THE HONOURABLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.35365 of 2014 Dated: 20.11.2014 Between:
I.P.Kumar, S/o.Pratap Reddy, Sircilla, Karimnagar District … Petitioners And Andhra Pradesh State Road Transport Corporation, Rep.by its Managing Director, Musheerabad, Hyderabad and two others … Respondents THE HONOURABLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.35365 of 2014 ORDER:
Heard the learned counsel appearing for the petitioner and the learned standing counsel for respondents 1 to 3.
This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus, declaring the action of the respondents in not paying the salaries to the petitioner from 27.07.2011 to 09.10.2012 as illegal, arbitrary and contrary to the APSRTC Service Regulations and the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) (hereinafter referred to as “the Act”).
The brief facts of the case necessary for considering the writ petition may be stated as follows:
The petitioner was a driver in the respondent Corporation. The petitioner suffered from defective vision, he was admitted in the hospital and the Doctors who examined him declared that he was unfit to the post of driver vide proceeding dated 27.07.2011. Thereafter, the respondents who were under obligation to provide alternative employment to the petitioner as per the provisions of the Act failed to provide him alternative employment kept his claim pending in spite of number of representations and finally the respondents appointed him as Shramik vide proceedings dated 03.10.2012, but failed to pay salary from the date of medical unfit to the date of providing alternative employment, i.e., from 27.07.2011 to 09.10.2012.
The proviso to Sec.47 of the Act lays down that if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. If it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Thus, according to the aforesaid proviso, the respondent corporation has to provide alternative employment to the petitioner, and shall not reduce his rank as he acquired disability during his service.
The respondents filed counter contending inter alia that the petitioner was provided with alternative employment as Shramik vide orders dated 03.10.2012. According to the respondents, permanent employees of the corporation are entitled for different kinds of leaves as per the Leave Regulations of APSRTC. As per the said regulations, Class III and above employees for each completed year of service are entitled for 30 days of Earned Leave, 12 days of half Pay sick leave and 6 days of half Pay Leave for private affairs. In addition, the employee can also avail hospital leave for a maximum period of 24 months for the injuries sustained by him on duty due to reasons beyond their control. According to the respondents, for payment of salary from 27.07.2011 to 09.10.2012, the petitioner was not having any leave balance to his credit and therefore, the above said period was treated as leave without pay and he is not entitled for the salary as claimed in the present writ petition.
Identical issue involved in the present writ petition arose for consideration in W.P.No.22269/2012 and the learned single Judge of this Court allowed the said writ petition holding that denying the salary of the petitioner therein and attendant benefits for the period that he was kept out of service and adjusting his leave in this regard cannot be countenanced. The petitioner therein shall therefore be treated as ‘on duty’ for the period mentioned therein for all purposes and it was held that he shall be paid full salary and attendant benefits for the said period. The leave of the petitioner therein which was adjusted by the Corporation was directed to be credited to his leave account. Aggrieved by the same, the Corporation moved appeal in W.A.No.739/2013 and the same was dismissed confirming the order of the learned single Judge.
In view of the above, the contention of the respondents that the petitioner was not having any leave to his credit and therefore, he was not paid salary cannot be accepted. The period during which the petitioner kept out of service due to his disability has to be treated as the period ‘on duty’. Therefore, the petitioner is entitled for the relief prayed for in the present writ petition.
The Writ Petition is accordingly allowed. The respondents are directed to pay salary to the petitioner for the period from 27.07.2011 to 09.10.2012 within a period of 6 (six) weeks from the date of receipt of a copy of this order. In the circumstances, there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R. KANTHA RAO, J.
20th November 2014,
Rns