14 Feb 2023 7:16 AM GMT
The Karnataka High Court has said that in the event an employee suffers from disability of 40% or more while performing duty, as a matter of right such an employee would be entitled for benefit of downgrading of cadre in order to continue service without any adverse impact on the pay and other benefits.A single judge bench of Justice Suraj Govindaraj gave this clarification while allowing...
The Karnataka High Court has said that in the event an employee suffers from disability of 40% or more while performing duty, as a matter of right such an employee would be entitled for benefit of downgrading of cadre in order to continue service without any adverse impact on the pay and other benefits.
A single judge bench of Justice Suraj Govindaraj gave this clarification while allowing a petition filed by a one M.B.Jayadevaiah and quashed the general order issued by Bengaluru Metropolitan Transport Corporation (BMTC) and directed it to restore pay of the petitioner applicable to the post of driver which the petitioner was drawing before his cadre was downgraded in the year 2002 and pay him arrears of salary and extend all other consequential benefits.
The petitioner was appointed as a driver in the corporation in the year 1984. While discharging his duties on 04.07.1999, the vehicle met with an accident wherein the petitioner sustained severe injuries.
In view of the petitioner not being in a position to discharge his duties as a driver, after conducting the necessary scrutiny and obtaining the certificates and opinion from the Medical Board, the competent authority by way its order dated 04.09.2002, directed the cadre of the petitioner be changed from driver to that of the office attender and assigned duties in a depot.
The said order was passed in terms of the Circular No.681 dated 09.09.1987 and in terms of Regulation 20 (3) of the KSRTC (Cadre and Recruitment) Regulations, 1982, the petitioner’s pay was ordered to be refixed in the pay scale applicable to the office attender and the difference if any in the basic pay was directed to be treated as personal pay. This action of the corporation came to be challenged before the court.
The corporation defended its action stating that on downgrading of the cadre, the pay of the workman would have to be fixed as per the downgraded post and therefore, no fault can be found with the Road Transport Corporation.
Further, the pay having been fixed in the year 2002 and the representation having been made in the year 2013, the petitioner could not have challenged after a period of nearly 11 years. Moreover, Section 47 of the Disabilities Act would require an application of Section 2(i) read with Section 2(t) of the Disabilities Act and it is only the disabilities which have been enumerated in Section 2(i), which can be taken into consideration for application of Section 47 of the Disabilities Act subject to however the percentage of disability as has been fixed under Section 2(t) of the Disabilities Act viz., 40%.
Referring to Section 47 of the Act the bench noted that it deals with non-discrimination in government employment and further mandates that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service. The first proviso makes it clear that if an employee were to acquire disability and is not suitable for the post that he was holding, he could be shifted to some other post with the same pay scale and service benefits. The second proviso makes it clear that if it is not possible to adjust the employee against any post, a supernumerary post would be created till he attains the age of superannuation or a suitable post is available, whichever is earlier.
It then said “Section 47 of the Disabilities Act categorically mandates that merely because a person suffers from disability, he/she shall not be reduced in rank but can only be shifted to another post subject to the pay-scale and the service benefit that he/she was entitled to as on that date being protected. Section 47, does not make any reference to Section 2 (t) or to a person with disability requiring the ascertainment of percentage of disability to be 40%.”
Further, rejecting the submission of the Corporation that in terms of the Circular No.681 issued in 1987, it was entitled to downgrade the cadre as also to fix the pay-scale as per downgraded cadre, the bench held “Once the Act had come into force, the Road Transport Corporation could not have relied upon the Circular for that purpose.”
It added “It was but required for the Road Transport Corporation to make Section 47 of the Act applicable and once an employee’s cadre is downgraded and/or he is shifted to some other post, the pay-scale and service benefits as mandated under first proviso to Section 47 be protected.”
Finally the court rejected the contention of the corporation that the downgrading to the attendant post was sought for by the petitioner himself and done on humanitarian grounds.
The court said “The powers under regulation 20(3) of the Regulation can only be exercised in the event of the requirement under Section 2(t) of the Disabilities Act being fulfilled that is to say that the disability has to be 40% or more.”
It said “In the event of the employee suffering from disability of 40% or more as a matter of right such an employee would be entitled for the benefit of Section 47 and for downgrading of the cadre without any adverse impact on the pay and the benefits.”
Further it said “In the event of the disability being less than 40% then Section 2 (t) of the Disabilities Act not being applicable, such a person not being a person with disability, Regulation 20 (3) cannot be brought into force to downgrade the cadre of such an employee.”
The court also suggested that whenever a request is made under Regulation 20(3), necessary instructions would have to be issued by the Road Transport Corporation to the Medical Board as also to the concerned employee that the certification of disability has to be obtained as on the date on which the request for downgrading of the cadre is made.
It said “If no such information is conveyed to the Medical Board or to the employee and the Road Transport Corporation were to act on it, then subsequent thereto, the Road Transport Corporation cannot be heard to contend that the certificate of the Medical Board has to be on the date on which the application for downgrading has to be made.”
Accordingly it allowed the petition.
Case Title: M.B.Jayadevaiah And The Managing Director, BMTC Central Offices & ANR.
Case No: WRIT PETITION NO. 31943 OF 2014
Citation: 2023 LiveLaw (Kar) 58
Date of Order: 17-01-2023
Appearance: V S Naik, Advocate for petitioner.
H R Renuka, Advocate for Respondents
Click Here To Read/Download Order