E. Sheriff v. Tamil Nadu State ExpressTransport Corporation

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.07.2007CORAMTHE HONOURABLE MR.JUSTICE K.MOHAN RAMW.P.No.11378 of 1998E. Sheriff.. Petitioner-Vs.-Tamil Nadu State ExpressTransport Corporation, Division - I,(formerly known as Tiruvalluvar Transport Corporation)represented by its General Manager, Pallavan Salai, Chennai 600 002. .. RespondentPRAYER:-Petition under Article 226 of The Constitution of India praying forthe issuance of a writ of Certiorified Mandamus after calling for therecords relating to quash the Order No. 86963/A3/TETC (THA.Na.KO.1) / 96,dated : 7.8.1997 of the respondent and to consequently direct therespondent to provide work to the petitioner as counter clerk / TimeKeeper by giving protection to the last drawn pay, forthwith a furtherdirection to full backwages and continuity of service and all otherattendant benefits and award costs. For Petitioner : Mr. D. Hariparanthaman For Respondent : Mr. V.R. Kamalanathan O R D E RThe short facts that are necessary for the disposal of the above writpetition are as follows:-1.The Writ Petitioner who was working as a conductor with therespondent Corporation lost his right leg in an accident which occurred on25.12.1990 while he was on duty. On account of the said accident, thepetitioner was no more in a position to perform his duty as conductor.But, however he joined duty on 1.11.1991 after getting a fitnesscertificate to resume work. But, he was not able to perform his job asconductor. Hence, he was given light work as Reservation Counter Clerk /Time Keeper. As there was no need for the petitioner to stand or walk todischarge the duties of the Reservation Counter Clerk / Time Keeper, hewas working as Reservation Counter Clerk / Time Keeper satisfactorily.While so, the petitioner was abruptly denied employment from 19.2.1997, by https://hcservices.ecourts.gov.in/hcservices/ an oral order of the Branch Manager of the Marthandam Depot. He wasinformed that he would not be given the light work which he was doingcontinuously for six years. Hence, a representation was made by thepetitioner to the Managing Director of the respondent Corporation,requesting them to continue to give him light work. The petitioner wasdirected to appear before the Medical Board on 24.06.1997. The MedicalBoard found that the petitioner is not fit to discharge the duties asconductor. On the basis of the report of the Medical Board, a show causenotice was sent to the petitioner to show cause as to why he should not beterminated from service. A reply was sent by the petitioner seeking toprovide him with light work as was provided to him earlier. But notaccepting the explanation and representation of the petitioner, therespondent passed the impugned order dated 07.08.1997 terminating hisservice with effect from 14.08.1997.2.Though, the petitioner has challenged the impugned order onseveral grounds, the learned counsel for the petitioner putforth a newlegal submission by relying on Section 47 of The Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act,1995 (herein after referred to as the Act). Section 47 of the Act readsas follows:"Non-discrimination in Government Employment:(1) No establishment shall dispense with, or reducein rank, an employee who acquires a disability duringhis service:Provided that, if an employee, after acquiringdisability is not suitable for the post he washolding, could be shifted to some other post with thesame pay scale and service benefits:Provided further that if it is not possible toadjust the employee against any post, he may be kepton a supernumerary post until a suitable post isavailable or he attains the age of superannuation,whichever is earlier.(2)No promotion shall be denied to a person merelyon the ground of his disability:provided that the appropriate Government may, havingregard to the type of work as may be specified in suchnotification, exempt any establishment from theprovisions of this section."3.According to the learned counsel appearing for the petitioner,as the petitioner has acquired the disability during his service and hewas found to be not suitable for the post of conductor, which he washolding, he should have been shifted to some other post with the same payscale and service benefits. The learned counsel for the petitioner,relying upon the proviso to the said section, submitted that even if it isnot possible to adjust the employee against any post, the petitioner isentitled to be kept on a supernumerary post until a suitable post is https://hcservices.ecourts.gov.in/hcservices/ available or he attains the age of superannuation, whichever is earlier.4.Countering the said submission made by the learned counsel forthe petitioner, the learned counsel for the respondent Corporationsubmitted that after the Medical Board found the petitioner unfit toperform the duties of conductor and after observing all formalities, asettlement under section 18(1) of the Industrial Disputes Act, 1947 wasentered into between the petitioner and the respondent Corporation and thepetitioner was provided with alternative employment as Helper in the timescale of pay as per G.O.Ms.No.746, Transport dated 02.07.1981,G.O.Ms.No.1387, Transport Department dated 11.11.1989, G.O.Ms.No.316,Transport Department dated 09.11.1994 and as per the condition in itemNo.82 of 12(3) Wage Settlement in 1995. Therefore, according to him, asthe petitioner had accepted alternative employment as Helper in terms ofthe settlement arrived at under section 18(1) of the Industrial DisputesAct, 1947, it is not open to the petitioner to challenge the impugnedorder.5.The learned counsel for the petitioner submitted that thesettlement arrived at under Section 18(1) of the Industrial Disputes Act,1947 between the petitioner and the respondent Corporation cannot standin the way of the petitioner claiming all the benefits which he isentitled to under Section 47 of the Act. In support of his saidcontention, the learned counsel relied upon the decision of a DivisionBench of this Court, reported in "2007 WRIT L.R. 256 (THE STATE .VS. K.MOHAMMED MUSTAFA)" . In paragraph 6 of the said decision, it is observedas follows:" After having considered the contention raised by thelearned counsel for the appellant, we are unable toaccept the submission made by the appellant to theeffect that giving all benefits under Section 47 wouldin any way derogate from the earlier Government Orderpassed by the Government. The main intention of theGovernment Order was to give employment to the personunder disabilities. However, the question as towhether he should be paid at a particular scale cannotbe considered as the essential aspect of theGovernment Order. The benefit envisaged underSection 47 can be considered in addition to thebenefits contemplated under the Government Order. Ifany additional benefits or higher benefits arecontemplated under the Act as compared to the rightsconferred under G.O.Ms.No.746 dated 2.7.1981 and ifsuch provisions of the Act are made applicable, itcannot be said that such action in any way derogatesfrom the provisions incorporated in G.O.Ms.No.746dated 2.7.1981. On the other hand, the same can besaid to be additional provisions and a person isentitled to more beneficial provision available eitherunder the Act or under the Government Order. Inother words, if in a given case, the provisionscontained in the G.O. Are more beneficialnotwithstanding any provision contained in the Act, https://hcservices.ecourts.gov.in/hcservices/ such beneficial provision of the G.O. Can be madeapplicable and similarly if the provisions containedin the Act are more beneficial as compared to theprovisions contained in the G.O., benefit of such Actcan be made available. In this connection, we alsoplace reliance on the unreported decision of thisCourt in W.A.No. 136 of 2005 dated 25.8.2006, 2007-1-L.W. 161 (G.Muthu vs. The Management of Tamil NaduState Transport Corporation (Madurai) Ltd.,represented by its Managing Director, Madurai -10)."6.The learned counsel also relied upon the decision of anotherDivision Bench of this Court reported in "2004 WRIT L.R 398 (METROPOLITANTRANSPORT CORPORATION ..VS.. THE PRESIDING OFFICER, PRINCIPAL LABOURCOURT AND ANOTHER) ". In the said Judgment in paragraphs 5 to 7, it isobserved as follows:"5. Counsel for the appellant sought to rely ona government Order of the year 1981 which directs thatthe persons who are found medically unfit to continueto work on account of inter alia, of disabilityacquired during the course of employment should betreated only as a fresh recruits. It was therefore,claimed that the Government Order should be allowed tobe implemented and the employees be treated as a freshrecruit.6.We see no substance in this contention.That Government Order on which reliance was placed wasmade at a time when Parliament had not legislated withreference to persons who suffer from disabilities.Parliament having taken note of the plight of thedisabled - either born disabled or those who acquiredit later, has legislated a special enactment for theirbenefit - " The Persons with Disabilities (Equalopportunities, Protection of Rights and FullParticipation) Act, 1995".7.That Act was enacted in the year 1995.Most of the agencies of the Government as also publicat large appear to have remained quite ignorant ofit's beneficial provisions and not enough care hasbeen taken by those concerned to ensure the benefitsconferred by that Act are in fact extended to thoseentitled thereto."7.If the facts of the present case are considered in the light ofthe above said decisions, it could be seen that neither the petitioner northe respondent Corporation appear to have been aware of the beneficialprovisions of the Act. When the respondent Corporation which is whollyowned Company of the State Government itself was not aware of the https://hcservices.ecourts.gov.in/hcservices/ beneficial provisions of the Act and has entered into a settlement withthe petitioner under section 18(1) of the Industrial Disputes Act, 1947,the petitioner, who was only a conductor, cannot be expected to be awareof the provisions of the Act. As observed by the Division Bench of thisCourt in "2007 WLR Page 256", the benefit envisaged under section 47 ofthe Act can be considered to be in addition to the benefits contemplatedunder the Government Order. If any additional benefits or higherbenefits are contemplated under the Act as compared to the rightsconferred under G.O.Ms.No.746 dated 2.7.1981 and if such provisions of theAct are made applicable, it cannot be said that such action in any wayderogates from the provisions incorporated in G.O.Ms.No.746 dated2.7.1981. On the other hand, the same can be said to be additionalprovisions and a person is entitled to more beneficial provision availableeither under the Act or under the Government Order. In this case, theSection 18(1) settlement between the petitioner and the respondentCorporation was entered into only in terms of G.O.Ms.No.746 dated2.7.1981. As stated above, neither the petitioner nor the respondentCorporation were aware of the beneficial provisions of the Act. As such,the contentions of the Transport Corporation that as the petitioner hadentered into a settlement under section 18(1) of the I.D. Act, thepetitioner is estopped from invoking the provisions of Section 47 of theAct cannot be countenanced. It is well settled that there cannot beestoppel against a statute. When the petitioner is clothed with a legalright to claim all the benefits as per Section 47 of the Act, the saidright cannot be taken away on the basis of the said 18(1) settlement. Asstated above, the settlement itself was arrived at in terms of the abovesaid Government Orders and when the provisions of Section 47 are morebeneficial to the petitioner, it is always open to him, to invoke the sameand claim the benefits. The ratio laid down by the two Division Benchdecisions referred to supra squarely apply to the facts of this case.Therefore, the contention of the learned counsel for the respondent isliable to be rejected and accordingly rejected.8.When the petitioner is entitled to the benefits of theprovisions contained in Section 47 of the Act, the same should have beenextended by the respondent Corporation but instead, by invoking G.O.746had entered into a settlement under section 18(1) of the I.D. Act with thepetitioner and provided the job of Helper, which post carries a lesser payscale, which in the considered view of the Court is against the beneficialprovisions contained in Section 47 of the Act. Therefore, this Court isof the view that the impugned order is liable to be quashed andaccordingly quashed and the Writ Petition is allowed. However, therewill be no order as to costs.mraSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:The General Manager, Tamil Nadu State ExpressTransport Corporation, Division - I,(formerly known as Tiruvalluvar Transport Corporation)Pallavan Salai, Chennai 600 002.+1 cc to Mr.D.Hariparanthaman, Advocate Sr.No.43273.+1 cc to Mr.V.R.Kamalanathan, Advocate Sr.No.42662.BV(CO)dcp/25.7.07W.P.No.11378 of 1998