IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.9.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.34025 of 2002 The Management Tamil Nadu State Transport Corporation (Villupuram Division III) Ltd., Kancheepuram .. Petitioner vs. 1. The Presiding Officer Labour Court Vellore 2. G.Chinnapaian (cause title in respect of the initial of the second respondent amended as per order, dated 18.3.2003 in W.P.M.P.No.7668 of 2003) .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the first respondent in I.D.No.288 of 1999 dated 8.11.2001 and quash the same. For petitioner : M/s.V.R.Kamalanathan For Respondents : Mr.K.Bharathi for R2 O R D E R This writ petition has been filed by the petitioner Corporation challenging the award of the first respondent labour Court, dated 8.11.2001, made in I.D.No.288 of 1999. 2. The petitioner has stated that the deceased second respondent was working as a security guard in the petitioner Corporation for about 18 years. While the second respondent was working at Wandavashi Branch, he was admitted in the hospital for https://hcservices.ecourts.gov.in/hcservices/ treatment due to varicose veins in his right leg and an operation was conducted, on 14.8.1996. The petitioner was discharged from the hospital, on 17.8.1996. Thereafter, he was under rest, on medical advise. He was on medical leave, from 1.8.1996 to 25.8.1996. The Doctor had advised him to do lighter work as he would not be able to stand for long time. On 29.10.1997, the petitioner had informed the second respondent that he cannot be given lighter work. However, he was asked to appear before the medical Board. The medical Board had issued a certificate stating that the second respondent would be in a position to do only certain jobs in which he need not stand for long number of hours. Based on the medical report, a show cause notice had been served on the second respondent calling for an explanation. Since the explanation received from the second respondent was not satisfactory, he was discharged from service, with effect from 2.3.1998. His last drawn salary at the time of his discharge from service was Rs.4,800/- per month. 3. It has been further stated that the second respondent could not be given lighter work, since he was a security guard. There is no alternative work in the petitioner Corporation that could have been given to the second respondent. Therefore, he was discharged from service, on 2.3.1998. 4. Aggrieved by the order discharging him from service, the second respondent has raised an industrial dispute before the first respondent labour Court in I.D.No.288 of 1999. The first respondent labour Court, without considering the documentary evidence on record, had set aside the order of discharge directing the petitioner Corporation to reinstate the second respondent in service, with backwages and other attendant benefits, within a period two months from the date of the award. 5. Aggrieved by the award of the first respondent labour Court, dated 8.11.2001, made in I.D.No.288 of 1999, the petitioner Corporation has preferred the present writ petition before this Court under Article 226 of the Constitution of India. 6. No counter affidavit has been filed on behalf of the second respondent. 7. The learned counsel appearing for the petitioner Corporation had submitted that the award of the first respondent labour Court is contrary to law, weight of evidence and probabilities of the case. He had also submitted that the first respondent labour Court had failed to note that the industrial dispute raised by the second respondent is not maintainable, under Section 2A of the Industrial Disputes Act, 1947. The labour Court had failed to note that the second respondent workman is not entitled to any relief, under Section 25 F of the Industrial Disputes Act, 1947, as he was discharged due to continued ill health and therefore, it would not amount to 'retrenchment'. The labour Court had failed to note that the second respondent has https://hcservices.ecourts.gov.in/hcservices/ been suffering from ill health and a surgery had been done in his right leg and that he would not be able to do the work of a security staff. Even the lighter duty that could be assigned to him would involve long standing hours, the second respondent would not be in a position to do any kind of job that would involve standing for a long hours, as certified by the medical Board. 8. The learned counsel appearing for the petitioner Corporation had further submitted that the first respondent labour Court had failed to consider the report of the medical Board and the other documentary evidence available on record. Further, the second respondent had not availed the medical leave on the ground that he could not continue the job of taking care of the security of the petitioner Corporation. Since the second respondent could be given an alternative employment only as a new entrant, as per G.O.No.746, he could not be reinstated with continuity of service, with backwages and other attendant benefits. Therefore, the first respondent labour Court had erred in reinstatement of the second respondent, with continuity of service, with backwages and other attendant benefits. In such circumstances, the award of the first respondent labour Court, dated 8.11.2001, made in I.D.No.288 of 1999, is arbitrary, illegal and contrary to the principles established by law. Therefore, the award of the labour Court, dated 8.11.2001, is liable to be set aside. 9. Per contra, the learned counsel appearing for the second respondent had submitted that the first respondent labour Court in its award, dated 8.11.2001, made in I.D.No.288 of 1999, has rightly held that the second respondent was entitled to reinstatement, with backwages and other attendant benefits. The second respondent had been employed under the petitioner Corporation as a security guard for over 18 years. While he was in service, a surgery had been performed on the second respondent for varicose veins in his right leg, on 14.8.1996. Thereafter, he was under rest on medical advise. The medical board after examining the second respondent, had certified that the second respondent would not be in a position to carry on his duties, which require long hours of standing. Instead of assigning the duties to the second respondent, which did not require him to be standing for long hours, he had been discharged from service by the petitioner Corporation. According to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, any employee or workman who is disabled and who is not in a position to carry on his duties in the post in which he was working, the employer should assign him the lesser work which he would be in a position to perform on the same scale of pay which he was receiving earlier without any other changes in the service conditions. However, the petitioner had discharged the second respondent from service, arbitrarily, without following the provisions of law applicable to him. In such circumstances, the first respondent labour Court, based on the evidence available on record, had ordered reinstatement of the second respondent in the service of the petitioner Corporation, with backwages and other attendant benefits. The award of the labour Court, dated https://hcservices.ecourts.gov.in/hcservices/ 8.11.2001, is valid as it is in accordance with law. 10. The learned counsel appearing for the second respondent had relied on the following decisions in support of his contentions. 10.1. In B.DASS Vs. PUNJAB STATE ELECTRICITY BOARD ((2008)(2) L.L.N.1), the Supreme Court had held that the employee, who had become blind while in service, is entitled to the protection available to a disabled person, under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the denial of employment to the disabled person by the employer is bad in law. Even though the employee was not aware of the protection available under the provisions of the Act, a duty is cast on the employer to explain to the disabled employee the correct legal position and to inform him about his legal right. 10.2. In A.SUBRAMANI Vs. THE MANAGEMENT OF TAMIL NADU STATE TRANSPORT CORPORATION (COIMBATORE DIVISON I) LTD., AND THE PRESIDING OFFICER LABOUR COURT ((2007 (5) CTC 386), the Division Bench, while deciding the writ appeal, had confirmed the award of the labour Court, Coimbatore, dated 8.2.2005, which had declared that the employee was entitled for the relief, under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and it had directed the first respondent employer to reinstate the employee with full backwages. The Division Bench had further held that Section 72 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, specifically provides that the provisions of the said Act are to be considered in addition to any other law or order and not in derogation of any law or any order. The main object of the workmen's compensation Act is to compensate the workman for his injury. Merely because the workman has received the compensation for his injury under the Workmen's Compensation Act, it is not permissible for the employer to deny the benefits of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which contains a directive that the employer shall not dispense with or reduce in rank an employee who acquires disability during the service. The benefit envisaged, under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, must be considered in addition to the benefits contemplated under the Workmen's Compensation Act. 10.3. This Court by its order, dated 17.12.2007, in W.P.(MD) Nos.9518 and 9582 of 2007 (STATE EXPRESS TRANSPORT CORPORATION LTD., REP. BY ITS MANAGING DIRECTOR Vs. THE PRESIDING OFFICER, LABOUR COURT) had held that the disabled employee should have been given alternative employment, under Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and https://hcservices.ecourts.gov.in/hcservices/ Full Participation) Act, 1995 and therefore, the termination order and the order dismissing the employee from service passed by the State Transport Corporation, which is the employer, is contrary to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It was held that the workman was entitled to get alternative employment in the Corporation as provided under Section 47(1) of the Act. 11. In view of the rival contentions and on a perusal of the records available, this Court is of the considered view that the petitioner Corporation has not shown sufficient cause or reason for this Court to interfere with the award of the labour Court, dated 8.11.2001, made in I.D.No.288 of 1999. It is well settled that a person who is found to be disabled and is not in a position to carry on the work which was assigned to him earlier should be assigned with the duties which he could perform inspite of disability. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, clearly lays down that the disabled person should not be put in a disadvantageous position due to his disability. Therefore, a duty is cast on the employer to continue the disabled person in employment assigning him the work which he would be in a position to perform. Further, the petitioner has not shown that the award of the labour Court is perverse or that the conclusions of the first respondent labour Court is based on no evidence. Therefore, there is nothing on record for this Court to be persuaded to interfere with the award of the labour Court, dated 8.11.2001, made in I.D.No.288 of 1999. Hence, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: The Presiding Officer Labour Court Vellore +1cc to Mr.V.R.Kamalanathan, Advocate sr 53949 +1cc to Mr.K.M.Ramesh, Advocate Sr 53200 RS (CO) km/6.11. W.P.No.34025 of 2002 https://hcservices.ecourts.gov.in/hcservices/