{"id":133246,"date":"2010-11-25T00:00:00","date_gmt":"2010-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-n-kaliyaperumal-vs-unknown-on-25-november-2010"},"modified":"2018-09-06T03:14:10","modified_gmt":"2018-09-05T21:44:10","slug":"s-n-kaliyaperumal-vs-unknown-on-25-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-n-kaliyaperumal-vs-unknown-on-25-november-2010","title":{"rendered":"S.N.Kaliyaperumal vs Unknown on 25 November, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
S.N.Kaliyaperumal vs Unknown on 25 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/11\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE K.CHANDRU\n\nW.P.(MD).No.217 of 2009\nand\nM.P.(MD).NO.1 OF 2009\n\nS.N.Kaliyaperumal\t\t\t. . Petitioner\n\t\t\n\n1.The Presiding Officer,\n  Labour Court,\n  Caddalore.\n\nvs\n\n2.The Management of\n  Tamil Nadu State Transport Corporation\n    (Kumbakonam) Limited,\n  Rep. by its's Managing Director,\n  Kumbakonam.\t\t\t\t\t     .. Respondents\n\nPRAYER\n\nWrit Petitions filed under Article 226 of the Constitution of India praying for\nthe issuance of writ of Certiorarified Mandamus calling for the records relating\nto the award, dated 02.07.2008, passed by the first respondent in I.A.No.152 of\n2002, quash the same and consequently to direct the second respondent to\nreinstate the petitioner in service in suitable alternative employment with\ncontinuity of service, back wages and all other attendant benefits.\n\n!For Petitioner\t... Mr.S.Arunachalam &\n \t\t    Mr.R.Murugan\n^For Respondents... Mr.S.Baskaran for R2\n\t \t\t\t\n:ORDER\n<\/pre>\n
\tThe petitioner, who was workman, has come forward to challenge an award
\npassed by the first respondent, the labour Court, Cuddalore, dated 02.07.2008,
\nin I.D.No.152 of 2002. By the impugned award, the labour Court refused to grant
\nany alternative employment to the petitioner. However, considering his physical
\ncondition, the labour Court held that he can be treated as if he is retired from
\nservice from 02.07.2008. He will be entitled to get the terminal benefits as if
\nhe is retired from service on that date and that all the amounts should be paid
\nwithin a period of three months from the date of the award, failing which the
\npetitioner should be paid interest on the basis of the lending rates fixed by
\nthe banks.\n<\/p>\n
\t2. In the writ petition, notice of admission was ordered on 12.01.2009.
\nPending the writ petition, this Court did not grant any relief on the
\napplication for interim direction. On notice from this Court, the respondents
\nhave filed a counter affidavit, dated 20.10.2010.\n<\/p>\n
\t3. The facts leading to the passing of the impugned award are as follows;
\n\tThe petitioner was appointed as a conductor in the second respondent
\nTransport Corporation on 05.11.1980. On the basis of review, the petitioner was
\ngiven promotion as a Senior Conductor in the year 1987 and as selection grade
\nconductor from 01.06.1997.  Finally, the petitioner was working at Thanjavur
\nMofussil Branch. It is the claim of the petitioner that after 10 years of his
\nservice, he sustained injury in an accident on 16.06.1989 at near to Vilupuram
\nduring the course of his employment while working in a bus running between
\nThanjavur and Chennai. Due to the accident, he had sustained serious injuries in
\nhis spinal cord as well as bone injuries. The petitioner was given sick leave
\nwith half wages. The medical certificate produced by the petitioner shows that
\nhe cannot be discharged his normal duty as conductor and he should be given an
\nalternative light duty. It is the case of the petitioner that was given for a
\nbrief period.\n<\/p>\n
\t4.The petitioner was issued a charge memo  stating that he was frequently
\nabsent from duty. The petitioner denied the charges and subsequently a warning
\nwas administered on 30.06.2000. On 09.08.2000, he was again directed to report
\nduty as conductor. Though the petitioner requested that he should be sent to the
\nmedical board to find out the his disability and also requested compensation for
\nthe injuries sustained by him, he was transferred from Thanjavur to Pattukkottai
\non 13.10.2000. Subsequently, charge memos dated 17.09.2000 and 06.10.2000 were
\nissued stating that he was absent for 14 days in August 2000 and 21 days in
\nSeptember 2000 respectively. Once again, the petitioner was given a charge memo
\nand imposed a punishment of increment cut for one year.\n<\/p>\n
\t5.While in Pattukottai Branch, he could not take his medical treatment.
\nSo, he requested for a re-transfer to Thanjavur. Meanwhile, the petitioner was
\ngiven another charge memo, dated 07.11.2000 for being absent in October 2000.
\nOnce again, a punishment of increment cut for one year was given to him. Finally
\na charge memo was issued on 06.01.2001 alleging that he continued to be absent
\nin December 2000. The petitioner did not give any explanation. But, an enquiry
\nwas conducted and the enquiry officer by his report, dated 30.05.2001, found
\nthe petitioner is guilty of charges. Thereafter, on the basis of the said
\nreport, a show cause notice, dated 12.07.2001 was issued and the petitioner
\nsubmitted a further explanation explaining his health condition. \t6.However, by
\norder dated 31.01.2002, he was dismissed from service. Therefore, the petitioner
\nfiled an appeal to the Managing Director and raised an industrial dispute. Since
\nthe conciliation ended in  failure, on the strength of the failure report, he
\nfiled a claim statement before the Labour Court on 01.11.2002. The said dispute
\nwas taken on file by the first respondent as I.D.No.152 of 2002 and notice was
\nissued to the second respondent corporation.\n<\/p>\n
\t7.The second respondent corporation filed a counter statement dated
\n25.09.2003. In the counter statement, it was averred that in paragraphs 7 and 8
\nas follows;\n<\/p>\n
\t\t“7. If it is true that the petitioner underwent operation at
\nThanjavur Medical College Hospital on 19-12-1997 and he was medically advised
\nthat the should have four months rest during the post operative period, he
\nshould have intimated those facts to the respondent management every now and
\nthen, with proper medical documents, in advance, there is no need for the
\nrespondent management to initiate any disciplinary action against the
\npetitioner. Further regarding the special injury leave he should have applied in
\nthe proper form and the authorities would have sanctioned it, if the petitioner
\nis eligible for the special injury leave according to the then prevailing rules.\n<\/p>\n
\t8. ….\n<\/p>\n
\t  When the petitioner met the Deputy Manager (Labour Relations) he was
\nexplained in detail about the administrative difficulties in providing the light
\njobs, since many employees were waiting for the assignment of such duties and
\nthe scope for assigning such duties are very limited.\n<\/p>\n
\t8.In the counter in paragraph 10 it was stated that the enquiry
\nproceedings and the findings are not fair and proper, then the respondent may be
\npermitted to adduce both oral and documentary evidence to substantiate their
\ncase.\n<\/p>\n
\t9.On behalf of the workman, 44 documents were marked as Ex.A1 to Ex.A44.
\nOn the side of the second respondent 15 documents were marked as Ex.B1 to
\nEx.B15. The petitioner himself was examined as PW1 and there was no evidence on
\nthe side of the second respondent at the preliminary stage. Though a primary
\nissue was pending regarding conduct of the enquiry, the learned counsel
\nappearing for the workman on 18.05.2004 made an endorsement that he is not
\npressing the issue regarding the validity of the initial enquiry and that he is
\nchallenging the final enquiry conducted under Section 11-A of the I.D. Act.\n<\/p>\n
\t10.The labour Court on going through the evidence found that the
\npetitioner did not give any explanation to the charge memo and did not give
\nproper medical certificate and leave application and therefore, the charges are
\nproved in terms of the certified Standing Orders 24 and 40 applicable to the
\ncorporation and hence, the charges were proved. With reference to the
\nproportionality of the punishment, the Court find that the petitioner was
\npunished earlier 22 times. But, he was suffering due to the accident that is
\nbeyond doubt. After the accident, he had informed the second respondent his
\nposition under various dates. Since the management has lost confidence on the
\npetitioner and since he is not eligible for any alternative employment according
\nto the management,  it was held by the labour Court that he should be deemed to
\nhave retired on 02.07.2008 and directed the respondent to give all other
\nterminal benefits by award dated 02.07.2008 as noted already. It is this award,
\nunder challenge in this writ petition.\n<\/p>\n
\t11.Mr.S.Arunachalam, the learned counsel for the petitioner stoutly
\ncontended that the respondent is completely aware of the petitioner’s condition
\nand for some time, granted light duty and the same was refused only on the
\nground that it cannot be given for an indefinite period and the administration
\nis facing difficulties in providing light jobs and there is very little scope
\nfor such light jobs.  This fact pleaded by the respondents in the counter before
\nthe labour Court was not taken into account.\n<\/p>\n
\t12.When the petitioner was transferred to Pattukottai, he had asked for
\nre-transfer to Thanjavur for continuing his medical treatment and he had also
\nexplained this fact to the Deputy Manager (Labour Relations). These facts were
\nalso stated in the counter affidavit filed before the Labour Court. The only
\ndefence taken by the second respondent before the Labour Court was that, if the
\npetitioner had applied for leave in a proper forum, then the authorities would
\nhave sanctioned the leave.\n<\/p>\n
\t13.When these facts are brought to the notice of the first respondent, the
\nLabour Court, proceeded to discharge the matter in hyper technical manner
\nwithout having regard to the provisions of the Person with Disabilities (Equal
\nOpportunities, Protection of Rights and Full Participation) Act, 1995, more
\nparticularly Section 47 of the Act, which prohibits an employer discharging a
\nperson from duty on account of an acquired disability. In the present case, when
\nthe petitioner has applied to the Deputy Manager (Labour Relations) that he is
\nunable to perform the duties of a Conductor, he ought to have referred the case
\nof the petitioner for an opinion to the proper medical board and thereafter,
\nproceeded to deal with the case instead of framing a charge on the grounds of
\nunauthorised absence. It is not as if the second respondent was not aware of the
\nreason for the petitioner’s absence, as it has been brought out even in the
\ndocuments produced by the petitioner and marked by the labour court in the
\nimpugned award. Hence, the award of the labour Court suffers from manifest
\nirregularity and non application of mind.\n<\/p>\n
\t14.In this context, it is necessary to refer to a judgment of the Supreme
\nCourt in Bhagwan Dass v. Punjab State Electricity Board<\/a> reported in (2008) 1 SCC\n<\/p>\n
579. The observations made by the Supreme Court will squarely apply to the case
\nof the petitioner. The relevant passages found in paragraphs 6, 17 to 20 may be
\nusefully extracted below:\n<\/p>\n
“6.In view of Section 47 of the Act and the circulars issued by the State
\nGovernment and the Board it is clear that notwithstanding the disability
\nacquired by the appellant the Board was legally bound to continue him in
\nservice. But on behalf of the respondent it is stated that the disabled employee
\nhimself wanted to retire from service and, therefore, the provisions of Section
\n47 had no application to his case. Here it needs to be made clear that at no
\nstage any plea was raised that since the appellant was declared completely blind
\non 17-1-1994 he was not covered by the provisions of the Act that came into
\nforce on 7-2-1996. Such plea cannot be raised because on 7-2-1996 when the Act
\ncame into force the appellant was undeniably in service and his contract of
\nemployment with the Board was subsisting. His case was, therefore, squarely
\ncovered by the provisions of the Act.\n<\/p>\n
 ………\n<\/p>\n
17.From the materials brought before the court by none other than the respondent
\nBoard it is manifest that notwithstanding the clear and definite legislative
\nmandate some officers of the Board took the view that it was not right to
\ncontinue a blind, useless man on the Board’s rolls and to pay him monthly salary
\nin return of no service. They accordingly persuaded each other that the
\nappellant had himself asked for retirement from service and, therefore, he was
\nnot entitled to the protection of the Act. The only material on the basis of
\nwhich the officers of the Board took the stand that the appellant had himself
\nmade a request for retirement on medical grounds was his letter dated 17-7-1996.
\nThe letter was written when a charge-sheet was issued to him and in the letter
\nhe was trying to explain his absence from duty. In this letter he requested to
\nbe retired but at the same time asked that his wife should be given a suitable
\njob in his place. In our view it is impossible to read that letter as a
\nvoluntary offer for retirement.\n<\/p>\n
18.Appellant 1 was a Class IV employee, a lineman. He completely lost his
\nvision. He was not aware of any protection that the law afforded him and
\napparently believed that the blindness would cause him to lose his job, the
\nsource of livelihood of his family. The enormous mental pressure under which he
\nwould have been at that time is not difficult to imagine. In those circumstances
\nit was the duty of the superior officers to explain to him the correct legal
\nposition and to tell him about his legal rights. Instead of doing that they
\nthrew him out of service by picking up a sentence from his letter, completely
\nout of context. The action of the officers concerned of the Board, to our mind,
\nwas deprecable.\n<\/p>\n
19.We understand that the officers concerned were acting in what they believed
\nto be the best interests of the Board. Still under the old mindset it would
\nappear to them just not right that the Board should spend good money on someone
\nwho was no longer of any use. But they were quite wrong, seen from any angle.
\nFrom the narrow point of view the officers were duty-bound to follow the law and
\nit was not open to them to allow their bias to defeat the lawful rights of the
\ndisabled employee. From the larger point of view the officers failed to realise
\nthat the disabled too are equal citizens of the country and have as much share
\nin its resources as any other citizen. The denial of their rights would not only
\nbe unjust and unfair to them and their families but would create larger and
\ngraver problems for the society at large. What the law permits to them is no
\ncharity or largesse but their right as equal citizens of the country.\n<\/p>\n
20.In light of the discussions made above, the action of the Board in
\nterminating the service of the disabled employee (Appellant 1) with effect from
\n21-3-1997 must be held to be bad and illegal. In view of the provisions of
\nSection 47 of the Act, the appellant must be deemed to be in service and he
\nwould be entitled to all service benefits including annual increments and
\npromotions, etc. till the date of his retirement. The amount of terminal
\nbenefits paid to him should be adjusted against the amount of his salary from
\n22-3-1997 till date. If any balance remains, that should be adjusted in easy
\nmonthly instalments from his future salary. The appellant shall continue in
\nservice till his date of superannuation according to the service records. He
\nshould be reinstated and all due payments, after adjustments as directed, should
\nbe made to him within six weeks from the date of presentation of a copy of the
\njudgment before the Secretary of the Board.\n<\/p>\n
\t15.In view of the above factual matrix and the legal precedent referred to
\nabove, the impugned award is hereby set aside. The second respondent is hereby
\ndirected to restore the petitioner in service with an alternative employment.
\nThe second respondent is hereby  directed to refer the case of the petitioner to
\na medical board within a period of four weeks. After ascertaining the degree of
\nhis disabilities, they must provide a suitable alternative employment protecting
\nhis status and emoluments. The petitioner is also entitled to get wages till the
\ndate of restoration in service.\n<\/p>\n
\t16.In the result, the writ petition is allowed in the above terms.
\nConsequently, connected miscellaneous petition is closed. No costs.\n<\/p>\n
jikr\/vvk<\/p>\n
To<\/p>\n
1.The Presiding Officer,
\n  Labour Court,
\n  Caddalore.\n<\/p>\n
2.The Management of
\n  Tamil Nadu State Transport Corporation
\n  (Kumbakonam) Limited,
\n  Rep. by its’s Managing Director,
\n  Kumbakonam.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.N.Kaliyaperumal vs Unknown on 25 November, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-133246","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.N.Kaliyaperumal vs Unknown on 25 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-n-kaliyaperumal-vs-unknown-on-25-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.N.Kaliyaperumal vs Unknown on 25 November, 2010 - 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