BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25/11/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD).No.217 of 2009
and
M.P.(MD).NO.1 OF 2009
S.N.Kaliyaperumal . . Petitioner
1.The Presiding Officer,
Labour Court,
Caddalore.
vs
2.The Management of
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Rep. by its's Managing Director,
Kumbakonam. .. Respondents
PRAYER
Writ Petitions filed under Article 226 of the Constitution of India praying for
the issuance of writ of Certiorarified Mandamus calling for the records relating
to the award, dated 02.07.2008, passed by the first respondent in I.A.No.152 of
2002, quash the same and consequently to direct the second respondent to
reinstate the petitioner in service in suitable alternative employment with
continuity of service, back wages and all other attendant benefits.
!For Petitioner ... Mr.S.Arunachalam &
Mr.R.Murugan
^For Respondents... Mr.S.Baskaran for R2
:ORDER
The petitioner, who was workman, has come forward to challenge an award
passed by the first respondent, the labour Court, Cuddalore, dated 02.07.2008,
in I.D.No.152 of 2002. By the impugned award, the labour Court refused to grant
any alternative employment to the petitioner. However, considering his physical
condition, the labour Court held that he can be treated as if he is retired from
service from 02.07.2008. He will be entitled to get the terminal benefits as if
he is retired from service on that date and that all the amounts should be paid
within a period of three months from the date of the award, failing which the
petitioner should be paid interest on the basis of the lending rates fixed by
the banks.
2. In the writ petition, notice of admission was ordered on 12.01.2009.
Pending the writ petition, this Court did not grant any relief on the
application for interim direction. On notice from this Court, the respondents
have filed a counter affidavit, dated 20.10.2010.
3. The facts leading to the passing of the impugned award are as follows;
The petitioner was appointed as a conductor in the second respondent
Transport Corporation on 05.11.1980. On the basis of review, the petitioner was
given promotion as a Senior Conductor in the year 1987 and as selection grade
conductor from 01.06.1997. Finally, the petitioner was working at Thanjavur
Mofussil Branch. It is the claim of the petitioner that after 10 years of his
service, he sustained injury in an accident on 16.06.1989 at near to Vilupuram
during the course of his employment while working in a bus running between
Thanjavur and Chennai. Due to the accident, he had sustained serious injuries in
his spinal cord as well as bone injuries. The petitioner was given sick leave
with half wages. The medical certificate produced by the petitioner shows that
he cannot be discharged his normal duty as conductor and he should be given an
alternative light duty. It is the case of the petitioner that was given for a
brief period.
4.The petitioner was issued a charge memo stating that he was frequently
absent from duty. The petitioner denied the charges and subsequently a warning
was administered on 30.06.2000. On 09.08.2000, he was again directed to report
duty as conductor. Though the petitioner requested that he should be sent to the
medical board to find out the his disability and also requested compensation for
the injuries sustained by him, he was transferred from Thanjavur to Pattukkottai
on 13.10.2000. Subsequently, charge memos dated 17.09.2000 and 06.10.2000 were
issued stating that he was absent for 14 days in August 2000 and 21 days in
September 2000 respectively. Once again, the petitioner was given a charge memo
and imposed a punishment of increment cut for one year.
5.While in Pattukottai Branch, he could not take his medical treatment.
So, he requested for a re-transfer to Thanjavur. Meanwhile, the petitioner was
given another charge memo, dated 07.11.2000 for being absent in October 2000.
Once again, a punishment of increment cut for one year was given to him. Finally
a charge memo was issued on 06.01.2001 alleging that he continued to be absent
in December 2000. The petitioner did not give any explanation. But, an enquiry
was conducted and the enquiry officer by his report, dated 30.05.2001, found
the petitioner is guilty of charges. Thereafter, on the basis of the said
report, a show cause notice, dated 12.07.2001 was issued and the petitioner
submitted a further explanation explaining his health condition. 6.However, by
order dated 31.01.2002, he was dismissed from service. Therefore, the petitioner
filed an appeal to the Managing Director and raised an industrial dispute. Since
the conciliation ended in failure, on the strength of the failure report, he
filed a claim statement before the Labour Court on 01.11.2002. The said dispute
was taken on file by the first respondent as I.D.No.152 of 2002 and notice was
issued to the second respondent corporation.
7.The second respondent corporation filed a counter statement dated
25.09.2003. In the counter statement, it was averred that in paragraphs 7 and 8
as follows;
“7. If it is true that the petitioner underwent operation at
Thanjavur Medical College Hospital on 19-12-1997 and he was medically advised
that the should have four months rest during the post operative period, he
should have intimated those facts to the respondent management every now and
then, with proper medical documents, in advance, there is no need for the
respondent management to initiate any disciplinary action against the
petitioner. Further regarding the special injury leave he should have applied in
the proper form and the authorities would have sanctioned it, if the petitioner
is eligible for the special injury leave according to the then prevailing rules.
8. ….
When the petitioner met the Deputy Manager (Labour Relations) he was
explained in detail about the administrative difficulties in providing the light
jobs, since many employees were waiting for the assignment of such duties and
the scope for assigning such duties are very limited.
8.In the counter in paragraph 10 it was stated that the enquiry
proceedings and the findings are not fair and proper, then the respondent may be
permitted to adduce both oral and documentary evidence to substantiate their
case.
9.On behalf of the workman, 44 documents were marked as Ex.A1 to Ex.A44.
On the side of the second respondent 15 documents were marked as Ex.B1 to
Ex.B15. The petitioner himself was examined as PW1 and there was no evidence on
the side of the second respondent at the preliminary stage. Though a primary
issue was pending regarding conduct of the enquiry, the learned counsel
appearing for the workman on 18.05.2004 made an endorsement that he is not
pressing the issue regarding the validity of the initial enquiry and that he is
challenging the final enquiry conducted under Section 11-A of the I.D. Act.
10.The labour Court on going through the evidence found that the
petitioner did not give any explanation to the charge memo and did not give
proper medical certificate and leave application and therefore, the charges are
proved in terms of the certified Standing Orders 24 and 40 applicable to the
corporation and hence, the charges were proved. With reference to the
proportionality of the punishment, the Court find that the petitioner was
punished earlier 22 times. But, he was suffering due to the accident that is
beyond doubt. After the accident, he had informed the second respondent his
position under various dates. Since the management has lost confidence on the
petitioner and since he is not eligible for any alternative employment according
to the management, it was held by the labour Court that he should be deemed to
have retired on 02.07.2008 and directed the respondent to give all other
terminal benefits by award dated 02.07.2008 as noted already. It is this award,
under challenge in this writ petition.
11.Mr.S.Arunachalam, the learned counsel for the petitioner stoutly
contended that the respondent is completely aware of the petitioner’s condition
and for some time, granted light duty and the same was refused only on the
ground that it cannot be given for an indefinite period and the administration
is facing difficulties in providing light jobs and there is very little scope
for such light jobs. This fact pleaded by the respondents in the counter before
the labour Court was not taken into account.
12.When the petitioner was transferred to Pattukottai, he had asked for
re-transfer to Thanjavur for continuing his medical treatment and he had also
explained this fact to the Deputy Manager (Labour Relations). These facts were
also stated in the counter affidavit filed before the Labour Court. The only
defence taken by the second respondent before the Labour Court was that, if the
petitioner had applied for leave in a proper forum, then the authorities would
have sanctioned the leave.
13.When these facts are brought to the notice of the first respondent, the
Labour Court, proceeded to discharge the matter in hyper technical manner
without having regard to the provisions of the Person with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995, more
particularly Section 47 of the Act, which prohibits an employer discharging a
person from duty on account of an acquired disability. In the present case, when
the petitioner has applied to the Deputy Manager (Labour Relations) that he is
unable to perform the duties of a Conductor, he ought to have referred the case
of the petitioner for an opinion to the proper medical board and thereafter,
proceeded to deal with the case instead of framing a charge on the grounds of
unauthorised absence. It is not as if the second respondent was not aware of the
reason for the petitioner’s absence, as it has been brought out even in the
documents produced by the petitioner and marked by the labour court in the
impugned award. Hence, the award of the labour Court suffers from manifest
irregularity and non application of mind.
14.In this context, it is necessary to refer to a judgment of the Supreme
Court in Bhagwan Dass v. Punjab State Electricity Board reported in (2008) 1 SCC
579. The observations made by the Supreme Court will squarely apply to the case
of the petitioner. The relevant passages found in paragraphs 6, 17 to 20 may be
usefully extracted below:
“6.In view of Section 47 of the Act and the circulars issued by the State
Government and the Board it is clear that notwithstanding the disability
acquired by the appellant the Board was legally bound to continue him in
service. But on behalf of the respondent it is stated that the disabled employee
himself wanted to retire from service and, therefore, the provisions of Section
47 had no application to his case. Here it needs to be made clear that at no
stage any plea was raised that since the appellant was declared completely blind
on 17-1-1994 he was not covered by the provisions of the Act that came into
force on 7-2-1996. Such plea cannot be raised because on 7-2-1996 when the Act
came into force the appellant was undeniably in service and his contract of
employment with the Board was subsisting. His case was, therefore, squarely
covered by the provisions of the Act.
………
17.From the materials brought before the court by none other than the respondent
Board it is manifest that notwithstanding the clear and definite legislative
mandate some officers of the Board took the view that it was not right to
continue a blind, useless man on the Board’s rolls and to pay him monthly salary
in return of no service. They accordingly persuaded each other that the
appellant had himself asked for retirement from service and, therefore, he was
not entitled to the protection of the Act. The only material on the basis of
which the officers of the Board took the stand that the appellant had himself
made a request for retirement on medical grounds was his letter dated 17-7-1996.
The letter was written when a charge-sheet was issued to him and in the letter
he was trying to explain his absence from duty. In this letter he requested to
be retired but at the same time asked that his wife should be given a suitable
job in his place. In our view it is impossible to read that letter as a
voluntary offer for retirement.
18.Appellant 1 was a Class IV employee, a lineman. He completely lost his
vision. He was not aware of any protection that the law afforded him and
apparently believed that the blindness would cause him to lose his job, the
source of livelihood of his family. The enormous mental pressure under which he
would have been at that time is not difficult to imagine. In those circumstances
it was the duty of the superior officers to explain to him the correct legal
position and to tell him about his legal rights. Instead of doing that they
threw him out of service by picking up a sentence from his letter, completely
out of context. The action of the officers concerned of the Board, to our mind,
was deprecable.
19.We understand that the officers concerned were acting in what they believed
to be the best interests of the Board. Still under the old mindset it would
appear to them just not right that the Board should spend good money on someone
who was no longer of any use. But they were quite wrong, seen from any angle.
From the narrow point of view the officers were duty-bound to follow the law and
it was not open to them to allow their bias to defeat the lawful rights of the
disabled employee. From the larger point of view the officers failed to realise
that the disabled too are equal citizens of the country and have as much share
in its resources as any other citizen. The denial of their rights would not only
be unjust and unfair to them and their families but would create larger and
graver problems for the society at large. What the law permits to them is no
charity or largesse but their right as equal citizens of the country.
20.In light of the discussions made above, the action of the Board in
terminating the service of the disabled employee (Appellant 1) with effect from
21-3-1997 must be held to be bad and illegal. In view of the provisions of
Section 47 of the Act, the appellant must be deemed to be in service and he
would be entitled to all service benefits including annual increments and
promotions, etc. till the date of his retirement. The amount of terminal
benefits paid to him should be adjusted against the amount of his salary from
22-3-1997 till date. If any balance remains, that should be adjusted in easy
monthly instalments from his future salary. The appellant shall continue in
service till his date of superannuation according to the service records. He
should be reinstated and all due payments, after adjustments as directed, should
be made to him within six weeks from the date of presentation of a copy of the
judgment before the Secretary of the Board.
15.In view of the above factual matrix and the legal precedent referred to
above, the impugned award is hereby set aside. The second respondent is hereby
directed to restore the petitioner in service with an alternative employment.
The second respondent is hereby directed to refer the case of the petitioner to
a medical board within a period of four weeks. After ascertaining the degree of
his disabilities, they must provide a suitable alternative employment protecting
his status and emoluments. The petitioner is also entitled to get wages till the
date of restoration in service.
16.In the result, the writ petition is allowed in the above terms.
Consequently, connected miscellaneous petition is closed. No costs.
jikr/vvk
To
1.The Presiding Officer,
Labour Court,
Caddalore.
2.The Management of
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Rep. by its’s Managing Director,
Kumbakonam.