Back
IN THE HIGH COURT OF BOMBAY
S.J. Kathawalla, R.I. Chagla, JJ.
Vikas - Appellant
Versus
State Of Maharashtra - Respondent
Writ Petition No. 9762 of 2019, 9763 of 2019, 9764 of 2019, 9765 of 2019, 9767 of 2019, 10192 of 2019, 23126 of 2019, 23128 of 2019, 23131 of 2019, 23132 of 2019, 23225 of 2019, 26405 of 2019, 30670 of 2019, 703 of 2020
Decided On : 16-07-2020
The Court held that the Impugned Circular issued by MSRTC, which provided for the termination of services of drivers diagnosed with color blindness, was ultra vires the Rights of Persons with Disabilities Act, 2016 (2016 Act) and violative of the Petitioners' rights under the Constitution of India. The Court directed MSRTC to provide alternative jobs to the Petitioners with the same pay scale and service benefits as their earlier positions within 4 weeks and to pay back wages to the Petitioners from the date their services were discontinued until the date they were provided with alternative positions within 6 weeks. The Court also struck down Clause 11 of the Impugned Circular, which treated the intervening period between the medical examination and a decision thereon as leave without pay, as being ultra vires the 2016 Act and violative of Article 14 of the Constitution of India.
Fact of the Case:
The Petitioners, who were drivers employed by MSRTC, were diagnosed with color blindness and their services were discontinued. MSRTC issued an Impugned Circular providing for the termination of services of drivers diagnosed with color blindness. The Petitioners challenged the Impugned Circular, arguing that it was ultra vires the 2016 Act and violative of their rights under the Constitution of India.
Finding of the Court:
The Court held that the Impugned Circular was ultra vires the 2016 Act and violative of the Petitioners' rights under the Constitution of India. The Court directed MSRTC to provide alternative jobs to the Petitioners with the same pay scale and service benefits as their earlier positions within 4 weeks and to pay back wages to the Petitioners from the date their services were discontinued until the date they were provided with alternative positions within 6 weeks. The Court also struck down Clause 11 of the Impugned Circular, which treated the intervening period between the medical examination and a decision thereon as leave without pay, as being ultra vires the 2016 Act and violative of Article 14 of the Constitution of India.
Issues: Whether the Impugned Circular issued by MSRTC, which provided for the termination of services of drivers diagnosed with color blindness, was ultra vires the 2016 Act and violative of the Petitioners' rights under the Constitution of India.
Ratio Decidendi: The Court held that the Impugned Circular was ultra vires the 2016 Act and violative of the Petitioners' rights under the Constitution of India. The Court relied on the following principles in reaching its decision: * The 2016 Act is a beneficial legislation that prioritizes and recognizes the benefits provided for under the Act. * The interpretation and construction of any provisions of the 2016 Act would therefore have to be in aid of and in furtherance of this legislative intent. * A person diagnosed with a disability cannot be subjected to discrimination, if such disability was acquired during the course of employment. * If a person suffers from disability acquired during the course of employment, the Government establishment is required to provide reasonable accommodation and also an appropriate barrier free and conducive environment to the employee. * The person diagnosed with a disability shall not be denied any promotion merely on the ground of such disability, nor shall the services of such a person be dispensed with, or he be reduced in rank on account of such disability. * On acquiring such disability, if the person is considered to be unsuitable for the job he was employed for, such person is to be employed/absorbed in any other post and if no such post is available, he is to be kept on supernumerary post, until a suitable post is made available or until he attains the age of superannuation, whichever is earlier.
Final Decision: The Court held that the Impugned Circular was ultra vires the 2016 Act and violative of the Petitioners' rights under the Constitution of India. The Court directed MSRTC to provide alternative jobs to the Petitioners with the same pay scale and service benefits as their earlier positions within 4 weeks and to pay back wages to the Petitioners from the date their services were discontinued until the date they were provided with alternative positions within 6 weeks. The Court also struck down Clause 11 of the Impugned Circular, which treated the intervening period between the medical examination and a decision thereon as leave without pay, as being ultra vires the 2016 Act and violative of Article 14 of the Constitution of India.
JUDGMENT
S.J. Kathawalla, J. - These 14 Writ Petitions have been filed by 14 drivers of the Maharashtra State Road Transport Corporation ("MSRTC") whose services were discontinued by MSRTC on the ground that they had been diagnosed with 'colour blindness'. It is the Petitioners' grievance that subsequent to their discontinuance, they have neither been provided with alternative jobs nor have they received any salaries for the last more than 02 years, i.e. since 26th April, 2018.
2. The facts leading to the filing of the Petitions, are as under :
2.1. The Petitioners were appointed as drivers with MSRTC.
2.2. On 21st December, 2017, Respondent No.3 issued a letter to Bapaye Hospital directing a routine check-up of the Petitioners.
2.3. Pursuant to the aforesaid check-up, Bapaye Hospital issued reports recording that the Petitioners are diagnosed with Colour Vision Defect.
2.4. Following the above Reports issued by Bapaye Hospital, Respondent No.4 issued letters in 2018 to the Petitioners directing them to appear before J.J. Hospital for a further eye examination.
2.5. Thereafter, tests were conducted at J.J. Hospital and reports came to be issued.
2.6. In the Reports issued by J.J. Hospital, the Petitioners were once again stated to be diagnosed with Colour Vision Defect along with a further statement that the Petitioners' are unfit to perform services with MSRTC as drivers.
2.7. All of the above led to various letters being issued by the Respondents to the Petitioners terminating their services as a result of the Petitioners having been diagnosed with colour blindness.
2.8. Following their termination, various letters were addressed by the Petitioners to the Respondents requesting that they be provided with alternative employment within MSRTC. The Petitioners pleaded that they have carried out their services until date with an unblemished record and that their families depend upon the Petitioners for their livelihood. The Petitioners further recorded that they have no other source of income barring their employment by MSRTC.
2.9. The aforesaid requests for alternative service / employment came to be rejected by MSRTC, which placed reliance upon a Circular dated 29th July, 2016 issued by MSRTC ("2016 Impugned Circular"). Under the 2016 Impugned Circular, once a driver has been declared unfit by reason of colour blindness, such driver is not entitled to an alternative service or job with MSRTC.
2.10. The 2016 Impugned Circular was therefore assailed by the Petitioners in the Writ Petitions. It was the Petitioners' case that the 2016 Impugned Circular was unconstitutional and violated the Petitioners' rights under the Constitution of India, whilst also being ultra vires the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("1995 Act") and the Rights of Persons with Disabilities Act, 2016 ("2016 Act").
2.11. During the pendency of these Writ Petitions, recognizing the defect in the 2016 Impugned Circular, MSRTC, by an Office Order dated 7th October, 2019, constituted a Committee to submit a report and prescribe guidelines for compliance with the provisions of Section 47 of the 1995 Act.
2.12. During the pendency of the Writ Petitions, on 25th November, 2019, whilst noting that MSRTC had taken sufficient time in formulating its new guidelines, this Court passed the following Order :
"1. The above 13 Writ Petitions are filed by the drivers of the Maharashtra State Road Transport Corporation ( for short "MSRTC") whose services have been discontinued by the MSRTC on the ground that they are suffering from colour blindness and are neither given any alternate jobs nor any payment towards salary since 26th April, 2018. It appears that MSRTC is taking its own time in forming guidelines with regard to offering alternate jobs to these drivers. In view thereof, these employee's have no income since 26th April,2018 because of which they are unable to take care of themselves as well as the me
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
