IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.03.2011 C O R A M THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition No.35595 of 2007 V.Balasubramaniam ... Petitioner -Vs.- Tamil Nadu State Express Transport Corporation represented by its Managing Director, Pallavan Salai, Chennai-2. ... Respondent Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to direct the respondent herein to offer alternative employment to the petitioner in the respondent corporation in an identical scale of pay admissible to the post of Driver following representation of the petitioner dated 31.12.2003, 13.11.2005 and 3.5.2007 with effect from the date of removal i.e. 6.12.2004 and also pay the arrears of salary from the date of removal from service namely 6.12.2004. For Petitioner : Mr. S.Sadasharam For Respondent : Mr. M.Ravibharathi O R D E R
The writ petition is filed for direction against the respondent to offer alternative employment to the petitioner in the respondent corporation in an identical scale of pay admissible to the post of Driver following various representations made by the petitioner.
2.The petitioner was appointed as Driver in the respondent Corporation and was employed at Tirunelveli Depot. Based on the certificate issued by the Principal of Tirunelveli Medical College and Hospital, Tirunelveli dated 10.11.2003, referring to Ortho disability suffered by the petitioner, show cause notice was issued by the respondent on 18.12.2003 calling upon the petitioner to submit his explanation as to why he should not be removed from service. After explanation was submitted, the respondent Corporation has by order dated 6.12.2004 removed the petitioner from service based on the medical report and further stated that if he desires, he can apply for alternative employment. The petitioner has subsequently made representations dated 13.11.2005 and 3.5.2007 to the respondent requesting alternative employment. However, no order has been passed by the respondent. Hence, the present writ petition for direction as stated above.
3.The petitioner has claimed the relief in the writ petition as per the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The said Act came into force from the date of its notification dated 7.2.1996. Section 47 of the Act makes it clear that no establishment shall dispense with the service of an employee who acquires a disability during his service. It also makes clear that an employee, in case of acquiring disability during service, is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. It further states that even 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. It is relevant to extract Section 47 of the Act which reads as follows:
47.Non-discrimination in 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.
4.The said provision came to be upheld and explained in the judgement reported in Kunal Singh v. Union of India and another in 2003 (4) SCC 524, wherein, the Supreme Court has laid down the dictum to the effect that as and from the date of notification of the Act, the legal right accrues on the employee who acquires disability, by way of protection in respect of pay and employment enshrined under Section 47 of the Act. The Act which is self contained Code, is significant for the persons with disabilities and Section 72 also makes it clear that the provisions of this Act shall be in addition to and not in derogation of any other law for the benefits of persons with disabilities. Further, the Act contemplates the disability which has been defined in Section 2(i) which includes locomotor disability. The purport of various provisions came to be discussed in the batch of writ petitions filed before the Madurai Bench of Madras High Court by V.Palanishanmugavel and others v. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd. Tirunelveli and others reported in 2007(4) CTC 478 wherein, I had occasioned to discuss entire provisions of the Act and by following the guidelines given by the Supreme Court in the judgement reported in 2003 (4) SCC 524, Kunal Singh v. Union of India and another, issued the following direction:
32.Therefore, for all the foregoing reasons, the writ petitions are allowed and the show cause notice or the order of discharge issued against the petitioners in respect of the employees in service acquired disability during the period of service are quashed with a direction to the respondents to provide some other post with same pay scale and continuing service benefits from the date of discharge and if such other posts are not available to keep on a supernumerary post either until a suitable posts are available or they attain superannuation whichever is earlier. This includes their further right of promotion, etc. as per Section 47(2) of the Act.
5.Further, it is also relevant to point out at this juncture that the Division Bench of this Court in 2008 (2) CLT 402 in K.Ganesan v. The Managing Director, MTCL, has reiterating the judgement of the Supreme Court in Kunal Singh v. Union of India with reference to Section 47 of the Act, directed to reinstate the medically invalidated person who was working as bus driver in the respondent Corporation, in service with all benefits as per Section 47 of the Act.
6.The learned counsel for the respondent would submit that since the petitioner has chosen to approach this court belatedly, he is not entitled to claim backwages and the benefits conferred under Section 47 of the Act can be given to the petitioner only from the date of filing of this writ petition. I do not agree with the contention so raised on the side of the respondent.
7.The Act has been notified being beneficial legislation and by virtue of mandatory provision under Section 47 of the Act, accrued right has already been conferred to the employee who has acquired disability during the course of employment. The Supreme Court in Kunal Singh case as referred to above, has dealt with the issue of benefits, not in the writ petition, but only at the stage of writ appeal and held therein that inasmuch as the benefits of the Act has already been accrued to the party concerned, it is the question of law and there is no need to specifically raise the same. The Act being a beneficial legislation, it is the duty cast upon the respondent to give backwages to the petitioner. In the present case, the petitioner was discharged from service on 6.12.2004, after the Act came into effect. In such view of the matter, in my considered view, the petitioner is entitled to claim not only alternative employment, but also all the benefits conferred under Section 47 of the Act.
P.JYOTHIMANI, J.,
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8.In the result, the writ petition stands allowed, with direction to the respondent to confer all benefits including monetary benefits to the petitioner from the date of discharge and to provide some other post with same pay scale and continuing service benefits from the date of discharge on 6.12.2004 and if such other posts are not available to keep on a supernumerary post either until a suitable posts are available or he attains superannuation whichever is earlier, within eight weeks from the date of receipt of the copy of this order. The arrears shall be payable to the petitioner by then. No costs.
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To
Managing Director,
Tamil Nadu State Express Transport
Pallavan Salai,
Chennai 2