Holding

Loss of eyesight that prevents a driver from performing his duties is covered by "continued ill‑health" and thus the termination is not retrenchment, but the dismissals are unjustified and the corporation must provide retirement benefits, alternative employment, or compensatory payment as per the Court's scheme.

Summary

The Supreme Court examined the termination of several RSRTC drivers who, after long service, developed defective or sub‑normal eyesight due to occupational hazards. The corporation dismissed them as unfit to drive, and the drivers challenged the dismissals as illegal retrenchment under Section 2(00)(c) of the Industrial Disputes Act, 1947, arguing that Section 25‑F was not complied with and that they were entitled to alternative employment. The Court held that loss of vision affecting the performance of driver duties falls within the phrase "continued ill‑health" and therefore the terminations do not constitute retrenchment, so Section 25‑F does not apply. However, the Court found the dismissals unjustified and inequitable, and fashioned a scheme granting retirement benefits, alternative job placement, and a compensatory amount based on length of service. It also ordered reinstatement and back wages for a helper wrongly dismissed, and set aside the corporation’s appeal, directing it to implement the scheme.

Issues considered

The termination of drivers due to loss of eyesight whether it amounts to "retrenchment" under Section 2(00)(c) of the Industrial Disputes Act, 1947.
Whether Section 25‑F of the Industrial Disputes Act is applicable to such terminations.
Whether the corporation is obligated to provide alternative employment to the drivers irrespective of any union‑corporation agreement.
Whether the dismissal of a helper who was fit for that post violates Section 25‑F.
The appropriate relief for drivers terminated on medical grounds.

Legislation cited

Employees' State Insurance Act, 1948s. 2(8)
Industrial Disputes Act, 1947s. 2(00), s. 25-F
Workmen's Compensation Act, 1923s. 3(2)

Subjects

industrial disputesretrenchmentill‑healthtermination of serviceoccupational diseasedriverscompensation schemeSection 25-Falternative employmentEmployees' State Insurance ActWorkmen's Compensation Act

Judgment

ANAND BIHARI AND ORS.
A
v.
RAJAS1HAN STATE ROAD TRANSPORT' CORPORATION,
JAIPUR THROUGH ITS MANAGING DIRECTOR
AND ANR. ETC.

B DECEMBER 20, 1990

[P.B. SAWANT AND S.C. AGRAWAL, JJ.]

Industrial Disputes Act, 1947: Sections 2(00) &·25-F. Retrench-
ment-State Road Transport Corporation-Drivers-Occupational
hazards-Development of defective, weak or sub-normal eye-sight in
c the course of employment-Pre-mature termination of services-Held
termination was ·not retrenchment and consequent compliance with
section 25-F not necessary-But termination held unjustified and
inequitable-Scheme formulated by the Supreme Court for relief to
drivers-Directions for giving retirement benefits, providing alternative
D jobs and payment of compensatory amount proportionate to length of
service rendered by the drivers.

Retrenchment-Exceptions-Section 2(00) sub-clause (c)-Ex-
pression "continued ill-health"-Meaning and Scope of-Includes
cases of drivers who have developed defective or sub-normal vision
E during the course of employment.

Employees' State Insurance Act, 1948: Section 2(8)-Second
Schedule-Part I-Item 4-Part II-Items 31,32 and· 32A-Third
Schedule-item I I.

F State Road Transport Corporation-Drivers-Development of
sub-normal eye-sight or loss of required vision during the course of
employment-Held noi an "employment injury" or "Occupational
disease".

Workmen's Compensation Act, 1923: Section 3(2).
G
The appellants (in C.A. No. 1859-61) were appointed as drivers
and had put in a long service to the satisfaction of the respondent-
Corporation. Subsequently on their medical examination it was found '~
that they had developed defective eye-sight i.e. they did not have the
required vision for driving the hoses. The respondent Corporation
H issned notices to them and after considering their explanation ter-

622
__. ANAND v. R.S.R.T.C. 623

minated their services on the ground that they were unfit for driving
A
buses. The appellants filed Writ Petitions in the High Court challenging
their termination order contending that their termination was illegal
because (i) the termination amounted 1o retrenchment within the mean-
ing of section 2(00) of the Industrial Disputes Act, 1947 and it was
without compliance with the mandatory provisions of Section 25-F of
·the Act; (ii) pursuant to the agreement between the Workers' Union and B
the Corporation, the respondent-Corporation was bound to provide the
alternative jobs to the unfit drivers. The High Court dismissed the Writ
Petitions. Hence these appeals by the Workmen-drivers.

In the connected appeal (C.A. No. 1862) the driver developed
weak eye-sight on account of an accident in the course of bis employ-
ment. He was given employment as a helper but subsequently his
c
services as a helper were terminated. He filed a Writ Petition in the
High Court challenging his termination which was dismissed. Hence
appeal by the workmen-driver.

In the other connected appeal (C.A. No. 1863) the services of a D
driver were terminated on the ground that he bad lost vision of bis right
eye. He filed a Writ Petition in the High Court challenging the order of
termination contending that ever since the loss of sight of his one eye, he
was working as a helper and though he was not found unfit, yet bis
services were terminated. The High Court quashed his termination
order and directed the Corporation to absorb him as a helper. Against E
this order of the High Court the Corporation filed an appeal before this
Court.

In appeals to this Court it was contended on behalf of the appel-
lants; (i) since the expression "continued ill-health" as used in clause
(c) of section 2(00) of the Industrial Disputes Act, 1947 does not cover F
the cases of a loss of limb or an organ or its permanent use and covers
cases only of a general physical or mental debility or incapacity to
execute the work, their termination not being covered by the said clause
amounted to retrenchment which was illegal for non-compliance with
Section 25-F; (ii) the workmen should have been given alternative jobs
irrespective of the fact whether there was an agreement or not between G
the Corporation and the Union to provide alternative jobs to unfit
drivers.

Disposing the appeals, this Court,

'·· HELD: 1. The expression "ill-health" used in sub-clause (c) of H
624 SUPREME COURT REPORTS (1990] Supp. 3 S.C.R.

Section 2(06) of the Industrial Disputes Act, 1947 has to be construed
A relatively and in its context. It must have a bearing on the normal
discharge of duties. It is not any illness but that which interferes with
the usual orderly functioning of the duties of the post which would be
attracted by the sub-clause. Conversly, even if the illness does not affect
general health or general capacity and is restricted only to a particular
B limb or organ but affects the efficient working of the work entrusted it
will be covered by the phrase. For it is not the capacity in general but
that which is necessary to perform the duty for which the workman is
engaged which is relevant and material and should be considered for
the purpose. Therefore, any disorder in health which incapacitates an
individual from discharging the duties entrusted to him or affects his
work adversely or comes in the way of his normal and effective func-
c tioning can be covered by the said phrase. The phrase has also to be
construed from the point of view of the consumers of the concerned
products and services. If on account of a workman's disease or incapa-
city or debility in func!ioning, the resultant product or the service is
likely to be affected in any way or to become a risk to the health, life or
D property of the consumer, the disease or incapacity has to be catego-
rised as ill-health for the purpose of the sub-clause, otherwise, the
purpose of production for which the services of the workman are
engaged will be frustrated and worse still in cases such as the present
one they will endanger the lives and the property of the consumers,
Hence the Court should place a realistic and not a technical or pedantic
E meaning on the said phrase. Therefore, the said phrase would include
cases of drivers such as the present ones who have developed a defective
or sub-normal vision or eye-sight which is bound to interfere with their
normal working as drivers. Accordingly. the termination of the services
of the drivers in the present case being covered by sub-clause (c) of
Section 2(00) would not amount to retrenchment within the meaning of
F Section 2(00) of the Act. Hence the termination per se is not illegal
because the provisions of Section 25-F have not been followed while
effecting it. [631D-H, 632A-D]

Workmen of the Bangalore Woollen, Cotton and Silk Mills Ltd.
v. Its Management, [1962] 1L.L.J.213, referred to.
G
New Collings Concise English Dictionary; Webster's Comprehen- ,_
'
sive Dictionary (International Edition); Concise Oxford Dictionary
(3rd Edition); and Shorter Oxford English Dictionary, referred to.

2. It is also clear from the provisions of the Employees State
H Insurance Act that the cases of sub-normal eye-sight or loss of the
ANAND v. R.S.R.T.C. 625

.-• sions
required vision to work as a driver would not be covered by the provi-
of that Act as an employment injury or as an occupational disease, A
for no provision is made there for compensation for a disability to carry
on a particular job. The present workmen cannot be said to have suf-
fered either a permanent, total or partial disablement to carry
on any job or to have developed cataract due to infra-red radiations. The
workmen are and will be able to do any work other than that of a driver with B
the eye-sight they possess. [635E-F)

3. There is no dispute that the drivers developed a weak or sub-
normal eye-sight or lost their required vision on account of their occu-
pation as drivers in the Corporation. They have to drive the heavy
motor vehicles io sun-rain, dust and dark hours of night. In the process C
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 training
of eyes on the road which takes its inevitable toll of the vision. The very D
fact that in a short period, the Corporation had to terminate the
services of no less than 30 drivers 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 wide-spread risk to which those who take the
employment of a driver expose themselves. Yet the Corporation treats E
their cases in the same manner and fashion as it treats the cases of other
workmen who on account of reasons not connected with the employ-
ment 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 pre-mature termination of service on F
account of disabilities contracted from their jobs, the other employees
continue to serve till the date of their superannuation. There is no
justification in treating the cases of workmen like drivers who are
exposed to occupational diseases and disabilities on par with the other
employees. The injustice, inequity and discrimination is writ large in
such cases and is indefensible. [632F-H, 633A-D) G

4. The workmen are not denizens of an Animal Farm to be
eliminated ruthlessly the moment they become useless to the establish-
ment. They have not only to live for the rest of their life hut also to
maintain the members of their family and other dependants, and to
educate and bring up their children. Their liability in this respect at the H
626 SUPREME COURT REPORTS [1990) Supp. 3 S.C.R.

A advanced age at which they are thus retired stands multiplied, They
may no longer he of use to the Corporation for the job for which they
were employed, but the need of their patronage to others intensifies
with the growth in their family r~sponsibilities. [634H, 635A-B)

5. No special provision is made and no compensatory relief is
B provided in the service condition for the drivers for pre-mature
incapacitation. The service conditions of the workmen such as the dri-
vers in the present case, therefore, must provide for adequate safe-
guards to remedy the situation by compensating them is some form for
the all-round loss they suffer for no fault of theirs. [633C-D I

5.1. In view of the fact that the Corporation took an unhelpful
C stand in the matter of formulating a scheme of relief which is the legiti-
mate due of the workmen and not a scheme on compassionate or charit-
able basis, the Supreme Court itself evolved a scheme for giving relief to
the workmen-drivers keeping in view the points (i) that the workmen
concerned are incapacitated to work only as drivers and are not
D rendered incapable of taking any other job either in the Corporation or
outside; (ii) that the workmen are at an advanced age of their life and it
would be difficult for them to get a suitable alternative employment
outside; (iii) and that the relief made available under the scheme
should not be such as would induce the workmen to feign disability
which, in the case of disability such as the present one, viz., the develop-
E ment of a defective eye-sight, it may be easy to do, Accordingly, the
Supreme Court directed that the Corporation shall in addition to giving
each of the retired workmen his retirement benefits, offer him any
other alternative job which may be available and which he is eligible to
perform and in case no such alternative job is available each of the
workman shall be paid along with his retirement benefits an additional
F compensatory amount proportionate to the length of service rendered
by the employees and the balance of their service. [634G, 635H, 636A-G]

6. The termination of services of helper (in C.A.No. 1862) was
unjustified and, also illegal being in contravention of the provisions of
Section 25-F of the Act. The High Court erred in treating his case on
G par with cases of other drivers. The appellant-workman will, therefore,
be entitled to his retirement benefits as a driver from the date of his
employment as a helper. He would further be entitled to be reinstated in
service as a helper with all arrears of back wages as a helper. In case he
opts for receiving the compensatory amount under the scheme framed
by this Court, be may do so for the period beginning from the date from
H which bis services as a helper were terminated. [637D-F]
ANAND v. R.S.R.T.C. [SAWANT, l.J 627

7. The decision of the High Court impugned iu C.A.No. 1863 is
set aside and the respondent-Corporation is directed to give the con- A
cerned workman the benefit of the scheme propounded.

CIVIL APPELLAIB JURISDICTION: Civil Appeal Nos. 1859-
63 of 1990.
B
From the Judgment and Order dated 8.3.1989 and 15.3.1989 of
the Rajasthan High Court in D.B. Civil Writ Petitions Nos. 2553, 1824
and 1823 of 1988 and 1457 and 3352 of 1988.

Gobinda Mukhoty, L.M. Singhvi, S.K. Verma, R.B. Mishra,
D. Bhandari, S.K. Jain, D.K. Singh, Pradeep Agarwal and Jitendra
Sharma for the appearing parites. c
The Judgment of the Court was delivered by

SAWANT, J. Civil Appeals Nos. 1859-61of1990 are preferred
by the workmen of the Rajasthan State Transport Corporation D
(hereinafter referred to as the "Corporation") against the decision
dated March 8, 1989 of a Division Bench of the High Court of
Rajasthan and Civil Appeal No. 1862 of 1990 is preferred by another
workman against the decision dated March 15, 1989 of the same Divi-
sion Bench whereas Civil Appeal No. 1863 of 1990 is preferred by the
Corporation against the decision dated March 15, 1989 of another E
Division Bench of the High Court. Since the issues involved in all
these appeals are common, we are deciding them all together.

2. The facts of Civil Appeals Nos. 1859-62 are same. The wor-
·• kers in question were appointed as drivers to drive the roadways buses
of Corporation in the region of Ajmer, Jaipur and Bharatpur. They F
had put in a long service discharging their duties to the satisfaction of
the Corporation. Sometime in 1987, their routine medical examination
showed that they had developed defective eye-sight and did not have
the required vision for driving heavy motor vehicles like buses for
which they were engaged by the Corporation. The Corporation, there-
fore, constituted a medical Board and directed the workers to appear G
before it for testing their eye-sight. The Board found them totally unfit
for driving heavy motor ~ehicles. The Corporation issued notices to
the workmen to show cause as to why their services should not be
terminated since they were found unfit for driving its buses. The wor-
kmen submitted their explanations in which they asked for conducting
a second test of their eye-sight and also prayed that in case they were H
628 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

found unfit for driving the buses, they should be given some other job
A in the Corporation. The Corporation after considering the explanation
of the workmen came to the decision that since the workmen's eye-
sight was not of the standard required to drive the buses they could not
be retained in service, and terminated their services. The orders of
termination of services were challenged by the workmen before the
B High Court by filing individual writ petitions, on two grounds, viz.,
that the termination amounted to retrenchment within the meaning of
Section 2(00) of the Industrial Disputes Act, 1947 (hereinafter refer-
red to as the "Act") and since the retrenchment was effected without
following the mandatory provisions of Section 25F of the Act, it was
illegal. Secondly, it was urged that there was an agreement between
c the drivers' Union (AITUC) and the Corporation on February 21,
1979 whereunder it was provided that if a driver was found unfit for
driving the bus, he should be posted as a helper. In pursuance of the
said agreement, the Corporation had also issued a circular on March
10, 1980 providing for giving the job of a helper to an unfit driver.
Hence, it was urged that the termination of the services was illegal on
D that ground as well. The workmen on these grounds not only prayed
for the quashing of the orders terminating their services but in the
alternative also prayed for direction to the Corporation to offer them
the alternative job of a helper. The Corporation, on the other hand,
contended that the termination of the workmen's services did not
amount to retrenchment within the meaning of Section 2(00) of the
E Act and hence there was no illegality from which the termination
orders sufferred. The Corporation also stated that there was no agree-
ment between it and the driver's Union as alleged, and that the circu-
lar dated March 10, 1980 was later on withdrawn. Hence, the workmen
could not claim any right under the circular. The High Court upheld
both the contentions of the Corporation and dismissed the workmen's
F writ petitions. However, while dismissing the petitions, the High
Court also added that in case the workmen approached the Corpora-
tion for absorbing them as helpers, their cases for such absorption be
considered sympathetically if they were otherwise found fit and eligi-
ble. It is this order which the workmen have challenged before us in
these appeals.
G
3. The facts in Civil Appeal No. 1863 of 1990 filed by the Corpo-
ration are that the services of the work'¥n similarly working as a
driver were terminated on the ground that he had ]ost vision of his
right eye. He had approached the High Court with the same grievances
as the workmen in the other writ petitions. The workman in this case
H had further pointed out that in fact since he had lost the sight of one
ANAND v. R.S.R.T.C. [SAWANT, J.l 629

eye on March 11, 1986, he was not working as a driver but was working A
in the maintenance section of the vehicles. For that work, he was not
found unfit and yet his services were terminated by the impugned
order of February 27, 1988 on the ground of his said incapacity to work
as a driver. The High Court by its impugned decision held that
although the workman had lost the vision of one eye,· he was fit to
discharge the duties of any technician or helper or any other employee B
of that cadre. This was also the report of the Medical Officer and
hence the Corporation should have absorbed the workman in any
other job according to his capacity instead of terminating his services.
The High Court, therefore, quashed the order terminating his services
and directed the Corporation to absorb him in the post of a helper or
any other equivalent post for which he might be found fit. The Court
further directed that the workman should be treated as being in con-
c
tinued service, ai.d the period between the date of the termination of
his services and his reinstatement should be treated as leave without
pay which may be to his credit or which he may earn in future. It is this
order which is challenged by the Corporation in this appeal.
D
4. Since the workmen were unable to produce any material with
regard to the alleged agreement of February 21, 1979 between their
Union and the Corporation, the contention based on it was not rightly
pressed before us on behalf of the workmen. It was also an admitted
position that the circular dated March 10, 1980 issued by the Corpora-
tion was withdrawn long before the services of the present workmen E
were terminated. No arguments were therefore available on its basis
and none was advanced. However, what was contended was that in the
circumstances of the case the workmen should have been continued
in employment in other post such as that of a helper for which they
were fit, whether there was an agreement or a circular, or not. We will
deal with this contention after we have dealt with the only other F
contention.

5. The definition of "retrenchment" under Section 2(00) of the
Act is as follows:

"2(00). "retrenchment" means the termination by the G
employer of the service of a workman for any reason what-
soever, otherwise than as a punishment inflicted by way of
disciplinary action but does not include-

(a) voluntary retirement of the workman; or
H
630 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

(b) retirement of the workman on reaching the age of
A superannuation if the contract of employment between the
employer and the workl11an concerned oontains a stipulation
in that behalf; or

(bb) termination of the service of the workman as a result
B of the non-renewal of the contract of employment between
the employer and the workman concerned on its expiry or
of such contract being terminated under a stipulation in
that behalf contained therein; or

(c) termination of the service of a workman on the ground
of continued ill-health."
c
There is no dispute before us that the only sub-clause of the
definition which can cover the present termination of service is sub-
clause (c). There was some debate before us as to the exact import of
the expression "continued ill-health". While it was urged on behalf of
D the workmen that ill-health which is spoken of there does not cover the
cases of a loss of a limb or an organ or of its permanent use, and covers
cases only of a general physical or mental debility or incapacity to
execute the work, the argument on behalf of the Corporation was that
it would include also cases of a permanent loss or incapacity of a limb
or an organ such as eye or eye-sight, ear or hearing capacity, of hand
E or leg etc. which is necessary for discharging the duty in question. For
this purpose, reliance was placed on behalf of the Corporation on a
decision of this Court in Workmen of the Bangalore Woolen, Cotton
and Silk Mills Co. Ltd. v. Its Management, [1962] 1 LU 213. In that
case the Court while interpreting the definition of retrenchment has
held as follows:.
F
"The definition "retrenchment" in S. 2(00) of the Act
means termination of service. A service cannot be said to
be terminated unless it was capable of being continued. If it
is not capable of being continued, that is to say, in the same

G
manner in which it had been going on before, and it is,
therefore, brought to an end, that is not a termination of
the service. It is the contract of service which is terminated
and that contract requires certain physical fitness in the
-
workmen. Where therefore a workman is discharged on the
ground of ill-health, it is because he was unfit to discharge
the service which he had undertaken to render and there-
H fore it had really come to an end itself. That this is the idea
ANAND v. R.S.R.T.C. [SAWANT, J.] 631

involved in the definition of the word "retrenchment" is
A
also supported by S. 25G of the Act which provides that
whereas any workmen are retrenched, and the employer
proposes to take in his employ any person, he shall give an
opportunity to the retrenched workmen to offer themselves
for re-employment and the latter shall have preference
over other persons in the matter of employment. Obviously, B
it was not contemplated that one whose services had been
terminated on grounds of physical unfitness or ill-health
would be offered re-employment; it was because his physi-
cal condition prevented him from carrying out the work
which he had been given that he had to leave and no ques-
tion of asking such a person to take up the work again
arises. If he could not do the )¥Ork, he could not be offered
c
employment again. It would follow that such a person can-
not be said to have been retrenched within the meaning of
the Act as amended by the Ordinance.
(emphasis supplied)
D
6. Even otherwise, it can scarcely be disputed that the expres-
sion "ill-health" used in sub-clause (c) has to be construed relatively
and in its context. It must have a bearing on the normal discharge of
duties. It is not any illness but that which interferes with the usual
orderly functioning of the duties of the post which would be attracted
by the sub-clause. Conversly, even if the illness does not affect general E
health or general capacity and is restricted only to a particular limb or
organ but affects the efficient working of the work entrusted, it will be
covered by the phrase. For it is not the capacity in general but that
which is necessary to perform the duty for which the workman is
engaged which is relevant and material and should be considered for
the purpose. The expresion "ill-health" is defined in the new Collins F
Concise English Dictionary to mean "not in good health; sick"; in
Webster's Comprehensive Dictionary (International Edition) to mean
"disordered in physical condition; diseased;_ unwell; sick"; in the Con-
cise Oxford Dictionary (3rd Edition) to mean "out of health; sick; with
disease; with anxiety (of health), unsound; disordered, morally bad",
and in Shorter Oxford English Dictionary to mean: "Unsound, disor- G
dered; Out of health, not well". Therefore, any disorder in health
which incapacitates an individual from discharging the duties entrusted
to him or affects his work adversely or comes in the way of his normal
and effective functioning can be covered by the said phrase. The
phrase has also to be construed from the point of view of the consu-
mers of the concerned products and services. If on account of a work- H
632 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A man's disease or incapacity or debility in functioning, the resultant
product or the service is likely to be affected in any way or to become a
risk to the health, life or property of the consumer, the disease or
incapacity has to be categorised as ill-health for the purpose of the said
sub-clause. Otherwise, the purpose of production for which the
services of the workman are engaged will be frustrated and worse still
13 in cases such as the present one they will endanger the lives and the
property of the consumers. Hence, we have to place a realistic and not
a technical or pedantic meaning on the said phrase. We are, therefore,
more than satisfied. that the said phrase would include cases of drivers
such as the present ones who have developed a defective or sub-
normal vision or eye-sight which is bound to interfere with their
normal working as drivers.
c
7. In the view we have taken of the said sub-dause, it js obvious that
the termination of the services of the workers in the present case being
covered by sub-clause (c) of Section 2(00) would not ~mount to
retrenchment within the meaning of Section 2(00) of the Act. Hence,
D the termination per se is not illegal because the provisions of Section
25F have not been followed while effecting it.

8. Allough the order of termination of service per se cannot be
faulted on the ground of the breach of the Act, the important question
that still remains to be considered is whether in the circumstances of
E. the case and against the background of the relevant provisions of our
Constitution, it can be said that the action of the Corporation is
proper, equitable and justified. 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 weak or sub-normal
F 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
G 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 training 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 -
H shows the extent of the occupational hazard to which the drivers of the
ANAND v. R.S.R.T.C. (SAWANT. J.] 633

Corporation are exposed during their service. It also shows that
weakening of the eye-sight is not an isolated phenomenon but a wide- A
spread 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
reasons not connected with the employment suffer from ill-health or
continued ill-health. That by itself is discriminatory against the dri- B
vers. The discrimination against the employees such as the drivers in
the present case, also ensues from the fact that whereas they have to
face pre-mature termination of service on account of disabilities con-
tracted 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 incapacitation. There is no justification in C
treating the cases of workmen like drivers who are exposed to occupa-
tional diseases 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 dri-
vers in the present case, therefore, must provide for adequate safe- D
guards to remedy the situation by compensating them in some form for
the all-round loss they suffer for no fault of theirs.

9. It is for this reason that we had suggested to the Corporation
to frame a suitable scheme of compensatory relief to the drivers. The
Corporation has filed two affidavits-one dated 9th October, 1990 by E
one Shri Navin Chaturvedi, Depot Manager at Delhi and the other
dated 17th November, 1990 by one Shri L.N. Shah, Executive
Director (Administration) who is also incharge of the present litiga-
tion. In paragraph 2 of the first affidavit an amusing statement has
been made that "the Corporation considered the difficulties of the
drivers who have been terminated from their service under s. 2(00) of p
the Industrial Disputes Act" without realising that it has all along been
the case of the Corporation that the services of the drivers were not
terminated under Section 2(00) of the Act. This statement shows a
total non-application of mind and a casual approach to the issues
involved in the case. The same attitude is discernible by what is pro-
posed in the latter portion of the said paragraph by way of a relief G
scheme for the drivers, which is as under:

"The Corporation after considering the matter sympatheti-
cally resolved as under:

"Shri L.N. Shah, Executive Director (Admn.) explained H
634 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

the background of the proposal, specifically with reference
A
to the observations made by the Hon'ble Supreme Court
on last date of hearing of the case. After detailed discus-
sions and exploring the possibilities of the scheme of
rehabilitation for their alternative employment.

B Resolution No. 51/90: As a measure of rehabilitation
for the drivers terminated on medical grounds, it was resol-
ved that RSRTC may provide margin money loan to the
extent of shortfall in the borrowers' own contribution,
comprising of (sic.) benefits available under Industrial Dis-
putes Act and inclusive of CPF, Gratuity etc. in case these
employees form a Co-operative Society duly registered and
c willingly agree to engage such financed new bus (es) with
RSRTC on contract till RSRTC loan along with interest is
repaid."

In the additional affidavit of 17th November, 1990 Shri L.N.
D Shah himself has stated firstly that neither the Employees State Insu-
rance Act (hereinafter referred to as the "ES! Act") nor the Work-
men's Compensation Act, 1923 (hereinafter referred to as the "WC
Act"), the provisions of which we had suggested should be applied to
the drivers, would "strictly speaking" cover the loss of sight in ques-
tion as "employment injury" as defined in Section 2 (8) of the ESI
E Act. "Loss of sight inquestion is also not covered in Section 3 (2) of the
WC Act". The affidavit then proceeds to state that loss suffered by the
Corporation upto 1989-90 is to the extent of Rs.37 .15 crores and the
loss estimated for the current year is Rs.15 crores. The Corporation on
an average operates fleet of 2800 buses and runs approximately 240
lacs kilometers in a month, for which the Corporation is presently
F having a huge staff of 24000 and thus the ratio of staff per bus comes to
8.35 which is approximately double the normal ratio of staff. The
average operated kilometres by a bus is 276 kilometres per day for
which normally 5 to 6 hours' working of the driver would be needed.
The drain on account of wages is 42 per cent of the income.

G 10. In other words, the Corporation has taken an unhelpful
stand in the matter. The scheme with which it has come out is both
unrealistic and impracticable. The Corporation has not appreciated
that what we had asked them was to formulate a scheme of relief which
is the legitimate due of the workmen and not a scheme on compassio-

H
nate or charitable basis. The workmen are not denizens of an Animal
Farm to be eliminated ruthlessly the moment they become useless to -
ANAND v. R.S.R.T.C. (SAWANT, J.l 635
,,.-'

the establishment. They have not only to live for the rest of their life
A
but also to maintain the members of their family and other depen-
dants, and to educate and bring up their children. Their liability in this
respect at the advanced age at which they are thus retired stands multi-
plied. They may no longer be of use to the Corporation for the job for
which they were 'employed, but the need of their patronage to others
intensifies with the growth in their family responsibilities. B
11. Although as stated by the Corporation, the workmen are
covered by the ES! Act no provision is made there for compensation of
the occupational injury such as the present one. Item 4 of Part I of the
Second Schedule of the ESI Act talks of "loss of sight to such an extent
as to render the claimant unable to perform any work for which eye-
sight is essential" and classifies such injury as permanent total disable- c
ment resulting in hundred per cent loss of earning capacity. Items 31,
32 and 32A of Part II of the same Schedule refer respectively to (i)
"loss of one eye, without complications, the other being normal (ii)
loss of vision of one eye without complications or disfigurement of
eye-ball, the other being normal (iii) partial loss of vision of one eye"
D
and classify all the said injuries as permanent partial disablement
resulting in 40, 30 and 10 per cent loss of earning capacity respectively.
Item 11 in Third Schedule refers to occupational cataract due to infra-
red radiations incurred in "all work involving exposure to the risk
concerned" and classifies it as one of the occupational diseases.
It is, therefore, clear from the provisions of the ESI Act that the E
present case, viz., that of sub-normal eye-sight or loss of the required
vision to work as a driver would not be covered by the provisions of
that Act as an employment injury or as an occupational disease, for no

- provision is made there for compensation for a disability to carry on a
particular job. The present workmen. cannot be said to have suffered
either a permanent, total or partial disablement to carry on any job or F
to have developed cataract due to infra-red radiations. The workmen
are and will be able to do any work other than that of a driver with the
eye-sight they posssess. Hence, a provision for a compensatory relief
for such workmen has to be made separately on a different basis suit-
able to the peculiar loss that they suffer on account of the pre-mature
retirement necessitated by their unfitness to work as drivers. G
12. In view of the helplessness shown by the Corporation, we are
constrained to evolve a scheme which, according to us, would give
relief as best as it can to the workmen such as the ones involved in the
present case. While evolving the scheme and giving these directions we
"" have kept in mind that the workmen concerned are incapacitated to H
work only as drivers and are not rendered incapable of taking any
636 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A other job either in the Corporation or outside. Secondly, the workmen
are at an advanced age of their life and it would be difficult for them to
get a suitable alternative employment outside. Thirdly, we are also
mindful of the fact that the relief made available mxler the scheme should not
be such as would induce the workmen to feign disability which, in the
case of disability such as the present one, viz., the development of a
· B defective eye-sight, it may be easy to do. Bearing in mind all the
aforesaid factors, we direct the Corporation as follows:
(i) The Corporation shall in addition to giving each of the retired
workmen his retirement benefits, offer him any other alternative job
which may be available and which he is eligible to perform.
(ii) In case no such alternative job is available, each of the work-
c men shall be paid along with his 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
D days' salary per year of the balance of his service;

(b) where the employee has put in more than 5 years' but less
than 10 years' service, the amount of compensation shall be equi-
valent to 15 days' salary per year of the balance of his service;

E (c) where the employee has put in more than 10 years' but less
than 15 years' service, the amount of compensation shall be equi-
valent 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
F be equivalent to one month's salary per year of the balance of his
service;

(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.
G
The salary will mean the total monthly emoluments that the
workmen was drawing on the date of his retirement.
(iii) If the alternative job is not available immeiiately but
becomes available at a later date, the Corporation may offer it to the
workmen provided he refunds the proportionate compensatory
H
amount.
ANAND v. R.S.R.T.C. [SAWANT, J.[ 637

(iv) The option to accept either of the two reliefs, if an alterna- A
tive job is offered by the Corporation, shall be that of the workmen.

13. The scheme proposed by us in paragraph 12 above disposes
of Civil Appeals Nos. 1859-61of1990. Since the workmen involved in
these appeals have been retired already, in case suitable jobs are avail-
able to be offered and the Corporation offers them and the workmen B
concerned accept them, they would be employed on such jobs from the
date they resume their duty. They should be paid proportionate com-
pensation under the above scheme for the interregnum from the date
of their retirement till they resume the duty. In case no such job is
1
available then they should be paid the compensatory amount as indi-
cated in the scheme. c
14. As far as Civil Appeal No. 1862 of 1990 is concerned, admit-
tedly the workmen was given employment as a helper from August
1985 since he developed weak eye-sight on account of an accident in
the course of his employment and he was working as such helper till he
was retired from service on and from April 27, 1988. There is no D
dispute that he was not unsuitable to work as a helper. The termina-
tion of his services as a helper was, therefore, clearly unjustified and .
also illegal being in contravention of the provisions of Section 25F of
the Act. The High Court obviously erred in treating his case on par
with those of the workmen involved in Civil Appeal Nos. 1859-61 of
1990. The appellant-workman will, therefore, be entitled to his retire- E
ment benefits as a driver as if he had retired from service as a driver
from the date of his employment as a helper. He would further be
entitled to be reinstated in service as a helper with all arrears of back
wages as a helper. In case he opts for receiving the compensatory
amount under the scheme which we have framed above, he may do so
for the period beginning from the date from which his services as a F
helper were terminated.

15. As regards Civil Appeal No. 1863 of 1990 preferred by the
Corporation, the impugned decision of the High Court is hereby set
aside and the Corporation is directed to give the concerned workman
the benefit of the scheme propounded by us. G

The appeals are disposed of in the above terms. In the circums-
tances of the case, the parties will bear their own costs.

T.N.A. Appeals disposed of.