K.Janardhanan v. The Managing Director, Metropolitan Transport Corporation Ltd., (Division No.I), Pallavan Salai, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated :10.04.2008Coram :THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICEandTHE HONOURABLE MRS.JUSTICE PRABHA SRIDEVANWrit Appeal No.423 of 2008K.JanardhananAppellant (Petitioner)v.1. The Managing Director, Metropolitan Transport Corporation Ltd., (Division No.I), Pallavan Salai, Chennai 2. 2. The General Manager, Metropolitan Transport CorporationLtd., (Division II), Pallavan Salai, Chennai 2.Respondents (Respondents)Writ Appeal filed under clause 15 of the Letters Patent against theorder dated 16.04.2005 made in writ petition No.12615 of 2005 Petitionpresented to this court under Article 226 of the Constitution of Indiato issue a writ of Mandamus directing the respondents to reinstate thepetitioner in a suitable alternative post with the same scale of pay andservice benefits with continuity of service..For Appellant:Mr.C.ManoharFor Respondents:Mrs.Rita ChandrasekarJUDGMENT(Judgment of the Court was delivered byThe Honourable The Chief Justice)This appeal is filed against the order made in writ petitionNo.12615 of 2005. Admit. Learned counsel for respondents 1 and 2 waiveservice. By consent, the appeal is taken up for final hearing.2. The appellant was temporarily appointed as a driver in therespondent transport Corporation on 09.09.1989. Subsequently, he wasabsorbed as a regular employee in the time scale of pay of Rs.780-50-900-20-1020 with effect from 01.08.1990. While the appellant was onduty on the route 29-N Perambur – Velacherry on 10.01.2001, he had https://hcservices.ecourts.gov.in/hcservices/ suffered a stroke totally disabling his right side of the body. Thepassengers who noticed that, held him and he was admitted in theGovernment Hospital at Royapettah. He was treated as inpatientinitially and thereafter he took treatment as an outpatient. Theappellant was directed to appear before the Medical Board, GovernmentStanley Hospital, Chennai, for medical check up. The Medical Board,after examining him, issued a certificate that he had regular paralysesof right upper and lower limb and was presently unfit to be a driver andadvised to consider the possibility of providing an alternative job. Onreceipt of the medical certificate, the respondent Corporation issued ashow cause notice to the appellant calling for his explanation againstthe provisional conclusion of permanently discharging him from duty onmedical grounds vide memo dated 25.04.2002, which was served on theappellant on 06.06.2002. In his reply dated 08.06.2002, the appellantsubmitted that he had been in service for more than 13 years and at hisage of 42, it would not be possible for him to seek for an employmentoutside and requested that he should not be deprived of his livelihood.He also requested to drop the proposal of discharge and to provide foran alternative job. However, the respondent Corporation passed an orderon 27.08.2002 discharging the appellant from service.3. Aggrieved by the order of discharge, the appellant preferred anappeal to the first respondent, but till date there is no response onthe appeal. Hence, the appellant filed writ petition in W.P.No.3050 of2003 seeking direction to the respondents to provide him a suitablealternative job. This Court passed an order dated 03.02.2003 directingthe respondents to dispose of the representation of the appellant dated10.09.2002 in one way or the other in accordance with law within eightweeks from the date of the order. 4. In pursuance of this direction, the first respondent passed afresh order vide memo dated 06.03.2003 stating that the appellant'sapplication would be considered as and when vacancy arises as per thefitness and as per the seniority in the waiting list of employees, whoare in the list expecting such alternative employment. The appellantagain approached this Court by filing the writ petition in W.P. No.12615of 2005, which came to be disposed of on 16.04.2005 by the learnedsingle Judge holding that when the Corporation has sent the appellant areply to the effect that his case would be considered as and when hisseniority reaches for consideration and hence the present writ petitionunder Article 226 of the Constitution of India could not be maintainedand dismissed the petition in limine.5. Mr.Manohar, learned counsel appearing for the appellantstrenuously stated that the appellant is entitled for an alternativeemployment in view of the provisions of the Section 47 of the Personswith Disabilities (Equal Opportunities) Act, 1995 (1 of 1996)(hereinafter referred to as 'the Act'). He submitted that the term'disability' is defined in Section 2(i) of the Act and includes the https://hcservices.ecourts.gov.in/hcservices/ disability acquired. He submits that in the case of Kunal Singh v.Union of India, 2003-II-LLJ 735, the Supreme Court has clearly held thatacquisition of disability is not the same as a person with disabilityand it is not necessary to establish that the workman has suffered 40%disability. He also brought to our notice the recent decision of aDivision Bench of this Court in the case of G.Muthu v. Management ofTamil Nadu State Transport Corporation (Madurai) Ltd., (2006) 4 MLJ1669, where a view has been taken that the term 'disability' used insection 47 of the Act would encompass not only those contained insection 2(i) but also those which disabled a person from performing awork which he held immediately prior to acquisition of such disability.The SLP filed by the Transport Corporation against this judgment hasbeen dismissed by the Supreme Court. 6. On the other hand, learned counsel for the respondent submittedthat the Corporation is maintaining a wait list and the appellant's casewould be considered as per the seniority and he would be offered analternative employment.7. Section 47 of the Act read as follows :47. Non-discrimination in government employment :(1) No establishment shall dispense with, or reduce inrank, an employee who acquires a disability during his service:Provided that, if an employee, after acquiring disabilityis not suitable for the post he was holding, could be shifted tosome other post with the same pay scale and service benefits:Provided further that if it is not possible to adjust theemployee against any post, he may be kept on a supernumerarypost until a suitable post is available or he attains the age ofsuperannuation, whichever is earlier.(2) No promotion shall be denied to a person merely on theground of his disability:Provided that the appropriate Government may, having regardto the type of work carried on in any establishment, bynotification and subject to such conditions, if any, as may bespecified in such notification, exempt any establishment fromthe provisions of this Section."According to the workman, as a result of the paralytic stroke, themovement of his right upper and lower limb is affected and thedisability he is suffering from would fall under the locomotordisability as defined in section 2(i) read with section 2(o) of the Act.8. The provisions of section 2 read with 47 of the Act fell forconsideration in Kunal Singh v. Union of India, 2003-II-LLJ 735 citedsupra, wherein the Court highlighted the distinction between the terms'disability' and 'person with disability' and held that section 47contemplates a disability acquired during service by observing asfollows : https://hcservices.ecourts.gov.in/hcservices/ "Chapter VI of the Act deals with employment relating topersons with disabilities, who are yet to secure employment.Section 47, which falls in Chapter VIII deals with an employee,who is already in service and acquires a disability during hisservice. It must be borne in mind that section 2 of the Acthas given distinct and different definitions of 'disability'and 'person with disability'. It is well settled that in thesame enactment if two distinct definitions are given defining aword/expression, they must be understood accordingly in termsof the definition. It must be remembered that a person doesnot acquire or suffer disability by choice. An employee, whoacquires disability during his service, is sought to beprotected under section 47 of the Act specifically. Suchemployee, acquiring disability, if not protected, would notonly suffer himself, but possibly all those who depend on himwould also suffer. The very frame and contents of section 47clearly indicate its mandatory nature. The very opening partof the section reads "no establishment shall dispense with, orreduce in rank, an employee who acquires a disability duringhis service". The section further provides that if an employeeafter acquiring disability is not suitable for the post he washolding, could be shifted to some other post with the same payscale and service benefits; if it is not possible to adjust theemployee against any post he will be kept on supernumerary postuntil a suitable post is available or he attains the age ofsuperannuation, whichever is earlier. Added to this nopromotion shall be denied to a person merely on the ground ofhis disability as is evident from sub-section (2) of section47. Section 47 contains a clear directive that the employershall not dispense with or reduce in rank an employee whoacquires a disability during the service. In construing aprovision of a social beneficial enactment that too dealingwith disabled persons intended to give them equalopportunities, protection of rights and full participation, theview that advances the object of the Act and serves its purposemust be preferred to the one which obstructs the object andparalyses the purpose of the Act. Language of section 47 isplain and certain casting statutory obligation on the employerto protect an employee acquiring disability during service.The argument of the learned counsel for the respondent onthe basis of the definition given in section 2(t) of the Actthat benefit of section 47 is not available to the appellant ashe has suffered permanent invalidity cannot be accepted.Because, the appellant was an employee, who has acquired"disability" within the meaning of section 2(i) of the Act andnot a person with disability."9. In the light of the decision Kunal Singh's case cited supra, itis clear that section 47 provides that an employee after acquiring https://hcservices.ecourts.gov.in/hcservices/ disability not suitable for the post he was holding, could be shifted tosome other post with the same pay scale and service benefits; and if itis not possible to adjust the employee against any post, he will be kepton supernumerary post until a suitable post is available or he attainsthe age of superannuation, whichever is earlier. 10. In a recent judgment of the Division Bench of this Court in thecase of G.Muthu v. Management of Tamil Nadu State Transport Corporation(Madurai) Ltd., (2006) 4 MLJ 1669, the appellant, a driver in therespondent Transport Corporation was discharged from service on theground that since he was colour blind, he was unfit to work as driver.The argument of the Transport Corporation was that the colour blindnessis not a disability which would fall under section 2(i) of the Act.Rejecting the Corporation's contention, the Division Bench held that theterm 'disability' in section 47 would encompass not only thosecontained in section 2(i) but also those which disabled a person fromperforming the work which he held immediately prior to the acquisitionof such disability. It was held that the benefits of benevolentlegislation could not be denied on ground of mere hyper-technicalities. 11. In the light of the express provisions of section 47 of the Actand the decision in Kunal Singh's case, we hold that the appellant isentitled to an alternative job. The order discharging the appellant fromduty is set aside and the respondents are directed to offer an alternateemployment to the appellant within a period of four weeks from today andif it is not possible to provide for an alternative employment, therespondents shall create a supernumerary post for the appellant, asprovided in section 47 of the Act. The respondents are further directedto pay the back-wages and other emoluments as provided under the Ruleswithin a period of two weeks from today. The writ appeal is allowed.No costs.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarmfTo1. The Managing Director, Metropolitan Transport Corporation Ltd., (Division No.I), Pallavan Salai, Chennai 2. https://hcservices.ecourts.gov.in/hcservices/

2. The General Manager, Metropolitan Transport CorporationLtd., (Division II), Pallavan Salai, Chennai 2.+1 cc to Mr.C.Manohar, Advocate, SR.No.20035.+1 cc to Mr.Jayeesh B.Dolia, Advocate, SR.No.20078.Bv (Co)krd / 21.4Writ Appeal No.423 of 2008