Santosh Kumar Phaujdar, J. - (1.) THE present writ petition challenges an award of the Presiding Officer, Labour Court at Agra in Reference No. 30 of 1997. In the reference, a question was raised if the termination of services of the petitioner by the employers, U.P. State Road Transport Corporation, with effect from 27.1.1996 was valid and legal and, if not, to what relief the workman was entitled. After hearing the parties the impugned order was recorded on 6.11.1998 holding that the termination was caused by retrenchment as the petitioner, while working as a driver under the corporation, suffered a serious accident and was disabled to the extent of working as a driver. The Labour Court had found that for this disablement, he was given table work for certain period and was also paid compensation in terms of the provisions of the Workmen's Compensation Act. The retrenchment, according to the Labour Court, was in accordance with law after giving due notice and as such was not liable to be interfered with. The learned counsel for U.P.S.R.T.C. drew my attention to Regulation 76 of the U.P. State Road Transport Corporation Employees (Other Than Officers) Service Regulations, 1981. This regulation covers adjustment of a disabled member and says that if an employee has been certified by the Chief Medical Officer of the district or a medical authority prescribed by the Corporation to have been incapacitated or disabled from discharging his normal duty due to any physical injury caused to him during the course of his employment, the appointing authority may give him other suitable job for which he is eligible: Provided that if an employee receives compensation in accordance with the law applicable to him the provisions of this regulation shall not apply.
(2.) THE petitioner made reference to Regulation 17 to say that a person appointed to the post of driver will be required to undergo medical test from time to time and the service of a person who fails to pass the fitness test may be dispensed with, provided that persons whose services are so dispensed with may in the discretion of the Corporation be offered alternative job. It was contended that this discretion of the Corporation was to be exercised uniformly and upon some policy without any discrimination. It was asserted that in the accident by the petitioner while acting as a driver, he suffered disablement to the extent of only 30% and although he was disabled to work as a driver, he was quite competent and able to do table work and, in that, he had been given table work as such for years together after the disablement it was contended that other drivers who also suffered disablement as driver were given table work by exercise of the discretion by the employer corporation. The facts that go unchallenged were as follows: (i) the petitioner had been a driver under the respondent -corporation. He met with an accident and suffered disablement only to the extent of 30%; (ii) he was given compensation for that 30% disability only and not for 100% disablement; (iii) he was given alternative job of table work which he had performed; (iv) the services of the petitioner were terminated on the basis of disablement suffered in the accident; (v) certain other persons similarly disabled were given alternative employment by the employer. These facts were not controverted by the Corporation by any counter affidavit despite chances being given to them.
(3.) THE petitioner relied on a decision of the Supreme Court in the case of Anand Bihari and others v. Rajasthan State Road Transport Corporation, Jaipur and another : AIR 1991 SC at page 1003. A driver of Rajasthan State Road Transport Corporation lost his service due to defective eye sight and in the circumstances of the case it was held that the termination of service was not retrenchment. The Court, however, was of the view that although this termination was not retrenchment, the action of Road Transport Corporation in not offering an alternative employment was not justified. It was observed that the service conditions of such workmen required that they could have been provided for compensative relief such as alternative employment. In paragraph 8 of its judgment, the Supreme Court expressed its views that although the order of termination of service, per -se, cannot be faulted on the ground of breach of the provision of Industrial Disputes Act, the important question that still remained to be considered was whether in the circumstances of the case, against the background of the relevant provisions of our situation, it could be said that the action of the corporation was proper, equitable and justified. The Supreme Court further observed that the facts on record had shown that the workmen had put in service with the corporation for long periods. All of them were above 40 years of age. There was no dispute that they developed sub -normal eye sight or lost their required vision to work as drivers. It was held that the loss of eye sight was caused by hazards of their employment but still these drivers were treated at par with the employees who suffered disability on account of reasons not connected with employment. The present petitioner was compensated proportionate to the disability of 30% while the petitioner, before the accident had been giving his full ability towards the service of the Corporation. The facts as gathered from the impugned award indicate that the petitioner was appointed as a driver in 1980 and he met with the accident only in October, 1991 i.e. after about 11 years of service. It further indicates that he was offered table work after his disablement and he worked as such till 27.1.1996 and only on that date his services were terminated. The facts clearly indicate that the petitioner did not lose his ability to work on the table and the Corporation had taken such work from him for about 5 years. The availability of alternative job and the ability of the petitioner to perform the same go unchallenged. Materials have been brought on record to show that for a similarly situated driver of the Corporation namely Balbir Singh the termination order was quashed and the corporation was directed to offer alternative job to him.;