JUDGMENT
E. Padmanabhan, J.
1. In this writ petition, the petitioner prays for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned proceedings passed by the second respondent in his Office No. Ku.No. 4/20923/ATC/96, dated August 8, 1996, quash the same and consequently direct the respondent to continue the service of the petitioner in a suitable post in the first respondent-Corporation.
2. Heard Smt. A.V. Bharathi, learned counsel appearing for the writ-petitioner and Sri K.G. Subramanian, learned counsel for Sri A.P.Kabilan, appearing for the respondents.
3. The petitioner, was appointed as driver in the respondent-Corporation on April 1, 1992, on a regular basis. On December 21, 1995 the accident took place in which the bus driven by the petitioner was involved. According to the petitioner he was not of fault and it was the vehicle which was coming from the opposite direction was driven rashly and negligently and there was a head on collision. The driver of the vehicle coming from the opposite direction was prosecuted. In the said head on collision apart from the death of two other passengers, the petitioner was caught underneath the damaged steering wheel. The petitioner was hospitalised for a considerable period as he had sustained multiple fracture of the femur on both the legs. The compound fracture necessitated major surgery in which steel plates were introduced in both the legs to set right the orthopaedic disorder.
4. The petitioner also suffered a compound fractures in left upper arm below the shoulder and steel plates have been inserted to act right the disorder. As a result of the said accident, the petitioner had suffered permanent disability and the Medical Boards found the petitioner to be unfit to continue as a driver. The petitioner was given six months special leave for treatment and recovery till June 17, 1996. The petitioner sought for extension of leave and he was referred to Regional Medical Board which opined that the petitioner is not fit to drive a heavy vehicle. Based upon the said report, the second respondent issued a notice on August 8, 1996 calling upon the petitioner to explain as to why he should not be discharged from service. Being aggrieved, the present writ petition has been filed.
5. This Court ordered notice of motion and granted interim stay. The petitioner had the benefit of interim orders right through and he is continuing in service. What has been challenged is the show-cause notice and it is being contended that the notice issued under the old Standing Orders which has since been replaced by new Standing Orders proposing to discharge the petitioner on medical invalidation is illegal and that it is not open to the respondent-Corporation to reply upon the old Standing Orders.
6. It is further contended that the impugned proposal to terminate the service of the petitioner is violative of Articles 14 and 21 as it is incumbent on the part of the respondent to allot light duty or alternate employment for a medically de-categorised employee. It was also contended that the proposed action is violative of the pronouncements of the Apex Court and Article 21 is violated.
7. A counter has been filed stating that the impugned notice, dated August 8, 1996, ‘has been issued and the writ petition is premature. According to the respondent the right to continue in public employment ceases and an employee’s service could be validly terminated if he is incapactitated or medically invalidated and such an action according to the respondent is not violative of Article 21 and there are no merits in the writ petition.
8. There is no dispute that the petitioner had sustained multiple fracture in the course of employment and he had sustained permanent disability and consequently he is unfit to continue as heavy vehicle driver. The question whether the respondent could terminate the petitioner on that scope without giving alternate employment and denying livelihood, has to be decided.
9. It is also conceded that in a number of cases the State Government itself had directed rehabilitation measures to indentically placed persons. That being so, impugned act on namely issue of a notice on August 8, 1996, proposing to discharge the petitioner on the ground that he is medically invalidated, it is rightly contended is illegal and contrary to Article 21 of the Constitution.
10. The point raised in this writ petition is well-settled. This Court as well as the Apex Court had occasion to consider and it has been held that every endeavor must be made to accommodate persons like the petitioner as he had suffered disability in the course of employment and consequently he is entitle to perform the duties as a driver. It has been emphasised that the respondent should afford alternate employment or allot light duty while giving pay protection to the petitioner. In this respect in Narendra Kumar Chandla, v. State of Haryana , the Apex Court held:
“Article 21 protects the right to livelihood as an intergral 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 posts 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 as a carrier attendant is unjust. Since he is a matriculate, he is eligible for the post of L.D.C. For L.D.C., 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. In view of the acts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as a L.D.C. Admittedly on the date when he had unfortunate operation, he was drawing the salary in the pay-scale of Rs. 1,400-2,300. Necessary therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC protecting his scale of pay of Rs. 1,400-2,300 and direct to pay all the arrears of salary.”
The above decision squarely applied to the facts of the present case.
11. The learned counsel for the petitioner also referred to a Division Bench judgment of this Court as well as few other orders passed by this Court in other writ petitions to which the respondent the Tamil Nadu State Transport undertaking, is a party.
12. In the circumstances, while following the said pronouncements as well as other pronouncements of this Court, the writ petition is allowed. The impugned notice, dated August 8, 1996, issued by the second respondent is quashed and the respondents are directed to allot other suitable duty or absorb him in a suitable alternate post in the first respondent, Tamil Nadu State Transport undertaking, while protecting the pay which he had been drawing on the date of accident. Since the petitioner had continued pursuant to the interim orders, it is not necessary to give any further direction. No costs.
13. Consequently, connected WMP is closed.