A.Marimuthu v. Tamil Nadu State Transport Corporation(Kumbakonam Division – IV) Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.11.2009CORAM :THE HONOURABLE MR. JUSTICE V.DHANAPALANW.P.No.15413 of 2003A.Marimuthu... Petitionervs.1.Tamil Nadu State Transport Corporation(Kumbakonam Division – IV) Ltd.,rep. by its Managing Director,D.No.51/1, S.No.216/2,Pillaithanneerpandal,Thirumayam Road,Pudukottai – 622 001.2.The General Manager,Tamil Nadu State Transport Corporation(Kumbakonam Division – IV) Ltd.,D.No.51/1, S.No.216/2,Pillaithanneerpandal,Thirumayam Road,Pudukottai – 622 001.... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of mandamus directing therespondent to provide the petitioner an alternative employment in thepost of Helper or Office Assistant to the petitioner by retaining thesame scale of pay last drawn by the petitioner within the time to beprescribed by this court.For Petitioner:Mr.Ashokpathyfor M/s.D.SaravananFor Respondents:Mr.V.R.KamalanathanO R D E RThe petitioner has filed this writ petition for a direction tothe respondents to provide him an alternative employment in the postof Helper or Office Assistant by retaining the same scale of pay lastdrawn by him. https://hcservices.ecourts.gov.in/hcservices/

2.Upon instructions, the petitioner would state that therespondent Transport Corporation is a public transport undertakingwholly owned by the Government of Tamil Nadu; earlier, suchtransport undertakings in the state of Tamil Nadu was bifurcated intoseveral units and made as the corporation. The Government of TamilNadu, thereafter dissolved all such transport corporations and thepublic transports in the State were brought under six divisions ofTamil Nadu State Transport Corporation and that Tamil Nadu StateTransport Corporation (Kumbakonam Division-IV) Ltd., Pudukottai isconcerned in this writ petition. 3.According to the petitioner, he is qualified up to IXstandard and he was appointed as Driver in the respondent Corporationon 15.08.1998 and his services were confirmed and made permanent witheffect from 15.06.1999. Since the date of his appointment, he wasdischarging his duties without any blemish whatsoever.3a.The petitioner would further state that he has beenreceiving accident free driving award for three consecutive years;while so, by letter dated 04.09.2002, the respondent Corporationdirected the petitioner to appear before the Medical Board, ThanjavurMedical College Hospital, Thanjavur; pursuant thereto, the petitionerappeared before the Medical Board on 24.09.2002, 01.10.2002 and17.10.2002. Thereafter, the petitioner was served with a show causenotice dated 21.12.2002 by the respondent Corporation as to why heshould not be discharged from service, as the Medical Boardrecommended that his eye sight is not fit enough to drive vehicle. 3b.The petitioner submitted his explanation on 30.12.2002stating the facts as to how the eye drops caused trouble to himduring the first checking. He also requested to send him for asecond check-up. Further, he requested to consider his casesympathetically as he has to support his large family. He alsopointed out that he has not caused any accident during his term ofservice. However, without considering his explanation properly, therespondent Corporation passed an order dated 23.01.2003 discharginghim from service on medical grounds, however, he was granted libertyto appeal against the said order in 90 days.3c.Based on the statement of the respondent Corporation, thepetitioner made a representation to the Collector, Pudukottai and arepresentation dated 22.02.2003 to the Managing Director of therespondent Corporation to provide him an alternative employment.However, even after a long lapse of time, no steps were taken.According to the petitioner, he is the only bread winner for hisfamily which consists of his wife, 3 daughters and his old agedfather and mother; they live in a rental house and are now sufferinginexplicably without any income due to his non-employment. https://hcservices.ecourts.gov.in/hcservices/ 3d.The petitioner would further state that in hisrepresentation dated 22.02.2003, he brought to the knowledge of therespondent with regard to the Government Order and direction of theSupreme court which categorically directed the employers that anemployee discharged on medical grounds should be given an alternativejob. However, the respondent neither complied with his lawful demandnor has chosen to send any reply even though they have lawful boundenduty.4.In the counter affidavit, the respondents would submit thatthe petitioner was appointed on 15.08.1998 as Driver in the erstwhileMarudhu Pandiyar Transport Corporation and his services wereconfirmed from 15.06.1999. The respondents admitted that thepetitioner received accident free award for 2000, 2001 and 2002.While the petitioner was working in the Corporation, he was directedfor eye-test before the Medical Officer of the Corporation, as he hadcrossed 40 years of age. The Medical Officer opined that due topartial defect, 'opinion reserved pending Medical Board's opinion atThanjavur'. The petitioner was referred to the Medical Board atThanjavur. As the instrument for check-up was not available atThanjavur, he was referred to Government Hospital, Madras forevaluation. Again, the petitioner was referred to RegionalInstitution of Ophthalmic Hospital, Egmore for further check-up.After detailed examination, the Board opined in their report as "Eyesunfit due to colour vision defect". 4a.The respondents would state that their TransportCorporation is working under the Government of Tamil Nadu, operatingvehicles in the interest of the travelling Public. As the petitionerwas a driver, he should have clear eye sight for driving the vehicleand as he was found to be suffering from colour vision by the highestMedical Board in Tamil Nadu and as it was unsafe to allow him todrive vehicle, he was served with a show cause notice as to why heshould not be discharged on medical grounds. As the reply submittedby the petitioner was not satisfactory, he was discharged on medicalgrounds by an order dated 23.01.2003.4b.According to the respondents, the Medical Board was thehighest Board in Tamil Nadu and it also constituted a Board on itsown to have a check-up of eye cases. The allegation that theapplication of drops in his eyes had caused dimness in his eyes, dueto which wrong report had been sent is not acceptable; if the facthad been brought to the knowledge of the Board, remedial measurewould have been taken by the Board itself, but without informing theBoard about his problem, only as an after thought, the petitioner hascome forward with the false story, which is not acceptable. Eye-testconducted by the Board involves life and survival of the petitioner,that being so, the allegation that his eyes were dim due to the https://hcservices.ecourts.gov.in/hcservices/ application of drops in the hospital due to some other eye-test,which caused the medical report to be given, is not acceptable.Hence, the allegation that, it is due to the application of eyedrops, the defects were cause is not acceptable. As stated earlier,the Transport Corporation is an essential service, operating vehiclesin the interest of the travelling public, running passenger vehicleand the drivers with defective eyes cannot be employed, hence thewrit petitioner was discharged from service. 4c.The respondents would also submit that a seniority list ofthe employes who were discharged on medical grounds was maintainedin the Corporation and it was proposed to employ them as per the saidlist and the petitioner stands in Sl.No.12. The Government has alsoreduced the norm of the employees from 7.5 to 6.5% per vehicle. Andthe employees already in service in the Corporation fulfill the normfixed by the Government and as such no vacancies arise at present foremployment. The petitioner is only a 9th standard discontinuedcandidate and as such, his services cannot be utilized in thecorporation. Furthermore, the Government has also banned theappointment of employees as a rationale measure and the petitionercannot be given alternate employment as of now. 4d.The respondent Corporation would also state that the actiontaken by them is neither contrary to law nor violation of rules;only due to exigency that prevailed, the matter of the petitionercould not be considered and that only due to the norm fixed by theGovernment in the appointment ban by the Government, the inadequatequalification of the petitioner, he could not be given alternateemployment. Moreover, those individuals discharged on medical groundsprior to him were yet to be accommodated and if the petitioner isappointed, it will be discriminatory among others. Hence, thepetition of the petitioner was not considered. 4e.It is also submitted by the respondent Corporation that theGovernment has passed G.O.No.746 for fresh appointment of medicallydischarged employees and the Government has now fixed the norm ofemployees and according to it, the employees now under servicefulfill the above norm and as such, the petitioner cannot be givenalternate employment as on date. Moreover, no discrimination amongthe employees had taken place and a seniority list of the employmentis maintained and as and when vacancies arise, they have givenemployment and that the question of discrimination does not arise. 5.Heard Mr.Ashokpathy, learned counsel for the petitioner andMr.V.R.Kamalanathan, learned counsel appearing for the respondents.6.Learned counsel for the petitioner would contend that therespondents have failed to consider several representations of thepetitioner, wherein it was brought to the knowledge of the https://hcservices.ecourts.gov.in/hcservices/ respondents of the directions of the Supreme Court directing theemployers to provide alternative employment for employees dischargedon medical grounds. It is his further contention that therespondents ought to have considered the representations of thepetitioner sympathetically as a person who had worked without anyblemish and had won Accident Free Driving Award for 3 consecutiveyears and that his large family consisting of 6 members is beingruined. Learned counsel would submit that the petitioner issuffering inexplicably without any employment and his attempt foralternative employment elsewhere is of no avail and his family is putto irreparable loss.6a.In support of his contentions, learned counsel for thepetitioner has relied on the following decisions :(i)2006 (5) CTC 413 [G.Muthu vs. The Management of Tamil NaduState Transport Corporation]"18.... Thus a rigourous, literal and pedanticinterpretation need not be attributed to Section 2(i) ofthe Act. We are therefore, of the opinion that theintention of the law makers is not to restrict only tothose categories of persons mentioned in Section 2(i) ofthe Act alone to be entitled to the benefits under theAct. If justifiable and reasonable approach is to bemade, then it has to be held that Section 2(i) of the Actis not exhaustive. 19.Therefore, as argued by the learned counsel forthe appellant, while the provisions contained in ChaptersIV to VII of the Act deals with "Persons with disability"Section 47 alone deals with "an employee who acquires adisability during his service". The said provisionclearly says that no establishment shall dispense with orreduce in rank, an employee who acquires a disabilityduring his service which means that the person who isemployed in an establishment when he acquires adisability, his services cannot be dispensed with orthere should be any reduction in rank. Further, theproviso to the said Section clearly states that if he isnot suitable for the post he could be shifted to someother post with the same scale of pay and benefits. Ifit is not possible, he could be kept on a supernumerarypost until a post is available or he attains the age ofsuperannuation whichever is earlier. The said provisionfurther states that no promotion shall be denied to anyperson merely on the ground of his disability. Thus, ifwe apply Section 47 of the said Act, the order ofdischarge passed by the respondent dated 26.03.2002 has https://hcservices.ecourts.gov.in/hcservices/ not leg to stand.25.... Their Lordships have clearly stated that"there is no justification in treating the cases ofworkmen like drivers who are exposed to occupationaldiseases and disabilities on par with the otheremployees. The injustice, inequity and discrimination arewrit large in such cases and are indefensible. Theservice conditions of the workmen such as the drivers inthe present case, therefore, must provide for adequatesafeguards to remedy the situation by compensating themin some form for the all-round loss they suffer for nofault of them." Thirdly, as argued by the learned counselfor the appellant, there will not be too many claims onfalse pretext. The Corporation can very well refer thepersons to the Medical Board to verify their plea ofdisability and take all precautions to ensure that nofalse claim is entertained. On that score, deservingpersons cannot be denied the benefits under the Act.26.After analysing the entire provisions of theAct and also various decisions cited above, we feel thatthe Courts cannot shut its eyes if a person knocks at itsdoor claiming relief under the Act. In a welfare Statelike India, benefits of benevolent legislation cannot bedenied on the ground of more hyper technicalities. Whenthe law makers have conferred certain privileges on aclass of persons, like in this case to a disabled person,the duty is cast upon the judiciary to oversee that theauthorities or the persons to whom such a power isconferred, enforce the same in letter and spirit forwhich such enactment has been made. In the present caseon hand, the appellant has been discharged on the groundof 'colour blindness' without providing alternative jobas per Section 47 of the Act, which is unjustified andunreasonable. Hence, the order of the respondent dated26.03.2002 discharging the appellant on medical groundshas no leg to stand. The appellant is entitled to theprotection under Section 47 of the Act. He should havebeen given a suitable alternative employment with payprotection, instead of discharging him from service onthe ground of 'colour blindness'. Viewed from any angle,the order of the learned Single Judge dismissing the WritPetition on the mere ground of laches without consideringthe claim of the appellant on merits is liable to be setaside."(ii)2007 (4) CTC 478 [V.Palanishanmugavel and others vs. TheGeneral Manager, Tamil Nadu State Transport Corporation (Madurai)] https://hcservices.ecourts.gov.in/hcservices/ "29.Now, the next question that arises forconsideration is as to whether, the term disability underSection 2(i) of the Act requires a certificate from themedical authority either under Section 2(t) or 2(p) of theAct. It is in this regard, the term "Person withdisability" assumes significance. The term "person withdisability" defined under Section 2(t) of the Act, appliesnot to the persons who are already in employment but tothose persons who are having disability but seeking thebenefits under various schemes or welfare measurescontemplated under the Act, as it has been narrated inChapter V, VI and VII apart from some of the provisions inChapter VIII of the Act. It is in respect of those personswho seek the benefits under various schemes expected to beframed by the appropriate Governments or welfare measures,including the reservation of post in employment or welfaremeasures, appropriate Government, that "the persons withdisability" will have right to approach the appropriateGovernment for acquiring such welfare measures. It is onlyto those persons, the certificate by medical authority iscontemplated under the Act.30.On the other hand, in respect of the personsalready in employment acquiring disability employment thereis absolutely no necessity for any certificate from themedical authority as contemplated either under Section 2(t)of 2(p) of the Act. This view is fortified by the factthat all the disabilities mentioned under Section 2(i) areclearly in terms defined under various provisions ofSection 2 itself as stated above which requires nocertificate from the authority contemplated under the Act.Therefore, in my view, the contentions of the learnedcounsels that unless and until a certificate issued by thecompetent authority contemplated under the Act is given thebenefits under Section 47 of the Act cannot be claimed isan untenable argument. Further as laid down by theSupreme Court, the beneficial legislation like Act 1 of1996 must be construed with the object of the Act and itspurpose must be preferred to the one which obstructs theobject and paralyses the purpose. Therefore, the findingof any authority about disability is sufficient for thepurpose of the Act."(iii)(2008) 3 MLJ 865 [General Manager, Tamil Nadu StateTransport Corporation vs. Udayasuriyan]"6.We find absolutely no merit in the submission ofthe learned counsel for the appellant Corporation. In thelight of the decision in Kunal Singh vs. Union of India https://hcservices.ecourts.gov.in/hcservices/ and another (supra), it is clear that Section 47 dealswith an employee who has acquired disability duringservice and it is not necessary that he should havesuffered 40% disability. The test is whether an employee,after acquiring disability, has become unsuitable for thepost he was holding earlier, and it is provided by Section47 that in such a case, the employee could be shifted tosome other post with the same pay scale and servicebenefits, and if it is not possible to adjust the employeeagainst any such post, he may be kept in a supernumerarypost until a suitable post is available or he attains theage of superannuation, whichever is earlier."7.On the other hand, learned counsel for the respondentCorporation would submit that the petitioner is only a 9th standarddiscontinued candidate and as such, the services of the petitionercannot be utillised in the Corporation; furthermore, the Governmenthas also banned the appointment of employees as a rationale measureand as such, the petitioner cannot be given alternate employment. Hewould also submit that no discrimination among the employees hadtaken place as alleged by the petitioner and the petitioner wasemployed only in the year 1999 and when he was sent for medicalcheck-up, he was found to be suffering from defective vision; hence,he was discharged on medical grounds and only due to the fact thatthere were other employees prior to him, his application is notconsidered.7a.Learned counsel for the respondent Corporation tosubstantiate his stand has relied on the following :(i)a decision of the Supreme Court reported in (2003) II LLJ183 in the case of the Kunal Singh vs. Union of India and another"8.The need for a comprehensive legislation forlegislation for legislation for safeguarding the rights ofpersons with disabilities and enabling them to enjoy equalopportunities and to help them to fully participate innatural life was felt for a long time. To realizeobjective that people with disabilities should have equalopportunities and keeping their hopes and aspirations inview a meeting called the "Meet to Launch the Asian andPacific Decades of Disabled Persons" was held in Beijing inthe first week of December, 1992 by the Asian and PacificCountries to ensure full participation and equality ofpeople with disabilities in the Asian and Pacific Regions.'This Meeting was held by the Economic and Social Commissionfor Asian and Pacific. A Proclamation was adopted in thesaid meeting. A Proclamation was adopted in the saidmeeting. India was a signatory to the said Proclamation https://hcservices.ecourts.gov.in/hcservices/ and they agreed to give effect to the same. Pursuantthereto, this Act was enacted, which came into force onJanuary 1, 1996. The Act provides some sort of succor tothe disabled persons. 9.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 service andacquires a disability during his service. It must be bornein mind that 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. It must be remembered that persondoes not acquire or suffer disability by choice. Anemployee, who acquires disability during his service, issought to be protected under Section 47 of the Actspecifically. Such employee, acquiring disability, if notprotected, would not only suffer himself, but possibly allthose who depend on him would also suffer. The very frameand contents of Section 47 clearly indicate, its mandatorynature. The very opening part of Section reads "noestablishment shall dispense with, or reduce in rank, anemployee who acquires a disability during a service". TheSection further provides that if an employee afteracquiring disability is not suitable for the post he washolding, could be shifted to some other post with the samepay scale and service benefits; if it is not possible toadjust the employee against any post he will be kept on asupernumerary post until a suitable post is available or heattains the age of superannuation, whichever is earlier.Added to this no promotion shall be denied to a personmerely on the ground of his disability as is evident fromsub-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 disability duringthe service. In construing a provision of socialbeneficial enactment that too dealing with disabled personsintended to given them equal opportunities, protection ofrights and full participation, the view that advances theobject of the Act the one which obstructs the object andparalyses the purpose of the Act. Language of Section 47is plain and certain casting statutory obligation on theemployer to protect an employee acquiring disability duringservice." https://hcservices.ecourts.gov.in/hcservices/ (ii)an unreported judgement of this court dated 10.08.2007 in abatch of Writ Petitions in W.P.Nos.37363 of 2002, etc in the case ofS.Chengalvarayan vs. Tamil Nadu State Transport Corporation(Villupuram)"14.Thus, considering the facts and circumstances andalso the judgments referred to above, the petitioners areentitled for alternative employment and the rejection madeby the respondents by their impugned orders are liable tobe set aside and accordingly set aside. I direct therespondents to provide such alternative employment to thepetitioners from the date of their discharge with payprotection, continuity of service and all other attendantbenefits for which they are legally entitled to, exceptback wages. "8.According to the petitioner, he had submitted arepresentation dated 22.02.2003 to the respondents to consider himfor alternative employment and he has also brought to their knowledgewith regard to the Government Order and direction of the SupremeCourt which categorically directs the employers that an employeedischarged on medical grounds should be given an alternative job.However, the respondent Corporation has not considered his request.But, it is the case of the respondent Corporation that a senioritylist of the employees who were discharged on medical grounds wasmaintained in the Corporation and it was proposed to employ them asper the said list and the petitioner stands in Serial No.12. TheGovernment has also reduced the norm of the employees from 7.5% to6.5% per vehicle; and the employees already in service in theCorporation fulfill the norm fixed by the Government and as such, novacancies arise at present for employment.9.The matter in issue has already been considered by aDivision Bench judgment of this court in G.Muthu's case (referred toabove), wherein, it was held that the petitioner should have beengiven a suitable employment with pay protection, instead ofdischarging him from service on the ground of 'colour blindness'.The object which Section 47 of the Act purports to achieve is thatappropriate provision should be made for the employees employed inthe establishments who acquire a disability during their service.While having this mind, in construing the material provisions of suchan Act, if two views are reasonably possible, the Courts shouldprefer the view which helps the achievement of the object. Welfarelegislations are meant to ensure benefits to the needy. They shouldbe interpreted in such a way so that the purpose of the legislationis allowed to be achieved.10.At this juncture, it is worth referring to a decision ofthe Apex Court reported in 2006 (2) LLL 45 in the case of State of https://hcservices.ecourts.gov.in/hcservices/ Karnataka vs. C.Lalitha, wherein, their Lordships have held thatjustice demands that a person should not be allowed to derive anyundue advantage over that one should get what is due to him or her inlaw. The concept of justice cannot be stretched so as to causeheart-burning to more meritorious candidates. In yet anotherSupreme Court decision in the case of Bihari vs. Rajasthan State RoadTransport Corporation, Jaipur reported in AIR 1991 SC 1003, it isclearly held that there is no justification in treating cases ofworkmen like drivers who are exposed to occupational diseases anddisabilities on par with the other employees. This Court, in ajudgment dated 10.08.2007 in a batch of writ petitions inW.P.Nos.37363 of 2002, etc held that the petitioners are entitled foralternative employment and set aside the impugned orders made by therespondents and also directed the respondents to provide suchalternative employment to the petitioners from the date of theirdischarge with pay protection, continuity of service and all otherattendant benefits for which they are legally entitled to, exceptback wages. 11.The service conditions of the workmen such as the driver inthe present case, therefore, must provide for adequate safeguards toremedy the situation by compensating them in some form for the all-round loss they suffer for no fault of them. He should have beengiven a suitable alternative employment with pay protection, insteadof discharging him from service on the ground of 'colour blindness'.The provisions of the Act mandate that no establishment shalldispense with, or reduce in rank, an employee who acquires disabilityduring his service, which means that when a person, who is employedin an establishment acquires disability, his service cannot bedispensed with or there should be any reduction in rank. However, itis the object that if the employee is not suitable for the post, hecould be shifted to some other post with the same scale of pay andbenefits; if it is not possible to adjust the employee against anypost, he can be kept in a supernumerary post until a suitable post isavailable or he attains the age of superannuation, whichever isearlier. Also, no promotion shall be denied to a person merely onthe ground of his disability. This avowed object has been dealt withby the Apex Court in many decisions as cited supra.12.It is also held that in a welfare State like India,benefits of benevolent legislation cannot be denied on the ground ofmore hyper technicalities. When the law makers have conferredcertain privileges on a class of persons, like in this case to adisabled person, the duty is cast upon the judiciary to oversee thatthe authorities or the persons to whom such a power is conferred,enforce the same in letter and spirit for which such enactment hasbeen made. In the instant case, the petitioner, who is found to besuffering from colour blindness has been discharged on medicalgrounds and the stand of the respondents that the requests of other https://hcservices.ecourts.gov.in/hcservices/ employees, who were similarly placed as that of the petitioner hadearlier been rejected and hence the claim of the petitioner could notbe considered cannot be sustained. 13.Thus, considering the facts and circumstances of the caseand in view of the judgments referred to above, this court holds thatthe petitioner herein is entitled for alternative employment and therejection made by the respondents by their impugned order is liableto be set aside and is accordingly set aside. I direct therespondents to provide such alternative employment to the petitionerfrom the date of his discharge with pay protection, continuity ofservice and all other attendant benefits for which he is legallyentitled to, except back wages.The writ petition is allowed with above direction. No costs. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarabeTo :1.The Managing Director,Tamil Nadu State Transport Corporation(Kumbakonam Division – IV) Ltd.,D.No.51/1, S.No.216/2,Pillaithanneerpandal,Thirumayam Road,Pudukottai – 622 001.2.The General Manager,Tamil Nadu State Transport Corporation(Kumbakonam Division – IV) Ltd.,D.No.51/1, S.No.216/2,Pillaithanneerpandal,Thirumayam Road,Pudukottai – 622 001.+1 cc to Mr.V.R.Kamalanathan, Advocate, SR.No.58454+1 cc to Mr.D.Saravanan, Advocate, SR.No.58277 W.P.No.15413 of 2003MDR {CO}TP/19.11.2009.