Point of Law - Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties.

JUDGMENT :

BHARGAV D. KARIA, J.

1. Heard learned advocate Mr. Naman Kinkhabwala for the petitioner and learned advocate Mr. Dipak Dave for the respondent.

2. Rule returnable forthwith. Learned advocate Mr. Dipak Dave waives service of notice for rule for the respondent.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“(A) This Hon’ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or an appropriate writ, order or direction to quash and set aside the impugned order at Annexure-A dated 21.12.2020 passed by the respondent.

(B) This Hon’ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or an appropriate writ, order or direction and be pleased to direct the respondent authorities to grant an alternative employment to the petitioner in the establishment of respondent.

(C) Pending the admission, hearing and final disposal of the petition, this Hon’ble Court may be pleased to stay of the execution, implementation and operation of the impugned order at Annexure-A to the petition dated 04.05.2019 passed by respondent and further be pleased to temporary provide an alternative employment to the petitioner under respondent authority, pending, admission, hearing and final disposal of the present petition.

(D) Any other and further relief of reliefs to which this Hon’ble Court deemed fit, in the interest of justice; may kindly be granted.”

4. The brief facts of the case are as under:

4.1 The petitioner was appointed as an Apprentice under the provisions of the Apprentice Act, 1961 (for short “the Act of 1961”) on 8th September, 2014 as Lineman for the period of two years by the respondent-Paschim Gujarat Vij Company Limited.

4.2 The petitioner has passed SSC & HSC examination and has also completed the course of trade test in the trade of wire-man and has also obtained vocational training from the Industrial Training Institute, Rajkot. The petitioner has also successfully completed the course of Apprenticeship Training under the provisions of the Act of 1961 and has also passed the trade test in the Trade of Lineman held in the month of April, 2017 and accordingly, the petitioner was issued Provisional National Apprenticeship Certificate for the training period from 12th September, 2014 to 11th September, 2016.

4.3 When the petitioner was serving as apprentice with the respondent, the petitioner met with an accident on 24th May, 2015 while working as wire-man and lost his one hand.

4.4 The respondent Company paid compensation of Rs. 8,24,258/- before the Commissioner under the Workmen Compensation Act to the petitioner.

4.5 Thereafter, the petitioner was called for giving physical test on 12th January, 2018 and again on 9th September, 2019 for pole climbing, however, as the petitioner had suffered with an accident while performing his duty during his training period and had become 45% disabled, he was not able to climb the pole.

4.6 It is the case of the petitioner that he made several oral requests along with written request dated 23rd May, 2018 for granting him an alternative employment, but the respondent did not respond to such requests.

4.7 The petitioner, thereafter, made a detailed representation on 17th September, 2018 before the General Manager (H.R.) of the respondent Company requesting that he being physically handicapped, be given any other alternative appointment.

4.8 The petitioner once again made a representation before the Court of Commissioner (For Disabled Persons) under the provisions of the Physically Handicapped (Rights of Persons with Disabilities) Act, 2016.

4.9 The Commissioner for the Physically Disabled Persons considered the provisions of the Recruitment Rules prevailing in the respondent Company as well as taking into consideration the provisions provided under Section 3(5) of the Rights of Persons with Disabilities Act, 2016 directed the respondent to consider the cas