ORDER
N.K. Sodhi, J.
1. This order will dispose of two writ petitions 5693 and 5707 of 1993 as common questions of law and fact arise in them and they were ordered to be heard together.
C.W.P. No. 5693 of 1993.
2. Kaka Singh-respondent (for short, the workman) was appointed a driver with Haryana Roadways on September 27, 1968. In April, 1988 he had some problem with his eyes and got herself medically examined from the General Hospital, Chandigarh and was advised complete rest for one month. He applied for leave for getting his eyes treated. The Principal Medical Officer who examined the workman on 7.5.1988 opined that his eye-sight was weak though the condition of his eyes was likely to improve with passage of time but he was not found fit for driving a vehicle. On receipt of this report, the General Manager, Haryana Roadways, Chandigarh as per his order dated May 27, 1988 retired him from government service with effect from May 31, 1988 under Rule 5.18 of the Punjab Civil Services Rules, Volume II (here-in-after called the Rules) as applicable to the State of Haryana. The workman raised an industrial dispute regarding his termination by way of retirement and the same was referred for adjudication to the presiding Officer, Labour Court, Chandigarh. The facts mentioned here-in-above were not disputed before the Labour Court which found that the order of termination was not valid in as much as the competent authority did not consider the case of the workman for alternative employment in terms of rule 5.12 of the rules read with the government instructions dated 27.4.1981. As per those instructions the workman was either to be adjusted in the department against some other job and if that was not possible his name was to be sent to the General Administrative Branch for adjustment in some other department. The order of termination was, therefore, found to be illegal entitling the workman to the benefit of continuity of service with all consequential benefits and full back wages. It is this award of the Labour Court that has been challenged in the present petition filed by the State of Haryana under Article 226 of the Constitution.
3. I have heard counsel for the parties at length. It could not be seriously disputed by the learned State counsel that the claim of the workman for alternative employment in terms of rule 5.12 of the Rules was never considered by the competent authority. As a matter of fact, Gian Singh, the dealing clerk who appeared before the Labour Court as MW1 on behalf of the department, admitted in his cross-examination that the department never tried to adjust the workman against any other post nor was any effort made to provide him with a job involving lighter duties. He further admitted that the workman was retired from service because he was not found fit to drive a vehicle as per medical report received from the General Hospital, Chandigarh. This being the factual position the order of retirement can not, therefore, be sustained in view of the provisions of rule 5.12 of the Rules whereunder the competent authority ought to have considered the case of the workman for alternative employment including employment on a lower pay so that the expenses of pensioning could be avoiced. This not having been done, the Labour Court was justified in setting aside the order of termination.
C.W.P.N0. 5707 of 1993.
4. Kartar Singh-respondent was also employed as a driver with Haryana Roadways and he too being delcared medically unfit for driving a vehicle on account of weak eye-sight was given an alternative job of yard-master in the year 1985. He continued working on this post till November, 1989 when he was made to retire from service on the ground that he was unfit to work as a driver. The respondent- workman raised an industrial dispute and the Labour Court found that the order of retirement was invalid as he could not be retired from service on having been given another job. In this case too the competent authority having given an alternative employment to the workman under rule 5.12 of the rules could not retire him from service on the ground that he had become unfit to drive a vehicle. The Labour Court was, therefore, justified in setting aside the order of termination/retirement because it is not the case of the petitioners that the workman was not fit to work as a yard- matter, that is, on the alternative job offered to him.
5. In the result, CWP 5693 of 1993 is dismissed with a direction to the competent authority to pass an appropriate order under rule 5.12 of the Rules. In case the workman is found fit for an alternative job, he will be provided with one that is available. If he is not found fit, it will be open to the competent authority to retire him in accordance with law and the instructions issued by the State Government in this regard. In case the workman is made to retire he will be entitled to his wages till the date of passing of the order by the competent authority or till the age of super-annuation whichever is earlier. This order will be passed within three months from the date of receipt of a copy of this order and it will be open to the competent authority to have the workman medically examined if necessary for the new job that may be offered to him. C.W.P. No. 5707 of 1993 is also dismissed. No further direction is necessary to be given in this case as I am informed that Kartar Singh- workman has since died. It is however, made clear that his widow or any other heir who makes a claim will be entitled to receive the wages that were due to the deceased till the date of his death.
6. Parties are left to bear their own costs.