IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 7-11-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.960 of 2004 W.P.M.P.No.2343 of 2007 R. Mani ... Petitioner Vs. 1. The Labour Court, Trichirapalli District, Trichy. 2. Tamil Nadu State Transport Corporation rep.by its Managing Director, Kumbakonam Division II, Trichirapalli - 1. ... Respondents Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified mandamus, calling for the records relating to the award passed in I.D.No.32/99 on the file of the Labour Court, Tiruchirapalli, dated 29.9.2003 and consequently directing the second respondent to reinstate the petitioner in service with backwages by allowing to do a lesser work as suggested by the Trichirapalli Regional Medical Board of the respondent company. For Petitioner : Mr.R.Sureshkumar 1st Respondent : Court For 2nd Respondent : Mr.Ravi for M/s.Gupta & Ravi O R D E R By consent of both sides the writ petition is taken up for final disposal. 2. Prayer in the writ petition is to quash the award of the Labour Court in I.D.No.32 of 1999 on the file of the first respondent/Labour Court, Trichy, declining the relief of reinstatement with backwages and continuity of service. https://hcservices.ecourts.gov.in/hcservices/ 3. The brief facts necessary for disposal of this writ petition are as follows: (a) The petitioner was appointed as Conductor in the second respondent Transport Corporation in the year 1981 and at that time the second respondent Corporation was called Cholan Roadways Corporation, Kumbakonam. After bifurcation of the Corporation, petitioner opted to serve in the then Dheeran Chinnamalai Transport Corporation, Trichy. (b) On 7.4.1992, when the petitioner was on his way to attend to his duty, travelled in a Transport Corporation Bus from his native place Nedungoor to DCTC Depot, Tiruchirapalli, Mofussil-III. The said bus met with an accident in a head on collision with a on- coming lorry, pursuant to which the petitioner sustained grievous injuries on his right shoulder and his right hand was amputated above the forearm joint. (c) According to the petitioner, while undergoing treatment, petitioner applied for medical leave, which was not considered by the second respondent Corporation and he reported for duty after his treatment and he was asked to appear before the Regional Medical Board of the Second respondent Corporation at Trichy. The Medical Board certified that the petitioner is not fit for public service as Conductor as he has artificial limbs on his right hand. (d) According to the petitioner, he is physically fit to continue in service as Helper. Petitioner requested the second respondent to give some other duty such as Helper based on the recommendations of the Medical Board. (e) However, the second respondent issued a charge memo on 26.3.1994 stating that as per the recommendations of the Medical Board, petitioner is not fit to continue in service as Conductor and the same is a misconduct as per the standing order No.23(7). Petitioner submitted his reply stating that the amputation was made due to the accident while travelling to report for duty. A second show cause notice was issued, for which also the petitioner submitted his reply. However, the petitioner was terminated from service by order dated 14.7.1994 by giving one month pay. The reason stated is that the petitioner applied before the Motor Accident Claims Tribunal for compensation and having made such a claim for compensation, he is not entitled for getting alternate employment. (f) The said issue was raised as Labour Dispute and the conciliation efforts having failed and a report to that effect having been filed on 28.12.1998, petitioner approached the Labour Court raising I.D.No.32 of 1999, which was dismissed on 29.9.2003, as against which this writ petition is filed. (g) The main ground of attack raised in the writ petition is that the petitioner having met with an accident and his right hand amputated above the forearm joint, treating the same as misconduct and terminating the petitioner's service is erroneous and it is a https://hcservices.ecourts.gov.in/hcservices/ cruel act. As per the Medical Board recommendation, petitioner ought to have been given alternate employment. Petitioner's claim/receipt of compensation from the Motor Accident Claims Tribunal cannot be treated as double benefit and refusal to give alternate employment on the ground of awarding of compensation ordered by the Motor Accident Claims Tribunal is unsustainable and the Labour Court failed to appreciate the human right aspect involved in the case, particularly violation of Article 21 of the Constitution of India while dismissing the claim petition. 4. The learned counsel for the petitioner submitted that the petitioner having sustained injury while travelling in the second respondent Transport Corporation bus for reporting to duty and the Medical Board having certified that the petitioner is not fit to continue as conductor and recommended for giving lighter duty, the second respondent is bound to give alternate employment. The learned counsel further submitted that even as per the Government Order issued in G.O.Ms.No.746 Transport Department dated 2.7.1981, petitioner is entitled to get appointment as Helper, at least as a fresh entrant, but the same was also not given to the petitioner, apart from the fact that during pendency of the dispute before the Labour Court the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, came into force in February, 1996, and this Court and the Supreme Court in very many decisions held that even if an employee received benefit under the Workmen Compensation Act, 1923, or under the Motor Vehicles Act, 1988, still he is entitled to get the benefits of alternate employment as it is incidental or ancilliary to other benefits availed. The learned counsel also submitted that the award of the Labour Court was passed without considering all these aspects and the said findings are to be treated as perverse findings and the same is liable to be set aside by this Court by ordering alternate employment from the date of termination till the date of retirement with all consequential benefits. 5. The learned counsel for the second respondent on the other hand submitted that the award of the Labour Court is justified in declining the relief of reinstatement or fresh appointment to the petitioner on the ground of award of compensation by the Motor Accident Claims Tribunal and at best, the petitioner can be employed as Helper as fresh entrant in accordance with the Government Order since the Act 1 of 1996 came into force only from February, 1996, and therefore the petitioner is not entitled to claim alternate employment under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. https://hcservices.ecourts.gov.in/hcservices/ 6. I have considered the rival submissions made by the learned counsel for the petitioner, second respondent and perused the order passed by the Labour Court, Tiruchirapalli. 7. The petitioner was employed as Conductor in the second respondent Transport Corporation from 1981. Petitioner, for reporting to duty on 17.4.1992, travelled in the second respondent Transport Corporation bus (formerly called DCTC, Trichy) and the said bus met with an accident due to which the petitioner sustained grievous injuries on his right shoulder and on treatment, the petitioner's right hand was amputated, above the forearm joint. Petitioner also applied for medical leave which was not considered. When the petitioner reported for duty, the second respondent directed the petitioner to appear before the Medical Board of the second respondent, Trichy Region. The Medical Board on 9.3.1994 found that the petitioner was not fit for performing conductor duty and he is fit to continue in service as Helper or in a lighter duty. Petitioner submitted representation to provide him alternate post based on the report of the Medical Board. 8. The second respondent issued charge memo to the petitioner as if the petitioner had committed misconduct. The second respondent without giving alternate employment or giving appointment as Helper afresh in terms of G.O.Ms.No.746, Transport Department, dated.2.7.1981 has chosen to terminate the petitioner from service on 14.7.1994 with one month pay in lieu of notice of termination. The said termination order passed is contrary to the Government order issued, which is binding on the second respondent, where the Government ordered to give appointment afresh as Helper to such of those workmen, who sustain disability. The same having not been given, petitioner raised industrial dispute and challenged the order of termination. The Labour Court declined to pass the award in favour of the petitioner solely on the ground that he has claimed compensation from the Motor Accident Claims Tribunal. 9. Whether receiving compensation under the Motor Vehicles Act, 1988, or under the Workmen Compensation Act, 1923, is a bar to claim alternate employment by a disabled person, who sustained disability during the course of employment was considered by a Division Bench of this Court in W.A.No.610 of 2007 and the Division Bench rejected the argument advanced by the Transport Corporation. The said judgment was subsequently followed by another Division Bench of this Court in the decision reported in (2007) 5 MLJ 1 (Management of Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd., Kancheepuram v. B.Gnanasekaran) wherein, in paragraph 13 it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "13. In Tamil Nadu State Transport Corporation (Villupuram Division-I) Limited v. R.Jayakumar (Writ Appeal No.610 of 2007) decided on 13.4.2007, a Division Bench expressly rejected the argument that since the workman has been awarded compensation under the Motor Vehicles Act in a claim petition filed by him before the Motor Accident Claims Tribunal, including compensation towards loss of earning, he is not entitled to the benefit of Section 47 of the Disabilities Act. It was held that Section 47 of the Act casts a mandatory duty on the part of the employer to provide an alternate employment to an employee who has suffered disability during the course of his employment, and the fact that such an employee has received some compensation under the Motor Vehicle Act is no ground to deny him the alternative employment, to which he is otherwise entitled under the Disabilities Act. It was held that if it is the case of the Transport Corporation that the compensation awarded towards loss of earning is on the higher side, the Corporation is free to agitate this point in the appeal filed against the award of compensation." 10. The enactment of Act 1 of 1996, was made for giving effect to the proclamation of full participation and equality of people with disabilities in the Asian Pacific region held in Beijing in the first week of 1992 to which the Government of India is a signatory. Even prior to the enactment of Act 1 of 1996, similar issue came up before the Supreme Court in the decision reported in (1991) 1 SCC 731 : AIR 1991 SC 1003 (Anand Bihari v. R.S.R.T. Corporation) wherein it is held that in case of the employees acquiring disability during employment, the employer should provide for adequate safeguards to remedy the situation by giving them alternate job or by compensating them in some form for the alround loss they suffered for no fault of theirs. In that case, the drivers of the roadways buses of the respondent Corporation who have put in long years of service, during their routine medical examination were found to have developed defective eyesight and did not have the required vision for driving heavy motor vehicles like buses. The Corporation terminated their services since their eyesight was not of the standard required to drive buses. The Honourable Supreme Court held that the action of the Corporation was not proper and equitable and directed the Corporation to offer them alternative employment or grant compensatory relief for the loss they suffered on account of the https://hcservices.ecourts.gov.in/hcservices/ premature retirement necessitated by their unfitness to work as drivers. The Court observed that the workmen are not denizens of an animal farm to be eliminated ruthlessly the moment they become useless to the establishment. They have not only to live for the rest of their lives, but also to maintain the members of their family and other dependents, and to educate and bring up their children. Their liability in this respect at the advanced age at which they are thus retired stands multiplied. They may no longer be of use to the Corporation for the job for which they were employed, but the need of their patronage to others intensifies with the growth in their family responsibilities. In the circumstances of the case, the Court proposed a scheme to give relief to the workmen involved in that case. 11. Again in the decision reported in (1994) 4 SCC 460: AIR 1995 SC 519 (Narendra Kumar Chandla v. State of Haryana) i.e, prior to the enactment of the Disabilities Act, the Supreme Court considered similar issue and ordered to give alternate employment taking note of the fundamental right guaranteed under Article 21 of the Constitution of India. The operative portion of the order reads as follows: "Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since, he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For Clerk, typing generally is not a must. Therefore, the State Electricity Board should relax his passing of the typing test and appoint him as an LDC. Since, on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs.1,400-2,300, his last drawn pay and scale of pay have to be protected. He will also be entitled to arrears of salary." (Emphasis Supplied) The said judgment is having binding force in terms of Article 141 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 12. In 2007 (5) CTC 386 (A. Subramani v. The Management of Tamil Nadu State Transport Corporation (Coimbatore Division-I) Limited, Udhagamandalam and Another) Division Bench of this Court held that even if a workman received compensation under the Workmens Compensation Act, 1923, still he is entitled to get benefit envisages under section 47 of the Act 1 of 1996 and in fact the order of the single Judge directing the workman to refund the compensation received for getting the benefit under section 47 of the Act was set aside. 13. The decision relied on by the learned counsel for the second respondent reported in 2008 (1) LLN 871 (State, rep.by the General Manager, T.N.S.Transport Corporation, madurai Division-IV, Dindigul v. K.Mohammed Mustafa) to support his contention that the petitioner is eligible to get benefit only under G.O.Ms.No.746, Transport Department, dated 2.7.1981 cannot be sustained since the above referred Supreme Court decisions reported in (1991) 1 SCC 731 and (1994) 4 SCC 460 were not brought to the notice of the Division Bench while deciding the said case. 14. Act 1 of 1996, even though came into force from February, 1996, the principles contained in the said Act can be applied to this case since the petitioner's right guaranteed under Article 21 of the Constitution of India has been violated and by enactment of the said Act, the pre-existing right available as fundamental right as well as human right was reiterated in the said Act. The petitioner is having a fundamental right to demand alternate employment even without reference to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Similar issue was considered by the Honourable Supreme Court in the decision reported in AIR 2007 SC 71 : (2006) 8 SCC 212 (M.Nagaraj & Others v. Union of India & Others) and in paragraph 20, the Supreme Court held as follows: "20. This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be https://hcservices.ecourts.gov.in/hcservices/ applied by the courts. Every right has a content. Every foundational value is put in Part III as a fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. ......" In the said judgment it is held that the enactment of the Constitution of India, particularly Part-III confirms the existing rights and the same cannot be treated as new rights to the citizens. Similarly, Act 1 of 1996 has not created any new right and it only recognised the pre-existing right. 15. Thus, the contention of the learned counsel for the second respondent that the petitioner having sustained disability prior to Act 1 of 1996 is not entitled to seek alternate employment, is unsustainable. The said plea cannot at all be raised by the second respondent since even the Government Order issued to provide Helper post afresh is not complied with insofar as the petitioner's case. The Labour Court, without appreciating the legal rights involved in favour of the petitioner refused to interfere with the order of termination solely on the ground that the petitioner has approached the Motor Accident Claims Tribunal for the injuries sustained by him, got an award including under the head 'Loss of Earnings'. The Division Bench judgment cited supra answers the point in favour of the petitioner and it is for the second respondent to argue for the reduction of compensation due to providing of alternate employment. The learned counsel for the second respondent submitted that the appeal against the motor accident claims Tribunal award is pending before this Court and therefore no prejudice would be caused to the second respondent by providing alternate employment. 16. The attitude adopted by the second respondent in the petitioner's case by framing charges and terminating the service of the petitioner on the ground of disability is also found unreasonable. The second respondent not only violated the Government order issued in G.O.Ms.No.746 Transport Department, dated 2.7.1981, but also violated the fundamental right guaranteed to the petitioner under Article 21 of the Constitution of India. The same is also failed to be noticed by the Labour Court. 17. The reason stated by the Labour Court to deny the relief to the petitioner as stated supra, solely on the ground of awarding of compensation by the Motor Accident Claims Tribunal is therefore held as a perverse finding and the same is liable to be set aside and accordingly set aside. https://hcservices.ecourts.gov.in/hcservices/ 18. Insofar as granting of relief to the petitioner is concerned, petitioner is kept out of employment even with his disability for about 14 years. Petitioner was ready and willing to be employed in a post with lighter duty. It is the case of the petitioner that the petitioner was not employed or earning elsewhere during the period in which he was kept out of the employment. The said fact is also not denied by the second respondent. 19. The learned counsel for the second respondent submitted that the Transport Corporations are incurring loss and therefore if the writ petition is allowed with a direction to give alternate employment with full backwages, it will cause serious prejudice to the Transport Corporation. In the decision reported in 2008 AIR SCW 6431 (State of Maharashtra v. Bharat Shanti Lal Shah), the Supreme Court ordered that before ordering full backwages on reinstatement, the financial status of the management is to be taken into consideration by the Courts. 20. Taking note of the submission of the learned counsel for the petitioner that the Transport Corporations are incurring loss, I am of the view that the interest of justice would be met by ordering alternate employment to the petitioner from the date of termination with seniority, pay protection and 75% of backwages. petitioner cannot be denied backwages in toto since he is continuously fighting for his right all these years. The second respondent is directed to implement this order within four weeks from the date of receipt of copy of this order. The writ petition is ordered with the above direction. No costs. Connected miscellaneous petition is closed. Vr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Labour Court, Tiruchirapalli. 2. The Managing Director, Tamil Nadu State Transport Corporation\Kumbakonam Division II, Trichirapalli – 1. + 1 cc to Mr. R. Suresh Kumar, Advocate SR No. 62483 BS(CO)SR/13.11.2008 Order in W.P.No.960 of 2004 https://hcservices.ecourts.gov.in/hcservices/