A.Subramani v. 1. The Management of Tamil Nadu State Transport Corporation, (Coimbatore Division-I) Limited

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.08.2007 C O R A M :THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE P. JYOTHIMANIW.A.No.152 of 2007andM.P.No.1 of 2007A.Subramani ... Appellant-vs-1. The Management of Tamil Nadu State Transport Corporation, (Coimbatore Division-I) Limited, Udagamandalam.2. The Presiding Officer, Labour Court, Coimbatore. ... Respondents PRAYER : Appeal filed under Clause 15 of the Letters Patent against theorder, dated 08.12.2006 made in W.P.No.2892 of 2006 on the file of thisCourt. Praying to stay the operation of the order passed by the 2ndrespondent in I.P.No.234 of 2000 dated 8.2.2005 and in M.P.No.1 of 2007praying to grant interim stay of the order dated 8.12.2006 in W.P.No.2892of 2006 on the file of High court of Judicature at Madras in so for as itdirected the appellant to return the sum of Rs.2,30,568/- ordered asconpensation in W.C.No.205 of 1999 pending disposal of appeal.For appellant :: Mr. R.Sunil KumarFor respondents :: Mr.C.Kanagaraj for R1 J U D G M E N T(JUDGMENT OF THE COURT WAS DELIVERED BY THE HONOURABLE THE CHIEF JUSTICE)Admit. Learned counsel appearing for the first respondent Corporationwaives service. By consent, the appeal is taken up for hearing.2. The appellant was working as a Conductor in the first respondent-Tamil Nadu State Transport Corporation. On 15.9.1996, when the appellant https://hcservices.ecourts.gov.in/hcservices/ was on duty on the route from Mettupalayam to Coimbatore, he fell downfrom the running bus and received grievous injury on his head. Theappellant was in coma for a period of 45 days and he had to undergomedical treatment for nearly four months. The appellant thereafter joinedthe service and he was referred to the Medical Board at UdhagamandalamGovernment Hospital, which opined that he is unfit to take up the workinvolving prolonged standing or walking. Consequently, the firstrespondent Corporation issued a notice to the appellant that he has becomedisabled and, therefore, he should be discharged from the post ofConductor and accordingly discharged him from service on 29.9.1998. Theappellant filed a claim petition under the provisions of the Workmen'sCompensation Act in W.C.No.205 of 1999, before the Deputy Commissioner ofLabour, Coimbatore. The Deputy Commissioner vide his award dated28.01.2000 awarded a compensation of Rs.2,30,568/- to the appellant andthis order has not been challenged by the Corporation and has attainedfinality. The appellant also raised an industrial dispute in I.D.No.254 of2000 under Section 2(A) (2) of the Industrial Disputes Act for alternativeemployment with continuity of service. The Labour Court, Coimbatore videAward, dated 08.02.2005 declared that the appellant is entitled for therelief sought for under Section 47 of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act, 1995(hereinafter will be referred to as 'the Disabilities Act' in short) anddirected the 1st respondent to reinstate the appellant with full backwages. 3. The Award of the Labour Court was challenged by the firstrespondent Corporation by means of the present writ petition contendinginter alia that the appellant having received a compensation ofRs.2,30,568/- under the Workmen's Compensation Act, cannot again claimalternative employment in terms of Section 47 of the Disabilities Act, asit is not open for the employee to pursue both the remedies. The learnedSingle Judge accepted the contention of the Management and held that theappellant is not entitled to enjoy both the benefits, i.e. thecompensation under the Workmen's Compensation Act and alternativeemployment under the Disabilities Act, and that the appellant can claimonly one relief from the Corporation. Consequently, the learned singleJudge directed the appellant to repay Rs.5,000/- per month from hissalary and clear the total amount and in case, the appellant retiresbefore the recovery of the amount, the Corporation would be at liberty todeduct the same from the terminal benefits of the appellant.4. Mr.R.Sunil Kumar, learned counsel appearing for the appellantstrenuously contended that by virtue of Section 72 of the DisabilitiesAct, the provisions of the said Act are in addition to and not inderogation of any other law for the time being in force. Learned counselurged that the receipt of compensation under the Workmen's CompensationAct will not disentitle reinstatement of workman with consequentialbenefits. He submitted that in cases involving permanent partialdisablement, the courts will have to necessarily see whether the earningcapacity is reduced in every employment which he was capable of https://hcservices.ecourts.gov.in/hcservices/ undertaking at the time of accident and not merely a particular employmentin which he is engaged or in which the salary received by the disabled.Learned counsel submitted that the Disabilities Act is a beneficial pieceof legislation which came into effect when other enactments providingsecurity to the workforce were available and the legislature whiledrafting the Act was conscious about the other enactments and in spite ofthe same provided additional benefits to the disabled workmen. Learnedcounsel placed heavy reliance on the decision of the Supreme Court in thecase of Kunal Singh -vs- Union of India and another (2003 (2) LLJ 735). 5. In Kunal Singh's case, a two-Judge Bench of the Supreme Court hasheld that the object of the Disabilities Act was to provide some sort ofsuccor to the disabled persons and the provisions of Section 47 aremandatory in nature. Shivraj Patil, J. speaking for the Bench, observed inparas 8 and 9 as follows:-''8. The need for a comprehensive legislation for safeguardingthe rights of persons with disabilities and enabling them toenjoy equal opportunities and to help them to fully participatein natural life was felt for a long time. To realize objectivethat people with disabilities should have equal opportunitiesand keeping their hopes and aspirations in view a meeting calledthe ''Meet to Launch the Asian and Pacific Decades of DisabledPersons'' was held in Beijing in the first week of December, 1992by the Asian and Pacific countries to ensure full participationand equality of people with disabilities in the Asian andPacific Regions'. This Meeting was held by the Economic andSocial Commission for Asia and Pacific. A Proclamation wasadopted in the said meeting. India was a signatory to the saidProclamation and they agreed to give effect to the same. Pursuantthereto this Act was enacted, which came into force on January 1,1996. The Act provides some sort of succor to the disabledpersons.9. ...... It must be remembered that a person does notacquire or suffer disability by choice. An employee, who acquiresdisability during his service, is sought to be protected underSection 47 of the Act specifically. Such employee, acquiringdisability, if not protected, would not only suffer himself, butpossibly all those who depend on him would also suffer. The veryframe and contents of Section 47 clearly indicate its mandatorynature. The very opening part of Section reads ''no establishmentshall dispense with, or reduce in rank, an employee who acquiresa disability during his service". The Section further providesthat if an employee after acquiring disability is not suitablefor the post he was holding, could be shifted to some other postwith the same pay scale and service benefits; if it is notpossible to adjust the employee against any post he will be kepton a supernumerary post until a suitable post is available or heattains the age of superannuation, whichever is earlier. Added tothis, no promotion shall be denied to a person merely on theground of his disability as is evident from sub-section (2) of https://hcservices.ecourts.gov.in/hcservices/ Section 47. Section 47 contains a clear directive that theemployer shall not dispense with or reduce in rank an employeewho acquires a disability during the service. In construing aprovision of social beneficial enactment that too dealing withdisabled persons intended to give them equal opportunities,protection of rights and full participation, the view thatadvances the object of the Act and serves its purpose must bepreferred to the one which obstructs the object and paralyses thepurpose of the A ct. Language of Section 47 is plain and certaincasting statutory obligation on the employer to protect anemployee acquiring disability during service." (emphasis supplied)The Bench also rejected the argument of the respondents that as theappellant was granted invalidity pension under Rule 38 of the CentralCivil Services Pension Rules, 1972, he cannot claim the benefit of Section47 of the Disabilities Act and observed in paragraphs 11 and 12 asfollows:-''11. We have to notice one more aspect in relation to theappellant getting invalidity pension as per Rule 38 of the CCS(Pension) Rules. The Act is a special legislation dealing withpersons with disabilities to provide equal opportunities,protection of rights and full participation to them. It being aspecial enactment, doctrine of generalia specialibus nonderogant would apply. Hence Rule 38 of the Central CivilServices (Pension) Rules cannot override Section 47 of the Act.Further Section 72 of the Act also supports the case of theappellant, which reads:''72. Act to be in addition to and not inderogation of any other law. The provisions of thisAct, or the rules made thereunder shall be in additionto, and not in derogation of any other law for the timebeing in force or any rules, order or any instructionsissued thereunder, enacted or issued for the benefitsof persons with disabilities."12. Merely because under Rule 38 of CCS (Pension) Rules,1972, the appellant got invalidity pension is no ground to denythe protection, mandatorily made available to the appellantunder Section 47 of the Act. Once it is held that the appellanthas acquired disability during his service and if found notsuitable for the post he was holding, he could be shifted tosome other post with same pay scale and service benefits; if itwas not possible to adjust him against any post, he could bekept on a supernumerary post until a suitable post was availableor he attains the age of superannuation, whichever is earlier.It appears no such efforts were made by the respondents. Theyhave proceeded to hold that he was permanently incapacitated tocontinue in service without considering the effect of otherprovision of Section 47 of the Act. (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

6. Even prior to the enactment of the Disabilities Act, the CalcuttaHigh Court in Ram Naresh Singh -vs- Lodhna Colliery Co., (1973) Lab IC1656 (Cal) observed, ''the fact that he (workman) is still holding his oldpost and getting his old wages is because his employer is giving it to himby way of grace. It would be a complete misunderstanding of the Workmen'sCompensation Act to hold that in such circumstances, the workman will notbe entitled to any compensation. This was not certainly the intention ofour judgment in AIR 1967 Cal 7, Commissioners for the Port of Calcutta-vs- Prayag Ram, (1966 31 FJR 149 (Cal)."7. In Executive Engineer, PWD (B & R) -vs- Narain Lal, (Raj) (1977Vol.52 FJR 67), a learned Single Judge of Rajasthan High Court, followingthe decision in the case of Calcutta High Court in Ram Naresh Singh -vs-Lodhna Colliery CO., cited supra, held that the theme in the Workmen'sCompensation Act is to provide security to the workman who receivespartial incapacity resulting in a loss in the earning capacity. Theprotection so afforded to the workman is independent of the acts of graceor mercy which the employer might show to him. In a welfare State likeours, the protection afforded to a disabled workman cannot be allowed torest on the mercies and grace shown by the employer. If the employer doesso, it is commendable, but the workman has still a stake for hisemployment which is guaranteed to him under the Workmen's CompensationAct. A learned Single Judge of this Court (P.K.Sethuraman, J.) has alsotaken a similar view in V.Jayaraj -vs- Thanthai Periyar TransportCorporation Limited (1989 (II) LLJ 38) and held as follows:-''Loss of earning capacity has to be calculated in terms ofpermanent partial disability which the workman has been subjectedto. The fact that the workman is continued in the employment andgets old wages will not absolve the employer from paying thecompensation. The employer may continue him in the old post andgive him old wages by way of grace, but that would not disentitlethe employee to claim compensation. The theme in the Workmen'sCompensation Act is to provide security to the workman whoreceived partial incapacity and loss of earning capacity. Theextent of loss in the workman's earning capacity has to becalculated having regard to all the facts. Loss of earningcapacity in this case was enhanced to 60% in view of the factthat the workman had lost the capacity of hearing of the rightear at 100% and of the left ear at 73.5%." 8. Similar is the view taken by the Kerala High Court in KeralaMinerals and Metals Limited -vs- K.Bhaskaran (1998 (1) LLN 902), whereinthe Court observed that in considering the loss of earning capacity in thecase of a 'permanent partial disablement', the comparison between thewages drawn by the workmen before and after the accident, from hisemployer at the time of the accident is not a determinative factor. Ifthat be so, the cunning employer to tide over the liability may offer atemporary employment to the claimant/workman to deprive him hisentitlement under the Act. That would be against the legislative intent. https://hcservices.ecourts.gov.in/hcservices/ The plea that there being no loss in the wages, compensation could nothave been awarded, cannot be accepted.9. In any event, Section 72 of the Disabilities Act specificallyprovides that the provisions of the said Act are to be considered inaddition to any other law or order and not in derogation of any law ororder. The main object of the Workmen's Compensation Act is to compensatethe workman for his injury. Merely because the workman has received thecompensation for his injury under the Workmen's Compensation Act, it isnot permissible for the employer to deny the benefits of Section 47 of theDisabilities Act, which contains a directive that the employer shall notdispense with or reduce in rank an employee who acquires disability duringthe service. The benefit envisaged under Section 47 of the DisabilitiesAct must be considered in addition to the benefits contemplated under theWorkmen's Compensation Act. Therefore, the learned single Judge wasclearly in error in directing the appellant/workman to refund thecompensation received by him under the Workmen's Compensation Act. 10. In the result, the appeal is allowed. The impugned order of thelearned Single Judge is set aside. The respondent Corporation is directedto pay the arrears of backwages to the appellant as per the Award of theLabour Court within a period of six weeks from today. Consequently, theconnected miscellaneous petition is closed. No costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Management of Tamil Nadu State Transport Corporation, (Coimbatore Division-I) Limited, Udagamandalam.2. The Presiding Officer, Labour Court, Coimbatore.+ 1 cc to Mr.c.kanagaraj Advocate SR.NO.49815+ 1 CC to Mr.R.SunilKumar Advocatet SR.NO.49852SA(CO)RD 23.8.07 W.A.No.152 OF 2007 and M.P.No.1 of 2007 https://hcservices.ecourts.gov.in/hcservices/

09.8.2007