K.Vellikannu v. Tamilnadu State Transport Corporation(Villupuram Division-1) Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.03.2008CORAM:THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P No.36331 of 2003 andW.P.M.P No.44090 of 2003K.Vellikannu ... PetitionerVs.Tamilnadu State Transport Corporation(Villupuram Division-1) Ltd.,rep. By its General Manager,Villupuram. ...Respondent PRAYER: Writ Petition filed under Article 226 of the Constitutionof India, to issue a Writ of certiorarified mandamus, to call forrecords relating to the order in Se.Mu.Aa.No.12886/Ni.7/TNSTC(V.Ko.1)/97, dt.28.8.2003, passed by the respondent, quash the samein so far as not giving the petitioner continuity of service, payprotection, backwages and other attendant benefits and consequentlydirect the respondent to give the petitioner continuity of service,and pay protection, backwages and other attendant benefits, AwardCost.For Petitioner:Mr.D.HariparanthamanFor Respondent:Mr.C.KangarajO R D E RPetitioner seeks to quash the proceedings of the respondent inSe.Mu.Aa.No.12886/Ni.7/TNSTC (V.Ko.1)/97 dated 28.08.2003 andprayed for suitable alternative employment.2.Though the miscellaneous petition is listed today, byconsent of both parties writ petition itself is taken up for finaldisposal.3.The case of the petitioner is that he was appointed asDriver on 01.02.1986 in the respondent Transport Corporation. Dueto the accident, he sustained bone fracture and therefore, he wasprovided light duty inside the depot. Thereafter, he was directed https://hcservices.ecourts.gov.in/hcservices/ to appear before the Medical Board and the Medical Board gave itsfindings stating that the petitioner is having poor eye sight andhe is unfit for driving the vehicles. Therefore, he was dischargedfrom service on 17.02.2002. Since he was not provided withalternative employment, the petitioner filed W.P.No.39016 of 2002praying to set aside the order dated 17.02.2002 and for a directionto the respondent to provide him light duty with pay protection,continuity of service, backwages and other attendant benefits. Thesaid writ petition was disposed of by this Court by an order dated16.6.2003 directing the respondent to consider the representationof the petitioner and pass orders within one month. In spite of thesaid direction, the respondent passed the impugned order dated28.08.2003 and appointed the petitioner as Non-ITI Helper. It isthe further case of the petitioner that the person who wasappointed along with him are drawing more salary than thepetitioner and hence, the petitioner prays for continuity ofservice and pay protection.4.Heard the learned counsel appearing for the petitioner aswell as the respondent.5.The point in issue is whether the petitioner havingadmittedly sustained disability during the course of employment, isentitled to get alternate employment under Section 47 of thePersons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995.6.Section 47 of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995 reads as follows:Sec.47. Non-Discrimination of Governmentemployment.- (1) No establishment shall dispensewith, or reduce in rank, an employee who acquiresa disability during his service:Provided that, if an employee, afteracquiring disability is not suitable for the posthe was holding, could be shifted to some otherpost with the same pay scale and servicebenefits.Provided further that if it is not possibleto adjust the employee against any post, he maybe kept on a supernumerary post until a suitablepost is available or he attains the age ofsuperannuation, whichever is earlier.(2)No promotion shall be denied to aperson merely on the ground of his disability:Provided that the appropriate Governmentmay, having regard to the type of work carried onin any establishment, by notification and subject https://hcservices.ecourts.gov.in/hcservices/ to such conditions, if any, as may be specifiedin such notification, exempt any establishmentfrom the provisions of this section.”7.The applicability of Section 47 of the Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995, to the Transport Corporation employeeswas considered by this Court in the following decisions:(i) 2004 WLR 398 (DB) (Metropolitan Transport Corporation V. ThePresiding Officer, Principal Labour Court & Another)(ii) 2006 (1) CTC 124 (P.Thangamarimuthu v. Tamil Nadu StateTransport Corporation, Madurai (Division-I), Madurai.(iii)2006 (5) CTC 413 (DB) (G.Muthu v. The Management of TamilNadu State Transport Corporation (Madurai) Ltd., Madurai.(iv) (2007) 5 MLJ 1 (DB) (Management of Tamil Nadu StateTransport Corporation (Villupuram Division-III) Ltd.,Kancheepuram.(v) Unreported Judgment of Division Bench in W.A(MD)No.436 of2007 dated 9-10-2007 (Tamil Nadu State Transport Corporation(Kumbakonam Division-I) Limited, Kumbakonam v. M.Kamaraj).The above said Judgments were rendered on the basis of Section 47of the Persons with Disabilities (Equal Opportunities, Protectionof Rights and Full Participation) Act, 1995, and following thedecision of the Supreme Court reported in (2003) 4 SCC 524 (KunalSingh v. Union of India), wherein in paragraph 9, it is held thus,"9. Chapter VI of the Act deals withemployment relating to persons with disabilities,who are yet to secure employment. Section 47,which falls in Chapter VIII, deals with anemployee, who is already in service and acquiresa disability during his service. It must be bornein mind that Section 2 of the Act has givendistinct and different definitions of“disability” and “person with disability”. It iswell settled that in the same enactment if twodistinct definitions are given defining aword/expression, they must be understoodaccordingly in terms of the definition. It mustbe remembered that a person does not acquire orsuffer disability by choice. An employee, whoacquires disability during his service, is soughtto be protected under Section 47 of the Actspecifically. Such employee, acquiringdisability, if not protected, would not onlysuffer himself, but possibly all those who dependon him would also suffer. The very frame andcontents of Section 47 clearly indicate its https://hcservices.ecourts.gov.in/hcservices/ mandatory nature. The very opening part of thesection reads “no establishment shall dispensewith, or reduce in rank, an employee who acquiresa disability during his service”. The sectionfurther provides that if an employee afteracquiring disability is not suitable for the posthe was holding, could be shifted to some otherpost with the same pay scale and servicebenefits; if it is not possible to adjust theemployee against any post he will be kept on asupernumerary post until a suitable post isavailable or he attains the age ofsuperannuation, whichever is earlier. Added tothis no promotion shall be denied to a personmerely on the ground of his disability as isevident from sub-section (2) of Section 47.Section 47 contains a clear directive that theemployer shall not dispense with or reduce inrank an employee who acquires a disability duringthe 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 objectof the Act and serves its purpose must bepreferred to the one which obstructs the objectand paralyses the purpose of the Act. Language ofSection 47 is plain and certain casting statutoryobligation on the employer to protect an employeeacquiring disability during service."8.The contra view taken by a Division Bench of this Court inW.A(MD)No.96 of 2007 dated 26.4.2007 in the case of the GeneralManager, Tamil Nadu State Transport Corporation v. A.Sengaan, wasfound as not laying down the correct law, in the latest decision ofanother Division Bench of this Court in the decision reported in(2007) 5 MLJ 1 (cited supra), wherein in paragraph 17 the DivisionBench held as follows:“17.In the instant case, the respondentworkman became unfit for the duty of the driveras he lost knee movement and there is nopossibility of regaining his normal movement. Itis not disputed before us that the workman issuffering from locomotor disability within themeaning of Section 2(o) of the Disabilities Act.In view of the Supreme Court's decision in KunalSingh v. Union of India and Another (supra) it isclear that the acquisition of disability is notthe same as a person with disability and it wasnot necessary for the workman to establish thathe suffer more than 40% disability. In ourconsidered opinion the decision of the DivisionBench in General Manager, Tamil Nadu State https://hcservices.ecourts.gov.in/hcservices/ Transport Corporation v. A.Sengaan (supra) doesnot lay down the correct law.”In the said Judgment, while upholding my order, the Division Benchdirected to implement the order in the writ petition, within aperiod of two weeks from the date of judgment, i.e., on 10.7.2007.I am also informed that the said order was complied with by theTransport Corporation. The Hon’ble Supreme Court in the decisionreported in 2008(1) Supreme 75- BHAGWAN DASS AND ANOTHER VS. PUNJABSTATE ELECTRICITY BOARD, while granting the relief to a disabledperson under Section 47 of the Act, in paragraph 13 and 14 has heldas follows:"13. We understand that the concerned officerswere acting in what they believed to be the bestinterests of the Board. Still under the oldmind-set it would appear to them just not rightthat the Board should spend good money on someonewho was no longer of any use. But they werequite wrong, seen from any angle. From thenarrow point of view the officers were duty boundto follow the law and it was not open to them toallow their bias to defeat the lawful rights ofthe disabled employee. From the larger point ofview the officers failed to realise that thedisabled too are equal citizens of the countryand have as much share in its resources as anyother citizen. The denial of their rights wouldnot only be unjust and unfair to them and theirfamilies but would create larger and graverproblems for the society at large. What the lawpermits to them is no charity or largess buttheir right as equal citizens of the country.14.In light of the discussions made above, theaction of the Board in terminating the service ofthe disabled employee (Appellant No.1) witheffect from March 21, 1997 must be held to be badand illegal. In view of the provisions ofSection 47 of the Act, the appellant must bedeemed to be in service and he would be entitledto all service benefits including annualincrements and promotions etc. till the date ofhis retirement.The amount of terminal benefits paid to himshould be adjusted against the amount of hissalary from March 22, 1997 till date. If anybalance remains, that should be adjusted in easymonthly installments from his future salary. Theappellant shall continue in service till his dateof superannuation according to the servicerecords. He should be reintated and all duepayments, after adjustments as directed, should https://hcservices.ecourts.gov.in/hcservices/ be made to him within six weeks from the date ofpresentation of a copy of the judgment before theSecretary of the Board."9.In the light of the above settled position with regard toproviding alternate employment to the persons, who sustaineddisability while in service, I hold that the petitioner is entitledto get alternate employment in the same scale of pay withpromotional benefits from the date of his discharge. The respondentis directed to provide alternate post in terms of Section 47 of thePersons with Disabilities (Equal Opportunity, Protection of Rightsand Full Participation) Act, 1995, with salary protection and allbenefits within two weeks from the date of receipt of a copy ofthis order. The arrears of pay and other benefits payable to thepetitioner shall be calculated and paid to the petitioner within aperiod of four weeks from the date of receipt of copy of thisorder.10.The writ petition is allowed with the above directions. Nocosts. Connected miscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sglToThe General Manager,Tamilnadu State Transport Corporation(Villupuram Division-1) Ltd.,Villupuram.+ 1 CC to Mr. C.Kanagaraj Advocate SR NO.15467+ 1 CC to Mr. D.Hariparanthaman, Advocate SR NO.15517 W.P.No.36331 of 2003KSK(CO)JJM(01.04.08)