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2012 DIGILAW 4848 (MAD)

Ayinraj v. General Manager (Operation), Tamil Nadu State Transport Corporation, (Kumbakonam) Limited

2012-11-28

K.RAVICHANDRABAABU

body2012
ORDER : K. Ravichandrabaabu, J. The petitioner has challenged the order passed by the second respondent, dated 10.11.2005, and consequently, sought for a direction to the respondents to appoint his wife in the respondents corporation in any one of the posts in accordance with her suitability on compassionate grounds. It is the case of the petitioner that he was appointed as a 'Conductor' in the respondents corporation on 8.8.1982. Due to impairment of vision, he could not perform his duty, after working for nearly eight years. Therefore, he requested the Management to appoint his wife on compassionate grounds in order to tide over the financial problem of the family. A representation was made to the second respondent on 26.6.2000. The petitioner was directed to appear before the Medical Board. Accordingly, he appeared before the Medical Board and a report was also submitted by the said Board on 18.7.2000, holding that the petitioner was unfit for appointment as Conductor. Thereafter, the petitioner was issued with a show-cause notice on 1.8.2000, calling upon him to show-cause as to why he should not be discharged on medical grounds. The petitioner submitted his explanation on 7.8.2000, seeking compassionate appointment to his wife. Without considering his explanation, the petitioner was issued with discharge order, dated 11.9.2000. Thereafter, he made a further representation on 12.11.2000 and again on 29.12.2001. The Management did not consider the request of the petitioner to appoint his wife on compassionate grounds or to provide him an alternative employment as contemplated under the provisions of the Persons with Disabilities Act, 1995. Therefore, the petitioner filed an earlier writ petition in W.P. (MD) No. 6302 of 2005, seeking for a direction to the respondents to appoint the petitioner's wife in any one of the suitable posts according to her qualification. This Court, by an order, dated 18.7.2005, directed the respondents corporation to dispose of the petitioner's representation. Thereafter, the present impugned order came to be passed, whereby, it is stated that the claim for appointing the petitioner's wife will be considered in accordance with the seniority maintained by the respondents corporation. 2. The learned counsel appearing for the respondents corporation submitted that at the time of passing the impugned order, the name of the petitioner's wife was kept in the seniority list under Serial No. 51, and now her seniority is under serial No. 33. 2. The learned counsel appearing for the respondents corporation submitted that at the time of passing the impugned order, the name of the petitioner's wife was kept in the seniority list under Serial No. 51, and now her seniority is under serial No. 33. This submissions was made by the learned counsel for the respondents based on the proceedings issued by the Assistant Manager (Staff and Administration), dated 23.11.2012. 3. Heard the learned counsel appearing for the petitioner as well as the respondents. 4. The case of the petitioner is that when he was found not eligible to perform his duty based on his poor vision, the respondents ought to have considered the case of the petitioner under the Persons with Disabilities Act, 1995 by providing an alternative employment. They could have at least considered his request for providing an employment to his wife taking note of her qualification in any one of the suitable posts in accordance with law. Even though the impugned order says that the appointment of the petitioner's wife will be considered based on the seniority list maintained by the respondents, till this date, they have not made any appointment. Therefore, the learned counsel for the petitioner submits that at least the respondents should provide the petitioner alternative employment under the Persons with Disabilities Act, 1995. 5. A perusal of the impugned order shows that the petitioner was not provided with alternative employment under the Persons with Disabilities Act, 1995. Only because of the reason that he had not appeared before the Medical Board, constituted under the said Act. However, it is admitted by the Management that the petitioner was subjected to examination by the Medical Board on 18.7.2000 and the said Board also certified that the petitioner was not able to perform his duty as a Conductor. 6. There is no counter affidavit filed by the Management denying the averments made by the petitioner in the affidavit filed in support of this writ petition. 6. There is no counter affidavit filed by the Management denying the averments made by the petitioner in the affidavit filed in support of this writ petition. When the petitioner categorically stated that the Management has directed him to appear before the Medical Board, by its order, dated 6.7.2000, and accordingly, he had appeared before the said Board on 18.7.2000, I find no justification on the part of the second respondent in passing the impugned order, denying the petitioner's right to get the alternative employment under the Persons with Disabilities Act, 1995 only on the reason that the Medical Board examined the petitioner was not the one constituted under the said Act. When the Management had directed the petitioner to appear for examination before a particular Medical Board, the petitioner cannot be found fault with for not having appeared before the Board constituted under the Act. At any event, that cannot be a reason for rejecting the petitioner's claim for alternative employment under the persons with Disabilities Act, especially, when the fact remains that the petitioner is disabled due to his poor vision. Consequently, the petitioner is entitled to get the alternative employment as contemplated u/s 47 of the Persons with Disabilities Act, 1995. Without doing so and without also providing an employment to the petitioner's wife, the Management is trying to evade the process of compensating the petitioner suitably for his loss of earning, which is only because of his poor vision. Accordingly, I find every justification in the claim made by the petitioner. Consequently, the impugned order, dated 10.11.2005, issued by the second respondent is set aside and the respondents are directed to consider the claim of the petitioner for providing alternative employment as contemplated u/s 47 of the Persons with Disabilities Act, 1995 or provide the employment to the petitioner's wife as committed by them under the impugned order itself, dated 10.11.2005, within a period of eight weeks from the date of receipt of a copy of this order. With the above directions, the writ petition is disposed of. No costs.