The Management of Tamil NaduState Transport Corporation(Villupuram Division-III) Ltd.,Kancheepuram v. R. Gnanasekaran

J U D G M E N T( Delivered by the Honourable Chief Justice )Admit. Learned counsel appearing for the respondent waivesservice. By consent, the appeal is taken up for hearing. 2. This appeal is directed against the judgment and orderpassed by N. Paul Vasanthakumar, J., whereby he has quashed theorders of the appellant Corporation dated 19.4.2000 and 19.9.2000and directed the appellant Corporation to reinstate therespondent workman into service within a period of two weeks withpay protection, continuity of service, backwages, etc. The brieffacts leading to this appeal are stated hereunder.3. The respondent workman initially joined service in theappellant Corporation as Conductor in the year 1992 andsubsequently, the Employment Exchange sponsored his name for thepost of Driver and thus, the respondent was appointed as Driverin the appellant Corporation by order dated 2.5.1994. Oncompletion of 240 days of service, his services were confirmed.While the respondent was working in the Kancheepuram Depot of theappellant Corporation, on 2.1.1999, when he was returning homeafter completing duty, met with an accident and sustained injuryon his right leg. The respondent was admitted in the C.M.C.,Vellore and underwent surgery. During treatment, the respondentapplied for medical leave and the same was sanctioned from2.1.1999 to 11.1.2000. After treatment, the respondent was givenduty as Driver. However, due to the injury sustained, therespondent could not move his right leg freely as earlier.Hence, by representation dated 1.2.2000, he requested theappellant Corporation to provide him light duty. Pursuant to thesaid request, by order dated 5.2.2000, the appellant Corporationrequested the Medical Board to give a report as to whether therespondent was fit for the post of Driver. After examination,the Medical Board, by report dated 29.3.2000, opined that therespondent was unfit for the duty of Driver as he had lost hisknee movement and there was no possibility to regain the normalmovement. Based on the said report, the appellant Corporationissued a show cause notice on 4.4.2000 and directed therespondent to show cause as to why he should not be dischargedfrom service on medical grounds. The respondent submitted hisexplanation on 11.4.2000 and requested the appellant Corporationto provide him alternate employment/light duty. However, withoutconsidering the explanation, the respondent was discharged fromservice by the order dated 19.4.2000. Thereafter, based on a https://hcservices.ecourts.gov.in/hcservices/ Government Order and the settlement regarding alternateemployment, by order dated 28.3.2001, the appellant Corporationprovided alternate employment and appointed the respondent asHelper (Non-Tech), i.e., Office Assistant and he was posted tothe Personnel Section in the Head Office. The respondent joinedduty on 6.4.2001 and worked continuously. However, by orderdated 19.9.2001, the respondent was terminated from service withimmediate effect without giving any notice or assigning anyreason. Though the respondent made several representationsseeking alternate employment, no reply was given by the appellantCorporation. Hence, the present writ petition has been filed bythe respondent workman seeking to quash the orders of theappellant Corporation dated 19.4.2000 and 19.9.2001 and forconsequential reliefs. The learned Judge, following the decisionof the Supreme Court in Kunal Singh vs. Union of India & Another[(2003) 4 S.C.C. 524] and a Division Bench decision of this Courtin Metropolitan Transport Corporation vs. The Presiding Officer,Principal Labour Court & Another [2004 W.L.R. 398], held that thetermination of the services of the respondent workman was inviolation of the provisions of the Persons with Disabilities(Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 (Act 1 of 1996) (hereinafter referred toas 'Disabilities Act') and directed reinstatement of therespondent workman with pay protection, continuity of service andbackwages. Being aggrieved, the appellant Corporation has filedthis appeal.4. Mr. G. Muniratnam, learned counsel appearing for theappellant Corporation strenuously contended that Section 2(t) ofthe Disabilities Act defines 'person with disability' to mean aperson suffering from not less than 40% of any disability ascertified by a medical authority. Learned counsel contended thatChapter VIII of the Disabilities Act deals with 'non-discrimination' and under Section 47, there is a prohibition ofdiscrimination in Government employment in respect of an employeewho acquires a disability during his service. Learned counselurged that from a conjoint reading of the definition of 'personwith disability' and Section 47 of the Disabilities Act, it wouldbe evident that those persons who acquire disability, i.e., morethan 40% during service, his/her service cannot be dispensed withor he/she reduced in rank, though it is open to the employer toshift such employee to some other post with the same pay scaleand service benefits and in the absence of such post, to keephim/her on a supernumerary post or such post until a suitablepost is made available or till the person attains the age ofsuperannuation. Learned counsel submitted that there is nothingon record that the respondent was a person with disability asdefined under Section 2(t) of the Disabilities Act and whether https://hcservices.ecourts.gov.in/hcservices/ the disability was more than 40%. Learned counsel furthersubmitted that no such certification has been made by any medicalboard and in the absence of any such report, the respondentcannot ask for any benefit under Section 47 of the DisabilitiesAct. In support of this submission, learned counsel placedreliance on an unreported decision of a Division Bench of thisCourt in General Manager, Tamil Nadu State Transport Corporationvs. A. Sengaan (Writ Appeal M.D. No.96 of 2007) decided on26.4.2007. 5. On the other hand, Mr. Hariparanthaman, learned counselappearing for the respondent workman submitted that the term'disability' used in Section 47 of the Disabilities Act isdifferent from the term 'person with disability' as defined underSection 2(t) of the Act. Learned counsel submitted that the term'disability' is defined under Section 2(i) of the Act, andincludes locomotor disability. Learned counsel submitted thatthe Supreme Court in Kunal Singh's case (supra) has clearly heldthat acquisition of disability is not the same same as a personwith disability and it is not necessary to establish that theworkman has suffered 40% disability. Learned counsel alsobrought to our notice a recent decision of a Division Bench ofthis Court in G. Muthu vs. Management of Tamil Nadu StateTransport Corporation (Madurai) Limited [2007 (1) L.L.J. 9],where a view has been taken that the term 'disability' used inSection 47 of the Disabilities Act would encompass not only thosecontained in Section 2(i), but also those which disabled a personfrom performing a work which he held immediately prior toacquisition of such disability. He submitted that the S.L.P.filed by the Transport Corporation against this judgment has beendismissed by the Supreme Court. Learned counsel, however, addedthat as far as the present respondent is concerned, he issuffering from locomotor disability which is defined in Section 2(o) of the Disabilities Act to mean disability of the bones,joints or muscles leading to substantial restriction of themovement of the limbs or any form of cerebral palsy and it isincluded in the definition of 'disability' in Section 2(i) of theDisabilities Act. 6. For proper appreciation of the rival submissions of thelearned counsel for the parties, it is useful and necessary tonotice a few definitions contained in Section 2 and Section 47 ofthe Disabilities Act :"2. Definitions. - In this Act, unless the contextotherwise requires, - (a) - (d) ... ... ...(e) ' cerebral palsy' means a group of non-progressive conditions of a person characterized by https://hcservices.ecourts.gov.in/hcservices/ abnormal motor control posture resulting from braininsult or injuries occurring in the prenatal, perinatalor infant period of development;(f) - (h) ... ... ...(i) 'disability' means - (i) - (iv) ... ... ...(v) locomotor disability; (vi) - (vii) ... ... ...(j) ... ... ...(k) 'establishment' means a corporationestablished by or under a Central, Provincial or StateAct, or an authority or a body owned or controlled oraided by the Government or a local authority or agovernment company as defined in Section 617 of theCompanies Act, 1956 (1 of 1956) and includesdepartments of a Government;(l) - (n) ... ... ...(o) 'locomotor disability' means disability of thebones, joints or muscles leading to substantialrestriction of the movement of the limbs or any form ofcerebral palsy;(p) - (s) ... ... ...(t) 'person with disability' means a personsuffering from not less than forty per cent of anydisability as certified by a medical authority;(u) - (v) ... ... ...(w) 'rehabilitation' refers to a process aimed atenabling persons with disabilities to reach andmaintain their optimal physical, sensory, intellectual,psychiatric or social functional levels;... ... ..."Section 47 of the Disabilities Act reads as follows :"47. Non-discrimination in government employment.-(1) No establishment shall dispense with, or reduce inrank, an employee who acquires a disability during hisservice:Provided that, if an employee, afteracquiring disability is not suitable for the post hewas holding, could be shifted to some other post withthe same pay scale and service benefits:Provided further that if it is not possibleto adjust 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 personmerely on the ground of his disability: https://hcservices.ecourts.gov.in/hcservices/ Provided that the appropriate Government may,having regard to the type of work carried on in anyestablishment, by notification and subject to suchconditions, if any, as may be specified in suchnotification, exempt any establishment from theprovisions of this section."7. According to the respondent workman, his disability fallsunder Section 2(i)(v), namely locomotor disability. There is nodispute that the Disabilities Act applies to establishment of theappellant Corporation and this establishment is not exemptedunder any notification issued under Section 47 of the Act.'Person with disability' means a person suffering from not lessthan 40% of any disability as certified by a medical authority asper the definition given under Section 2(t) of the Act. From thefacts which are not in dispute, it is clear that the disabilitysuffered by the respondent workman is covered by Section 2(i)(v)read with Section 2(o) of the Disabilities Act. It is also notin dispute that this disability was acquired by the respondentduring his service. Under Section 2 of the Act, 'disability' and'person with disability' are separately defined and they aredistinct. We may also refer to some provisions in Chapter VI ofthe Act relating to employment. Section 32 deals withidentification of posts which can be reserved for persons withdisabilities. Section 33 speaks of reservation of suchpercentage of vacancies not less than 3% for persons or class ofpersons with disability, of which 1% each shall be reserved forpersons suffering from (i) blindness or low vision; (ii) hearingimpairment; and (iii) locomotor disability or cerebral palsy.Section 38 requires the appropriate Governments and localauthorities to formulate schemes for ensuring employment ofpersons with disabilities. Section 47 is included in ChapterVIII of the Act. Chapter VI deals with employment relating topersons with disabilities including identification of posts andreservation of vacancies for such persons. Under this Chapter,reservation of vacancies for persons with disabilities is madefor initial appointment. Section 47 in Chapter VIII deals withan employee of an establishment who acquires a disability duringhis service. 8. The provisions of Section 2 read with Section 47 of theDisabilities Act fell for consideration of the Supreme Court inKunal Singh vs. Union of India (supra). The Court highlightedthe distinction between the terms 'disability' and 'person withdisability' and held that Section 47 contemplates a disabilityacquired during service. Shivaraj Patil, J., speaking for theBench, observed as follows : (SCC pp.529&530) https://hcservices.ecourts.gov.in/hcservices/ "Chapter VI of the Act deals with employmentrelating to persons with disabilities, who are yet tosecure employment. Section 47, which falls in ChapterVIII, deals with an employee, who is already in serviceand acquires a disability during his service. It mustbe borne in mind that Section 2 of the Act has givendistinct and different definitions of “disability” and“person with disability”. It is well settled that inthe same enactment if two distinct definitions aregiven defining a word/expression, they must beunderstood accordingly in terms of the definition. Itmust be remembered that a person does not acquire orsuffer disability by choice. An employee, who acquiresdisability during his service, is sought to beprotected under Section 47 of the Act specifically.Such employee, acquiring disability, if not protected,would not only suffer himself, but possibly all thosewho depend on him would also suffer. The very frame andcontents of Section 47 clearly indicate its mandatorynature. The very opening part of the section reads “noestablishment shall dispense with, or reduce in rank,an employee who acquires a disability during hisservice”. The section further provides that if anemployee after acquiring disability is not suitable forthe post he was holding, could be shifted to some otherpost with the same pay scale and service benefits; ifit is not possible to adjust the employee against anypost he will be kept on a supernumerary post until asuitable post is available or he attains the age ofsuperannuation, whichever is earlier. Added to this nopromotion shall be denied to a person merely on theground of his disability as is evident from sub-section(2) of Section 47. Section 47 contains a cleardirective that the employer shall not dispense with orreduce in rank an employee who acquires a disabilityduring the service. In construing a provision of asocial beneficial enactment that too dealing withdisabled persons intended to give them equalopportunities, protection of rights and fullparticipation, the view that advances the object of theAct and serves its purpose must be preferred to the onewhich obstructs the object and paralyses the purpose ofthe Act. Language of Section 47 is plain and certaincasting statutory obligation on the employer to protectan employee acquiring disability during service. The argument of the learned counsel for therespondent on the basis of the definition given in https://hcservices.ecourts.gov.in/hcservices/ Section 2( t ) of the Act that benefit of Section 47 isnot available to the appellant as he has sufferedpermanent invalidity cannot be accepted. Because, theappellant was an employee, who has acquired“disability” within the meaning of Section 2( i ) ofthe Act and not a person with disability."9. In the light of the decision in Kunal Singh's case, it isclear that Section 47 deals with an employee who has acquireddisability during service and it is not necessary that he shouldhave suffered 40% disability. The test is whether an employee,after acquiring disability, has become unsuitable for the post hewas holding earlier and it is provided by Section 47 that in sucha case, the employee could be shifted to some other post with thesame pay scale and service benefits and if it is not possible toadjust the employee against any such post, he may be kept in asupernumerary post until a suitable post is available or heattains the age of superannuation, whichever is earlier. Itseems that the decision of the Supreme Court in Kunal Singh'scase was not brought to the notice of the learned Judges whorendered the judgment in A. Sengaan's case (supra). 10. At this stage, we may also refer to the recent decisionof the Division Bench in G. Muthu vs. Management of Tamil NaduState Transport Corporation (Madurai) Limited (supra). In thatcase, the appellant driver in the respondent TransportCorporation was discharged from service on the ground that sincehe is colour blind, he is unfit to work as driver. The argumentof the Transport Corporation was that colour blindness is not adisability which would fall under Section 2(i) of theDisabilities Act. Rejecting the argument, the Division Benchheld that the term 'disability' in Section 47 would encompass notonly those contained in Section 2(i), but also those whichdisabled a person from performing the work which he heldimmediately prior to acquisition of such disability. It was heldthat benefits of benevolent legislation could not be denied onground of mere hypertechnicalities. Consequently, the impugnedorder of discharge of the workman was set aside and he wasdeclared entitled to the benefit of alternative employment as perSection 47 of the Act. 11. In A. Veeriya Perumal vs. Secretary to Government,Health & Family Welfare Department, Chennai [(2006) 4 M.L.J.335], a Division Bench of this Court, to which one of us (A.P.Shah, C.J.) was a party, set aside the punishment imposed on anemployee as the employee was mentally unsound when he hadcommitted the alleged misconduct. The Bench held that sub-section (1) of Section 47 is clear in terms that https://hcservices.ecourts.gov.in/hcservices/ "no establishment shall dispense with or reduce in rank, anemployee who acquires a disability during his service". TheBench further held that the right to livelihood, which is anintegral facet of the right to life as guaranteed under Article21 of the Constitution of India, coupled with the protectionunder Section 47 of the Disabilities Act entitles the employeewho was incapacitated during service for continuance of servicein suitable alternative post with same scale of pay drawn by himand other service benefits. It was also held that theappellant/employee's right to alternate employment cannot bedeprived solely on ground of medical invalidation, as his rightis protected under Section 47 of the Disabilities Act. 12. In Metropolitan Transport Corporation Ltd. vs. K.Ravichandran [2005 (2) L.L.N. 869], a Division Bench of thisCourt held that the words "who acquires a disability during hisservice" in Section 47 of the Disabilities Act mean that thedisability should be acquired while in employment and it is notnecessary that it should be acquired while performing his work.Our attention was also drawn to the decision of a Division Benchin The State vs. K. Mohammed Mustafa [2007 W.L.R. 256], where theDivision Bench has held that the benefit envisaged under Section47 of the Disabilities Act can be considered in addition to thebenefits contemplated under the Government Order. If in a givencase the provisions contained in the G.O. are more beneficialnotwithstanding any provision contained in the Act, suchbeneficial provision of the G.O. can be made applicable, andsimilarly, if the provisions contained in the Act are morebeneficial as compared to the provisions contained in the G.O.,benefit of such Act can be made available. 13. In Tamil Nadu State Transport Corporation (VillupuramDivision-I) Limited vs. R. Jayakumar [Writ Appeal No.610 of 2007]decided on 13.4.2007, a Division Bench expressly rejected theargument that since the workman has been awarded compensationunder the Motor Vehicles Act in a claim petition filed by himbefore the Motor Accidents Claims Tribunal, includingcompensation towards loss of earning, he is not entitled to thebenefit of Section 47 of the Disabilities Act. It was held thatSection 47 of the Act casts a mandatory duty on the part of theemployer to provide an alternative employment to an employee whohas suffered disability during the course of his employment, andthe fact that such an employee has received some compensationunder the Motor Vehicles Act is no ground to deny him thealternative employment, to which he is otherwise entitled underthe Disabilities Act. It was held that if it is the case of theTransport Corporation that the compensation awarded towards lossof earning is on the higher side, the Corporation is free to https://hcservices.ecourts.gov.in/hcservices/ agitate this point in the appeal filed against the award ofcompensation. 14. In a batch of writ petitions being W.P. Nos.409 of 2004and other connected matters decided on 6.1.2006, one of us (P.Jyothimani, J.) has held that the purport of the Disabilities Actis to give effect to the Proclamation of Full Participation andEquality of the People with Disabilities in the Asian PacificRegion held in Beijing in the first week of December, 1992, towhich our country is a signatory, which was intended with aproclamation in the following terms :"i) to spell out the responsibility of the Statetowards the prevention of disabilities, protection ofrights, provision of medical care, education, training,employment and rehabilitation of persons withdisabilities;ii) to create barrier-free environment for personswith disabilities;iii) to remove any discrimination against personswith disabilities in the sharing of developmentbenefits vis-a-vis non-disabled persons;iv) to counteract any situation of abuse andexploitation of persons with disabilities;v) to lay down a strategy for comprehensivedevelopment of programmes and services and equalisationof opportunities for persons with disabilities; andvi) to make special provision of the integrationof persons with disabilities into the socialmaintenance."It was held that in view of the object of the Disabilities Act,the contention that alternate employment will be given as andwhen vacancy arises and in such an event, the employee would betreated as a new entrant has to be rejected. It was also heldthat there is no necessity for any certificate from a medicalauthority as contemplated under Section 2(t) or Section 2(p) ofthe Disabilities Act. 15. In Anand Bihari Vs. R.S.R.T. Corpn., 1991 (1) LLN603, which was a decision before the enactment of theDisabilities Act the Supreme Court held that in case of theemployees acquiring disability during employment the employershould provide for adequate safeguards to remedy the situation bygiving them alternative job or by compensating them in some formfor the alround loss they suffered for no fault of theirs. Inthat case the drivers of the roadways buses of the respondentCorporation who have put in long years of service, during their https://hcservices.ecourts.gov.in/hcservices/ routine medical examination were found to have developeddefective eyesight and did not have the required vision fordriving heavy motor vehicles like buses. The Corporationterminated their services since their eyesight was not of thestandard required to drive buses. The Court held that the actionof the Corporation was not proper and equitable and was notjustified and directed the Corporation to offer them alternativeemployment or grant compensatory relief for the loss theysuffered on account of the premature retirement necessitated bytheir unfitness to work as drivers. The Court observed that theworkmen are not denizens of an animal farm to be eliminatedruthlessly the moment they become useless to the establishment.They have not only to live for the rest of their lives but alsoto maintain the members of their family and other dependents, andto educate and bring up their children. Their liability in thisrespect at the advanced age at which they are thus retired standsmultiplied. They may no longer be of use to the Corporation forthe job for which they were employed, but the need of theirpatronage to others intensifies with the growth in their familyresponsibilities. In the circumstances of the case, the Courtproposed a scheme to give relief to the workmen involved in thatcase. 16. In Narendra Kumar Chandla Vs. State of Haryana, (1994) 4SCC 460, which is also a judgment before the enactment of theDisabilities Act, the appellant therein a Sub-Station Attendantof the Haryana State Electricity Board, after being cured of acertain disease after a surgical operation, was found physicallyunfit by a Medical Board assisted by two Engineers for performingthe duties of his original post or equivalent posts. However,having found the employee able to write, the Medical Boardsuggested him to be considered for any clerical or non-technicalpost. Rejecting the appellant's plea to order him to be appointedas UDC which carried the same pay scale, but allowing his appeal,the Supreme Court held - "For a direct recruit to the post of UDC,graduation or post-graduation or law graduation isthe minimum educational qualification requiredapart from other requirements mentioned therein,which the appellant is not possessed of. Hence,the Court cannot give any direction to appoint himas UDC. Article 21 protects the right to livelihoodas an integral facet of right to life. When anemployee is afflicted with unfortunate disease dueto which, when he is unable to perform the dutiesof the post he was holding, the employer must makeevery endeavour to adjust him in a post in which https://hcservices.ecourts.gov.in/hcservices/ the employee would be suitable to discharge theduties. Asking the appellant to discharge theduties as a Carrier Attendant is unjust. Since, heis a matriculate, he is eligible for the post ofLDC. For LDC, apart from matriculation, passing intyping test either in Hindi or English at thespeed of 15/30 words per minute is necessary. For Clerk, typing generally is not a must. Therefore,the State Electricity Board should relax hispassing of the typing test and appoint him as anLDC. Since, on the date when he had unfortunateoperation, he was drawing the salary in the payscale of 1400-2300, his last drawn pay and scaleof pay have to be protected. He will also beentitled to arrears of salary." 17. In the instant case the respondent workman became unfitfor the duty of the driver as he lost knee movement and there isno possibility of regaining his normal movement. It is notdisputed before us that the workman is suffering from locomotordisability within the meaning of Section 2(o) of the DisabilitiesAct. In view of the Supreme Court's decision in Kunal Singh'sCase (supra) it is clear that the acquisition of disability isnot the same as a person with disability and it was not necessaryfor the workman to establish that he suffer more than 40%disability. In our considered opinion the decision of theDivision Bench in Sengaan's case (supra) does not lay down thecorrect law.18. In our opinion, the appeal is devoid of any merit andis accordingly dismissed. The appellant Corporation is directedto reinstate the respondent workman within a period of two weeksfrom today with pay protection, continuity of service andbackwages, as ordered by the learned single Judge. No costs. ab/smSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Management of Tamil NaduState Transport Corporation(Villupuram Division-III) Ltd.,Kancheepuram.+ 1 cc to Mr. G. Muniratnam, Advocate SR No. 41461+ 1 cc to Mr. D. Hariparanthaman, Advocate SR No. 41425W.A. No.860 of 2007AKR(CO)SR/17.7.2007