IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.49656 of 2006 .. J.Sekar .. Petitioner vs. 1.Metropolitan Transport Corporation (Chennai Division) Ltd., rep. By its Managing Director Pallavan Illam, Chennai 600 002. 2.The General Manager (Admn.) Metropolitan Transport Corporation (Chennai Division) Ltd., Pallavan Illam, Chennai 600 002. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.S.Vaidyanathan For respondents : Mr.V.R.Kamalanathan .. ORDER
The writ petition is directed against the order of the second respondent dated 22.11.2006, by which the second respondent has rejected the representation of the petitioner for conferring alternate employment with effect from his disability as per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995.
2. The petitioner, who is a graduate in Commerce is stated to have joined as a Conductor under the respondent Corporation on 18.05.1989. Since he became medically disabled due to the asthmatic problem, he made representation on 29.05.1995 to confer alternate employment on him. The petitioner was directed to appear before the Medical Board, and the Medical Board in its report has stated that he was found to be not medically fit to discharge the duties of the Conductor, based on which the petitioner was discharged on medical grounds on 11.09.1996. a) In the mean time, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 (in short, the Act), came into force from 07.02.1996, under which the petitioner cannot be discharged and his status is protected. After the representation was made as per the Act, the petitioner was provided alternate employment on 05.12.1996 by the respondent Corporation, by posting him as a Helper Non-ITI as a fresh entrant in the pay scale of Rs.1690-20-2170. While he was discharged on 23.09.1996, his salary was in the scale of pay of Rs.1770-20-2470.
b) The petitioner had reported for duty as Non-ITI Helper on 07.12.1996 and was working as a Junior Assistant at Cash and Ticket Section and is now working as a Senior Assistant in the same category and he has been confirmed after satisfactory completion of probation. He had made several representations on 05.11.1997, 09.03.1998, 29.05.1998 and 26.05.1999 to the respondent Corporation to redesignate him as Junior Assistant commensurate with his qualifications.
c) While Non-ITI Helper is equivalent to Attender or Sweeper, which is a 4th category, the petitioner filed WP.No.3794 of 2000 claiming the said relief and that was disposed of on 06.01.2003 with direction to the respondent Corporation to consider the representation of the petitioner dated 26.05.1999, on merits. Since no order was passed, the petitioner filed another writ petition in W.P.No.41964 of 2006 to dispose of his representation dated 28.08.2006, along with the earlier representations and by order dated 03.11.2006, the representations were directed to be considered within four weeks time. It was pursuant to the same, the impugned order came to be passed by the second respondent.
3. The said impugned order is challenged by the petitioner on various grounds including that the petitioner being a medically disabled person, is entitled for pay protection as per the said Act; that as per the said Act and the judgments of the Supreme Court, the petitioner is entitled for pay protection apart from other grounds.
4. It is the submission of the learned counsel for the petitioner by quoting various judgments under the said Act that protection conferred under Section 47 of the Act is a statutory protection and therefore, there cannot be any estoppel against law. He would also submit that merely because the petitioner has waited for 10 years, it does not mean that he has given up his right as per the Act, since he made representations at the earliest point of time.
5. On the other hand, it is the contention of Mr.V.R.Kamalanathan, learned counsel appearing for the respondent Corporation on instructions that the petitioner has accepted the Helper Non-ITI post in 1996 as a fresh candidate without any objection and he has been working for the 10 years and after 10 years he has chosen to file the present writ petition, which according to the learned counsel is liable to be dismissed on laches. He also stated that there is no post of Junior Assistant in the Corporation for the past 20 years and the representation is only frivolous.
6. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 has come into existence by notification of the Government of India with effect from 07.02.1996. It is seen that the petitioner who was appointed as a Conductor on 18.05.1989, was discharged by declaring that he was invalidated on medical grounds. The order of discharge dated 11.09.1996, shows that the Medical Board which has examined him has found that he was affected by Asthma and therefore, he cannot continue in the post of Conductor. The operative portion of the order of discharge is as follows:
” 2.vdnt M!;j;Jkh nehapdhy; ghjpf;fg;gl;L jFjpaw;w epiyapy; mtiu elj;Jdh; gjtpapy; ePof;f ,ayhJ vd;W Kot[ bra;J mtiu kUj;Jt mog;gilapy; gzpapypUe;J tpLtpf;f Kot[ bra;J cj;jutplg;gLfpwJ/(Invalidated and discharged from service on medical grounds).”
7. The petitioner was provided with fresh appointment under the erstwhile Pallavan Transport Corporation on 05.12.1996 as Helper Non-ITI on the basis of the representation made by him thereby providing alternate employment and admittedly, it is in that category the petitioner is working even as on date. Section 47 of the Act is as follows:
“47. Non-discrimination in Government employment.-
(1) No establishment shall dispense with, or reduce in rank, an employee who acquired 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:
Narendera Kumar Chandla vs. State of Haryana (1994) 4 SCC 460.
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.”
It enables an employee who acquires disability during the course of his service, found to be not suitable for the post should be shifted to some other post which is suitable to him but with the same scale of pay and service benefits which he has been receiving earlier. In fact, the said beneficial legislation goes further to state that even if such posts are not available, supernumerary post must be created until suitable post becomes available or until he attains the age of superannuation and that is the protection given under Section 47 of the Act for the persons who have obtained disability during their service.
8. The definition of ‘disability’ is given under Section 2(i) of the Act, which is as follows:
“2(i) ‘disability’ means-
(i)blindness;
(ii)low vision;
(iii)leprosy cured;
(iv)hearing impairment;
(v)locomotor disability;
(vi)mental retardation;
(vii)mental illness.”
9. The petitioner is a person, who claims to have acquired disability during his service and not a ‘person with disability’, which is defined under section 2(t) of the Act that is, a person suffering from not less than 40% of any disability as certified by a medical authority.
10. The Tamil Nadu Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2002 framed by the State Government in accordance with the powers conferred under Section 73(1) of the Act in Chapter II give the Guidelines for Evaluation of Various Disabilities and the relevant Rules 3,4,5 and 6 are as follows:
” 3. Guidelines.- Guidelines for evaluation of various disabilities in the Gazette of India, Part I, Section I, No.4-2/83/HW.III, Government of India, Ministry of Welfare, and as may be amended from time to time, shall be followed for evaluation of various disabilities read with sections 2(b),(e),(i),(l),(n),(o),(q),(r),(t) and (u). (Annexure to the rules).
4.Authorities to give Disability Certificate.- The Civil Assistant Surgeon who is specialised in the field of Orthopedics, Ophthalmology, E.N.T. And Psychiatry as the case may be, shall examine the persons who claim to be handicapped and issue necessary disability certificate.
5. Reference to the Medical Board.- The Civil Assistant Surgeon concerned will, after due examination, give a permanent disability certificate in cases of such permanent disabilities where there are no chances of variation in the degree of disability. Wherever there is any chance of variation in the degree of disability, the Medical Board will decide the validity in the certificate.
6. Validity of the Certificate.- The certificate issued under the above rule will be valid for the whole of the country except the State of Jammu and Kashmir and will make a person eligible to apply for facilities, concessions and benefits admissible under any scheme of Government or Non-Governmental Organisations, subject to such conditions as the Central or the State Government may impose from time to time.”
11. Therefore, the disability as per the Act has to be identified by the authority competent as per the guidelines given under the Rules. Even though in the discharge order it is stated that the Medical Board has declared him as medically incapacitated, the reason for discharge is stated to be asthma complaint. As per the definition of disability under Section 2(i) of the Act, which has to be certified by the authority competent under the Rules, it is not known whether the said complaint of the petitioner will come under the meaning of disability under the Act. It appears that at the time when the petitioner was discharged and alternate employment was given, the petitioner was not considered as per the provisions of the said Act. In fact, in the typed set of papers filed by the petitioner, he has given the disability certificate without any further particulars with the following contents:
” Thiru J.Sekar, S/o.Thiru D.Jeyaraman, living at No.6 Puthupettai Garden II Lane, Royapettah, Madras 114 has been suffering from Atopic Asthma. This condition requires relatively dust free and pollution free area. As a conductor he is expressed to the elements and fumes of the vehicle. We recommend relocation is a suitable dust free job on medical grounds.”
12. It has been a well settled principle of law that as per the provisions of the Act, when a person has acquired disability during the course of his service, his service conditions are well protected and even if alternate employment is given, the salary should be the same which he was drawing earlier. But, such person must have acquired ‘disability’ within the meaning of the Act, and if the disability has been acquired as per the Act, simply because the petitioner has waited for 10 years, he cannot be denied his right for alternate employment and there is no estoppel against the statute. The delay is also not a material fact since the right has already accrued to him in February,1996 itself and the hierarchy of judgments on this issue are available starting from the judgment of the Supreme Court in Kunal Singh vs. Union of India (2003 (4) SCC 524), wherein Shivaraj V.Patil,J.(as His Lordships then was) has observed as follows:
” 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.”
13. It is also true that in G.Kandasamy vs. Tamil Nadu State Transport Corporation (Villupuram) Ltd., and another (2010 (3) LLN 380), N.Paul Vasanthakumar,J. has held that the protection given by the Act being statutory, simply because an employee has accepted to get lesser pay in a lower post on acquiring disability, that cannot be put against him in the following paragraph,
” 20. The statute, viz., S.47 of the Act gives protection and position direction to all establishments, unless exempted by the appropriate Government. The Transport Corporation being an establishment owned by the State of Tamil Nadu, is to give employment without affecting the pay-scale, seniority and promotional benefits. The offer made by the Corporation, which was accepted by the petitioner and his continuance in the work as helper as fresh entrant from 10th April, 2001, with pay reduction, cannot be put against the petitioner as it is a well settled proposition of law that there cannot be any estoppel against the statute. …….”
14. The petitioner is entitled to the said benefits if he has acquired the disability as per the Act and that has to be certified by the competent authority as per the Rules. If it is found that the petitioner has not acquired disability as per the Act, certainly he will not be entitled for the benefits of the said Act, in which event there is nothing for this Court to interfere with the impugned order of the second respondent. In such view of the matter, I am of the considered view that instead of interfering with the impugned order of the second respondent at this stage, a direction should be given to the respondent Corporation to refer the petitioner to the Medical Board as per the Rules enumerated above for obtaining a certificate regarding the disability of the petitioner as per the Act and in the event of such certificate having been obtained to the effect that the disability is as per the Act, the impugned order should go and the petitioners pay as he was drawing at the time when he was discharged on medical grounds should be protected and he should be continuously entitled for the said pay protection with all other benefits till he is accommodated in the similar post.
15. In such view of the matter, the writ petition stands ordered with direction to the respondent Corporation to refer the petitioner to the Medical Board for obtaining the certificate as to whether he has acquired the disability as per the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 and pass appropriate orders after such certificate is obtained in the light of the observations made above. The respondent Corporation shall send the petitioner to the Medical Board within a period of two weeks from the date of receipt of a copy of this order and thereafter, on obtaining the Medical Boards report, appropriate orders shall be passed within a period of two weeks.
The writ petition is ordered accordingly. No costs.
Kh
To
1.The Managing Director
Metropolitan Transport Corporation
(Chennai Division) Ltd.,
Pallavan Illam, Chennai 600 002.
2.The General Manager (Admn.)
Metropolitan Transport Corporation
(Chennai Division) Ltd.,
Pallavan Illam,
Chennai 600 002