BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/10/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.11631 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 P.Varadharajan .. Petitioner Vs. 1.State Express Transport Corporation, Tamil Nadu Ltd., rep. By its Managing Director, Pallavan Salai, Chennai-600 002. 2.State Express Transport Corporation, Tamil Nadu Ltd., rep. By its General Manager (Administration), Chennai-600 002. 3.The Branch Manager, Tiruchirappalli Depot, State Express Transport Corporation, Tamil Nadu Ltd., Tiruchirappalli. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order passed by the second respondent in Ref.No.44761/A7/SETC(Tha.Na.Kho.1)/2000, dated 23.09.2000 and to quash the same and consequently direct the respondents to provide the petitioner suitable alternative employment with pay protection, continuity of service, backwages payable with effect from 23.9.2000 to till date of providing duty to the petitioner and all other attendant benefits. !For Petitioner ... Mr.A.Rahul ^For Respondents ... Mr.P.Thilakkumar - - - - :ORDER
The petitioner has come forward to file the present writ petition seeking
to challenge an order, dated 23.09.2000 passed by the second respondent and
seeks for a direction to respondents to provide suitable alternative employment
with pay protection, continuity of service, backwages payable with effect from
23.09.2000 till the date of providing duty to the petitioner and all other
attendant benefits.
2.The petitioner was working as a Driver in the respondent transport
Corporation with effect from 23.3.1992. During the year 2000, the petitioner was
sent for a check up by the Medical Board. The Medical Board gave an opinion that
the petitioner was suffering from Color Blindness and not fit for the post of
driver. Consequent upon the same, a show cause notice, dated 3.7.2000 was
issued. The petitioner in his explanation, dated 28.7.2000, stated that he may
be provided with an alternative employment. But, however by an order, dated
23.09.2000, he was discharged from service. Though the petitioner again and
again sent representations, asking for providing an alternative employment, the
same was not provided and all his representations were kept pending. The
petitioner had also approached the Conciliation Officer. The respondent
Corporation took up the stand that there was no vacancy in the post of Helper
and hence alternative employment cannot be provided. The Conciliation Officer
gave a failure report, dated 4.9.2002.
3.The petitioner was again asked to appear before the Committee
constituted by the Corporation regarding medical invalidated employees. The
petitioner had also appeared before the Committee on 16.7.2008 with Physical
Fitness Certificate. But, despite the same, since the same was not forthcoming,
the petitioner has come forward with the present writ petition, challenging the
earlier order of discharge dated 23.09.2000 as being contrary to Section 47(1)
of the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995. The petitioner also referred to a judgment of the
Supreme Court in Kunal Singh vs. Union of India and another reported in 2003 (4)
SCC 524 and also a judgment of the division bench of this court in G.Muthu Vs.
TNSTC (Madurai) Ltd. reported in 2006 (5) CTC 413. The division bench in an
identical circumstance found that even the colour blindness is a disability
coming within the meaning of the Act. The petitioner also claimed that he passed
S.S.L.C. and he can do the work of Clerk, Time Keeper or in traffic regulations,
but denying him the benefit of the Act is clearly illegal.
4.When the writ petition came up for hearing on 13.11.2009, this court
ordered notice of motion. Pending notice, no interim relief was granted.
Subsequently, when the matter came up again, this court found that the
respondent corporation is total insensitive and has not realized the social
responsibility and gave the following order, dated 27.09.2010, which reads as
follows:
“2.It is a sorry state of affairs in the Corporation that over the years,
hundreds of cases are filed before this Court as well as before the Principal
Bench of this Court by the conductors and drivers of the Corporation, who
unfortunately became disabled due to employment related injuries. In most of the
cases, the employees were forced to come to this Court either for referring
their cases to the Regional Medical Board or for getting alternative employment
in terms of Section 47 of the Act.
3.When the Parliamentary Law on the subject Section 47 of the 1995 Act
puts embargo on the Corporation from discharging such disabled employees and
mandates it to provide alternative employment, it is unnecessary for those
employees to rush to this Court for getting appropriate relief.
4.This Court and the Principal Bench of this Court have already passed
more than 500 orders. In some cases, the Transport Corporation filed Writ
Appeals and some of those appeals were also dismissed even at the admission
stage. The subject matter of such issues are squarely covered by more than ten
decisions of the Supreme Court. Therefore, the Transport Corporation need not
drive parties to this Court to have their cases considered as if the law is
unclear.
5.The Corporation must realize its social responsibilities as well as the
welfare of the workers in dealing with such cases. The Corporation should
immediately constitute a Special Cell relating to disabled workmen, comprising
higher level officers to consider such grievances on day-to-day basis rather
than making the workers to come to this Court on each occasion and spend years
together for getting relief, which is guaranteed to them under the 1995 Act.
This will avoid unnecessary hardship besides saving money for the workmen on
costly litigation. The Managing Director shall set in his affidavit the steps
to be taken in this regard. He is not expected to just deal with the present
case alone. ”
5.Upon such directions, the respondents filed an evasive counter
affidavit, dated Nil and gave the following averment in paragraph 2, which reads
as follows:
“2)It is submitted that in order to arrive at a common policy decision to deal
with such cases of Medical disability for providing alternate employment by
forming a Special cell, the matter is being placed in the ensuing Board meeting
to be held in December 2010. The decision to be arrived in the Board Meeting
shall be common to all Transport Corporations, therefore, the Respondent prays
to seek time for implementing the order of Hon’ble Court in the said matter.”
6.This Court was not satisfied with the affidavit, which was furnished on
20.10.2010 and strictly directed the Corporation to abide by the interim order
without further inviting strictures against them. Thereafter, when the matter
came up on 25.10.2010, the Corporation had filed a further counter affidavit,
which reads as follows:
“2)It is submitted that to complying the orders of the Hon’ble High Court,
Madurai Bench, Dated: 27.09.2010 in W.P.(MD).11631 of 2009, the following senior
officials of this corporation are nominated and a Special cell is constituted to
receive and attend the grievances of such of those employees who seek alternate
employment based on the Medical report on day today basis.
1)General Manager (Technical & Administration)
2)Senior Deputy Manager
3)Corporation Medical Officer
4)Deputy Manager (Legal)
5)Assistant Manager (HR)
The committee shall peruse the connected records and put up its recommendation
and remarks to the Managing Director to take appropriate action immediately.”
7.Atleast the respondent Corporation has now realized its corporate
responsibility towards its employees and has come up with the formation of a
committee as per the undertaking on 25.10.2010. But it is not suffice that such
an undertaking is given only to this court without it being let known to all
workers. The concerned workmen who ran to length and breadth of the State must
also be aware of such remedies available to them, lest on each occasion they may
be forced to come to this court spending huge amount of litigation expenses.
Therefore, in the fitness of things, the respondent Corporation must be directed
to publish the formation of the Commission and the power delegated to the
committee apart from being exhibited in their notice boards must publish it in
leading Tamil newspapers, so that the workmen will be aware of their rights and
can approach the in-house committee for the redressal of their grievances,
failing which it will be always open to them to come to this court. By the
constitution of the committee, they can get the relief in terms of the
provisions of the act and there will be no necessity for them to spend huge
amounts besides time and energy of such workers as well as the Corporation will
be saved. This court also will not be clogged with such unnecessary litigations.
As the issue raised in the writ petition has been decided in plethora of cases
by this court both by the learned single judge as well as by the division bench
and that precedents laid down by the Supreme Court was also clear.
8.Insofar as the petitioner’s case is concerned, it is unnecessary that
the issue should be sent before the Committee as the respondents themselves
acting upon the Medical Board’s opinion had terminated the service of the
petitioner without any justification.
9.In view of the same, the writ petition will stand allowed with the
following directions:
(a)The petitioner shall be restored to service within eight weeks and will
be paid all backwages from the period of discharge, i.e. 23.09.2000 till date of
restoration. He will be paid backwages within the same time frame.
(b)The cost is quantified at Rs.5000/- (Rupees five thousand only) shall
also be paid towards lawyer’s fee payable to the petitioner.
(c)The respondents are hereby directed to publish the formation of the
Special Cell as per the undertaking furnished to this court on 25.10.2010 in
four Tamil dailies, i.e. Dinamani, Dinakaran, Dinamalar and Daily Thanthi in a
prominent way informing the workers about the constitution of the Special Cell,
its composition and the address in which the Special Cell will be functioning as
well as the nature of the power entrusted to them. (d)This advertisement
shall be made on or before 15.12.2010 and report of compliance shall be sent to
this court without fail.
Consequently, connected miscellaneous petitions stand closed.
vvk
To
1.The Managing Director,
State Express Transport Corporation,
Tamil Nadu Ltd.,
Pallavan Salai,
Chennai-600 002.
2.The General Manager (Administration),
State Express Transport Corporation,
Tamil Nadu Ltd.,
Chennai-600 002.
3.The Branch Manager,
Tiruchirappalli Depot,
State Express Transport Corporation,
Tamil Nadu Ltd.,
Tiruchirappalli.