STATE OF HARYANA Vs. KAKA SINGH

JUDGEMENT

(1.) This order will dispose of two writ petitions 5693 and 5707 of 1993 as common questions of law and fact arise in them and they were ordered to be heard together.

(2.) Kaka Singh-respondent (for short, the workman) was appointed a driver with Haryana Roadways on September 27, 1968. In April, 1988 he had some problem with his eyes and got herself medically examined from the General Hospital, Chandigarh and was advised complete rest for one month. He applied for leave for getting his eyes treated. The Principal Medical Officer who examined the workman on 7.5.1988 opined that his eye-sight was weak though the condition of his eyes was likely to improve with passage of time but he was not found fit for driving a vehicle. On receipt of this report, the General Manager, Haryana Roadways, Chandigarh as per his order dated May 27, 1988 retired him from government service with effect from May 31, 1988 under Rule 5.18 of the Punjab Civil Services Rules, Volume II (here-in-after called the Rules) as applicable to the State of Haryana. The workman raised an industrial dispute regarding his termination by way of retirement and the same was referred for adjudication to the presiding Officer, Labour Court, Chandigarh. The facts mentioned here-in-above were not disputed before the Labour Court which found that the order of termination was not valid in as much as the competent authority did not consider the case of the workman for alternative employment in terms of rule 5.12 of the rules read with the government instructions dated 27.4.1981. As per those instructions the workman was either to be adjusted in the department against some other job and if that was not possible his name was to be sent to the General Administrative Branch for adjustment in some other department. The order of termination was, therefore, found to be illegal entitling the workman to the benefit of continuity of service with all consequential benefits and full back wages. It is this award of the Labour Court that has been challenged in the present petition filed by the State of Haryana under Article 226 of the Constitution.

(3.) I have heard counsel for the parties at length. It could not be seriously disputed by the learned State counsel that the claim of the workman for alternative employment in terms of rule 5.12 of the Rules was never considered by the competent authority. As a matter of fact, Gian Singh, the dealing clerk who appeared before the Labour Court as MW1 on behalf of the department, admitted in his cross-examination that the department never tried to adjust the workman against any other post nor was any effort made to provide him with a job involving lighter duties. He further admitted that the workman was retired from service because he was not found fit to drive a vehicle as per medical report received from the General Hospital, Chandigarh. This being the factual position the order of retirement can not, therefore, be sustained in view of the provisions of rule 5.12 of the Rules whereunder the competent authority ought to have considered the case of the workman for alternative employment including employment on a lower pay so that the expenses of pensioning could be avoiced. This not having been done, the Labour Court was justified in setting aside the order of termination.