D T C Vs. SURAJ BHAN

JUDGEMENT

(1.) This writ petition was preferred with respect to the award dated 8th May, 2002 of the Labour Court holding the pre-mature retirement by the petitioner of the respondent/workman as illegal and directing the petitioner to reinstate the respondent/workman from the date on which he was retired pre-maturely and to assign him the work of a peon and to protect his salary and benefits. This Court on 9th February, 2005 when this petition came up for admission held that the finding recorded in the award that the respondent/workman was denied employment as a peon on the ground that he is not an existing employee though found fit by the Medical Board, does not warrant interference; notice of the petition was issued only on the aspect of awarding full back wages while directing reinstatement of the respondent/workman. The operation of the award to the extent it awarded full back wages from 1991 to 1997 was also stayed and the said order remains in force till now.

(2.) The respondent/workman was employed as a driver with the petitioner/DTC since the year 1983. In the medical examination carried out on 12th June, 1991, the respondent/workman was found to be suffering from colour blindness and thus declared medically unfit for the post of driver and was vide letter dated 14th June, 1991 of the petitioner retired pre-maturely in accordance with the regulations of the petitioner. The respondent/workman thereafter applied for his appointment as a peon or on any other post; he was medically examined on 7th November, 1991 and found fit for the post of peon. However, the petitioner/DTC did not so appoint the respondent/ workman for the reason of there being no vacancy available to the post of peon. Upon the respondent/workman raising an industrial dispute, reference was made on 12th June, 1997 to the following effect:

(3.) The Presiding Officer of the Labour Court has held that the respondent/ workman had consented for appointment to a lower post but was not so appointed for two reasons; firstly that he could not be re-designated as he was not in service and secondly that there was no vacancy in the lower post. The Labour Court relying upon Narendra Kumar Chandla Vs. State of Haryana, 1995 AIR(SC) 519 held that when an employee is afflicted with unfortunate disease due to which, he is unable to perform the duties of the post he was holding, the employer must adjust him in a post in which the employee is suitable and the last drawn pay has to be protected. The Labour Court in this regard also relied upon Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Disability Act) and held that even though the said Act was not enforceable in 1991 but in view of Narendra Kumar Chandla (supra), the rights as given under the Act flow from Article 21 of the Constitution of India.