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PETITIONER: ANAND BIHARI AND ORS.

       Vs.

RESPONDENT: RAJASTHAN STATE ROAD TRANSPORT CORPORATION,JAIPUR THROUGH IT

DATE OF JUDGMENT20/12/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. AGRAWAL, S.C. (J)

CITATION:  1991 AIR 1003            1990 SCR  Supl. (3) 622  1991 SCC  (1) 731        JT 1990 (4)   794  1990 SCALE  (2)1286

ACT:     Industrial  Disputes Act, 1947: Sections 2(00)  &  25-F. Retrenchment--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  termi- nation  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  bene- fits, 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)--Expression  "continued ill-health"--Meaning  and  Scope of--Includes  cases of drivers who have developed  defective or sub-normal vision 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 11.     State  Road Transport  Corporation--Drivers--Development of  sub-normal eye-sight or loss of required  vision  during the course of employment--Held not an "employment injury" or "Occupational disease". Workmen’s Compensation Act, 1923: Section 3(2).

HEADNOTE:     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 buses. The respondent Corporation issued notices to them and after considering their explanation ter- 623 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  contend- ing  that  their  termination was illegal  because  (i)  the termination  amounted 10 retrenchment within the meaning  of section  2(00) of the Industrial Disputes Act, 1947  and  it

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was  without  compliance with the  mandatory  provisions  of Section  25-F  of the Act; (ii) pursuant  to  the  agreement between the Workers’ Union and the Corporation, the respond- ent-Corporation was bound to provide the alternative jobs to the  unfit drivers. The High Court dismissed the Writ  Peti- tions. Hence these appeals by the Workmen-drivers.     In  the  connected  appeal (C.A. No.  1862)  the  driver developed  weak eye-sight on account of an accident  in  the course  of  his  employment. He was given  employment  as  a helper but subsequently his services as a helper were termi- nated. He filed a Writ Petition in the High Court  challeng- ing his termination which was dismissed. Hence appeal by the workmen-driver.     In the other connected appeal (C.A. No. 1863) the  serv- ices  of a driver were terminated on the ground that he  had lost  vision of his right eye. He fried a Writ  Petition  in the High Court challenging the order of termination contend- ing 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 his  services  were terminated. The High Court  quashed  his termination order and directed the Corporation to absorb him as a helper. Against this order of the High Court the Corpo- ration flied an appeal before this Court.     In  appeals to this Court it was contended on behalf  of the  appellants;  (i) since the expression  "continued  iii- health" as used in clause (c) of section 2(00) of the Indus- trial Disputes Act, 1947 does not cover 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  the Corporation  and  the Union to provide alternative  jobs  to unfit drivers. Disposing the appeals, this Court, HELD: 1. The expression "ill-health" used in sub-clause  (c) of 624 Section 2(00) 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  at- tracted  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  disor- der  in health which incapacitates an individual  from  dis- charging  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 consumers  of  the concerned products and  services.  If  on account of a workman’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 all-health for the purpose of  the sub-clause,  otherwise, the purpose of production for  which

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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  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  re- trenchment  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. [63 ID-H, 632A-D]     Workmen of the Bangalore Woolien, Cotton and Silk  Mills Ltd. v. Its Management, [1962] 1 L.L.J. 213, referred to.     New  Coilings  Concise  English  Dictionary;   Webster’s Comprehensive  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 625 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  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]     3. There is no dispute that the drivers developed a weak or  subnormal  eye-sight or lost their  required  vision  on account  of their occupation as drivers in the  Corporation. They  have  to drive the heavy motor vehicles  in  sun-rain, dust  and dark hours of night. In the process they  are  ex- posed’ 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 toil of the  vision. The very 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 Corpo- ration 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  discrimi- natory  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 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

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par  with the other employees. The injustice,  inequity  and discrimination is writ large in such cases and is indefensi- ble. [632F-H, 633A-D]     4. The workmen are not denizens of an Animal Farm to  be eliminated ruthlessly the moment they become useless to  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  dependants, and to educate and  bring  up  their children. Their liability in this respect at the 626 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. [634H, 635A-B]     5.  No  special provision is made  and  no  compensatory relief is provided in the service condition for the  drivers for pre-mature incapacitation. The service conditions of the workmen such as the drivers in the present case,  therefore, must provide for adequate safeguards to remedy the situation by  compensating  them is some form for the  all-round  loss they suffer for no fault of theirs. [633C-D]     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 legitimate due of the workmen and not  a scheme  on  compassionate or charitable 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  diffi- cult  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 development 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 alterna- tive  job  is available each of the workman  shall  be  paid along with his retirement benefits an additional compensato- ry amount proportionate to the length of service rendered by the employees and the balance of their service. [634G, 635H, 636A-G]     6.  The  termination of services of helper  (in  C.A.No. 1862)  was unjustified and also illegal being in  contraven- tion of the provisions of Section 25-F of the Act. The  High Court erred in treating his case on 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 compen- satory amount under the scheme framed by this Court, he  may do so for the period beginning from the date from which  his services as a helper were terminated. [637D-F] 627     7.  The decision of the High Court impugned in C.A.  No. 1863 is set aside and the respondent-Corporation is directed to  give  the concerned workman the benefit  of  the  scheme propounded.

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JUDGMENT: