen whether he can claim protection under Section 47 of the Act of 1995 thereby entitling him to assert a right for alternative employment. Section 47 reads as under: “47. Non-discrimination in Government employments (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service; PROVIDED that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefit: PROVIDED FURTHER that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: PROVIDED that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section.” A plain reading of Section 47(1) clearly indicates that no employee who acquires a disability during his service shall be dispensed with or reduced in rank, meaning to state that the prohibited dispensation or reduction in rank should be consequent upon and occasioned by such disability. This is how it was understood in MD. SUKUR MIYA8. Thus, the protection afforded by Section 47 is to see that no person who acquired a disability while in service is made to suffer an adversity, be it in the form of dispensation of his services or by reduction in rank, due to such disability. Unless the dispensation or the reduction is a direct consequence of the disability, the embargo contained in Section 47(1) would not come into play. A contrary construction would mean that an employer would not be able to initiate disciplinary action against a delinquent employee and dispense with his services or reduce him in rank as a result of departmental action against such delinquency, merely because the said employee also sustained a physical disability in the course of the delinquency. For example, an employee committing theft and sustaining a disability in the course of such theft cannot be proceeded against departmentally and removed from service, if the protection of Section 47 of the Act of 1995 is to be extended to him and the employer would have to suffer such a branded thief in his service. This, obviously, cannot be the intent of this beneficial legislation. In the present case, it is established that owing to the accident caused by the petitioner, a passenger lost her life, twenty passengers and two other crew members suffered injuries and both the buses involved in the accident suffered heavy damage. In such circumstances, the right of the APSRTC as the employer to initiate disciplinary action against the petitioner cannot be derogated or nullified by the fact that the petitioner suffered a physical disability due to the accident caused by his own negligence or rashness. Section 47 of the Act of 1995 must therefore be construed to have application only to cases where the dispensation of services or reduction in rank is a direct consequence of the disability acquired by the employee during his service and not otherwise. In the present case, it is no doubt true that the Depot Manager referred the case of the petitioner for medical examination, be it for the purpose of retirement on medical grounds or for the purpose of alternative employment, and the petitioner was also given a hope in this regard by stating that his representation for alternative employment was under examination. However, independently, the disciplinary proceedings initiated against the petitioner culminated in his removal from service, which was confirmed in appeal. This action was not consequent upon the disability suffered by the petitioner owing to the accident but was the culmination of the disciplinary proceedings into the charge levelled against him, which was held proved after due enquiry in accordance with the procedure. The petitioner therefore cannot avail the cloak of protection afforded by Section 47 of the Act of 1995. His removal from service had no connection whatsoever with his disability and therefore, Section 47 of the Act of 1995 has no role to play in the present case. The petitioner failed to make out any other ground warranting interference with the punishment imposed upon him, confirmed in appeal. The Writ Petition is therefore found to be devoid of merit and is accordingly dismissed. No costs. ____________________ SANJAY KUMAR, J. __________ DECEMBER, 2009. VGSR [1] Writ Appeal No.625 of 2007 [2] (2005) 8 SCC 211 [3] (2008) 2 SCC 55 [4] 2001 (3) ALD 166 (DB) [5] 2003 (3) ALD 550 [6] 2004 (1) ALD 445 [7] 2003 Lab.IC 1133 [8] 2003 (2) ALD 335