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Friday, August 14, 2020

Reinstate bus drivers diagnosed with color blindness and pay them back wages: HC to MSRTC

The Court said that if the employer refuses to give alternate jobs, it would be against their fundamental rights and directed the MSRTC to reinstate petitioner drivers

Written by Omkar Gokhale | Mumbai | Published: July 18, 2020 12:01:41 am
The Bombay High Court

Observing that ‘the financial, emotional and mental injuries suffered by the bus drivers cannot simply be measured in terms of money,’ the Bombay High Court on Thursday pulled up the Maharashtra State Road Transport Corporation (MSRTC) for not giving alternate jobs to 14 drivers, whose services were discontinued on the ground that they had been diagnosed with colour blindness.

The Court said that if the employer refuses to give alternate jobs, it would be against their fundamental rights and directed the MSRTC to reinstate petitioner drivers, who were terminated last year and not paid salaries for over two years since April, 2018.

A division bench of Justices S J Kathawalla and R I Chagla passed a judgement through video conference on a batch of writ pleas filed by MSRTC drivers through advocate K N Shermale challenging termination and seeking back wages.

Petitioners were asked to undergo medical examination at J J Hospital in Mumbai in 2018 and were diagnosed with colour vision defect and report was given stating that they were unfit to perform services as drivers.

The petitioners said that they wrote letters to the MSRTC requesting alternative employment and said that they had no other source of income barring their employment with the Corporation.

However, the Corporation rejected their requests referring to its 2016 circular, stating that once a driver has been declared unfit by reason of colour blindness, such driver is not entitled to an alternative job with the MSRTC. Therefore, the petitioners’ services were terminated, said advocate Nitesh Bhutkar for MSRTC. The petitioners submitted that the circular was unconstitutional and sought it to be set aside.

The Corporation, thereafter, in January, this year issued another circular superseding 2016 decision and said the employee detected with colour-blindness after medical examination, and not eligible to continue to work as a driver, would be accommodated in another position such as worker, peon, guesthouse attendant etc.

After hearing submissions, a bench led by Justice Kathawalla observed that financial, emotional and mental injuries suffered by the bus drivers cannot simply be measured in terms of money.

Judges observed, “Not only have the petitioners suffered economically but so have their respective families, who have been deprived of their source of sustenance. This would include deprivation of nutritious food, education as also general advancement in life. These sufferings will continue till the date MSRTC provides the Petitioners with alternative positions.”

Further, the Court said that petitioners are entitled to claim back wages in their entirety and denial would be ‘wholly inequitable and unjust’.

The Court directed MSRTC to reinstate petitioners with alternate jobs having the same pay scale and benefits as their earlier position within four weeks and asked it to credit the back wages within a period of six weeks from the date of order.

Moreover, the bench quashed and set aside a clause in a circular, which prescribed a period between diagnosis of disability and decision on fitness of employee or his alternative job as leave without pay and carried earned leave of the earlier job to new job.

Disposing of the plea, the Court said that it anticipated that various other persons diagnosed with disabilities may suffer in future and proposed to MSRTC that medical examination and disability certification shall be completed within four weeks and thereafter the employee should be provided with alternate job in another four weeks.

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