M. Nathian v. The Management of Pattukottai Alagiri Transport Corporation

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 11..6..2008Coram: The Hon'ble Mr. Justice K.CHANDRUW.P. No. 16190 of 1998M. Nathian .. PetitionerVs.

The Management of Pattukottai Alagiri Transport Corporation RangapuramVellore2.The Presiding OfficerII Additional Labour CourtChennai3.The P.A.T.C. Recreation ClubP.A.T.C. Central DepotRaja Anna Malai RoadChennai .. Respondents Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamuscalling for the records of the second respondent in I.D. No.691/93 and quash the Award dated 20.9.1996 passed by the second respondent and direct the first respondent to reinstate the petitioner in service with back wages, continuity of service and all other attendant benefits. For Petitioner : Mrs. D. GeethaFor Respondent 1 : Mr. V.R. KamalanathanORDERHeard the learned counsel for the parties and perused the records.

This writ petition is filed by the petitioner seeking to challenge the Award of the second respondent Labour Courtdated 20.9.1996 made in I.D. No. 691 of 1993 so far as it denied the petitioner the benefit of alternative employment on the ground that he had attained physical disability. https://hcservices.ecourts.gov.in/hcservices/

The petitioner was employed as a Conductor in the respondent Corporation. On 06.4.1987, when he was working in Route No. 303 from Chennai to Hosur, the bus met with an accident in which his left hand was completely crushed. Hewas admitted as an in-patient in the Christian Medical CollegeHospital, Vellore. After he returned to duty, he was posted to work in the third respondent Recreation Club for one month. Thereafter, he was posted in the Central depot of the Pattukkottai Alagiri Transport Corporation as a Time Keeper. He was paid the wages of a Conductor even though work was extracted from him as a Time Keeper. After working as a TimeKeeper for five years, he was directed by the Corporation to appear before the Medical Board. On 12.7.1991, the MedicalBoard found him medically unfit to work in the Corporation. Therefore, a show cause notice was issued to him. Thereafter, on the basis of the medical report, he was discharged from service. The petitioner raised an industrial dispute about his non-employment and the same was taken on file by the second respondent Labour Court as I.D. No. 691 of 1993.

Before the Labour Court, the petitioner had examined himself as W.W.1. On the side of the Transport Corporation, two witnesses were examined as M.W.1 and M.W.2. On the side of the Management, eleven documents were filed and they were marked as Exs. M.1 to M.11. Strong reliance was placed by the Management on G.O. Ms. No. 746 dated 02.7.1981 (marked asEx. M.9) granting the benefit of alternative employment to transport workers in case they became disabled.

The Labour Court, on an analysis of the evidence, came to the conclusion that in case the Corporation is unable to give any alternative employment, it can also grant compensation. In the present case, the petitioner was directed to be paid his terminal benefits from the date of accident, till he reached the age of superannuation. Apartfrom that, he was also directed to be paid two months pay towards loss of employment. But with reference to re-employment issue, the Court declined to grant any relief. It is against this Award, the petitioner has filed the present writ petition.

At the time of filing of the writ petition, the petitioner was 54 years old and by the year 2002, he had reached the age of superannuation.

A counter affidavit has been filed by the respondentManagement stating that the Award of the Labour Court did not suffer from any infirmity and the Corporation was fully justified in denying him any employment. On the question of application of Central Act 1 of 1996, the respondent https://hcservices.ecourts.gov.in/hcservices/ Corporation submitted that the said Act came into force only from 01.01.1996 and, therefore, no retrospective benefit can be given. Further, it was orally submitted that such adispute will not come under Section 2 A of the I.D. Act. 8. In this context, it relevant to refer to the judgment of a Division Bench of this Court (to which myself was aparty) in A.John Peter v. Tamil Nadu State TransportCorporation, Kumbakonam Division III Limited, Karaikudi [2008(4) M.L.J. 429] wherein this Court referred to the history of granting relief to persons acquiring disability even before the law was enacted. It is necessary to refer to the passage found in paragraph 16 of the judgment which is as follows:-"Even before the Disability Act was enacted in the year 1995, the Supreme Court in two decisions highlighted the necessity to give solace to workmen who were sought to be discharged on grounds of acquiring disability. (Ref. Anand Bihari v. RSRT Corporation [AIR1991 SC 1003 : (1991) 1 SCC 731 and NarendraKumar Chandla v. State of Haryana AIR 1995 SC519 : (1994) 4 SCC 460)."

Under Article 37 of the Constitution, it is mandated that the principles found in Chapter IV of the Constitutionare fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. Article 41 provides for the State to make effective provision for securing public assistance in case of disablement.

It is necessary to refer to Article 41 of the Constitution which reads as follows:-"41. Right to work, to education and to public assistance in certain cases --- The Stateshall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. "

Therefore, even in the absence of a legislation in the field, the relevant G.O. marked as Ex. M.9 can be read asan obligation of the State to provide an alternative employment in case of acquired disablement. Even though itis contended that G.O. No. 746 dated 02.7.1981 stood modified by the issuance of G.O. Ms. No. 1387 dated 11.11.1989 (marked as Ex. M.11) prohibiting alternative employment, in case of workmen who had reached 50 years of age, the said condition cannot deny the legitimate right of the workmen in seeking alternative employment and that condition is unconstitutional. https://hcservices.ecourts.gov.in/hcservices/ In the present case, when the petitioner got injured in the year 1987, he had not crossed 50 years of age. It was the reason why he was accommodated in service as a Time Keeperafter the accident. What prevented the Corporation to deny the re-employment after some years to the petitioner is not disclosed in the counter-statement before the Labour Court. Therefore, the Award passed by the Labour Court suffers from material irregularity and hence, it deserves to be dismissed in so far it has denied the benefit of re-employment to the petitioner.

In view of the above, the writ petition will stand allowed. Since the petitioner had reached the age ofsuperannuation during the pendency of the writ petition, the first respondent Corporation is directed to pay the wages payable to the post of Time Keeper, to the petitioner from the date on which he had suffered injuries till the date of he reached the age of superannuation after adjusting the amounts already paid during his re-employment. This exercise shall be carried on within a period of eight weeks from the date of receipt of a copy of this order. No costs. GriSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1.The Management of Pattukottai Alagiri Transport Corporation Rangapuram, Vellore2. The Presiding OfficerII Additional Labour CourtChennai+ 1 cc to Mr. T. Fennwalter, Advocate, SR No.28381+ 1 cc to Mr. V. R. Kamalanathan, Advocate, SR No.28446W.P. No. 16190 of 1998MA(CO)SR/3.7.2008