IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04 - 4 2008
CORAM:
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Writ Appeal No.1532 of 2006
& M.P.No.2 of 2006
K.Ganesan .. Appellant
vs.
The Managing Director,
Metropolitan Transport Corporation Chennai, Limited,
"Pallavan House",
P.B.No.390, Anna Salai, Chennai-600 002. .. Respondent
Writ Appeal against the order of this Court 14.12.2005 in Writ Petition No.23532 of 2001.
For appellant : Mr.V.Prakash, Senior Counsel
for Mr.S.S.Vasudevan
For respondent : Mr.D.Sreenivasan, Addl.G.P.
Judgment
S.J.Mukhopadhaya,J
The appellant/writ petitioner while working as a bus driver under the respondent-Metropolitan Transport Corporation (Chennai) Limited, suffered heart attack and had to undergo by-pass surgery. Having become medically invalidated to discharge duty of a bus driver, he asked for alternative employment, but the request was rejected. He was discharged from service. The Writ Petition was allowed in part, giving rise to the present appeal.
2. The only question to be determined in the present case is whether the writ petitioner-workman is entitled to the benefit of alternative employment under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Disabilities Act, 1995").
3. The brief facts of the case are that the appellant/writ petitioner who was a regular driver, suffered heart attack and had to undergo an open heart surgery/by-pass surgery, for which medical reimbursement to the extent of Rs.1 lakh was borne by the respondent-Transport Corporation. After recovery, he requested for light duty. He was referred to Medical Board to assess the suitability to continue as driver. The Medical Board, after examining him, found that he was unfit to drive vehicle and on such recommendation, he was discharged from service on medical grounds vide Proceedings No.26/4505/Pa.Pi.(Ni)1/MTC(L)/2000, dated 31.3.2001. While he claimed for the benefit of re-employment, it was rejected by the impugned order of the respondent-Transport Corporation, dated 23.8.2001.
4. While learned Senior Counsel appearing for the appellant/writ petitioner pleaded that the writ petitioner was entitled for alternative employment under Section 47 of the Disabilities Act, 1995, according to the respondent-Transport Corporation, he was not entitled for such benefit of alternative employment under the Disabilities Act, 1995 and he is entitled for fresh appointment as Helper (non-ITI) in accordance with G.O.Ms.No.746, Transport Department, dated 2.7.1981, for which the respondent-Transport Corporation is already maintaining a select list of medically discharged persons where his name has been shown at Sl.No.19. Similar plea has been taken before this Court by the parties as was taken before the learned single Judge.
5. We have heard learned counsel appearing for the parties, noticed the rival contentions, as also G.O.Ms.No.746, Transport Department, dated 2.7.1981 and the judgment referred to by the parties.
6. Much prior to promulgation of the Disabilities Act, 1995, for full participation and equality of the people with disabilities, Government of Tamil Nadu, from its Transport Department issued G.O.Ms.No.746, dated 2.7.1981, for giving employment to persons who become disabled during service, as extracted hereunder:
"ORDER:
During the budget session, held on 27-4-1981, the Minister (Transport) announced interalia in the Legislative Assembly that the workers who are declared unfit for continuance in the same posts by Doctors, while in service, because of eye defect or any other ailments, will be provided with alternative employment in posts like "Helpers", "afresh" depending upon their qualifications, experience and suitability for the new post, after settling their service benefits.
2. The Government accordingly direct that the workers in State Transport Undertakings who are declared unfit for continuance in the same posts, by doctors, while in service, because of eye defect or any other ailment, be discharged on medical grounds and their service benefits, settled. They should be subsequently provided with alternative employment in posts like "Helpers" depending upon their qualification and experience and suitability the new posts, without consulting the Employment Exchange. They should be appointed as fresh entrants only in the scale of pay or consolidated pay admissible to the new posts and their services terminated on the date on which they attain the age of superannuation.
3. This order issues with the concurrence of the Labour & Employment Department-Vide its U.O.No.26648/N1/81-1 dt.23.6.81.
(BY ORDER OF THE GOVERNOR)
M.RAGHUPATHY,
COMMISSIONER & SECRETARY TO GOVT."
7. It will be evident from the said G.O.Ms.No.746 that the workers who were declared unfit for continuance in the same posts, by Doctors, while in service, because of ailments, provision was made to provide alternative employment in posts like Helper etc., depending upon their qualification and experience. It was decided to provide such alternative employment as a fresh entrant in the scale of pay or the consolidated pay.
8. After 14 years of the aforesaid Government guideline, a Central Act, namely "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, was promulgated, which came into force on 7.2.1996. This Act was enacted to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region.
9. For proper appreciation of the rival contentions, it is useful and necessary to notice certain definitions contained in Section 2 and Section 47 of the Disabilities Act, 1995 apart from the purpose for which one or other Chapter of the Disabilities Act, 1995 was so so enacted, and the relevant portions are quoted hereunder:
"Section 2: Definitions In this Act, unless the context otherwise requires,--
.....
(i) “disability” means–
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;
……
(t) “person with disability” means a person suffering from not less than forty per cent of any disability as certified by a medical authority;
Chapter VI: Employment:
Section 32: Identification of posts which can be reserved for persons with disabilities.
….
Chapter VIII: Non-discrimination:
….
Section 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.”
10. The aforesaid provisions, Sections 2 and 47, fell for consideration before a Division Bench of this Court in the case of G.Muthu vs. Mgmt. of T.N. State Transport Corpn. (Madurai) Ltd., reported in 2007 (I) L.L.J. 9. Therein, exactly similar arguments were made by the contesting parties, as evident from paragraphs 7 and 8, relevant portion of which are quoted hereunder:
“7. ….. learned counsel appearing for the appellant has in a nut-shell formulated the following points for our consideration:
“(i) …..
(ii) The learned single Judge ought to have considered that even though the appellant is unfit due to the disability, should have been retained in service by providing suitable alternative job without resorting to discharge on medical grounds as per Section 47 of the Act.
(iii) Section 47 of the Act, has to be construed independently without reference to the other provisions of the said Act. There is a clear distinction between the words “with disability” found in various provisions under Chapters IV to VII of the Act and the words “acquiring disability” that found place only in Section 47 of the Act.
(iv) The disability which has been defined under Section 2(i) of the Act is not exhaustive, especially when Section 2 starts with a phrase “unless the context otherwise requires” which means that the 7th category mentioned in Clause 2(i) alone need not be construed as disability.
(v) To give effect to the purpose of the Act, Court should give a helping hand in favour of the disabled persons”.
8. Per contra, ……. learned counsel appearing for the respondent, in short, submitted the following points for our consideration:
“(i) Section 2(i) of the Act describes only seven categories of illness as disability and hence, the intention of the Parliament is that only those category of persons mentioned in Section 2(i) of the Act alone are entitled to the benefits under the Act.
(ii) When Section 2(i) of the Act specifies seven categories of illness as disability, there is no scope to give wider interpretation under Section 47 of the Act.
(iii) When the language under Section 47 of the Act is plain and unambiguous, there is no need to give different interpretation.
(iv) When Section 33 of the Act contains similar provisos like under Section 47, Section 47 cannot be said to be having isolated provisos.
(v) Section 56(4) of the said Act deals with persons with severe disability which cannot be compared with mere disability as found in the other provisions of the Act. Hence, if the Parliament intend to give different meaning to disability as found in Section 47, it would have stated so. Further, if the Parliament intended to give elaborate meaning to Section 47, the said provision would not contain the words “who acquires disability” but it would have defined the illness.
(vi) Section 47(i) of the Act merely says “who acquires “a” disability during the service” not who acquires “any” disability. If liberal interpretation is given, every person in the Corporation will try to take advantage of it, since he/she will be getting the same scale of pay without any or much work.
(vii) If wider interpretation is given, there will be a long queue claiming disability. Further, liberal interpretation to Section 47 will cause havoc among the employees and there will be demotivation among the employees.
(viii) Paying capacity of the Corporation has to be taken into consideration while deciding the case in favour of the disabled persons.” ”
Having noticed the rival contentions and relevant provisions of the Disabilities Act, 1995, including Sections 2(i), 33 and 47, the Division Bench observed as follows:
“19. Having regard to the special features contained in the said Section 47, providing for such a special benefit to an existing employee in an establishment when he acquires a ‘disability’ as held by us earlier, the application and implementation of the said provision will have to be ensured independent of various other benefits provided under the various other provisions falling under Chapters IV to VII of the Act which are meant for persons ‘with disability’. Having regard to the said distinctive features contained in Section 47 of the Act, as compared to the other provisions, we are of the considered opinion that the context in which the benefit has been conferred under Section 47 stands apart from the context of all other provisions where various other benefits have been conferred. In other words, we are of the firm view that the opening set of expressions contained in the definition clause, namely Section 2, which denotes “unless the context otherwise requires” squarely gets attracted to Section 47 and therefore the definition of ‘disability’ as defined under Section 2(i) cannot be blindly applied to the term ‘disability’ which has been used in Section 47 of the Act. In other words, the term ‘disability’ used in Section 47 can draw support not only in respect of the defined ‘disabilities’ as contained in Section 2(i) of the Act but will also encompass such other ‘disabilities’ which would disable a person from performing the work which he held immediately prior to acquisition of such ‘disability’ and thereby entitle him to avail the benefits conferred under the said provision for having acquired such a ‘disability’.
(emphasis supplied)
23. Therefore, as argued by the learned counsel for the appellant, while the provisions contained in Chapters IV to VII of the Act deals with “persons with disability” Section 47 alone deals with “an employee who acquires a disability during his service”. The said provision clearly says that no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service which means that the person who is employed in an establishment when he acquires a disability, his services cannot be dispensed with or there should be any reduction in rank. Further, the proviso to the said Section clearly states that if he is not suitable for the post he could be shifted to some other post with the same scale of pay and benefits. If it is not possible, he could be kept on a supernumerary post until a post is available or he attains the age of superannuation whichever is earlier. The said provision further states that no promotion shall be denied to any person merely on the ground of his disability. Thus, if we apply Section 47 of the said Act, the order of discharge passed by the respondent dated 26.3.2002 has no leg to stand.
31. After analysing the entire provisions of the Act and also various decisions cited above, we feel that the Courts cannot shut its eyes if a person knocks at its door claiming relief under the Act. In a welfare State like India, benefits of benevolent legislation cannot be denied on the ground of mere hyper-technicalities. When the law makers have conferred certain privileges on a class of persons, like in this case to a disabled person, the duty is cast upon the judiciary to oversee that the authorities or the persons to whom such a power is conferred, enforce the same in letter and spirit for which such enactment has been made. In the present case on hand, the appellant has been discharged on the ground of ‘colour blindness’ without providing alternative job as per Section 47 of the Act, which is unjustified and unreasonable. Hence, the order of the respondent dated March 26, 2002 discharging the appellant on medical grounds has no leg to stand. The appellant is entitled to the protection under Section 47 of the Act. He should have been given a suitable alternative employment with pay protection, instead of discharging him from service on the ground of ‘colour blindness’. Viewed from any angle, the order of the learned single Judge dismissing the writ petition on the mere ground of laches without considering the claim of the appellant on merits is liable to be set aside.”
11. The aforesaid view of the Division Bench was reiterated by a Division Bench of this Court, by its unreported decision in the case of “Management of Tamil Nadu, State Transport Corporation (Villupuram Division-III) Limited, Kancheepuram vs. R.Gnanasekaran“, in Writ Appeal No.860 of 2007, dismissed on 10.7.2007. That was a case in which the learned single Judge granted the relief in favour of the workman in view of Section 47 of the Disabilities Act, 1995 and the said order was challenged by the Transport Corporation. The Division Bench upheld the order of the learned single Judge and dismissed the appeal.
12. The provisions of Section 2(i) and (t); the provisions under Chapter VI (Sections 32, 33 and 38) and Chapter VIII (Section 47), fell for consideration before the Supreme Court in the case of Kunal Singh vs. Union of India, reported in 2003 (4) SCC 524. Having noticed the aforesaid provisions, the Supreme Court held 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. From a plain reading of Section 2(i) and (t) and the decision of the Courts as referred to above, it would be evident that distinct and different definitions have been given for “disability” and ‘person with disability’. It will be further evident from Chapters VI and VIII of the Disabilities Act, 1995 that while Chapter VI deals with “employment” and Section 32 relates to “identification of posts which can be reserved for persons with disabilities”, Chapter VIII relates to “non-discrimination” and Section 47 deals with ‘non-discrimination in Government employment’, if an employee, after acquiring disability, is not suitable for the post. Therefore, while Section 32 talks of the post for which “persons with disabilities” are entitled for ’employment’, Section 47 deals with the post to which the employee is “not suitable for the post after acquiring disability”. In this background, the definition “disability”, which may be confined to the meaning as defined under Section 2(i), for the purpose of Chapter VI for the initial stage of employment in a service, such disability cannot be confined within the range aforesaid, if an employee is found not suitable for the post after acquiring disability. This is the reason the Division Bench of this Court in the case of G.Muthu (supra), while noticing Section 2, which states, “unless the context otherwise requires”, came to a conclusion that, “…. the term ‘disability’ used in Section 47 can draw support not only in respect of the defined ‘disabilities’ as contained in Section 2(i) of the Act, but will also encompass such other ‘disabilities’ which would disable a person from performing the work which he held immediately prior to acquisition of such ‘disability’ and thereby entitle him to avail the benefits conferred under the said provision for having acquired such a ‘disability’. ”
14. So far as G.O.Ms.No.746, Transport Department, dated 2.7.1981, is concerned, it was enacted much prior to the Disabilities Act, 1995. The respondent-Transport Corporation cannot derive any advantage of the said G.O. after the enactment of the Disabilities Act, 1995.
15. The case of Narendra Kumar Chandla vs. State of Haryana, reported in 1994 (4) SCC 460, is a judgment before the enactment of the Disabilities Act, 1995. In the said case, the employee had to undergo surgical operation, but after such operation, he was found physically unfit by a Medical Board, as in the case of the present writ petitioner. Having found the employee able to write, the Medical Board suggested him to be considered for any clerical or non-technical post. But it was not accepted by the employer. The Supreme Court, while allowing the appeal, held as follows:
” Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since, he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For Clerk, typing generally is not a must. Therefore, the State Electricity Board should relax his passing of the typing test and appoint him as an LDC. Since, on the date when he had unfortunate operation, he was drawing the salary in the pay scale of 1400-2300, his last drawn pay and scale of pay have to be protected. He will also be entitled to arrears of salary.”
16. Even if the said G.O.Ms.No.746, dated 2.7.1981, is taken into consideration, it does not prohibit continuance in service, but the only difference is that it suggested discharge from service and thereafter, fresh appointment, in the place of shifting to other post without termination as prescribed under Section 47 of the Disabilities Act, 1995.
17. In view of our findings as recorded above, we are of the view that the respondent-Transport Corporation, instead of removing the appellant/writ petitioner from service, should have shifted him to other equivalent post, such as Helper, as per Section 47 of the Disabilities Act, 1995 and thereby, they should have granted the benefit of Section 47 of the Disabilities Act, 1995 in favour of the appellant-writ petitioner.
18. For the reasons aforesaid, we set aside the order of discharge from service, passed by the respondent-Transport Corporation, dated 31.3.2001; the order of rejection of alternative employment, passed by the respondent-Transport Corporation, dated 23.8.2001 and the impugned order passed by the learned single Judge, in W.P.No.23532 of 2001, dated 14.12.2005.
The appellant-writ petitioner is reinstated into service and the respondent-Transport Corporation is directed to post the appellant-writ petitioner against the equivalent post of Driver for which he is otherwise eligible, such as Helper, within 15 days from the date of receipt or production of a copy of this judgment.
So far as the intervening period is concerned, though it will be counted for all purposes including seniority, employment, fixation of pay, etc., but we allow only 50% of the wages/salary for the intervening period (i.e. from the date of discharge up to the date of this judgment) to be paid in favour of the appellant/writ petitioner within one month from the date of receipt or production of a copy of this judgment, failing which, the respondent-Transport Corporation shall be liable to pay interest @ 9% from the date of this judgment till the amount is paid in favour of the appellant-writ petitioner, along with costs of Rs.10,000/-.
19. The writ appeal is allowed with the aforesaid observations and directions and there shall be no separate costs in view of the aforesaid observations. The Miscellaneous Petition is closed.
(S.J.M.J) (R.S.H.J) 04 - 4 - 2008 Index: Yes Internet: Yes cs To The Managing Director, Metropolitan Transport Corporation Chennai, Limited, "Pallavan House", P.B.No.390, Anna Salai, Chennai-600 002. S.J.MUKHOPADHAYA,J and R.SUBBIAH,J cs Judgement in Writ Appeal No.1532 of 2006 04 - 4 - 2008