{"id":201109,"date":"2007-12-17T00:00:00","date_gmt":"2007-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-express-transport-vs-the-presiding-officer-on-17-december-2007"},"modified":"2016-08-11T09:54:52","modified_gmt":"2016-08-11T04:24:52","slug":"state-express-transport-vs-the-presiding-officer-on-17-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-express-transport-vs-the-presiding-officer-on-17-december-2007","title":{"rendered":"State Express Transport … vs The Presiding Officer on 17 December, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
State Express Transport … vs The Presiding Officer on 17 December, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 17\/12\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR\n\n\nW.P(MD)No.9582 of 2007\nand\nM.P(MD) Nos.1 & 2 of 2007\nW.P(MD)No.9518 of 2007\n\nW.P(MD)No.9582 of 2007\n\n\nState Express Transport Corporation Ltd.,\n2, Pallavan Salai,\nChennai - 600 002\nrep.by its Managing Director\t...\tPetitioner\n\n\nVs.\n\n\n1.The Presiding Officer,\nLabour Court, Tirunelveli.\n\n2.M. Thirumalaikutti\t\t...\tRespondents<\/pre>\n
PRAYER<\/p>\n
Petition filed under Article 226 of the Constitution of India, to issue
\na Writ of Certiorari, calling for the records relating to the order dated
\n12.8.2005 passed in ID.No.107 of 1998 on the file of the first respondent and to
\nquash the same and to dismiss the industrial dispute raised by the second
\nrespondent.\n<\/p>\n
W.P(MD)No.9518 of 2007
\nThirumalaikutty\t\t\t…\tPetitioner<\/p>\n
Vs.\n<\/p>\n
1.The Managing Director,
\nTamil Nadu State Express
\nTransport Corporation Ltd.,
\n(Formerly Thiruvalluvar
\nTransport Corporation),
\nPallavan Salai,
\nChennai – 2.\n<\/p>\n
2.The Tamil Nadu State Express
\nTransport Corporation Ltd.,
\n(Formerly Thiruvalluvar
\nTransport Corporation),
\nrep.by its Branch Manager (Division-I),
\nVannarpettai,
\nTirunelveli – 627 003.\n<\/p>\n
3.The Presiding Officer,
\nLabour Court, Tirunelveli.\t…\tRespondents<\/p>\n
Prayer<\/p>\n
Writ petition filed under Article 226 of Constitution of India,
\npraying this Court to issue a writ of mandamus directing the second respondent
\nto implement the award dated 12.8.2005 passed by the third respondent, Labour
\nCourt, Tirunelveli in I.D.No.107\/1998 within the period that may be stipulated
\nby this Court.\n<\/p>\n
!For Petitioner \t\t…\tMrs.P.Jessi Jeevapriya
\nin WP.9582\/2007
\n& Respondents 1 & 2
\nin WP.9518\/2007<\/p>\n
^1st Respondent \t\t…\tLabour Court
\nin WP.9582\/2007
\n& 3rd respondent
\nin WP.9518\/2007<\/p>\n
For 2nd Respondent \t\t…\tMr.C.Venkateshkumar
\nin WP.9582\/2007
\nPetitioner in WP.9518\/2007\t\tfor Mr.M.Ajmal Khan<\/p>\n
:COMMON ORDER<\/p>\n
\tIn W.P.No.9582 of 2007, the State Express Transport Corporation Limited,
\nchallenged the award of the Labour Court  made in I.D.No.107 of 1998 dated
\n12.8.2005 ordering reinstatement by providing alternate employment to the second
\nrespondent therein with continuity of service and  backwages.\n<\/p>\n
\t2.\tIn W.P.No.9518 of 2007, the workman\/Driver prayed for issuing a
\ndirection to the Transport Corporation to implement the award dated 12.8.2005 in
\nthe above industrial dispute within the stipulated time.\n<\/p>\n
\t3.\tFor the purpose of convenience, the parties herein will be referred
\nto as ‘Transport Corporation’ and ‘Workman’.\n<\/p>\n
\t4.\tThe case of the Transport Corporation is that the workman was
\ndismissed from service for the charges of abstaining from duty without
\npermission or leave from 1.3.1996 and thereby causing dislocation of work and
\nfinancial loss to the Transport Corporation.  The Workman was appointed as
\nDriver in the Transport Corporation on 1.12.1987.  On 28.12.1993 he was assigned
\nthe duty with another driver by name Vadivel for plying Fleet No.968, Route
\nNo.180 from Tirunelveli to Chennai.  The Workman completed his part of duty
\ni.e., driving the bus from Tirunelveli to Trichy and was taking rest in the seat
\nprovided behind the driver’s seat.  When the other driver Vadivel was driving
\nthe bus from Trichy to Madras, the bus met with an accident near Ulundurpet and
\nthe workman sustained injuries. He was granted special leave from 29.12.1993 to
\n30.9.1994 and medical leave from 1.10.1994 to 29.2.1996.  According to the
\nTransport Corporation, the second respondent has not obtained any further leave
\nat any point of time but he remained absent even thereafter.  Therefore, the
\nWorkman absented without leave for the period from 1.3.1996. The Workman was
\ndirected to appear before the Medical Board on 6.4.1996, but he failed to appear
\nand continued to abstain from the work. Consequently, the disciplinary
\nproceeding was initiated for the above said charges.  Enquiry date was fixed as
\n2.9.1996 and the same was sent to the workman and the workman failed to attend
\nfor enquiry, though he acknowledged the enquiry notice. Hence the enquiry
\nOfficer conducted exparte enquiry and found that the charges were proved. The
\nsecond show cause notice was issued on 24.10.1996 and explanation was called
\nfrom the Workman.  After considering the explanation, the workman was dismissed
\nfrom service by order dated 11.2.1997.  The said order was challenged by the
\nworkman by raising I.D.No.107 of 1998 and the same was contested by the
\nTransport Corporation and the Labour Court by order dated 12.8.2005 set aside
\nthe order of dismissal and ordered reinstatement of the workman by providing
\nalternate employment commensurate with the last drawn wages with continuity of
\nservice and all other attendant benefits.  The said award was challenged by the
\nTransport Corporation on the ground that the second respondent wilfully
\nabstained from service without obtaining leave or permission from 1.3.1996.  The
\nworkman failed to appear before the Medical Board in spite of the direction
\ngiven on 6.4.1996 and thereby the workman violated clause 16 of the Standing
\nOrders, which was proved during domestic enquiry, which was not rightly
\nconsidered by the Labour Court.\n<\/p>\n
\t5.\tThe learned counsel for the Transport Corporation submitted that
\ngranting of relief by providing alternate employment considering the disablement
\nof the workman which is not even the subject matter of reference, is
\nunsustainable and the charges having been found proved, the first respondent was
\nnot justified in setting aside the order of dismissal.\n<\/p>\n
\t6.\tThe learned counsel appearing for the workman on the other hand
\nsubmitted that the workman due to the accident sustained injuries in both his
\nlegs due to fracture. The said accident had occurred during the course of his
\nemployment and  there was no negligence on the part of the second respondent as
\nhe was only a co-driver during the time of accident and the workman was seated
\nbehind the other driver Vadivel, who actually drove the bus.  The workman was
\nadmitted in the Government Hospital, Ulundurpet, and later on shifted to
\nCuddalore General Hospital and in spite of the treatment at Cuddalore, injuries
\ndid not heal and he was shifted in an ambulance to Palayamkottai and in view of
\nthe continuous treatment taken, he was prevented from attending duty and he was
\ncontinuously on medical leave.  It is further stated that the Transport
\nCorporation did not either reject the medical leave or directed the workman to
\nreport for duty.  The Transport Corporation was fully aware of the accident and
\nalso sanctioned leave till 28.2.1996 and the disciplinary proceeding initiated
\nagainst the Workman is unsustainable and the same was rightly set aside by the
\nLabour Court in the above referred industrial dispute.  The learned counsel for
\nthe workman further submitted that the workman suffered 40% disability due to
\nthe accident and he filed claim petition before the Motor accident Claims
\nTribunal,  Villupuram, in MCOP No.862 of 1994 and the Tribunal found that the
\nWorkman has sustained 40% disability due to the said accident and he is not in a
\nposition to drive any vehicle.  For the said disability and injury sustained,
\nthe Tribunal awarded a sum of Rs.1,01,800\/- and the Transport Corporation was
\ndirected to pay the compensation.  The said order has also become final and
\ntherefore it is beyond doubt that the workman sustained disability during the
\ncourse of the employment and as per Section 47 of the Persons with Disaibilities
\n(Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, the
\nfirst respondent was right in setting aside the order of dismissal and ordering
\nalternate employment with continuity of service and backwages.\n<\/p>\n
\t7.\tI have considered the rival submissions made by the learned counsel
\nappearing for the Transport Corporation as well as the Workman\/Driver.\n<\/p>\n
\t8.\tThe point in issue is whether the second respondent sustained injury
\ndue to the accident occurred during the course of his employment and the workman
\nhaving sustained 40% disability is entitled to get alternate employment and
\nwhether the Transport Corporation is justified in dismissing the second
\nrespondent due to his absence from 1.3.1996.\n<\/p>\n
\t9.\t Section 47 of the Persons with Disabilities (Equal Opportunities,
\nProtection of Rights and Full Participation) Act, 1995 reads as follows:
\n\tSec.47. Non-Discrimination of Government employment.- (1) No establishment
\nshall dispense with, or reduce in rank, an employee who acquires a disability
\nduring his service:\n<\/p>\n
\tProvided that, if an employee, after acquiring disability is not suitable
\nfor the post he was holding, could be shifted to some other post with the same
\npay scale and service benefits.\n<\/p>\n
\tProvided further that if it is not possible to adjust the employee against
\nany post, he may be kept on a supernumerary post until a suitable post is
\navailable or he attains the age of superannuation, whichever is earlier.
\n\t(2)\tNo promotion shall be denied to a person merely on the ground of his
\ndisability:\n<\/p>\n
\tProvided that the appropriate Government may, having regard to the type of
\nwork carried on in any establishment, by notification and subject to such
\nconditions, if any, as may be specified in such notification, exempt any
\nestablishment from the provisions of this section.”\n<\/p>\n
\t10.\tThe applicability of Section 47 of the Persons with Disabilities
\n(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, to
\nthe Transport Corporation employees was considered by this Court in the
\nfollowing decisions:\n<\/p>\n
(i) 2004 WLR 398 (DB) (Metropolitan Transport Corporation V. The Presiding
\nOfficer, Principal Labour Court & Another)<\/a>\n<\/p>\n
(ii) 2006 (1) CTC 124 (P.Thangamarimuthu v. Tamil Nadu State Transport
\nCorporation, Madurai (Division-I), Madurai.<\/a>\n<\/p>\n
(iii)\t2006 (5) CTC 413 (DB) (G.Muthu v. The Management of Tamil Nadu State
\nTransport Corporation (Madurai) Ltd., Madurai.<\/a>\n<\/p>\n
(iv) (2007) 5 MLJ 1 (DB) (Management of Tamil Nadu State Transport Corporation
\n(Villupuram Division-III) Ltd., Kancheepuram.\n<\/p>\n
(v) Unreported Judgment of Division Bench in W.A(MD)No.436 of 2007 dated 9-10-
\n2007 (Tamil Nadu State Transport Corporation (Kumbakonam Division-I) Limited,
\nKumbakonam v. M.Kamaraj).\n<\/p>\n
The above said Judgments were rendered on the basis of Section 47 of the Persons
\nwith Disabilities (Equal Opportunities, Protection of Rights and Full
\nParticipation) Act, 1995, and following the decision of the Supreme Court
\nreported in (2003) 4 SCC 524 (Kunal Singh v. Union of India), wherein in
\nparagraph 9, it is held thus,
\n\t“9. Chapter VI of the Act deals with employment relating to persons with
\ndisabilities, who are yet to secure employment. Section 47, which falls in
\nChapter VIII, deals with an employee, who is already in service and acquires a
\ndisability during his service. It must be borne in mind that Section 2 of the
\nAct has given distinct and different definitions of “disability” and “person
\nwith disability”. It is well settled that in the same enactment if two distinct
\ndefinitions are given defining a word\/expression, they must be understood
\naccordingly in terms of the definition. It must be remembered that a person does
\nnot acquire or suffer disability by choice. An employee, who acquires disability
\nduring his service, is sought to be protected under Section 47 of the Act
\nspecifically. Such employee, acquiring disability, if not protected, would not
\nonly suffer himself, but possibly all those who depend on him would also suffer.
\nThe very frame and contents of Section 47 clearly indicate its mandatory nature.
\nThe very opening part of the section reads “no establishment shall dispense
\nwith, or reduce in rank, an employee who acquires a disability during his
\nservice”. The section further provides that if an employee after acquiring
\ndisability is not suitable for the post he was holding, could be shifted to some
\nother post with the same pay scale and service benefits; if it is not possible
\nto adjust the employee against any post he will be kept on a supernumerary post
\nuntil a suitable post is available or he attains the age of superannuation,
\nwhichever is earlier. Added to this no promotion shall be denied to a person
\nmerely on the ground of his disability as is evident from sub-section (2) of
\nSection 47. Section 47 contains a clear directive that the employer shall not
\ndispense with or reduce in rank an employee who acquires a disability during the
\nservice. In construing a provision of a social beneficial enactment that too
\ndealing with disabled persons intended to give them equal opportunities,
\nprotection of rights and full participation, the view that advances the object
\nof the Act and serves its purpose must be preferred to the one which obstructs
\nthe object and paralyses the purpose of the Act. Language of Section 47 is plain
\nand certain casting statutory obligation on the employer to protect an employee
\nacquiring disability during service.”\n<\/p>\n
\t11.\tThe contra view taken by a Division Bench of this Court in
\nW.A(MD)No.96 of 2007 dated 26.4.2007 in the case of the General Manager, Tamil
\nNadu State Transport Corporation v. A.Sengaan,<\/a> was found as not laying down the
\ncorrect law, in the latest decision of another Division Bench of this Court in
\nthe decision reported in (2007) 5 MLJ 1 (cited supra), wherein in paragraph 17
\nthe Division Bench held as follows:\n<\/p>\n
\t“17.\tIn the instant case, the respondent workman became unfit for the
\nduty of the driver as he lost knee movement and there is no possibility of
\nregaining his normal movement.  It is not disputed before us that the workman is
\nsuffering from locomotor disability within the meaning of Section 2(o) of the
\nDisabilities Act.  In view of the Supreme Court’s decision in Kunal Singh v.
\nUnion of India and Another (supra) it is clear that the acquisition of
\ndisability is not the same as a person with disability and it was not necessary
\nfor the workman to establish that he suffer more than 40% disability.  In our
\nconsidered opinion the decision of the Division Bench in General Manager, Tamil
\nNadu State Transport Corporation v. A.Sengaan<\/a> (supra) does not lay down the
\ncorrect law.”\n<\/p>\n
In the said Judgment, while upholding my order, the Division Bench directed to
\nimplement the order in the writ petition, within a period of two weeks from the
\ndate of judgment, i.e.,  10.7.2007.  I am also informed that the said order was
\ncomplied with by the Transport Corporation.\n<\/p>\n
\t12.\tFrom the above Judgment of this Court it is evident that the
\nTransport Corporation cannot deny alternate appointment to the its workman, who
\nsustains physical disablement during the course of the employment.\n<\/p>\n
\t13.\tIn the present case, the fact of employment of the Workman as Driver
\nin route No.180 as co-Driver on 28.12.1993 for the trip from Tirunelveli to
\nChennai is admitted.  The accident occurred at Ulundurpert when the workman was
\ntravelling in the bus as co-Driver and sustaining of injuries due to the said
\naccident are also admitted.  The Transport corporation, taking note of the
\naccident and injuries sustained by the workman, granted special leave from
\n29.12.1993 to 30.9.1994 and medical leave from 1.10.1994 to 29.2.1996 is also
\nadmitted in the affidavit filed in support of the writ petition filed by the
\nTransport Corporation.  Workman’s continuous treatment even after 1.3.1996 is
\nalso not in dispute.  The disability certificate which was produced before the
\nMotor Accident Claims Tribunal also shows that the workman sustained 40%
\ndisability due to the said accident, for which, compensation was also awarded.
\nA specific finding is also given by the Tribunal that the workman is not in a
\nposition to drive any vehicle.  Hence there is a judicial finding against the
\nTransport Corporation.\n<\/p>\n
\t14.\tFrom 1.3.1996, the Workman was said to be on leave without any
\nsanction of leave.  Act 1 of 95 came into force on 7.2.1996.  As per Section 47
\nof the said Act (extracted above), the Transport Corporation is bound to offer
\nalternate employment to the workman.  Admittedly, no alternate employment is
\nprovided to the workman.  Had the alternate employment was provided and the
\nWorkman refused to attend to duty, the Transport Corporation could have
\ninitiated action against the workman for not reporting to duty, without sanction
\nof the leave.  Hence I am of the view that the workman is entitled to get
\nalternate employment in the Transport Corporation at least from 7.2.1996.  As
\nthe earlier period of absence i.e., special leave from 29.12.1993 to 30.9.1994
\nand medical leave from 1.10.1994 to 29.2.1996 having been sanctioned, the
\nworkman is entitled to get alternate employment from 1.3.1996.\n<\/p>\n
\t15.\tFurther, the Labour Court also considered the disability sustained
\nby the Workman during the course of the employment and also the 40% disability
\nassessed by the Doctor which was accepted by the Motor Accident Claims Tribunal
\nfor awarding compensation.  The said findings of the Labour Court cannot be
\ntreated as perverse finding warranting interference by this Court in the writ
\npetition filed under Article 226 of Constitution of India.  The Labour Court
\nordered reinstatement by providing alternate employment with salary protection,
\nbackwqages and continuity of service.  However, in the light of section 47 of
\nthe Act, the workman is entitled to get alternate employment from 1.3.1996 with
\nsalary protection, promotional opportunities if he is otherwise eligible with
\nmonetary and service benefits and not from the date of dismissal i.e., from
\n11.2.1997.  The Transport Corporation is directed to give alternate employment
\nto the Workman with all benefits from 1.3.1996 within a period of two weeks from
\nthe date of receipt of copy of this order.\n<\/p>\n
\t16.\tW.P.No.9582 of 2007 is ordered in the above terms.  No costs.
\nConnected miscellaneous petitions are closed.\n<\/p>\n
\t17.\tIn view of the order passed in W.P.No.9582 of 2007, no further order
\nis required to be passed in W.P.No.9518 of 2007 filed by the second respondent
\nfor implementing the award of the Labour Court.  Hence W.P.No.9518 of 2007 is
\nalso disposed of.\n<\/p>\n
vr<\/p>\n
To<\/p>\n
The Presiding Officer, Labour Court, Tirunelveli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court State Express Transport … vs The Presiding Officer on 17 December, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17\/12\/2007 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P(MD)No.9582 of 2007 and M.P(MD) Nos.1 & 2 of 2007 W.P(MD)No.9518 of 2007 W.P(MD)No.9582 of 2007 State Express Transport Corporation Ltd., 2, Pallavan […]<\/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-201109","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nState Express Transport ... vs The Presiding Officer on 17 December, 2007 - 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\/state-express-transport-vs-the-presiding-officer-on-17-december-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Express Transport ... vs The Presiding Officer on 17 December, 2007 - 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