IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.04.2010
CORAM
THE HONOURABLE Mr. Justice M.M.SUNDRESH
W.P.No.21619 of 2009
T.S.Venu ...Petitioner
vs.
The Managing Director
Tamil Nadu State Transport
Corporation (Villupuram.III) Ltd.
Kancheepuram. ...Petitioner
This Writ Petition is filed under Section 226 of Constitution of India with a prayer to issue a Writ of Mandamus directing the respondent to comply with Section 47 of the Disability Act, 1995 and to issue an order giving the petitioner continuity of service in the same scale of pay and all other service benefits.
For Petitioner : Mr.C.Manohar
For Respondent : Mr.S.S.Swaminathan
ORDER
The petitioner herein was working as a conductor in the respondent- Corporation. While the petitioner was on duty on 08.04.1997, he met with an accident and in pursuant to the said accident, the petitioner’s left leg got fractured. Thereafter, the petitioner made a representation on 13.10.1997, and he was directed to appear before the Medical Board to ascertain the physical disabilities. The Medical Board gave a report that the petitioner was unfit for conductor duty and he may be considered for alternative post. Based on the report of the Medical Board, a show cause notice was issued on 15.11.1997. Thereafter, the petitioner was discharged from service.
2. Thereafter, the petitioner made a representation for alternative employment. Pursuant to the said representation and in accordance with settlement under Section 12 (3) of the Industrial Disputes Act, 1947, the petitioner was given alternative employment as Junior Clerk. The petitioner accepted the alternative employment and joined duty on 15.04.1998 and is continuing in the said post till now.
3. Thereafter, the petitioner is said to have given representation during the year 2000 . The said representation had been given on the ground that as per Section 47 of Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the petitioner is entitled to get the pay as per his seniority and to be appointed in the post which is equivalent to the post he was holding before the accident. Since the said representation had not been considered, the petitioner has filed the present writ petition seeking a direction to the respondents to comply with Section 47 of the Disability Act, 1995 and to issue orders granting continuity of service in the same scale of pay with all other attendant benefits.
4. The learned counsel for the petitioner submitted that the petitioner was not aware of the provisions of Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The learned counsel also submited that as per Section 47 of the Disability Act, 1995, all the benefits therein will have to be given to the petitioner. The learned counsel also relied upon the judgement of the Learned Single Judge rendered in W.P. No.24753 of 2008 dated 11.08.2009, wherein in an identical case, a direction was issued to the respondent to comply with Section 47 of the Disability Act, 1995.
5. Per contra, Mr.S.S.Swaminathan, the learned counsel for the respondent submitted that here is a case where the petitioner has accepted the post as Junior Clerk without any protest. The said appointment was made on 23.03.1998 and the petitioner is continuing in service till now. It is further submitted that the petitioner has not given any representation from the year 2000 as alleged. The learned counsel basing reliance upon the judgement of the Division Bench in Writ Appeal No.475 of 2000, dated 07.02.2005 submitted that the writ petition is liable to be dismissed for laches, delay and acquiescence. The learned counsel also relied upon the judgements of the Hon’ble Apex Court reported in CDJ 1966, SC 039 (K.V.Rajalakshmiah Setty and Another Versus State of Mysore and Another), CDJ 1995, SC 443(State of Maharashtra Versus Digambar) and CDJ 1980, SC 078 (Gian Singh Mann Versus High Court of Punjab and Haryana and Another) for the above said principle of law. Hence, the learned counsel prayed for dismissal of the writ petition.
6. Heard the submissions made by the learned counsel on either side.
7. In the present case on hand, the applicability of Section 47 of the Disability Act, 1995 to the respondent is not in dispute. The act is to be made applicable to the respondent and hence a duty is cast upon the respondent to apply the same to the petitioner. It is no doubt true that the petitioner has accepted the alternative post as Junior Clerk in the year 1998. However, it is also true that the corresponding responsibility is also on the respondent, being an employer, to comply with the provisions of the said Act. Section 47 of the Disability Act, 1995 gives certain benefits to the employee. The petitioner was working as a conductor . Therefore, had he been aware of his rights, he would not have accepted the post as Junior Clerk. Admittedly, the respondent has not followed the procedure contemplated under Section 47 of Disability Act, 1995. The respondent also denies the factum of the representation which is said to have been given by the petitioner from the year 2000 onwards. In any case, even assuming that the petitioner has been making representation continuously, a mere representation is not sufficient to get over the delay in approcahing this Court.
8. The petitioner has filed the writ petition in the month of October, 2009. From the said fact, this Court can infer that atleast from the month of October, 2009, the respondent was put on notice about the grievance of the petitioner and also in view of the fact that the procedure contemplated under Section 47 of Disability Act, 1995 has not been complied with. The grievance of the petitioner is a continuing one. What he is entitled to in law cannot be taken away by mere latches on his part. At the most, it can be said that the petitioner is not entitled to the monetary benefits because of the latches and also because of the fact that he was infact working as Junior Clerk. In other words, in view of the fact that the petitioner is working as Junior Clerk, he would only be entitled to get payment at the time scale of pay mentioned thereunder. As observed earlier, the petitioner has made out his grievance from October, 2009 onwards. Therefore, the petitioner is entitled for all arrears from October, 2009 onwards. As per Section 47 of Disability Act, 1995 the petitioner is also to be given continuity of service and all other attendant benefits including retiral benefits and by taking into consideration the scale of pay the petitioner has received at the time of accident the petitioner will have to be paid from October 2009, in the scale of pay as equivalent to the petitioner’s appointment as Junior Clerk/driver and the petitioner shall be paid on par with his immediate junior and the salary received by him as a conductor should be the basis for the payment of arrears. For the future also the petitioner shall be given the salary based upon the same yardstick. The petitioner will also be given all the benefits in accordance with Section 47 of Disability Act, 1995 for the future. It is made clear that from the date of his appointment as Junior clerk i.e., from 23.03.1998 till September, 2009, the petitioner is entitled for no arrears of salary by taking the salary as one on par with his immediate junior while he was working as a conductor. The Writ petition is ordered accordingly. No costs.
sd
To
The Managing Director
Tamil Nadu State Transport
Corporation (Villupuram.III) Ltd.
Kancheepuram