A driver with the Brihanmumbai Electric Supply and Transport (BEST) undertaking, who had developed slip disc after driving over a pothole and sought alternative work owing to his condition, was granted relief by the Bombay High Court recently. The court has directed BEST to give him a light duty, taking “judicial notice of traffic in Mumbai City and the working hours of drivers of BEST undertaking”.
The petitioner, Rajendra Gopinath Mandavkar, had approached the high court challenging the judgment passed in 2016 by an industrial court in Mumbai.The tribunal had dismissed the complaint filed by the petitioner, claiming unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices,1971.
Mandavkar had joined BEST as a driver in 1999. While driving a bus on June 23, 2011, he suffered a back injury when the vehicle fell in a pothole on the road. “Prima facie, while on duty, the petitioner sustained jerks and cramps in his spine,” said the court. “Having regard to the nature of duties performed by the petitioner, namely as driver, as also having regard to the fact that he is suffering slip disc, in my opinion, the tribunal was prima facie not justified in dismissing the complaint.
A judicial notice is required to be taken of traffic in Mumbai City as also working hours of drivers of BEST undertaking. The drivers are required to work for four hours and thereafter, there is one-and-a-half-hour break and again four hours of duty. In the light of reports of the JJ Hospital and BEST Disability Board by way of interim order, the petitioner should be allotted either an alternative job or light duty, which does not involve driving,” said Justice Rajesh Ketkar.
A month after the accident, Mandavkar was shifted to J J Group of Hospitals and diagnosed with slip disc. He was advised light duty for six months. Thereafter, he was advised decompressive surgery. The report said he was “unfit for the job as a driver presently”. He went to the industrial court in August 2012, alleging that BEST stopped giving him light duty. An interim relief of providing him work as a driver on AC bus was given but his application was dismissed later.
Arguing against his petition, the lawyer said the petitioner had been advised to undergo decompressive surgery. He avoided the surgery on the grounds that 100 per cent assurance of recovery was not given by doctors. Moreover, in the case, no material has been brought on record to indicate that he was suffering from disability of not less than 40 per cent to be entitled for such relief.
The counsel for the petitioner pointed to the BEST Disability Board Report of 2017,which states that Mandavkar is unfit for the job as a driver and findings can only be given after surgery. The counsel further pointed out that the tribunal dismissed the complaint mainly on the grounds that petitioner was ready to undergo surgery only upon giving 100 per cent assurance by the doctor adding that the tribunal committed serious error in dismissing the complaint.
“Even if for the sake of argument, I accept the contention that the petitioner ought to have undergone decompressive surgery, still, the moot question is whether post-surgery, petitioner could have performed duties as a driver,” the court said.