CWP No. 2334 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2334 of 2010 Date of decision: 19.05.2010 State of Haryana through General Manager, Haryana Roadways, Ambala ...... PETITIONER VERSUS Gurbachan Singh driver No. 139 s/o Sh. Balwant Singh and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioner. None for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present writ petition is for setting aside of the Award dated 29.08.2008 (Annexure P-1) passed by the Labour Court, Ambala, vide which the reference has been answered in favour of the workman holding him entitled to 50% back wages from the date of compulsory retirement till the date of actual retirement along with all consequential service benefits. CWP No. 2334 of 2010 2 Counsel for the petitioner contends that respondent No. 1- workman was appointed as a Driver on regular basis on 21.12.1989. The bus, which was being driven by respondent No. 1-workman, met with an accident on 01.06.1992, as a result whereof, his right leg up to the thigh was amputated. He was declared unfit for the post of Driver by the Civil Surgeon, Ambala and based upon the report of the Civil Surgeon, Ambala, the petitioner was retired from service under Rule 5.18 of the Civil Services Rules Vol.II Part-I in public interest w.e.f. 30.09.1993 (A.N.) vide order dated 29.09.1993 (Annexure P-3). On retirement, he was given benefit of the Policy Instructions dated 20.08.1992 issued by the Transport Commissioner, Haryana, Chandigarh, which were based upon a judgment of the Hon'ble Supreme Court in the case of Anand Bihari and others vs. Rajasthan State Road Transport Controller, Jaipur and others, AIR 1991 S.C. 1003. The order of retirement was questioned through a demand notice submitted by respondent No. 1-workman. When conciliation proceedings failed, reference was made to the Labour Court for adjudication. The Labour Court, on the basis of the pleadings of the parties, framed four issues and proceeded to decide the same in favour of respondent No. 1-workman. The Labour Court primarily relied upon the provisions, as contained in Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Disabilities Act, 1995'). The order of retirement of respondent No. 1-workman is dated 29.09.1993 (Annexure P- 3), which is much earlier to the coming into force of Disabilities Act, 1995 and, therefore, reliance on the same by the Labour Court is not in accordance with law. His further contention is that Rule 5.18 of the Civil CWP No. 2334 of 2010 3 Services Rules Vol.II Part-I, under which respondent No. 1-workman has been retired, has been considered by a Division Bench of this Court in the case of Satya Pal vs. Transport Commissioner/Controller Haryana and another, 1999 (4) RSJ 520, wherein this Court, in the case of a similarly placed Driver, has held that the respondents can retire the workman from Government service and he would be entitled to the benefit of the Instructions dated 20.08.1992. He contends that the petitioner- Management has taken a specific stand that no alternative job was available with the Management on which respondent No. 1-workman could be engaged, therefore, left with no option, provisions under Rule 5.18 of the Civil Services Rules Vol.II Part-I were pressed into service to retire respondent No. 1-workman. He, on this basis, contends that the Award deserves to be set aside as the same cannot be sustained. His further contention is that the learned Labour Court, Ambala has totally misread the factual aspect as well, as it has been observed in the Award that respondent No. 1-workman would have attained superannuation by the date the Award was passed i.e. 29.08.2008, which factually is incorrect as respondent No. 1-workman, if taken back in service, would attain the age of superannuaction on 30.06.2013. He, accordingly, prays that the present writ petition may be allowed and the impugned Award may be set aside. Notice of motion was issued in this case on 10.02.2010 for 12.03.2010 pursuant to which Mr. Suresh Kumar, Advocate, had put in appearance for Mr. Shailender Sharma, Advocate, for respondent No. 1 and the case was adjourned to 22.04.2010 and four weeks' time was granted to file reply to the writ petition. On 22.04.2010, the case was called twice. None had put in appearance on behalf of respondent No. 1 nor any reply was filed on his behalf and the case was adjourned to 19.05.2010 i.e. today for arguments. CWP No. 2334 of 2010 4 Today also, this is the second call but none has cared to put in appearance on behalf of respondent No. 1-workman. I have heard the counsel for the petitioner and have gone through the records of the case. As per the Award itself, respondent No. 1-workman was retired vide order dated 29.09.1993 w.e.f. 30.09.1993 (Annexure P-3). The Disabilities Act, 1995 came into force on 07.02.1996. It is thus apparent that the said Act would not be applicable to the case of respondent No. 1- workman, who admittedly was retired vide order dated 29.09.1993 and thus could not claim the benefit under the said Act. Thus, the observation of the Labour Court while placing reliance on Section 47 of the Disabilities Act, 1995 is totally misplaced. The provisions as contained under Rule 5.18 of the Civil Service Rules Vol.II, Part-I, under which respondent No. 1- workman has been retired, are fully applicable to the case of respondent No. 1-workman. According to the said Rule, the petitioner has been invalidated from service and, therefore, the observation of the Labour Court that respondent No. 1-workman has been prematurely retired from employment on the ground of medical unfitness, is totally against the rules and the records. In a similar situation, a Division Bench of this Court, while considering the case of a Driver, had upheld the order of retirement and as the petitioner was claiming that he should be granted an alternative job, the Management had taken a specific stand that no alternative job was available with them on which the workman could be engaged. In the present case as well the specific stand of the Management is that there was no job available with them on which respondent No. 1-workman could be adjusted. Th0ere is nothing on the record to suggest that indeed an CWP No. 2334 of 2010 5 alternative job was available with the Management on which the workman could have been adjusted. On this basis also and in the light of the Division Bench Judgment of this Court in the case of Satya Pal (supra), the findings recorded by the Labour Court cannot be sustained. That apart, the factual aspect, which has been taken into consideration by the Labour Court while granting 50% back wages to the workman from the date of his compulsory retirement to the date of his actual retirement on the presumption that the workman had attained the age of superannuation, is also without any basis. In view of the above, the impugned Award passed by the Labour Court cannot be sustained. The present writ petition is allowed. Award dated 29.08.2008 (Annexure P-1) passed by the Labour Court, Ambala, is hereby set aside. ( AUGUSTINE GEORGE MASIH ) JUDGE May 19, 2010 pj