A bench of Justice Manish Pitale has also ordered the BEST to pay Rs 50,000 as compensation to Sadashiv Gaikwad, who has been out of service since 2011.
According to Gaikwad, he was given a conductor's job by the BEST in 1993. In 2011, he met with an accident and sustained major injuries on his left knee. He underwent at least three surgeries at a hospital in Pune and after recovering he returned to Mumbai to resume work.
However, the BEST officials referred Gaikwad to KEM hospital, which again conducted two surgeries on his knee and certified him to have attained at least 41% disability. But the report of KEM wasn't accepted by the BEST and again referred him to city's Sion Hospital.
The Sion Hospital again conducted various tests on Gaikwad and opined that he was 41% disabled.
Both KEM and Sion hospitals had opined that Gaikwad could not continue as a conductor due to his knee injury and had recommended a "lighter job. for him"
Not ending here, the BEST further sent Gaikwad at another government-run hospital - sir JJ hospital, for an opinion as to whether he could be retained as a conductor or given some other job. The JJ hospital had certified him to be having only 17% disability and based on this, the BEST terminated his services.
As per the Rights of Persons with Disabilities Act, 2016, any employee, who suffers from less than 40 per cent disability while in service and is certified of ineligible for even an alternate work, s/he can be terminated from the job.
Having considered Gaikwad's plight, Justice Pitale said, "It is important to note that at the behest of the BEST, Gaikwad was made to run from pillar to post for an invariably long period of time to undergo medical tests for determining his disability quotient with three leading hospitals in Mumbai, viz; KEM, Lokmanya Tilak Memorial (Sion) and Sir. J.J. hospitals."
"If one sees the amount of time which has been spent by him in undergoing the visits and medical tests physiotherapy, rehabilitation therapy, etc. in these three hospitals over a period of several years then the certificates issued by these hospitals will have to be scrutinised minutely and considered," the judge said, adding that the KEM and Sion hospitals have issued certificates after a detailed analysis, scrutiny, quarantining and effective check-up.
The judge further noted that based on the certificates of KEM and Sion hospitals, Gaikwad was given an alternate job for a period of 15 months but later on referred to JJ hospital.
"Therefore once the BEST had come to this decision on the basis of the disability certificates issued by the two leading hospitals, there was virtually no reason to recommend him for a third opinion to JJ hospital, which did not conduct any medical tests," Justice Pitale noted.
Further, referring to the provisions of the right of persons with disabilities act, Justice Pitale said, "After acquiring less than 40% disability, if an employee is not found suitable for the post he is holding, he can be terminated and need not be shifted to another suitable post, but if he acquires more than 40& disability, he must be so shifted and cannot be terminated."
"This would be a travesty of justice and no sensible legislature could have ever intended such result," Justice Pitale held.
