JUDGMENT
D.G. Deshpande, J.
1. Appellant Municipal Corporation of Greater Bombay has filed this appeal against the order of the learned Single Judge dismissing the writ petition challenging the order of the Industrial Court which had rejected the appeal filed by the BEST Undertaking against the order of the 5th Labour Court, Bombay, which had declared the order of termination of respondent No. 1 void ab initio and illegal.
2. Respondent No. 1 was working as a driver with the appellant-Municipal Corporation of Greater Bombay since 1977. In 1984, he was subjected to medical examination before the Medical Board and was found unfit on account of defective eye-sight. The appellant-Municipal Corporation of Greater Bombay, therefore, terminated his services vide letter. Exhibit ‘B’ to the petition, dated September 6, 1994. In the said letter. Exhibit ‘B’, it was stated
that the General Manager of the Undertaking was satisfied on the basis of the report of the Senior Medical Officer that Respondent No. 1 was unfit by reason, of ill-health of discharge his duties permanently. Counsel for the respondents, during the arguments, admitted that the letter. Exhibit ‘B’, was accompanied by copy of Exhibit ‘A’ which was the certificate issued by the Medical Officer of the undertaking in which Respondent No. 1 was found to be suffering from defective eye-sight. 1
3. On receiving this letter, Exhibit ‘B’, by which services of Respondent No. 1 were terminated, Respondent No. 1 gave a reply at Exhibit ‘C’ and did not challenge at all either the contents of the medical certificate or the findings of the Senior Medical Officer regarding the defective eye-sight of Respondent No. 1 and also did not challenge the decision of the General Manager about the incapacity of Respondent No. 1 to serve the BEST Undertaking as a driver. On the contrary, Respondent No. 1 meekly submitted,.to the termination notice and only prayed that he be given an alternative job.
4 The prayer of Respondent No. 1 to give him
an alternative job was turned down by the BEST
Undertaking by their letter, Exhibit ‘D’. Thereafter
Respondent No. 1 challenged his termination before
the Labour Court, which upheld the objection of
Respondent No. 1 and set aside the order of
termination on the ground that it was illegal and
void ab initio. The appellant Municipal Corporation
of Greater Bombay preferred an appeal to the
Industrial Court, but the same was rejected and
the writ petition of the Municipal Corporation of
Greater Bombay against the order of the Industrial
Court was also dismissed.
5 The learned counsel for the Respondent No. 1 repeatedly stressed during arguments that the appellant did not discharge its burden of proving the medical certificate before the Labour Court and therefore, the finding of the Labour Court which was subsequently confirmed by the Industrial Court and the learned Single Judge of this Court could not be disturbed in appeal.
6. We are unable to agree with this submission of the counsel for the Respondent No. 1 and we cannot also uphold the findings either of the Labour Court or of the industrial Court or of the Single Judge in this regard.
7. There was no question of the employer Municipal Corporation of Greater Bombay proving the medical certificate because by his letter, Exhibit C and by his conduct expressed through the said letter in asking an alternative job, Respondent No. 1 has clearly admitted not only the truthfulness, and veracity of the medical certificate and the medical examination and its result but has also accepted his termination from his post as a driver. (Respondent No. 1 also claimed alternative Job immediately in the said letter. Exhibit ‘C’).
8. From this conduct of Respondent No. 1 revealed and expressed in letter, Exhibit C there was a clear admission on his part regarding the medical certificate and its contents and, therefore, two Courts below and with respect, we may say, even the learned Single Judge of this Court, erred in wrongly placing the burden of proof on the Corporation regarding the contents of the medical certificate.
9. This wrong placing of burden of proof has resulted in finding which cannot be sustained in this appeal and, therefore, we have no alternative but to allow this appeal.
10. The fact that Respondent No. 1 had a defective eye-sight is strengthened by the certificate issued by Mr. Ashok Shroff who examined Respondent No. 1 as per the directions of the Division Bench of this Court The certificate is dated March 11, 1995 wherein Dr. Shroff has clearly stated that Respondent No. 1 will have difficulty in driving in bright light during day time and more difficulty while driving during night time. Thereafter Dr. Shroff performed surgery for removal of cataract and implanting of lens in both the eyes of Respondent No. I. Dr. Shroff after the operation certified Respondent No. 1 to be fit to resume duties. All these facts clearly show that the initial examination of Respondent No. 1 by the Senior Medical Officer of BEST Undertaking and the decision of the General Manager were correct and justified and consequently the findings of all the Courts below were wrong.
11. It is pertinent to note that after Respondent No. I was subjected to operation of his eye by Dr. Shroff and after he was certified to be fit, this Court gave direction to the appellant to take him back as a driver and admittedly, this direction was complied. However, it is brought to our notice by
a detailed report regarding the work of Respondent No. 1 after he was taken back as a driver. As per this’ report, Respondent No. 1 has committed 10 accidents while working as a driver of the Bus from October 13, 1995 to August 29, 1996. All these accidents are collusions with unknown vehicle or some other vehicle and Respondent No. 1 was driving the vehicle which caused these accidents. From all these circumstances, it is clear that Respondent No. 1 has still defective eye-sight and hence Respondent No. 1 cannot be continued as a driver and, therefore, when the matter was heard yesterday, we directed learned counsel for the appellant that he should be immediately removed as a driver and he should be given some Other job.
12. During arguments today, the learned counsel for the Respondent No. 1 relied upon decision of the Supreme Court in the case of Anand Bihari and Ors.. v. Rajasthan State Road Transport Corporation, Jaipur and Anr. and pointed out a scheme which was laid down by the Supreme Court in the case of drivers who were required to be retrenched on account of defect in eye-sight which they had developed after putting in long service with. Corporation. The counsel for Respondent No. 1 contended that on the basis of this scheme compensation should be given to Respondent No. 1. This was strongly opposed by the counsel for the appellant on the ground that firstly, Respondent No. 1 has worked only for 7 years as
a driver and secondly, because of the award of the Industrial Court, he is not entitled for compensation unless he has put in 11 years of
service.
13. We have considered the submissions of learned counsel for the appellant and the respondents carefully and seriously. However we are of the view that considering the facts and circumstances of the case, ends of justice will be met if Respondent No. 1 who has completed only 7 years of service from 1977 to 1984 as a driver is paid by way of compensation a sum equivalent to 15 days salary per year for the period during which he was out of employment from 1984 to 1995, We, however, make it clear that this is allowed by us only on humanitarian ground and this will not be a precedent either for the Corporation or for its employees in future.
14. With this we allow the appeal and set aside the orders of the three Courts below including the learned Single Judge. However, as per the above directions Respondent No. 1 will be paid Compensation due to him within a period of one month. For the remaining period of his services, Respondent No. 1 will not be allowed to work as a driver and will be given some other job and he should not be retrenched for the balance period of his services on this ground.
15. Appeal accordingly disposed of. However, there shall be no order as to costs.