BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/12/2007 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P(MD)No.9582 of 2007 and M.P(MD) Nos.1 & 2 of 2007 W.P(MD)No.9518 of 2007 W.P(MD)No.9582 of 2007 State Express Transport Corporation Ltd., 2, Pallavan Salai, Chennai - 600 002 rep.by its Managing Director ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Tirunelveli. 2.M. Thirumalaikutti ... Respondents
PRAYER
Petition filed under Article 226 of the Constitution of India, to issue
a Writ of Certiorari, calling for the records relating to the order dated
12.8.2005 passed in ID.No.107 of 1998 on the file of the first respondent and to
quash the same and to dismiss the industrial dispute raised by the second
respondent.
W.P(MD)No.9518 of 2007
Thirumalaikutty … Petitioner
Vs.
1.The Managing Director,
Tamil Nadu State Express
Transport Corporation Ltd.,
(Formerly Thiruvalluvar
Transport Corporation),
Pallavan Salai,
Chennai – 2.
2.The Tamil Nadu State Express
Transport Corporation Ltd.,
(Formerly Thiruvalluvar
Transport Corporation),
rep.by its Branch Manager (Division-I),
Vannarpettai,
Tirunelveli – 627 003.
3.The Presiding Officer,
Labour Court, Tirunelveli. … Respondents
Prayer
Writ petition filed under Article 226 of Constitution of India,
praying this Court to issue a writ of mandamus directing the second respondent
to implement the award dated 12.8.2005 passed by the third respondent, Labour
Court, Tirunelveli in I.D.No.107/1998 within the period that may be stipulated
by this Court.
!For Petitioner … Mrs.P.Jessi Jeevapriya
in WP.9582/2007
& Respondents 1 & 2
in WP.9518/2007
^1st Respondent … Labour Court
in WP.9582/2007
& 3rd respondent
in WP.9518/2007
For 2nd Respondent … Mr.C.Venkateshkumar
in WP.9582/2007
Petitioner in WP.9518/2007 for Mr.M.Ajmal Khan
:COMMON ORDER
In W.P.No.9582 of 2007, the State Express Transport Corporation Limited,
challenged the award of the Labour Court made in I.D.No.107 of 1998 dated
12.8.2005 ordering reinstatement by providing alternate employment to the second
respondent therein with continuity of service and backwages.
2. In W.P.No.9518 of 2007, the workman/Driver prayed for issuing a
direction to the Transport Corporation to implement the award dated 12.8.2005 in
the above industrial dispute within the stipulated time.
3. For the purpose of convenience, the parties herein will be referred
to as ‘Transport Corporation’ and ‘Workman’.
4. The case of the Transport Corporation is that the workman was
dismissed from service for the charges of abstaining from duty without
permission or leave from 1.3.1996 and thereby causing dislocation of work and
financial loss to the Transport Corporation. The Workman was appointed as
Driver in the Transport Corporation on 1.12.1987. On 28.12.1993 he was assigned
the duty with another driver by name Vadivel for plying Fleet No.968, Route
No.180 from Tirunelveli to Chennai. The Workman completed his part of duty
i.e., driving the bus from Tirunelveli to Trichy and was taking rest in the seat
provided behind the driver’s seat. When the other driver Vadivel was driving
the bus from Trichy to Madras, the bus met with an accident near Ulundurpet and
the workman sustained injuries. He was granted special leave from 29.12.1993 to
30.9.1994 and medical leave from 1.10.1994 to 29.2.1996. According to the
Transport Corporation, the second respondent has not obtained any further leave
at any point of time but he remained absent even thereafter. Therefore, the
Workman absented without leave for the period from 1.3.1996. The Workman was
directed to appear before the Medical Board on 6.4.1996, but he failed to appear
and continued to abstain from the work. Consequently, the disciplinary
proceeding was initiated for the above said charges. Enquiry date was fixed as
2.9.1996 and the same was sent to the workman and the workman failed to attend
for enquiry, though he acknowledged the enquiry notice. Hence the enquiry
Officer conducted exparte enquiry and found that the charges were proved. The
second show cause notice was issued on 24.10.1996 and explanation was called
from the Workman. After considering the explanation, the workman was dismissed
from service by order dated 11.2.1997. The said order was challenged by the
workman by raising I.D.No.107 of 1998 and the same was contested by the
Transport Corporation and the Labour Court by order dated 12.8.2005 set aside
the order of dismissal and ordered reinstatement of the workman by providing
alternate employment commensurate with the last drawn wages with continuity of
service and all other attendant benefits. The said award was challenged by the
Transport Corporation on the ground that the second respondent wilfully
abstained from service without obtaining leave or permission from 1.3.1996. The
workman failed to appear before the Medical Board in spite of the direction
given on 6.4.1996 and thereby the workman violated clause 16 of the Standing
Orders, which was proved during domestic enquiry, which was not rightly
considered by the Labour Court.
5. The learned counsel for the Transport Corporation submitted that
granting of relief by providing alternate employment considering the disablement
of the workman which is not even the subject matter of reference, is
unsustainable and the charges having been found proved, the first respondent was
not justified in setting aside the order of dismissal.
6. The learned counsel appearing for the workman on the other hand
submitted that the workman due to the accident sustained injuries in both his
legs due to fracture. The said accident had occurred during the course of his
employment and there was no negligence on the part of the second respondent as
he was only a co-driver during the time of accident and the workman was seated
behind the other driver Vadivel, who actually drove the bus. The workman was
admitted in the Government Hospital, Ulundurpet, and later on shifted to
Cuddalore General Hospital and in spite of the treatment at Cuddalore, injuries
did not heal and he was shifted in an ambulance to Palayamkottai and in view of
the continuous treatment taken, he was prevented from attending duty and he was
continuously on medical leave. It is further stated that the Transport
Corporation did not either reject the medical leave or directed the workman to
report for duty. The Transport Corporation was fully aware of the accident and
also sanctioned leave till 28.2.1996 and the disciplinary proceeding initiated
against the Workman is unsustainable and the same was rightly set aside by the
Labour Court in the above referred industrial dispute. The learned counsel for
the workman further submitted that the workman suffered 40% disability due to
the accident and he filed claim petition before the Motor accident Claims
Tribunal, Villupuram, in MCOP No.862 of 1994 and the Tribunal found that the
Workman has sustained 40% disability due to the said accident and he is not in a
position to drive any vehicle. For the said disability and injury sustained,
the Tribunal awarded a sum of Rs.1,01,800/- and the Transport Corporation was
directed to pay the compensation. The said order has also become final and
therefore it is beyond doubt that the workman sustained disability during the
course of the employment and as per Section 47 of the Persons with Disaibilities
(Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, the
first respondent was right in setting aside the order of dismissal and ordering
alternate employment with continuity of service and backwages.
7. I have considered the rival submissions made by the learned counsel
appearing for the Transport Corporation as well as the Workman/Driver.
8. The point in issue is whether the second respondent sustained injury
due to the accident occurred during the course of his employment and the workman
having sustained 40% disability is entitled to get alternate employment and
whether the Transport Corporation is justified in dismissing the second
respondent due to his absence from 1.3.1996.
9. 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.”
10. 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.
(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.”
11. 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., 10.7.2007. I am also informed that the said order was
complied with by the Transport Corporation.
12. From the above Judgment of this Court it is evident that the
Transport Corporation cannot deny alternate appointment to the its workman, who
sustains physical disablement during the course of the employment.
13. In the present case, the fact of employment of the Workman as Driver
in route No.180 as co-Driver on 28.12.1993 for the trip from Tirunelveli to
Chennai is admitted. The accident occurred at Ulundurpert when the workman was
travelling in the bus as co-Driver and sustaining of injuries due to the said
accident are also admitted. The Transport corporation, taking note of the
accident and injuries sustained by the workman, granted special leave from
29.12.1993 to 30.9.1994 and medical leave from 1.10.1994 to 29.2.1996 is also
admitted in the affidavit filed in support of the writ petition filed by the
Transport Corporation. Workman’s continuous treatment even after 1.3.1996 is
also not in dispute. The disability certificate which was produced before the
Motor Accident Claims Tribunal also shows that the workman sustained 40%
disability due to the said accident, for which, compensation was also awarded.
A specific finding is also given by the Tribunal that the workman is not in a
position to drive any vehicle. Hence there is a judicial finding against the
Transport Corporation.
14. From 1.3.1996, the Workman was said to be on leave without any
sanction of leave. Act 1 of 95 came into force on 7.2.1996. As per Section 47
of the said Act (extracted above), the Transport Corporation is bound to offer
alternate employment to the workman. Admittedly, no alternate employment is
provided to the workman. Had the alternate employment was provided and the
Workman refused to attend to duty, the Transport Corporation could have
initiated action against the workman for not reporting to duty, without sanction
of the leave. Hence I am of the view that the workman is entitled to get
alternate employment in the Transport Corporation at least from 7.2.1996. As
the earlier period of absence i.e., special leave from 29.12.1993 to 30.9.1994
and medical leave from 1.10.1994 to 29.2.1996 having been sanctioned, the
workman is entitled to get alternate employment from 1.3.1996.
15. Further, the Labour Court also considered the disability sustained
by the Workman during the course of the employment and also the 40% disability
assessed by the Doctor which was accepted by the Motor Accident Claims Tribunal
for awarding compensation. The said findings of the Labour Court cannot be
treated as perverse finding warranting interference by this Court in the writ
petition filed under Article 226 of Constitution of India. The Labour Court
ordered reinstatement by providing alternate employment with salary protection,
backwqages and continuity of service. However, in the light of section 47 of
the Act, the workman is entitled to get alternate employment from 1.3.1996 with
salary protection, promotional opportunities if he is otherwise eligible with
monetary and service benefits and not from the date of dismissal i.e., from
11.2.1997. The Transport Corporation is directed to give alternate employment
to the Workman with all benefits from 1.3.1996 within a period of two weeks from
the date of receipt of copy of this order.
16. W.P.No.9582 of 2007 is ordered in the above terms. No costs.
Connected miscellaneous petitions are closed.
17. In view of the order passed in W.P.No.9582 of 2007, no further order
is required to be passed in W.P.No.9518 of 2007 filed by the second respondent
for implementing the award of the Labour Court. Hence W.P.No.9518 of 2007 is
also disposed of.
vr
To
The Presiding Officer, Labour Court, Tirunelveli.