IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.03.2008 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P No.36331 of 2003 and W.P.M.P No.44090 of 2003 K.Vellikannu ... Petitioner Vs. Tamilnadu State Transport Corporation (Villupuram Division-1) Ltd., rep. By its General Manager, Villupuram. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of certiorarified mandamus, to call for records relating to the order in Se.Mu.Aa.No.12886/Ni.7/TNSTC (V.Ko.1)/97, dt.28.8.2003, passed by the respondent, quash the same in so far as not giving the petitioner continuity of service, pay protection, backwages and other attendant benefits and consequently direct the respondent to give the petitioner continuity of service, and pay protection, backwages and other attendant benefits, Award Cost. For Petitioner : Mr.D.Hariparanthaman For Respondent : Mr.C.Kangaraj O R D E R Petitioner seeks to quash the proceedings of the respondent in Se.Mu.Aa.No.12886/Ni.7/TNSTC (V.Ko.1)/97 dated 28.08.2003 and prayed for suitable alternative employment. 2.Though the miscellaneous petition is listed today, by consent of both parties writ petition itself is taken up for final disposal. 3.The case of the petitioner is that he was appointed as Driver on 01.02.1986 in the respondent Transport Corporation. Due to the accident, he sustained bone fracture and therefore, he was provided light duty inside the depot. Thereafter, he was directed https://hcservices.ecourts.gov.in/hcservices/ to appear before the Medical Board and the Medical Board gave its findings stating that the petitioner is having poor eye sight and he is unfit for driving the vehicles. Therefore, he was discharged from service on 17.02.2002. Since he was not provided with alternative employment, the petitioner filed W.P.No.39016 of 2002 praying to set aside the order dated 17.02.2002 and for a direction to the respondent to provide him light duty with pay protection, continuity of service, backwages and other attendant benefits. The said writ petition was disposed of by this Court by an order dated 16.6.2003 directing the respondent to consider the representation of the petitioner and pass orders within one month. In spite of the said direction, the respondent passed the impugned order dated 28.08.2003 and appointed the petitioner as Non-ITI Helper. It is the further case of the petitioner that the person who was appointed along with him are drawing more salary than the petitioner and hence, the petitioner prays for continuity of service and pay protection. 4.Heard the learned counsel appearing for the petitioner as well as the respondent. 5.The point in issue is whether the petitioner having admittedly sustained disability during the course of employment, is entitled to get alternate employment under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 6.Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as follows: Sec.47. Non-Discrimination of Government employment.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject https://hcservices.ecourts.gov.in/hcservices/ to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” 7.The applicability of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, to the Transport Corporation employees was considered by this Court in the following decisions: (i) 2004 WLR 398 (DB) (Metropolitan Transport Corporation V. The Presiding Officer, Principal Labour Court & Another) (ii) 2006 (1) CTC 124 (P.Thangamarimuthu v. Tamil Nadu State Transport Corporation, Madurai (Division-I), Madurai. (iii) 2006 (5) CTC 413 (DB) (G.Muthu v. The Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai. (iv) (2007) 5 MLJ 1 (DB) (Management of Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd., Kancheepuram. (v) Unreported Judgment of Division Bench in W.A(MD)No.436 of 2007 dated 9-10-2007 (Tamil Nadu State Transport Corporation (Kumbakonam Division-I) Limited, Kumbakonam v. M.Kamaraj). The above said Judgments were rendered on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and following the decision of the Supreme Court reported in (2003) 4 SCC 524 (Kunal Singh v. Union of India), wherein in paragraph 9, it is held thus, "9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of “disability” and “person with disability”. It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its https://hcservices.ecourts.gov.in/hcservices/ mandatory nature. The very opening part of the section reads “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service”. The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." 8.The contra view taken by a Division Bench of this Court in W.A(MD)No.96 of 2007 dated 26.4.2007 in the case of the General Manager, Tamil Nadu State Transport Corporation v. A.Sengaan, was found as not laying down the correct law, in the latest decision of another Division Bench of this Court in the decision reported in (2007) 5 MLJ 1 (cited supra), wherein in paragraph 17 the Division Bench held as follows: “17. In the instant case, the respondent workman became unfit for the duty of the driver as he lost knee movement and there is no possibility of regaining his normal movement. It is not disputed before us that the workman is suffering from locomotor disability within the meaning of Section 2(o) of the Disabilities Act. In view of the Supreme Court's decision in Kunal Singh v. Union of India and Another (supra) it is clear that the acquisition of disability is not the same as a person with disability and it was not necessary for the workman to establish that he suffer more than 40% disability. In our considered opinion the decision of the Division Bench in General Manager, Tamil Nadu State https://hcservices.ecourts.gov.in/hcservices/ Transport Corporation v. A.Sengaan (supra) does not lay down the correct law.” In the said Judgment, while upholding my order, the Division Bench directed to implement the order in the writ petition, within a period of two weeks from the date of judgment, i.e., on 10.7.2007. I am also informed that the said order was complied with by the Transport Corporation. The Hon’ble Supreme Court in the decision reported in 2008(1) Supreme 75- BHAGWAN DASS AND ANOTHER VS. PUNJAB STATE ELECTRICITY BOARD, while granting the relief to a disabled person under Section 47 of the Act, in paragraph 13 and 14 has held as follows: "13. We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set 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 largess but their right as equal citizens of the country. 14.In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (Appellant No.1) with effect from March 21, 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 March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reintated and all due payments, after adjustments as directed, should https://hcservices.ecourts.gov.in/hcservices/ be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board." 9.In the light of the above settled position with regard to providing alternate employment to the persons, who sustained disability while in service, I hold that the petitioner is entitled to get alternate employment in the same scale of pay with promotional benefits from the date of his discharge. The respondent is directed to provide alternate post in terms of Section 47 of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, with salary protection and all benefits within two weeks from the date of receipt of a copy of this order. The arrears of pay and other benefits payable to the petitioner shall be calculated and paid to the petitioner within a period of four weeks from the date of receipt of copy of this order. 10.The writ petition is allowed with the above directions. No costs. Connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sgl To The General Manager, Tamilnadu State Transport Corporation (Villupuram Division-1) Ltd., Villupuram. + 1 CC to Mr. C.Kanagaraj Advocate SR NO.15467 + 1 CC to Mr. D.Hariparanthaman, Advocate SR NO.15517 W.P.No.36331 of 2003 KSK(CO) JJM(01.04.08) https://hcservices.ecourts.gov.in/hcservices/