BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 03/04/2006 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.3975 of 2004 and W.P.M.P.Nos.4009 to 4011 of 2004 R.Sankar ... Petitioner Vs. 1.The Management of Tamil Nadu State Transport Corporation (Madurai) Limited, Tirunelveli represented by its, General Manager Vannarpettai Tirunelveli. 2.The Management of Tamil Nadu State Transport Corporation (Madurai) Limited, represented by its, Managing Director, Bye-Pass Road, Madurai - 625 010. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records in connection with the order of discharge of the petitioner from service bearing "Reference No. 3603- 11- - 04 dated on 16.10.2004 given by the 1st respondent and quash the same, consequently direct the respondents to reinstate the petitioner in service in a suitable alternative job or kept in a supernumerary post until a suitable post is available till the superannuation of the petitioner,whichever is earlier with the same pay scale and continuity of service with full back wages and with all other service benefits,award costs. !For Petitioner ... Mr.D.Hariparanthaman for Mr.K.Murugan ^For Respondent ... Mr.RajnishPathiyil :ORDER
Heard the learned counsel appearing for the petitioner and the learned
counsel for the respondents.
2. In the judgment rendered by me in the batch of Writ petitions in
W.P.Nos.409 of 2004 etc., dated 06.01.2006, relying upon the judgment of the
Supreme Court in Kunalsingh Vs.Union of India and another reported in 2003 (4)
SCC 524, I have held that as per Section 47(1) of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,
any person acquired disability during the course of employment either in
consequence of the nature of employment or otherwise, the “disability” as
defined under Section 2(i) of the Act, is to be shifted to some other post with
the same pay scale and service benefits and even in cases where it is not
possible to adjust the employee against any post he should be kept on a
supernumerary post until a suitable post was available or he attains the age of
superannuation whichever is earlier.
3. I have also held that the Act has come into force on 07.02.1996 and any
employee who was discharged thereafter on account of the disability acquired is
vested with such right.
4. I have also held that in Para.29 of the said judgment while deciding
about the term disability under Section 2(i) of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is
different from the term “person with disability” defined under 2(t) of the Act
and only in respect of those cases where, person who is not in employment
seeking the benefit under the Act in respect of schemes promulgated therein, the
certificate of medical authority contemplated under the Act is required.
However, in respect of the persons who are already in services who have acquired
disability during employment there was no necessity for producing a certificate
from medical authority contemplated under Section 2(p) of the said Act.
5. Apart from many other reasons, I have come to the said conclusion on
the basis that the various disabilities mentioned under Section 2(i) of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 have been independently defined under the definition
clause itself and therefore construing the said provision as a beneficial
legislation. I have held that finding of any authority about saud disabilities
is sufficient for the purpose of the Act.
6. The relevant passage in the judgment are “Therefore in my considered
view, the contentions of the learned counsels that unless and until a
certificate issued by the competent authority contemplated under the Act is
given, the benefits under Section 47 of the Act cannot be claimed is an
untenable argument. Further as laid down by the Supreme Court, the beneficial
legislation like Act 1 of 1996 must be construed with the object of the Act and
its purpose must be preferred to the one which obstructs the objects and
paralyses the purpose. Therefore, the finding of any authority about disability
is sufficient for the purpose of the Act.”
7. Even though, it is true that the certificate of the medical authority
as prescribed under the Act is not necessary for the purpose of conferring
benefit under Section 47(1) of the said Act, there must be some certificate to
prove that the person has suffered any one of the disabilities mentioned under
Section 2(i) of the Act, by construing the definition of various disabilities
explained by way of definition under Section 2 of Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Therefore, touch stone to decide about the disability explained in the medical
certificate is Section 2(i) itself.
8. In cases where the certificate produced by a medical board or any of
the authority for the purpose of stating that a person is unfit due to the
medical reason, is unable to be construed as a disability under the above said
Act, it is always open to the employer to refer such employee for a fresh
certificate to show whether the disabilities comes within the meaning of the
said Act namely Section 2(i) of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995, for,
under the said Act person having disability but those disabilities which are
defined therein alone are entitled to the benefits of Section 47(1) of the Act.
9. In this case, the Regional Medical Board, Tirunelveli has simply given
the following certificate:
“TIRUNELVELI MEDICAL COLLEGE HOSPITAL, TIRUNELVELI-11
We the Chairman and the members of the Regional Medical Board, Tirunelveli
Medical College Hospital have examined Thiru.R.Sankar, Junior Tradesman, TNSTC,
Tirunelveli on detailed examination, it is observed that he is unfit.”
10. In view of the fact that the certificate does not disclose what is the
disability suffered by the petitioner and to find out whether the disability
suffered is in accordance with section 2(i) of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,
the respondents are directed to send the petitioner to the medical Board again
for a detailed medical report to identify the nature of disability suffered by
the petitioner and thereafter pass orders conferring the benefits on the
petitioner under Section 47(1) of the Act, provided, the petitioner is certified
to have suffered a disability as per Section 2(i) of the Act. The writ petition
is ordered accordingly. There is no order as to costs. Consequently, connected
W.P.M.Ps. are closed.
To
1.The Management of
Tamil Nadu State Transport Corporation
(Madurai) Limited, Tirunelveli
represented by its,
General Manager
Vannarpettai
Tirunelveli.
2.The Management of
Tamil Nadu State Transport Corporation
(Madurai) Limited,
represented by its,
Managing Director,
Bye-Pass Road,
Madurai – 625 010.