Further, this arbitrary imposition under Clause 11 is in the teeth of the provisos to Sub Section (4) of Section 20 of the 2016 Act which read as under :
“Provided that, if an employee after acquiring disability is
not suitable for the post he was holding, shall be shifted to
some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the
employee against any post, he may be kept on a
supernumerary post until a suitable post is available or he
attains the age of superannuation, whichever is earlier.”
18. The above provisos mandate that the Petitioners ought to be shifted to an alternative post with MSRTC with the same pay scale and service benefits and if it is not possible for MSRTC to adjust the Petitioners against any post immediately, they have to be kept on supernumerary posts until suitable posts are available or they attain the age of superannuation, whichever is earlier. This is a mandate under the 2016 Act and a statutory right granted to the Petitioners. This right cannot be violated by Clause 11 of the Impugned Circular. MSRTC has no right and is in fact prohibited from treating the intervening period between the medical examination and a decision thereon as leave without pay. The very idea of restoring an employee to a position with the same pay scale and service benefits which he or she held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the action of termination taken by the employer.
19. In our opinion, the Petitioners’ reinstatement by MSRTC entitles the Petitioners to claim back wages in their entirety. The denial of back wages to the Petitioners who have suffered due
to their disability would amount to indirectly punishing the Petitioners concerned and rewarding MSRTC by relieving them of their obligation to pay back wages. This would be wholly inequitable and unjust. This would be in contravention of the 2016 Act, as also in contravention of the Constitution of India. As a result, we are of the considered opinion that Clause 11 of the Impugned Circular is ultra vires the 2016 Act, as also violative of Article 14 of the Constitution of India. Therefore, we hereby quash and set-aside Clause 11 of the Impugned Circular.
20. Keeping in line with the mandate of Section 20 of the 2016 Act, we order and direct MSRTC to provide each one of the Petitioners with alternative posts having the same pay scale and service benefits as their earlier position.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9762 OF 2019
Vikas Khanderao Keng, Vs The State of Maharashtra
CORAM: S.J. KATHAWALLA &
Dated : 16th JULY, 2020