IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :10.04.2008
Coram :
THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICE
and
THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN
Writ Appeal No.423 of 2008
K.Janardhanan Appellant
v.
1. The Managing Director,
Metropolitan Transport Corporation
Ltd., (Division No.I),
Pallavan Salai, Chennai 2.
2. The General Manager,
Metropolitan Transport Corporation
Ltd., (Division II),
Pallavan Salai, Chennai 2. Respondents
Writ Appeal filed under clause 15 of the Letters Patent against the order dated 16.04.2005 made in writ petition No.12615 of 2005
.
For Appellant : Mr.C.Manohar
For Respondents : Mrs.Rita Chandrasekar
JUDGMENT
(Judgment of the Court was delivered by
The Honourable The Chief Justice)
This appeal is filed against the order made in writ petition No.12615 of 2005. Admit. Learned counsel for respondents 1 and 2 waive service. By consent, the appeal is taken up for final hearing.
2. The appellant was temporarily appointed as a driver in the respondent transport Corporation on 09.09.1989. Subsequently, he was absorbed as a regular employee in the time scale of pay of Rs.780-50-900-20-1020 with effect from 01.08.1990. While the appellant was on duty on the route 29-N Perambur Velacherry on 10.01.2001, he had suffered a stroke totally disabling his right side of the body. The passengers who noticed that, held him and he was admitted in the Government Hospital at Royapettah. He was treated as inpatient initially and thereafter he took treatment as an outpatient. The appellant was directed to appear before the Medical Board, Government Stanley Hospital, Chennai, for medical check up. The Medical Board, after examining him, issued a certificate that he had regular paralyses of right upper and lower limb and was presently unfit to be a driver and advised to consider the possibility of providing an alternative job. On receipt of the medical certificate, the respondent Corporation issued a show cause notice to the appellant calling for his explanation against the provisional conclusion of permanently discharging him from duty on medical grounds vide memo dated 25.04.2002, which was served on the appellant on 06.06.2002. In his reply dated 08.06.2002, the appellant submitted that he had been in service for more than 13 years and at his age of 42, it would not be possible for him to seek for an employment outside and requested that he should not be deprived of his livelihood. He also requested to drop the proposal of discharge and to provide for an alternative job. However, the respondent Corporation passed an order on 27.08.2002 discharging the appellant from service.
3. Aggrieved by the order of discharge, the appellant preferred an appeal to the first respondent, but till date there is no response on the appeal. Hence, the appellant filed writ petition in W.P.No.3050 of 2003 seeking direction to the respondents to provide him a suitable alternative job. This Court passed an order dated 03.02.2003 directing the respondents to dispose of the representation of the appellant dated 10.09.2002 in one way or the other in accordance with law within eight weeks from the date of the order.
4. In pursuance of this direction, the first respondent passed a fresh order vide memo dated 06.03.2003 stating that the appellant’s application would be considered as and when vacancy arises as per the fitness and as per the seniority in the waiting list of employees, who are in the list expecting such alternative employment. The appellant again approached this Court by filing the writ petition in W.P. No.12615 of 2005, which came to be disposed of on 16.04.2005 by the learned single Judge holding that when the Corporation has sent the appellant a reply to the effect that his case would be considered as and when his seniority reaches for consideration and hence the present writ petition under Article 226 of the Constitution of India could not be maintained and dismissed the petition in limine.
5. Mr.Manohar, learned counsel appearing for the appellant strenuously stated that the appellant is entitled for an alternative employment in view of the provisions of the Section 47 of the Persons with Disabilities (Equal Opportunities) Act, 1995 (1 of 1996) (hereinafter referred to as ‘the Act’). He submitted that the term ‘disability’ is defined in Section 2(i) of the Act and includes the disability acquired. He submits that in the case of Kunal Singh v. Union of India, 2003-II-LLJ 735, the Supreme Court has clearly held that acquisition of disability is not the same as a person with disability and it is not necessary to establish that the workman has suffered 40% disability. He also brought to our notice the recent decision of a Division Bench of this Court in the case of G.Muthu v. Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., (2006) 4 MLJ 1669, where a view has been taken that the term ‘disability’ used in section 47 of the Act would encompass not only those contained in section 2(i) but also those which disabled a person from performing a work which he held immediately prior to acquisition of such disability. The SLP filed by the Transport Corporation against this judgment has been dismissed by the Supreme Court.
6. On the other hand, learned counsel for the respondent submitted that the Corporation is maintaining a wait list and the appellant’s case would be considered as per the seniority and he would be offered an alternative employment.
7. Section 47 of the Act read 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.”
According to the workman, as a result of the paralytic stroke, the movement of his right upper and lower limb is affected and the disability he is suffering from would fall under the locomotor disability as defined in section 2(i) read with section 2(o) of the Act.
8. The provisions of section 2 read with 47 of the Act fell for consideration in Kunal Singh v. Union of India, 2003-II-LLJ 735 cited supra, wherein the Court highlighted the distinction between the terms ‘disability’ and ‘person with disability’ and held that section 47 contemplates a disability acquired during service by observing as follows :
“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 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.
The argument of the learned counsel for the respondent on the basis of the definition given in section 2(t) of the Act that benefit of section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired “disability” within the meaning of section 2(i) of the Act and not a person with disability.”
9. In the light of the decision Kunal Singh’s case cited supra, it is clear that section 47 provides that an employee after acquiring disability not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; and if it is not possible to adjust the employee against any post, he will be kept on supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
10. In a recent judgment of the Division Bench of this Court in the case of G.Muthu v. Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., (2006) 4 MLJ 1669, the appellant, a driver in the respondent Transport Corporation was discharged from service on the ground that since he was colour blind, he was unfit to work as driver. The argument of the Transport Corporation was that the colour blindness is not a disability which would fall under section 2(i) of the Act. Rejecting the Corporation’s contention, the Division Bench held that the term ‘disability’ in section 47 would encompass not only those contained in section 2(i) but also those which disabled a person from performing the work which he held immediately prior to the acquisition of such disability. It was held that the benefits of benevolent legislation could not be denied on ground of mere hyper-technicalities.
11. In the light of the express provisions of section 47 of the Act and the decision in Kunal Singh’s case, we hold that the appellant is entitled to an alternative job. The order discharging the appellant from duty is set aside and the respondents are directed to offer an alternate employment to the appellant within a period of four weeks from today and if it is not possible to provide for an alternative employment, the respondents shall create a supernumerary post for the appellant, as provided in section 47 of the Act. The respondents are further directed to pay the back-wages and other emoluments as provided under the Rules within a period of two weeks from today. The writ appeal is allowed. No costs.
mf
To
1. The Managing Director,
Metropolitan Transport Corporation
Ltd., (Division No.I),
Pallavan Salai, Chennai 2.
2. The General Manager,
Metropolitan Transport Corporation
Ltd., (Division II),
Pallavan Salai,
Chennai 2.