Rangasamy v. The General Manager, Tamilnadu State Transport Corporation (Coimbatore Division-II) Ltd., Chennimalai Road, Erode

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 20-04-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.688 of 2004Rangasamy.. Petitioner.VersusThe General Manager,Tamilnadu State TransportCorporation(Coimbatore Division-II) Ltd.,Chennimalai Road, Erode... Respondent. Prayer: Petition filed seeking for a writ of Certiorarified Mandamus,calling for the records relating to the order inRef.No.31721/D5/46/Law/Ko.2/2001, dated 15.10.2001, passed by therespondent, quash the same and consequently direct the respondent toreinstate the petitioner in suitable light duty with continuity ofservice, pay protection and backwages and other attendant benefits. For Petitioner : Mr.V.Ajay KhoseFor Respondent : Mr.T.Chandrasekaran O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondent.2. This writ petition has been filed praying for a writ ofcertiorarified mandamus to quash the order, dated 15.10.2001, passedby the respondent, discharging the petitioner from service and to reinstate him in a suitable post, with continuity of service, payprotection, backwages and other attendant benefits. 3. It has been stated that the petitioner had joined the serviceof the respondent Corporation, as a Driver, in the year 1983.Thereafter, on reviewing his service he was designated as a seniordriver and later, as a selection grade driver, in the higher scale ofpay. The petitioner has blemishless service and he has been givencash awards for accident free driving. When he was working inGopichettipalayam depot, on 12.6.2000, he had met with an accidentand he had suffered injuries due to the said accident. He had toundergo surgeries due to the fractures he had suffered. In order to https://hcservices.ecourts.gov.in/hcservices/ undergo the medical treatment, he had been hospitalised from 9.7.2001till 17.7.2001. While so, he was issued with the show cause notice,dated 3.4.2001, proposing to discharge him from service on the groundthat he was not fit for the post of driver, as per the medical reportgiven by the District Medical Board. On receiving the show causenotice the petitioner had submitted his reply, dated 11.4.2001,requesting the respondent to send him to the medical Board for re-examination. 4. On re-examination, the medical Board had given a reportstating that the petitioner was unfit for the post of driver. Basedon the said report the respondent had issued another show causenotice, dated 18.7.2001, proposing to discharge the petitioner fromservice. Thereafter, the petitioner had made a request to therespondent not to discharge him from service, as he was told that hewould recover in health and that he would be fit for driving. By aletter, dated 31.10.2001, the petitioner had requested the respondentto provide him alternative employment. However, there was no replyfrom the respondent. Therefore, the petitioner had made arepresentation to the District Collector, Erode, which was forwardedto the respondent, for necessary action. Instead of providing thepetitioner with a lighter work, the respondent had given a reply,dated 15.3.2002, to the District Collector, marking a copy to thepetitioner, informing that the request of the petitioner foralternative employment would not be approved, as his name wasincluded in the seniority list and that appropriate action would betaken in due course. Since no alternative employment had been givento the petitioner, even after the lapse of 1 ½ years from the date ofreceipt of the letter, dated 15.3.2002, the petitioner had preferredthe present writ petition before this Court, under Article 226 of theConstitution of India.5. In the counter affidavit filed on behalf of the respondentCorporation, it has been stated that the petitioner had joined as adriver in the respondent Corporation. During his service he had beenpunished on several occasions for misconduct, contrary to his claimthat his service in the respondent Corporation has been without anyblemish. Further, the petitioner, in his letter, dated 20.6.2000, hadstated that, on 12.6.2000 he had met with an accident, while drivinga motor cycle, when he was returning from school, after having gonethere to seek admission for his daughter. The petitioner had beengranted Medical leave, from 12.6.2000 to 12.12.2000. Instead ofjoining duty, the petitioner had applied for leave, from 13.12.2000to 14.02.2001, along with the medical certificate issued by themedical officer, V.M.Kailasam Hospital, Shakthi Nagar. Due to hisprolonged Medical leave the petitioner was referred to the medicalBoard for verifying his fitness as a driver. After examining thepetitioner, the medical board had issued a certificate stating thathe was not fit for the post of driver. Based on the memo, dated3.4.2001, the petitioner had been asked to show cause as to why heshould not be discharged from service. The petitioner, in his https://hcservices.ecourts.gov.in/hcservices/ explanation, dated 21.4.2001, had stated that the medical Board hadissued the certificate, without proper examination and therefore, hehad requested for three months time to be fit enough for the driver'spost. Even though the petitioner had been granted the time he hadrequested for, he had further requested the respondent Corporation torefer him to the medical Board for re-examination. Accordingly, thepetitioner had been produced before the medical Board. The MedicalBoard, after examining him, had given the opinion that he was not fitfor the driver's post. Therefore, another memo, dated 18.7.2001, hadbeen issued to the petitioner through Registered Post, which had notbeen received by the petitioner in spite of the intimation by thepostal department. However, the memo had been served on him inperson, on 20.9.2001. The explanation submitted by the petitioner wasnot satisfactory. Therefore, he had been discharged from service,with effect from 17.10.2001. 6. It has been further stated that, in respect of monitoring there-employment of medically discharged persons, the Government hadissued certain guidelines, in G.O.Ms.No.746, dated 2.7.1981.According to the said Government Order, medically discharged personswould be provided with alternative employment in certain posts likethe post of `helpers', depending upon their qualifications,experience and suitability for the post. They would be appointed asfresh entrants, on a consolidated pay. Since helpers were in excessand as there were other medically discharged persons waiting for re-employment as helpers, the petitioner would not be re-employed,immediately. The petitioner is at No.5 in the seniority list. Therespondent would provide alternative employment to the petitioner,with appropriate wages, as and when the vacancies arise in the postof helper. 7. It has been further stated that the petitioner had beendischarged from service, after following all the formalities, inaccordance with law and by following the principles of naturaljustice. It is also stated that the disablement had not happened inthe course of his employment, nor due to an occupational disease.Therefore, the petitioner is not entitled to claim reinstatement,under the provisions of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995. He can only get the remedy, under G.O.Ms.No.746, dated2.7.1981. In such circumstances, the writ petition is devoid ofmerits and therefore, it is liable to be dismissed.8. The learned counsel appearing on behalf of the petitioner hadsubmitted that the impugned order passed by the respondent,discharging the petitioner from service, is arbitrary and inviolation of Article 14 of the Constitution of India. Since thepetitioner is a `disabled' person, under the provisions of thePersons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act, 1995, with certain disabilities and when https://hcservices.ecourts.gov.in/hcservices/ the respondent is an `establishment', within the meaning of Section 2(k) of the said Act, the respondent ought to have continued thepetitioner in service in any other suitable post, with continuity ofservice and pay protection. Discharging the petitioner from serviceon the ground of disability, without providing a suitable alternativeemployment, with pay protection and other service benefits, iscontrary to the mandatory protection provided, under Section 47 ofthe Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995. It is also opposed to thesettled position of law, as laid down by the Apex Court. Further, theimpugned order passed by the management of the respondent Corporationis contrary to the principles enshrined, under Article 21 of theConstitution of India.9. The learned counsel appearing for the petitioner had relied onthe following decisions in support of his contentions:9.1. In Kunal Singh V. Union of India (2003(4) SCC 524), theSupreme Court had held as follows:"Admittedly that Act applies to the establishment ofthe respondents and is not exempted under Section 47thereof. From the facts, it is clear that the disabilitysuffered by the appellate is covered by Section 2(i)(v)read with Section 2(o) of the Act. That disability wasadmittedly acquired by the appellant during service.Chapter VI of the Act containing Sections 32, 33 and 38deals with employment relating to persons withdisabilities, who are yet to secure employment. Section 47,which falls in Chapter VIII, deals with an employee, who isalready in service and acquires a disability during hisservice. Section 2 of the Act has given distinct anddifferent definitions of "disability" and "person withdisability". It is well settled that in the same enactmentif two distinct definitions are given defining aword/expression, they must be understood accordingly interms of the definition. A person does not acquire orsuffer disability by choice. An employee, who acquiresdisability during his service, is sought to be protectedunder Section 47 of the Act specifically. Such employee,acquiring disability, if not protected, would not onlysuffer himself, but possibly all those who depend on himwould also suffer. The very frame and contents of Section47 clearly indicate its mandatory nature. In construing aprovision of a social beneficial enactment that too dealingwith disabled persons intended to give them equalopportunities, protection of rights and full participation,the view that advances the object of the Act and serves itspurpose must be preferred to the one which obstructs theobject and paralyses the purpose of the Act. The languageof Section 47 is plain and certain casting statutoryobligation on the employer to protect an employee acquiringdisability during service." https://hcservices.ecourts.gov.in/hcservices/

9.2. In B.Dass V. Punjab State Electricity Board (2008(2)L.L.N.1), the Supreme Court had held as follows:"We understand that the officers concerned were actingin what they believed to be the best interests of theBoard. Still under the old mindset it would appear to themjust not right that the Board should spend good money onsomeone who has no longer of any use But they were quitewrong, seen from any angle. From the narrow point of viewthe officers were duty-bound to follow the law and it wasnot open to them to allow their bias to defeat the lawfulrights of the disabled employee. From the larger point ofview the officers failed to realise that the disabled tooare equal citizens of the country and have as much share inits resources as any other citizen. The denial of theirrights would not only be unjust and unfair to them andtheir families but would create larger and graver problemsfor the society a large. What the law permits to them is nocharity or largesse but their right as equal citizens ofthe country.20. In light of the discussions made above, the actionof the Board in terminating the service of the disabledemployee (appellant 1) with effect from 21 March 1997 mustbe held to be bad and illegal. In view of the provisions ofS.47 of the Act, the appellant must be deemed to be inservice and he would be entitled to all service benefitsincluding annual increments and promotions, etc. till thedate of his retirement. The amount of terminal benefitspaid to him should be adjusted against the amount of hissalary from 22 March, 1997 till date. If any balanceremains, that should be adjusted in easy monthlyinstalments from his future salary. The appellant shallcontinue in service till his date of superannuationaccording to the service records. He should be reinstatedand all due payments, after adjustments as directed, shouldbe made to him within six weeks from the date ofpresentation of a copy of the judgment before the Secretaryof the Board."9.3. In Metropolitan Transport Corporation V. The PresidingOfficer, Principal Labour Court & another (2004 Writ L.R. 398), aDivision Bench of this Court had held as follows:"The word establishment referred to in S.47 need notnecessarilybe a department or a wing of Government, butcould be an establishment which is owned by or is under thecontrol of the Government. The employees of the TransportCorporation which is wholly owned by the Governmenttherefore come within the scope of the term establishmentused in Section 47(1)."9.4. In Metropolitan Transport Corpn. V. K.Ravichandran ( 2005(2)L.L.N. 869), a Division Bench of this Court had held as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.A perusal of S.3(1) of the Workmen's CompensationAct, 1923, shows that the words used therein are "personalinjury..... in the course of his employment."8. On the other hand, the words used in S.47(1) of the1995 Act are "an employee who acquires a disability duringhis service."9. Thus, the language of S.3(1) of the Workmen'sCompensation Act is very different from that of, S.47(1) ofthe 1995 Act. We cannot import notions of the Workmen'sCompensation Act, 1923, into the 1995 Act which is atotally different Act.10. It may be mentioned that the 1995 Act is a piece ofwelfare legislation and hence it has to be liberallyconstrued giving a purposive interpretation. The object ofthe Act obviously is to fulfill the mandate of theDirective Principles of State Policy in Part IV of theConstitution. Hence full effect must be given to thisobjective. In our opinion, the words "who acquires adisability during his service" means that the disabilityshould be acquired while in employment, and it is notnecessary that it should be acquired while performing hiswork. It is also not necessary that the employment shouldbe the cause of disability."9.5. In G.Muthu V. Mgmt. Of T.N.State Transport Corpn. (Madurai)Ltd. (2007-I-LLJ 9), a Division Bench of this Court had held asfollows:"31. After analysing the entire provisions of the Actand also various decisions cited above, we feel that theCourts cannot shut its eyes if a person knocks at its doorclaiming relief under the Act. In a welfare State likeIndia, benefits of benevolent legislation cannot be deniedon the ground of mere hyper-technicalities. When the lawmakers have conferred certain privileges on a class ofpersons, like in this case to a disabled person, the dutyis cast upon the judiciary to oversee that the authoritiesor the persons to whom such a power is conferred, enforcethe same in letter and spirit for which such enactment hasbeen made. In the present case on hand, the appellant hadbeen discharged on the ground of `colour blindness' withoutproviding alternative job as per Section 47 of the Act,which is unjustified and unreasonable. Hence, the order ofthe respondent, dated March 26, 2002 discharging theappellant on medical grounds has no leg to stand. Theappellant is entitled to the protection under Section 47 ofthe Act. He should have been given a suitable alternativeemployment with pay protection, instead of discharging himfrom service on the ground of `colour blindness'. Viewedfrom any angle, the order of the learned Single Judgedismissing the writ petition on the mere ground of lacheswithout considering the claim of the appellant on merits isliable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ In Mgmt. Of T.N.., State Transport Corpn. V.B.Gnanasekaran (2007(5) MLJ 1), a Division Bench of thisCourt had held as follows:"Under Section 2 of the Act of1995, `disability' and `person with disability' areseparately defined and they are distinct and Section 47 ofthe Act deals with an employee who has acquired disabilityduring service, as such, it is not necessary for theworkman to establish that he suffer more than 40%disability and the test is whether the employee, afteracquiring disability, has become unsuitable for the post hewas holding earlier."9.6. In The State V. K.Mohammed Mustafa (2007 Writ L.R. 256), aDivision Bench of this Court had held as follows:"The respondent herein was appointed as Conductor underthe Tamil Nadu State Transport Corporation, Madurai(Division IV) (the present appellant). Subsequently, suchperson had to undergo hip replacement. Dut to such hipreplacement, the employee was unable to perform the duty asConductor. At that stage, the Management issued notice tothe said employee to show cause as to why he should not bedischarged from service on account of disability. Suchnotice was challenged by the employee and under theimpugned order, the learned Single Judge has extended thebenefits available under Section 47 of the Act and quashedthe notice issued by the appellant and directed the presentappellants to provide some other post with same pay scaleand if such other posts are not available to keep on asupernumerary post until a suitable post is available oruntil a person attains superannuation. In other words, therelief in terms of Section 47 of the Act was extended."9.7. In Subramani,A. V. The Management of Tamil Nadu StateTransport Corporation (2007(5) CTC 386), a Division Bench of thisCourt had held as follows:"9. In any event, Section 72 of the Disabilities Actspecifically provides that the provisions of the said Actare to be considered in addition to any other law or orderand not in derogation of any law or order. The mainobjection of the Workmen's Compensation Act is tocompensate the workman for his injury. Merely because theworkman has received the compensation for his injury underthe Workmen's Compensation Act, it is not permissible forthe employer to deny the benefits of Section 47 of theDisabilities Act, which contains a directive that theemployer shall not dispense with or reduce in rank anemployee who acquires disability during the service. Thebenefit envisaged under Section 47 of the Disabilities Actmust be considered in addition to the benefits contemplatedunder the Workmen's Compensation Act. Therefore, thelearned Single Judge was clearly in error in directing theappellant/workman to refund the compensation received byhim under the Workmen's Compensation Act." https://hcservices.ecourts.gov.in/hcservices/ In G.M., T.N.State Transport Corpn. Ltd. V.Udayasuriyan (2008-III-LLJ 538 (Mad)), a Division Bench of this Court had held asfollows:"Section 47 of the said Act provided that the employeeafter he acquired disability could be shifted to some otherpost with the same scale and service benefits. The test waswhether after acquiring the disability had becomeunsuitable for the post he was holding earlier."9.8. In E.Subramani V. The General Manager, (Administration)Puratchi Thalaivar MGR Transport Corporation (2004 Writ L.R. 751), alearned single Judge of this Court had held as follows: "Right of such an employee to be appointed in analternative post, is mandatory not only in the context ofG.O.Ms.No.746, but also under S.47 of the Act.Contention of learned counsel for the respondent thatthe employee has to be terminated or discharged fromservice and then only his entitlement for alternative postwill arise, cannot be sustained."10. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondentCorporation and in view of the cases cited by the learned counsel forthe petitioner and on a perusal of the records available, this Courtis of the considered view that the impugned order of the respondent,dated 15.10.2001, discharging the petitioner from service, is devoidof merits and unsustainable in the eye of law.11. Once it is admitted that the petitioner had incurred adisability while he was in service he would be entitled to thebenefits contemplated under the provisions of the Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995. Section 47 of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation)Act, 1995, would encompass not only the disabilities contemplated,under Section 2(1) of the Act, but also those which had disabled theperson from performing the work, which he was capable of doing,immediately prior to the acquiring of the disability. 12. It is clear that the benefits of a benevolent legislationcannot be denied to a disabled person on mere hyper technicalities,as it has been held by the Apex Court that the `workmen' are notdenizens of an animal farm to be eliminated ruthlessly, the momentthey became useless to the establishment in which they have beenemployed. Apart from the burden of carrying on their lives, they havealso the responsibility of taking care of the members of theirfamily. If a person had suffered a disability, while he was inemployment, a duty is cast on the employer to provide him a suitablepost in which such a disabled person would be in a position to https://hcservices.ecourts.gov.in/hcservices/ discharge his duties. The respondent Corporation cannot denyalternative employment to the petitioner by relying on the GovernmentOrder, in G.O.Ms.No.746, dated 2.7.1981, especially, when theprovisions of the statute, namely, the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation)Act, 1995, confers more benefits than those contemplated under theGovernment Order. 13. The benefits contemplated by a beneficial statute cannot becurbed, constricted or abridged by imputing a narrow and restrictedmeaning to its contents. In such view of the matter, the impugnedorder of the respondent, dated 15.10.2001, is set aside and therespondent is directed to re-employ the petitioner in a suitablepost, which he is capable of performing, with pay protection and allother attendant benefits. The petitioner would be deemed to have beenin continuous service in the respondent Corporation, as though theimpugned order, discharging him from service, had never come intoforce. Thus, the petitioner would be entitled to all the monetary andother benefits, as though he had continued to be in service, withouthaving been discharged. Accordingly, the writ petition standsallowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshToTHE GENERAL MANAGER, TAMILNADUSTATE TRANSPORT CORPORATION, COIMBATORE DIVISION-II)LTD., CHENNIMALAI ROAD,ERODE1 cc To Mr.V.Ajaykhore, Advocate, SR.161121 cc To Mr.T.Chandrasekaran, Advocate, SR.16131Writ Petition No.688 of 2004CU(CO)SRA(26/5/2009)