ANAND BIHARI AND ORS versus RAJASTHAN STATE ROAD TRANSPORT CORPORATION, JAIPUR THROUGH ITS MANAGING DIRECTOR AND ANR. ETC.

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ANAND BIHARI AND ORS. v. RAJAS1HAN STATE ROAD TRANSPORT CORPORATION, JAIPUR THROUGH ITS MANAGING DIRECTOR AND ANR. ETC.

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DECEMBER 20, 1990

[P.B. SAWANT AND S.C. AGRAWAL, JJ.]

Industrial Disputes Act, 1947: Sections 2(00) &·25-F. Retrench ment-State Road Transport Corporation-Drivers-Occupational hazards-Development of defective, weak or sub-normal eye-sight in the course of employment-Pre-mature termination of services-Held termination was ·not retrenchment and consequent compliance with section 25-F not necessary-But termination held unjustified and inequitable-Scheme formulated by the Supreme Court for relief to drivers-Directions for giving retirement benefits, providing alternative jobs and payment of compensatory amount proportionate to length of service rendered by the drivers.

Retrenchment-Exceptions-Section 2(00) sub-clause (c)-Ex pression "continued ill-health"-Meaning and Scope of-Includes cases of drivers who have developed defective or sub-normal vision

E during the course of employment.

Employees' State Insurance Act, 1948: Section 2(8)-Second Schedule-Part I-Item 4-Part II-Items 31,32 and· 32A-Third Schedule-item I I.

State Road Transport Corporation-Drivers-Development of sub-normal eye-sight or loss of required vision during the course of employment-Held noi an "employment injury" or "Occupational disease".

Workmen's Compensation Act, 1923: Section 3(2).

The appellants (in C.A. No. 1859-61) were appointed as drivers and had put in a long service to the satisfaction of the respondent- Corporation. Subsequently on their medical examination it was found that they had developed defective eye-sight i.e. they did not have the required vision for driving the hoses. The respondent Corporation issned notices to them and after considering their explanation ter-

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ANAND v. R.S.R.T.C.

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minated their services on the ground that they were unfit for driving buses. The appellants filed Writ Petitions in the High Court challenging their termination order contending that their termination was illegal because (i) the termination amounted 1 o retrenchment within the mean- ing of section 2(00) of the Industrial Disputes Act, 1947 and it was without compliance with the mandatory provisions of Section 25-F of ·the Act; (ii) pursuant to the agreement between the Workers' Union and B the Corporation, the respondent-Corporation was bound to provide the alternative jobs to the unfit drivers. The High Court dismissed the Writ Petitions. Hence these appeals by the Workmen-drivers.

A

In the connected appeal (C.A. No. 1862) the driver developed weak eye-sight on account of an accident in the course of bis employ- c ment. He was given employment as a helper but subsequently his services as a helper were terminated. He filed a Writ Petition in the High Court challenging his termination which was dismissed. Hence appeal by the workmen-driver.

In the other connected appeal (C.A. No. 1863) the services of a D

driver were terminated on the ground that he bad lost vision of bis right eye. He filed a Writ Petition in the High Court challenging the order of termination contending that ever since the loss of sight of his one eye, he was working as a helper and though he was not found unfit, yet bis services were terminated. The High Court quashed his termination order and directed the Corporation to absorb him as a helper. Against E this order of the High Court the Corporation filed an appeal before this Court.

In appeals to this Court it was contended on behalf of the appel- lants; (i) since the expression "continued ill-health" as used in clause (c) of section 2(00) of the Industrial Disputes Act, 1947 does not cover F the cases of a loss of limb or an organ or its permanent use and covers cases only of a general physical or mental debility or incapacity to execute the work, their termination not being covered by the said clause amounted to retrenchment which was illegal for non-compliance with Section 25-F; (ii) the workmen should have been given alternative jobs irrespective of the fact whether there was an agreement or not between G the Corporation and the Union to provide alternative jobs to unfit drivers.

Disposing the appeals, this Court,

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HELD: 1. The expression "ill-health" used in sub-clause (c) of H

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Section 2(06) of the Industrial Disputes Act, 1947 has to be construed relatively and in its context. It must have a bearing on the normal discharge of duties. It is not any illness but that which interferes with the usual orderly functioning of the duties of the post which would be attracted by the sub-clause. Conversly, even if the illness does not affect general health or general capacity and is restricted only to a particular limb or organ but affects the efficient working of the work entrusted it will be covered by the phrase. For it is not the capacity in general but that which is necessary to perform the duty for which the workman is engaged which is relevant and material and should be considered for the purpose. Therefore, any disorder in health which incapacitates an individual from discharging the duties entrusted to him or affects his work adversely or comes in the way of his normal and effective func tioning can be covered by the said phrase. The phrase has also to be construed from the point of view of the consumers of the concerned products and services. If on account of a workman's disease or incapa city or debility in func!ioning, the resultant product or the service is likely to be affected in any way or to become a risk to the health, life or D property of the consumer, the disease or incapacity has to be catego rised as ill-health for the purpose of the sub-clause, otherwise, the purpose of production for which the services of the workman are engaged will be frustrated and worse still in cases such as the present one they will endanger the lives and the property of the consumers, Hence the Court should place a realistic and not a technical or pedantic E meaning on the said phrase. Therefore, the said phrase would include cases of drivers such as the present ones who have developed a defective or sub-normal vision or eye-sight which is bound to interfere with their normal working as drivers. Accordingly. the termination of the services of the drivers in the present case being covered by sub-clause (c) of Section 2(00) would not amount to retrenchment within the meaning of Section 2(00) of the Act. Hence the termination per se is not illegal because the provisions of Section 25-F have not been followed while effecting it. [631D-H, 632A-D]

F

Workmen of the Bangalore Woollen, Cotton and Silk Mills Ltd.

v. Its Management, [1962] 1L.L.J.213, referred to.

G

New Collings Concise English Dictionary; Webster's Comprehen sive Dictionary (International Edition); Concise Oxford Dictionary (3rd Edition); and Shorter Oxford English Dictionary, referred to.

2. It is also clear from the provisions of the Employees State Insurance Act that the cases of sub-normal eye-sight or loss of the

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required vision to work as a driver would not be covered by the provi sions of that Act as an employment injury or as an occupational disease, for no provision is made there for compensation for a disability to carry on a particular job. The present workmen cannot be said to have suf fered either a permanent, total or partial disablement to carry on any job or to have developed cataract due to infra-red radiations. The workmen are and will be able to do any work other than that of a driver with the eye-sight they possess. [635E-F)

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3. There is no dispute that the drivers developed a weak or sub normal eye-sight or lost their required vision on account of their occu pation as drivers in the Corporation. They have to drive the heavy motor vehicles io sun-rain, dust and dark hours of night. In the process C they are exposed' to the glaring and blazing sun light and beaming and blinding lights of the vehicles coming from the opposite direction. They are required to strain their eye-sight every moment of the driving, keeping a watchful eye on the road for the bumps, bends and slopes, and to avoid all kinds of obstacles on the way. It is this constant training of eyes on the road which takes its inevitable toll of the vision. The very D fact that in a short period, the Corporation had to terminate the services of no less than 30 drivers shows the extent of the occupational hazard to which the drivers of the Corporation are exposed during their service. It also shows that weakening of the eye-sight is not an isolated phenomenon but a wide-spread risk to which those who take the employment of a driver expose themselves. Yet the Corporation treats E their cases in the same manner and fashion as it treats the cases of other workmen who on account of reasons not connected with the employ ment suffer from ill-health or continued ill-health. That by itself is discriminatory against the drivers. The discrimination against the employees such as the drivers in the present case, also ensues from the fact that whereas they have to face pre-mature termination of service on F account of disabilities contracted from their jobs, the other employees continue to serve till the date of their superannuation. There is no justification in treating the cases of workmen like drivers who are exposed to occupational diseases and disabilities on par with the other employees. The injustice, inequity and discrimination is writ large in such cases and is indefensible. [632F-H, 633A-D)

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4. The workmen are not denizens of an Animal Farm to be eliminated ruthlessly the moment they become useless to the establish ment. They have not only to live for the rest of their life hut also to maintain the members of their family and other dependants, and to educate and bring up their children. Their liability in this respect at the H

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[1990) Supp. 3 S.C.R.

A advanced age at which they are thus retired stands multiplied, They may no longer he of use to the Corporation for the job for which they were employed, but the need of their patronage to others intensifies with the growth in their family r~sponsibilities. [634H, 635A-B)

5. No special provision is made and no compensatory relief is B provided in the service condition for the drivers for pre-mature incapacitation. The service conditions of the workmen such as the dri vers in the present case, therefore, must provide for adequate safe guards to remedy the situation by compensating them is some form for the all-round loss they suffer for no fault of theirs. [633C-D I

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5.1. In view of the fact that the Corporation took an unhelpful stand in the matter of formulating a scheme of relief which is the legiti mate due of the workmen and not a scheme on compassionate or charit able basis, the Supreme Court itself evolved a scheme for giving relief to the workmen-drivers keeping in view the points (i) that the workmen concerned are incapacitated to work only as drivers and are not rendered incapable of taking any other job either in the Corporation or outside; (ii) that the workmen are at an advanced age of their life and it would be difficult for them to get a suitable alternative employment outside; (iii) and that the relief made available under the scheme should not be such as would induce the workmen to feign disability which, in the case of disability such as the present one, viz., the develop- E ment of a defective eye-sight, it may be easy to do, Accordingly, the Supreme Court directed that the Corporation shall in addition to giving each of the retired workmen his retirement benefits, offer him any other alternative job which may be available and which he is eligible to perform and in case no such alternative job is available each of the workman shall be paid along with his retirement benefits an additional compensatory amount proportionate to the length of service rendered by the employees and the balance of their service. [634G, 635H, 636A-G]

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6. The termination of services of helper (in C.A.No. 1862) was unjustified and, also illegal being in contravention of the provisions of Section 25-F of the Act. The High Court erred in treating his case on G par with cases of other drivers. The appellant-workman will, therefore, be entitled to his retirement benefits as a driver from the date of his employment as a helper. He would further be entitled to be reinstated in service as a helper with all arrears of back wages as a helper. In case he opts for receiving the compensatory amount under the scheme framed by this Court, be may do so for the period beginning from the date from

H which bis services as a helper were terminated. [637D-F]

ANAND v. R.S.R.T.C. [SAWANT, l.J

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7. The decision of the High Court impugned iu C.A.No. 1863 is set aside and the respondent-Corporation is directed to give the con cerned workman the benefit of the scheme propounded.

CIVIL APPELLAIB JURISDICTION: Civil Appeal Nos. 1859-

63 of 1990.

From the Judgment and Order dated 8.3.1989 and 15.3.1989 of the Rajasthan High Court in D.B. Civil Writ Petitions Nos. 2553, 1824 and 1823 of 1988 and 1457 and 3352 of 1988.

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Gobinda Mukhoty, L.M. Singhvi, S.K. Verma, R.B. Mishra, D. Bhandari, S.K. Jain, D.K. Singh, Pradeep Agarwal and Jitendra Sharma for the appearing parites.

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The Judgment of the Court was delivered by

SAWANT, J. Civil Appeals Nos. 1859-61of1990 are preferred by the workmen of the Rajasthan State Transport Corporation D (hereinafter referred to as the "Corporation") against the decision dated March 8, 1989 of a Division Bench of the High Court of Rajasthan and Civil Appeal No. 1862 of 1990 is preferred by another workman against the decision dated March 15, 1989 of the same Divi sion Bench whereas Civil Appeal No. 1863 of 1990 is preferred by the Corporation against the decision dated March 15, 1989 of another E Division Bench of the High Court. Since the issues involved in all these appeals are common, we are deciding them all together.

2. The facts of Civil Appeals Nos. 1859-62 are same. The wor- kers in question were appointed as drivers to drive the roadways buses of Corporation in the region of Ajmer, Jaipur and Bharatpur. They F had put in a long service discharging their duties to the satisfaction of the Corporation. Sometime in 1987, their routine medical examination showed that they had developed defective eye-sight and did not have the required vision for driving heavy motor vehicles like buses for which they were engaged by the Corporation. The Corporation, there fore, constituted a medical Board and directed the workers to appear G before it for testing their eye-sight. The Board found them totally unfit for driving heavy motor ~ehicles. The Corporation issued notices to the workmen to show cause as to why their services should not be terminated since they were found unfit for driving its buses. The wor kmen submitted their explanations in which they asked for conducting a second test of their eye-sight and also prayed that in case they were H

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found unfit for driving the buses, they should be given some other job in the Corporation. The Corporation after considering the explanation of the workmen came to the decision that since the workmen's eye sight was not of the standard required to drive the buses they could not be retained in service, and terminated their services. The orders of termination of services were challenged by the workmen before the High Court by filing individual writ petitions, on two grounds, viz., that the termination amounted to retrenchment within the meaning of Section 2(00) of the Industrial Disputes Act, 1947 (hereinafter refer red to as the "Act") and since the retrenchment was effected without following the mandatory provisions of Section 25F of the Act, it was illegal. Secondly, it was urged that there was an agreement between the drivers' Union (AITUC) and the Corporation on February 21, 1979 whereunder it was provided that if a driver was found unfit for driving the bus, he should be posted as a helper. In pursuance of the said agreement, the Corporation had also issued a circular on March 10, 1980 providing for giving the job of a helper to an unfit driver. Hence, it was urged that the termination of the services was illegal on that ground as well. The workmen on these grounds not only prayed for the quashing of the orders terminating their services but in the alternative also prayed for direction to the Corporation to offer them the alternative job of a helper. The Corporation, on the other hand, contended that the termination of the workmen's services did not amount to retrenchment within the meaning of Section 2(00) of the Act and hence there was no illegality from which the termination orders sufferred. The Corporation also stated that there was no agree- ment between it and the driver's Union as alleged, and that the circu lar dated March 10, 1980 was later on withdrawn. Hence, the workmen could not claim any right under the circular. The High Court upheld both the contentions of the Corporation and dismissed the workmen's writ petitions. However, while dismissing the petitions, the High Court also added that in case the workmen approached the Corpora- tion for absorbing them as helpers, their cases for such absorption be considered sympathetically if they were otherwise found fit and eligi ble. It is this order which the workmen have challenged before us in these appeals.

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3. The facts in Civil Appeal No. 1863 of 1990 filed by the Corpo ration are that the services of the work'¥n similarly working as a driver were terminated on the ground that he had ]ost vision of his right eye. He had approached the High Court with the same grievances as the workmen in the other writ petitions. The workman in this case H had further pointed out that in fact since he had lost the sight of one

ANAND v. R.S.R.T.C. [SAWANT, J.l

629

eye on March 11, 1986, he was not working as a driver but was working A in the maintenance section of the vehicles. For that work, he was not found unfit and yet his services were terminated by the impugned order of February 27, 1988 on the ground of his said incapacity to work as a driver. The High Court by its impugned decision held that although the workman had lost the vision of one eye,· he was fit to discharge the duties of any technician or helper or any other employee of that cadre. This was also the report of the Medical Officer and hence the Corporation should have absorbed the workman in any other job according to his capacity instead of terminating his services. The High Court, therefore, quashed the order terminating his services and directed the Corporation to absorb him in the post of a helper or any other equivalent post for which he might be found fit. The Court further directed that the workman should be treated as being in con tinued service, ai.d the period between the date of the termination of his services and his reinstatement should be treated as leave without pay which may be to his credit or which he may earn in future. It is this order which is challenged by the Corporation in this appeal.

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4. Since the workmen were unable to produce any material with regard to the alleged agreement of February 21, 1979 between their Union and the Corporation, the contention based on it was not rightly pressed before us on behalf of the workmen. It was also an admitted position that the circular dated March 10, 1980 issued by the Corpora tion was withdrawn long before the services of the present workmen E were terminated. No arguments were therefore available on its basis and none was advanced. However, what was contended was that in the circumstances of the case the workmen should have been continued in employment in other post such as that of a helper for which they were fit, whether there was an agreement or a circular, or not. We will deal with this contention after we have dealt with the only other F contention.

5. The definition of "retrenchment" under Section 2(00) of the

Act is as follows:

"2(00). "retrenchment" means the termination by the G

employer of the service of a workman for any reason what soever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-

(a) voluntary retirement of the workman; or

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(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workl11an concerned oontains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

( c) termination of the service of a workman on the ground of continued ill-health."

D

There is no dispute before us that the only sub-clause of the definition which can cover the present termination of service is sub clause (c). There was some debate before us as to the exact import of the expression "continued ill-health". While it was urged on behalf of the workmen that ill-health which is spoken of there does not cover the cases of a loss of a limb or an organ or of its permanent use, and covers cases only of a general physical or mental debility or incapacity to execute the work, the argument on behalf of the Corporation was that it would include also cases of a permanent loss or incapacity of a limb or an organ such as eye or eye-sight, ear or hearing capacity, of hand E or leg etc. which is necessary for discharging the duty in question. For this purpose, reliance was placed on behalf of the Corporation on a decision of this Court in Workmen of the Bangalore Woolen, Cotton and Silk Mills Co. Ltd. v. Its Management, [1962] 1 LU 213. In that case the Court while interpreting the definition of retrenchment has held as follows:.

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"The definition "retrenchment" in S. 2(00) of the Act means termination of service. A service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workmen. Where therefore a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he had undertaken to render and there fore it had really come to an end itself. That this is the idea

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ANAND v. R.S.R.T.C. [SAWANT, J.]

631

involved in the definition of the word "retrenchment" is also supported by S. 25G of the Act which provides that whereas any workmen are retrenched, and the employer proposes to take in his employ any person, he shall give an opportunity to the retrenched workmen to offer themselves for re-employment and the latter shall have preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness or ill-health would be offered re-employment; it was because his physi cal condition prevented him from carrying out the work which he had been given that he had to leave and no ques tion of asking such a person to take up the work again arises. If he could not do the )¥Ork, he could not be offered employment again. It would follow that such a person can not be said to have been retrenched within the meaning of the Act as amended by the Ordinance.

(emphasis supplied)

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6. Even otherwise, it can scarcely be disputed that the expres sion "ill-health" used in sub-clause (c) has to be construed relatively and in its context. It must have a bearing on the normal discharge of duties. It is not any illness but that which interferes with the usual orderly functioning of the duties of the post which would be attracted by the sub-clause. Conversly, even if the illness does not affect general E health or general capacity and is restricted only to a particular limb or organ but affects the efficient working of the work entrusted, it will be covered by the phrase. For it is not the capacity in general but that which is necessary to perform the duty for which the workman is engaged which is relevant and material and should be considered for the purpose. The expresion "ill-health" is defined in the new Collins F Concise English Dictionary to mean "not in good health; sick"; in Webster's Comprehensive Dictionary (International Edition) to mean "disordered in physical condition; diseased;_ unwell; sick"; in the Con cise Oxford Dictionary (3rd Edition) to mean "out of health; sick; with disease; with anxiety (of health), unsound; disordered, morally bad", and in Shorter Oxford English Dictionary to mean: "Unsound, disor- G dered; Out of health, not well". Therefore, any disorder in health which incapacitates an individual from discharging the duties entrusted to him or affects his work adversely or comes in the way of his normal and effective functioning can be covered by the said phrase. The phrase has also to be construed from the point of view of the consu mers of the concerned products and services. If on account of a work- H

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13

A man's disease or incapacity or debility in functioning, the resultant product or the service is likely to be affected in any way or to become a risk to the health, life or property of the consumer, the disease or incapacity has to be categorised as ill-health for the purpose of the said sub-clause. Otherwise, the purpose of production for which the services of the workman are engaged will be frustrated and worse still in cases such as the present one they will endanger the lives and the property of the consumers. Hence, we have to place a realistic and not a technical or pedantic meaning on the said phrase. We are, therefore, more than satisfied. that the said phrase would include cases of drivers such as the present ones who have developed a defective or sub normal vision or eye-sight which is bound to interfere with their normal working as drivers.

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7. In the view we have taken of the said sub-dause, it js obvious that the termination of the services of the workers in the present case being covered by sub-clause (c) of Section 2(00) would not ~mount to retrenchment within the meaning of Section 2(00) of the Act. Hence, the termination per se is not illegal because the provisions of Section 25F have not been followed while effecting it.

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8. Allough the order of termination of service per se cannot be faulted on the ground of the breach of the Act, the important question that still remains to be considered is whether in the circumstances of the case and against the background of the relevant provisions of our Constitution, it can be said that the action of the Corporation is proper, equitable and justified. The facts on record show that all the workmen have put in service with the Corporation for long periods. All of them are above 40 years of age. Their superannuation age is 58 years. There is no dispute that they developed a weak or sub-normal eye-sight or lost their required vision on account of their occupation as drivers in the Corporation. As is commonly known, the drivers of the buses run by the Corporation such as the present one, have to drive the heavy motor vehicles in sun, rain, dust and dark hours of night. In the process, they are exposed to the glaring and blazing sun light and beaming and blinding lights of the vehicles coming from the opposite G direction. They are required to strain their eye-sight every moment of the driving, keeping a watchful eye on the road for the bumps, bends and slopes, and to avoid all kinds of obstacles on the way. It is this constant training of eyes on the road which takes its inevitable toll of the vision. The very fact that in a short period, the Corporation had to terminate the services of no less than 30 drivers who are before us shows the extent of the occupational hazard to which the drivers of the

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ANAND v. R.S.R.T.C. (SAWANT. J.]

633

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Corporation are exposed during their service. It also shows that weakening of the eye-sight is not an isolated phenomenon but a wide- spread risk to which those who take the employment of a driver expose themselves. Yet the Corporation treats their cases in the same manner and fashion as it treats the cases of other workmen who on account of reasons not connected with the employment suffer from ill-health or continued ill-health. That by itself is discriminatory against the dri- B vers. The discrimination against the employees such as the drivers in the present case, also ensues from the fact that whereas they have to face pre-mature termination of service on account of disabilities con tracted from their jobs, the other employees continue to serve till the date of their superannuation. Admittedly, no special provision is made and no compensatory relief is provided in the service condition for the drivers for such premature incapacitation. There is no justification in C treating the cases of workmen like drivers who are exposed to occupa tional diseases and disabilities on par with the other employees. The injustice, inequity and discrimination is writ large in such cases and is indefensible. The service conditions of the workmen such as the dri vers in the present case, therefore, must provide for adequate safe- D guards to remedy the situation by compensating them in some form for the all-round loss they suffer for no fault of theirs.

9. It is for this reason that we had suggested to the Corporation to frame a suitable scheme of compensatory relief to the drivers. The Corporation has filed two affidavits-one dated 9th October, 1990 by E one Shri Navin Chaturvedi, Depot Manager at Delhi and the other dated 17th November, 1990 by one Shri L.N. Shah, Executive Director (Administration) who is also incharge of the present litiga tion. In paragraph 2 of the first affidavit an amusing statement has been made that "the Corporation considered the difficulties of the drivers who have been terminated from their service under s. 2(00) of p the Industrial Disputes Act" without realising that it has all along been the case of the Corporation that the services of the drivers were not terminated under Section 2(00) of the Act. This statement shows a total non-application of mind and a casual approach to the issues involved in the case. The same attitude is discernible by what is pro posed in the latter portion of the said paragraph by way of a relief G scheme for the drivers, which is as under:

"The Corporation after considering the matter sympatheti cally resolved as under:

"Shri L.N. Shah, Executive Director (Admn.) explained H

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the background of the proposal, specifically with reference to the observations made by the Hon'ble Supreme Court on last date of hearing of the case. After detailed discus sions and exploring the possibilities of the scheme of rehabilitation for their alternative employment.

Resolution No. 51/90: As a measure of rehabilitation for the drivers terminated on medical grounds, it was resol ved that RSRTC may provide margin money loan to the extent of shortfall in the borrowers' own contribution, comprising of (sic.) benefits available under Industrial Dis putes Act and inclusive of CPF, Gratuity etc. in case these employees form a Co-operative Society duly registered and willingly agree to engage such financed new bus (es) with RSRTC on contract till RSRTC loan along with interest is repaid."

In the additional affidavit of 17th November, 1990 Shri L.N. D Shah himself has stated firstly that neither the Employees State Insu rance Act (hereinafter referred to as the "ES! Act") nor the Work men's Compensation Act, 1923 (hereinafter referred to as the "WC Act"), the provisions of which we had suggested should be applied to the drivers, would "strictly speaking" cover the loss of sight in ques tion as "employment injury" as defined in Section 2 (8) of the ESI E Act. "Loss of sight inquestion is also not covered in Section 3 (2) of the WC Act". The affidavit then proceeds to state that loss suffered by the Corporation upto 1989-90 is to the extent of Rs.37 .15 crores and the loss estimated for the current year is Rs.15 crores. The Corporation on an average operates fleet of 2800 buses and runs approximately 240 lacs kilometers in a month, for which the Corporation is presently F having a huge staff of 24000 and thus the ratio of staff per bus comes to 8.35 which is approximately double the normal ratio of staff. The average operated kilometres by a bus is 276 kilometres per day for which normally 5 to 6 hours' working of the driver would be needed. The drain on account of wages is 42 per cent of the income.

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10. In other words, the Corporation has taken an unhelpful stand in the matter. The scheme with which it has come out is both unrealistic and impracticable. The Corporation has not appreciated that what we had asked them was to formulate a scheme of relief which is the legitimate due of the workmen and not a scheme on compassio nate or charitable basis. The workmen are not denizens of an Animal H Farm to be eliminated ruthlessly the moment they become useless to

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ANAND v. R.S.R.T.C. (SAWANT, J.l

635

the establishment. They have not only to live for the rest of their life but also to maintain the members of their family and other depen- dants, and to educate and bring up their children. Their liability in this respect at the advanced age at which they are thus retired stands multi- plied. They may no longer be of use to the Corporation for the job for which they were 'employed, but the need of their patronage to others intensifies with the growth in their family responsibilities.

A

B

11. Although as stated by the Corporation, the workmen are covered by the ES! Act no provision is made there for compensation of the occupational injury such as the present one. Item 4 of Part I of the Second Schedule of the ESI Act talks of "loss of sight to such an extent as to render the claimant unable to perform any work for which eye- sight is essential" and classifies such injury as permanent total disable- c ment resulting in hundred per cent loss of earning capacity. Items 31, 32 and 32A of Part II of the same Schedule refer respectively to (i) "loss of one eye, without complications, the other being normal (ii) loss of vision of one eye without complications or disfigurement of eye-ball, the other being normal (iii) partial loss of vision of one eye" and classify all the said injuries as permanent partial disablement resulting in 40, 30 and 10 per cent loss of earning capacity respectively. Item 11 in Third Schedule refers to occupational cataract due to infra- red radiations incurred in "all work involving exposure to the risk concerned" and classifies it as one of the occupational diseases.

D

It is, therefore, clear from the provisions of the ESI Act that the E

present case, viz., that of sub-normal eye-sight or loss of the required vision to work as a driver would not be covered by the provisions of that Act as an employment injury or as an occupational disease, for no provision is made there for compensation for a disability to carry on a particular job. The present workmen. cannot be said to have suffered either a permanent, total or partial disablement to carry on any job or F to have developed cataract due to infra-red radiations. The workmen are and will be able to do any work other than that of a driver with the eye-sight they posssess. Hence, a provision for a compensatory relief for such workmen has to be made separately on a different basis suit- able to the peculiar loss that they suffer on account of the pre-mature retirement necessitated by their unfitness to work as drivers.

G

12. In view of the helplessness shown by the Corporation, we are constrained to evolve a scheme which, according to us, would give relief as best as it can to the workmen such as the ones involved in the present case. While evolving the scheme and giving these directions we have kept in mind that the workmen concerned are incapacitated to H work only as drivers and are not rendered incapable of taking any

""

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636

SUPREME COURT REPORTS

[ 1990] Supp. 3 S.C.R.

A other job either in the Corporation or outside. Secondly, the workmen are at an advanced age of their life and it would be difficult for them to get a suitable alternative employment outside. Thirdly, we are also mindful of the fact that the relief made available mxler the scheme should not be such as would induce the workmen to feign disability which, in the case of disability such as the present one, viz., the development of a · B defective eye-sight, it may be easy to do. Bearing in mind all the

aforesaid factors, we direct the Corporation as follows:

(i) The Corporation shall in addition to giving each of the retired workmen his retirement benefits, offer him any other alternative job which may be available and which he is eligible to perform.

c

(ii) In case no such alternative job is available, each of the work men shall be paid along with his retirement benefits, an additional compensatory amount as follows:

(a) where the employee has put in 5 years' or less than 5 years' service, the amount of compensation shall be equivalent to 7 days' salary per year of the balance of his service;

(b) where the employee has put in more than 5 years' but less than 10 years' service, the amount of compensation shall be equi valent to 15 days' salary per year of the balance of his service;

( c) where the employee has put in more than 10 years' but less than 15 years' service, the amount of compensation shall be equi valent to 21 days' salary per year of the balance of his service;

(d) where the employee has put in more than 15 years' service but less than 20 years' service, the amount of compensation shall be equivalent to one month's salary per year of the balance of his service;

(e) where the employee has put in more than 20 years' service, the amount of compensation shall be equivalent to two months' salary per year of the balance of his service.

The salary will mean the total monthly emoluments that the

workmen was drawing on the date of his retirement.

(iii) If the alternative job is not available immeiiately but becomes available at a later date, the Corporation may offer it to the workmen provided he refunds the proportionate compensatory amount.

D

E

F

G

H

ANAND v. R.S.R.T.C. [SAWANT, J.[

637

(iv) The option to accept either of the two reliefs, if an alterna

A

tive job is offered by the Corporation, shall be that of the workmen.

13. The scheme proposed by us in paragraph 12 above disposes of Civil Appeals Nos. 1859-61of1990. Since the workmen involved in these appeals have been retired already, in case suitable jobs are avail able to be offered and the Corporation offers them and the workmen concerned accept them, they would be employed on such jobs from the date they resume their duty. They should be paid proportionate com pensation under the above scheme for the interregnum from the date of their retirement till they resume the duty. In case no such job is available then they should be paid the compensatory amount as indi cated in the scheme.

1

14. As far as Civil Appeal No. 1862 of 1990 is concerned, admit tedly the workmen was given employment as a helper from August 1985 since he developed weak eye-sight on account of an accident in the course of his employment and he was working as such helper till he was retired from service on and from April 27, 1988. There is no dispute that he was not unsuitable to work as a helper. The termina tion of his services as a helper was, therefore, clearly unjustified and . also illegal being in contravention of the provisions of Section 25F of the Act. The High Court obviously erred in treating his case on par with those of the workmen involved in Civil Appeal Nos. 1859-61 of 1990. The appellant-workman will, therefore, be entitled to his retire ment benefits as a driver as if he had retired from service as a driver from the date of his employment as a helper. He would further be entitled to be reinstated in service as a helper with all arrears of back wages as a helper. In case he opts for receiving the compensatory amount under the scheme which we have framed above, he may do so for the period beginning from the date from which his services as a helper were terminated.

15. As regards Civil Appeal No. 1863 of 1990 preferred by the Corporation, the impugned decision of the High Court is hereby set aside and the Corporation is directed to give the concerned workman the benefit of the scheme propounded by us.

The appeals are disposed of in the above terms. In the circums

tances of the case, the parties will bear their own costs.

T.N.A.

Appeals disposed of.

B

c

D

E

F

G