Judgment:
ORDER
R.P. Sethi, J.
1. After completion of 55 years of age on 31.7.1991, the petitioner was sent to the Chief Medical Officer, Bhiwani, for medical examinationvide order dated 5.7.1991. The Chief Medical Officer vide his letter dated M 1/91/116 dated 18.7.1991 informed the respondents that the petitioner was unfit for driving heavy vehicles and that he should be given light duty for one year. However, finding that excepting the driving the petitioner cannot perform any light duty, the respondents relieved him from his duty with effect from 31.7.1991 after noon vide AnnexureP/1 dated 27.7.91. It is submitted that the order impugned is arbitrary and discriminatory which is liable to be quashed. The action of the respondents has been termed to be perverse and discriminatory. It is submitted that even if the order is presumed to be an order of pre-mature retirement, the same is illegal being violative of the provisions of law applicable in the case. Under similar circumstances, the writ petition filed by Jagdish Chander, Driver, bearing Civil Writ Petition No. 3942 of 1991, was allowed by this Court on 25.4.1990.
2. No return has been filed by the respondents in the case.
3. We have heard the learned counsel for the parties and perused the record.
4. The learned counsel for the petitioner has relied upon a judgment of the apex Court in 'Anand Bihari and Ors. v. Rajasthan State Road Transport Corporation and Ors., A.I.R. 1991 S.C. 1003, with a prayer that appropriate directions be issued to the respondents in terms of the guidelines laid down by the Hon'ble Supreme Court. In that case also the Drivers employed to drive the roadways buses of the Rajasthan State Road Transport Corporation who had put in long service were discharged from the service after routine medical examination showing that they had developed defective eye-sight having no required vision for driving heavy motor vehicles like the buses for which they were engaged by the Corporation. The Supreme Court in that case noted the facts and held that:-
'... The facts on record show that all the workmen have put in service with the Corporation for long periods. All of them are above 40 years of age. Their Superannuation age is 58 years. There is no dispute that they developed a week or sub-normal eye-sight or lost their required vision on account of their occupation as drivers in the Corporation-As is commonly known. The drivers of the buses run by the Corporation such as the present one, have to drive the heavy motor vehicles in sun, rain, dust and dark hours of night. In the process, they are exposed 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 straining of eyes on the road which takes its inevitable toll of the vision. The very fact that in a short period, the Corporation had to terminate the services of no less than 30 drivers who are before us 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 widespread risk to which those who take the employment of a driver expose themselves. Yet the Corporation treats their cases in the same manner and fashion as it treats the cases of other workmen who on account of reason not connected with the employment suffer from ill-health or continued ill-health. That by itself is discriminatory 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 premature termination of service on account of disabilities contracted from their jobs, the other employees continue to serve till the date of their superannuation. Admittedly, no special provision is made and no compensatory relief is provided in the service condition for the drivers for such premature incapicitation. There is no justification in treating the cases of workmen like drivers who are exposed to occupational disease and disabilities on par with the other employees. The injustice, inequity and discrimination is writ large in such cases and is indefensible. 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 in some form for the all-round loss they suffer for no fault of theirs.'
5. Thereafter the Supreme Court formulated a Scheme for the workman, the petitioners in that case, and directed the respondents to grant them appropriate relief.
6. After the judgment of the Supreme Court, the Transport Commissioner, Haryana, vide his Memo No.4342-4410 dated 20.8.1992 provided a procedure to remove drivers on account of their being medically unfit to continue in service. According to the aforesaid Scheme, it was provided that if a Driver has become unfit due to a disease not related to his employment, he should be retired on medical grounds by following the procedure under Rule 5.18 of CivilService Rules, Volume II if the employee himself submits the medical report or by following the procedure laid down under Rule 5.11 and 5.12 of the Civil Service Rules, Volume II in case the employer has got the employee medically examined and he has been declared unfit. It was further provided that in either of the situations, if the incapacity is related to the occupational hazards, then first efforts should be made to find an alternative employment which may not necessarily be of the same scale of pay as the one he was holding earlier but it should be ensured that the employee was capable of performing that job. It was further provided that in case there is no job available and the General Manager certifies to the effect that the employee should be paid alongwith the retirement benefits, an additional compensatory amount as follows;
a) Where the employee has put in 5 years or less than 5 years service, the amount of compensation shall be equivalent to 7 days salary per year of the balance of his service;
b) Where the employee has put in more than 5 years but less then 10 years service, the amount of compensation shall be equivalent to 15 days salary per year of the balance of his service;
c) Where the employee has put in more than 10 years but less than 15 years service the amount of compensation shall be equivalent to 21 days salary per year of the balance of his service;
d) Where the employee has put in more than 15 years service but less than 20 years service the amount of compensation shall be equivalent to one month's salary per year of the balance of his service; and
e) Where the employee has put in more than 20 years service, the amount of compensation shall be equivalent to two months salary per year of the balance of his service.
7. In view of the judgment of the Supreme Court in Anand Bihari's case (supra) and the Scheme adopted by the State of Haryana, this petition is disposed of with a direction to the respondents to consider and decide the case of the petitioner in terms of the observations of the Supreme Court and the procedure prescribed by the Transport Commissioner vide his memo dated 20.8.1992. The petitioner shall be granted the appropriate relief within a period of two months from the date of this order.