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2007 DIGILAW 4024 (MAD)

R. Devaraj v. Managing Director

2007-12-06

N.PAUL VASANTHAKUMAR

body2007
Judgment :- Prayer in the writ petition is to quash the order dated 23.5.2000 dismissing the petitioner from the post of Conductor on the ground that he was found medically unfit to hold the said post and for a direction to give alternate employment with all benefits. 2. The case of the petitioner is that he was appointed as Conductor in the respondent Transport Corporation on 20.3.1992 after his name was sponsored through the Employment Exchange and after due selection. He was confirmed in the said post on 1.1.1993 and according to him, he was discharging his duty without any blemish. Petitioner was ordered to undergo a thorough medical examination before the Medical Board at the Government Head Quarters Hospital, Ramanathapuram, pursuant to which the petitioner subjected himself for medical examination and the medical Board found that he is suffering from vestibular Neuronitis with recurrent attacks of vertigo with bilateral conduction deafness. Due to the said deformity, he was found medically unfit to perform the duty of conductor by the Medical Board. The grievance of the petitioner is that based on the said Medical Board's report, petitioner's service was terminated by order dated 23.5.2000, even though he is entitled to continue in service till the date of his superannuation i.e., on 30.4.2022. The said order of termination is challenged in this writ petition on the ground that the petitioner having been found unfit to perform duty as Conductor, he should have been given alternate employment under Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and without giving alternate employment under the said statutory provision, which the respondents are bound to follow, the termination order passed against the petitioner is to be declared as illegal with consequential direction to provide suitable alternate employment to the petitioner forthwith with continuity of service, pay protection and all other attendant benefits. 3. The findings of the Medical Board dated 24.4.2000 which finds place in the typed set of papers, reads as follows: “MEDICAL BOARD Government Headquarters Hospital, Ramanathapuram Report Signature of the individual: Sd/-xxxxxx We the members of the Medical Board, Govt. District Headquarters Hospital, Ramanathapuram assembled and have examined Thiru R.Devaraj, Conductor, TNSTC., Mudukulathur Branch and found that he has not recovered from his illness and fit to resume duty on ................. NOTE: Appeared before the Medical Board on 24.4.2000. District Headquarters Hospital, Ramanathapuram assembled and have examined Thiru R.Devaraj, Conductor, TNSTC., Mudukulathur Branch and found that he has not recovered from his illness and fit to resume duty on ................. NOTE: Appeared before the Medical Board on 24.4.2000. Since he has vestibular Neuronitis with recurrent attacks of vertigo with Bilateral conduction deafness he is unfit for conductor duty. Sd/- Sd/-Sd/- Member Member Chairman Medical Board Medical Board Medical Board Govt.Head Quarters Govt.Head Qts. Govt.Head Qts. Hospital, Hospital, Hospital, Ramanathapuram Ramanathapuram Ramanathapuram.” 4. Heard the learned counsel appearing for the petitioner as well as the respondents. 5. The facts in this case are not in dispute and till date no alternative appointment is given to the petitioner in spite of his repeated representations. 6. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as follows: Sec.47. Non-Discrimination of Government employment.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” 7. The applicability of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, to the Transport Corporation employees was considered by this Court in the following decisions: (i) 2004 WLR 398 (DB) (Metropolitan Transport Corporation V. The Presiding Officer, Principal Labour Court & Another) (ii) 2006 (1) CTC 124 (P.Thangamarimuthu v. Tamil Nadu State Transport Corporation, Madurai (Division-I), Madurai. (iii) 2006 (5) CTC 413 (DB) (G.Muthu v. The Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai. (iii) 2006 (5) CTC 413 (DB) (G.Muthu v. The Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai. (iv) (2007) 5 MLJ 1 (DB) (Management of Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd., Kancheepuram. (v) Unreported Judgment of Division Bench in W.A(MD)No.436 of 2007 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 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and following the decision of the Supreme Court reported in (2003) 4 SCC 524 (Kunal Singh v. Union of India), wherein in paragraph 9, it is held thus, "9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of “disability” and “person with disability”. It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service”. The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." 8. The contra view taken by a Division Bench of this Court in W.A(MD)No.96 of 2007 dated 26.4.2007 in the case of the General Manager, Tamil Nadu State Transport Corporation v. A.Sengaan, was found as not laying down the correct law, in the latest decision of another Division Bench of this Court in the decision reported in (2007) 5 MLJ 1 (cited supra), wherein in paragraph 17 the Division Bench held as follows: “17. In the instant case, the respondent workman became unfit for the duty of the driver as he lost knee movement and there is no possibility of regaining his normal movement. It is not disputed before us that the workman is suffering from locomotor disability within the meaning of Section 2(o) of the Disabilities Act. In view of the Supreme Court's decision in Kunal Singh v. Union of India and Another (supra) it is clear that the acquisition of disability is not the same as a person with disability and it was not necessary for the workman to establish that he suffer more than 40% disability. In our considered opinion the decision of the Division Bench in General Manager, Tamil Nadu State Transport Corporation v. A.Sengaan (supra) does not lay down the correct law.” In the said Judgment, while upholding my order, the Division Bench directed to implement the order in the writ petition, within a period 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 the Transport Corporation. 9. I am also informed that the said order was complied with by the Transport Corporation. 9. In the light of the above settled position with regard to providing alternate employment to the persons, who sustain disability while in service, the impugned order of dismissal is set aside. I hold that the petitioner is entitled to get alternate employment in the same scale of pay with promotional benefits from the date of his termination. The respondents are directed to reinstate the petitioner in any one of the alternate post in terms of Section 47 of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, within two weeks from the date of receipt of copy of this order. The arrears of pay and other benefits payable to the petitioner shall be calculated and paid to the petitioner within a period of four weeks from the date of receipt of copy of this order. The writ petition is allowed with the above directions. No costs.