IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :19.03.2010 Coram The Honourable Mr.Justice M.JEYAPAUL W.P.Nos.42388 of 2002, 16582 and 29029 of 2008 and W.P.M.P.Nos.749 to 751 of 2008 and 2, 3,4, 5 of 2008 The Management of Tamil Nadu State Transport Corporation, (Salem Division II) Limited, Bharathipuram, Dharmapuri – 5. ... Petitioner in W.P.No.42388 of 2002 M.Sukumar ... Petitioner in W.P.No.16582 of 2008 M.Sukumar ... Petitioner in W.P.No.29029 of 2008 Vs. 1.The Presiding Officer, Labour Court, Salem. 2.M.Sukumar ... Respondents in W.P.No.42388 of 2002 1.The Chairman of the Board of Director, Tamil Nadu State Transport Corporation, (Salem Division II Limited), Ramakrishna Road, Salem – 636 007. 2.The General Manager, Tamil Nadu State Transport Corporation, (Salem Division II Limited), Dharmapuri District. .. Respondents in W.P.No.16582 of 2008 1.The Presiding Officer, Labour Court, Salem. 2.The Management, Tamil Nadu State Transport Corporation, (Salem Division II Limited), Dharmapuri District. ... Respondents in W.P.No.29029 of 2008 Prayer in W.P.No.42388 of 2002:- Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records relating to ID No.61 of 2000 dated 08.07.2002 on the file of the first respondent. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.16582 of 2008:- Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records of the respondents relating to the unserved impugned resolutions bearing No. 6 / 170 / BDM /TSTC/ Salem/2004 dated 10.11.2004, and the consequential order of the second respondent bearing No.BA3/10484/TSTC/Dharmapuri/2004 dated 18.11.2004 quash the said resolution dated 10.11.2004 and the consequential order dated 18.11.2004 and also direct the respondents to grant the petitioner the benefits of the Provisions of Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Right and Full Participation) Act 1995. Prayer in W.P.No.29029 of 2008:- Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to the award made in I.D.No.61 of 2000 dated 09.07.2002 quash the same in so far as it denies the petitioner the relief of 50% of backwages and consequently direct the second respondent management to grant the benefit of full backwages and other attendant benefits as per the Provisions of Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Right and Full Participation) Act 1995 with effect from date of dismissal i.e. 21.05.1999 and award costs. For Petitioner in Wps 16582 and 29029/08 : Ms.G. Girija For Petitioner : Mr.N.V.V.Krishna (in W.P.42388/02) For Respondents : Mr.S.Ayyathurai (in all W.P's) O R D E R The petitioner in W.P.Nos.16582 and 29029 of 2008 (for the sake of brevity the workman is referred to herein-below as the 'petitioner') was employed as conductor in the respondent Transport Corporation (for the sake of brevity, Tamil Nadu State Transport Corporation, is referred to as the 'respondent') on 02.01.1993. While the petitioner was performing his duty on 11.07.1998, the vehicle was involved in an accident wherein he sustained injuries and as a result of which he had to go on medical leave from 11.07.1998. The respondent Corporation directed the petitioner to appear before the Medical Board on 17.03.1999. The Medical Board opined that the petitioner was unfit to hold the post of conductor. The respondent Corporation having given a show cause notice on 26.04.1999 and having not accepted the explanation offered by https://hcservices.ecourts.gov.in/hcservices/ the petitioner, discharged the petitioner from service on medical invalidation as on 21.05.1999 even without paying any compensation. An Industrial dispute was raised before the Labour Officer. As no settlement was effected, the petitioner approached the Labour Court for the relief in reinstatement in service with backwages. 2. The respondent Corporation contended that the petitioner was discharged from the service of the respondent Corporation only based on the report submitted by the Medical Board that the petitioner was incapacitated to discharge his duty as a conductor, after giving sufficient opportunity to the petitioner. Therefore, the respondent Corporation contended that there was nothing illegal in the action taken by the respondent discharging the petitioner from the service of the respondent. 3. The Labour Court, having critically analysed the opinion given by the Medical Board even without adverting to the fact as to whether the petitioner was permanently incapacitated or temporarily incapacitated, held that there was no justification for discharging the petitioner from the service of the respondent Corporation. While ordering reinstatement of service, only 50% of backwages was ordered by the Labour Court, of course with continuity of service. 4. The respondent/Transport Corporation challenges the award passed by the Labour Court in W.P.No.42388 of 2002. The petitioner on his part having been dissatisfied with the denial of 50% of backwages, filed Writ Petition No.16582 of 2008. 5. During the pendency of the writ petition filed by the respondent/Transport Corporation a settlement was arrived at between the petitioner and the respondent under Section 18(1) of the Industrial Disputes Act, whereunder reinstatement of the petitioner in service without any backwages was agreed upon even when the respondent was directed by this Court to pay wages under Section 17B of the Industrial Disputes Act. 6. The order passed by the respondent based on such a settlement under Section 18(1) of the Industrial Disputes Act is under challenge in Writ Petition No.29029 of 2008 filed by the petitioner herein. 7. The learned counsel appearing for the petitioner/workman would submit that the financial weakness of the petitioner was taken advantage of by the Management to clinch a deal under Section 18(1) of the Industrial Disputes Act. When there is a statutory protection under Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 for the persons who become disabled during service, such a settlement arrived at between the https://hcservices.ecourts.gov.in/hcservices/ workman and the Management under Section 18(1) would not operate as estoppel. It is his further submission that for no fault of the workman, he was discharged from service on the sole ground that he became disabled to discharge his duties as a conductor. Therefore, he would submit that the petitioner/workman is entitled to reinstatement with continuity of service and full backwages and that the order passed based on the settlement under Section 18(1) of the Industrial Disputes Act is liable to be set aside. 8. The learned standing counsel appearing for the respondent/Transport Corporation would vehemently submit that the workman without any coercion or influence brought on him entered into a settlement with the Management under Section 18 (1) of the Industrial Disputes Act and agreed for his reinstatement without any backwages. It is his further submission that no complaint was made for about four long years by the workman as against the settlement entered into between the workman and the management. Once the workman has agreed to forego the backwages in the settlement arrived at between the workman and the management under Section 18(1) of the Industrial Disputes Act, the workman cannot go back on the settlement and agitate before the Court claiming backwages, quite against the settlement arrived at between the parties. Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 would not operate in a case there was a settlement under Section 18(1) of the Industrial Disputes Act between a workman and the management. The settlement arrived at between the workman and the management was not brought to the notice of the Court by the workman during the pendency of the writ petition in W.P.No.42388 of 2008. Therefore, he would submit that the writ petitions filed by the workman do not survive for consideration. 9. The fact remains that the petitioner/workman was discharged from his position as a conductor solely on the ground of medical disability. The petitioner has incurred the medical disability only on account of the accident that took place during the course of his employment. 10. The show cause notice was issued to the petitioner by the respondent management only on the basis of the medical report submitted by the Medical Board. But quite unfortunately, without accepting the explanation submitted by the petitioner and also considering the enabling provision under Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, the petitioner was discharged from the service of the respondent management. 11. Section 47 of the Persons with Disabilities (Equal https://hcservices.ecourts.gov.in/hcservices/ Opportunities Protection of Rights and Full Participation) Act, 1995 would read as follows: 47.Non-discrimination in 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 to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 12. A Division Bench of this Court had an occasion to interpret the ambit and scope of the aforesaid provision of law in a similar case in G.Muthu V. Management of Tamil Nadu State Transport Corporation (Madurai), Limited, (represented by its Managing Director), Madurai 2007 (1) L.L.N.246. It was held therein that discharge of an employee by the Transport Corporation ignoring the enabling provision under Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 on the sole ground of colour blindness afflicting the employee without providing an alternative job is not justifiable. It has also been held that the employee is entitled to the protection of the provision under Section 47 of the said Act. 13. It is found from the medical report that the petitioner sustained only 20% of disability. As per Section 47 of the said Act, even if the petitioner is not suitable for the post which was held by him, he should be shifted to some other post with the same pay scale and service benefits. Even if that is also not possible, the management will have to create a supernumerary post until a suitable post is made available or https://hcservices.ecourts.gov.in/hcservices/ he attains the age of superannuation, whichever is earlier. The management is not supposed to withhold even his promotion on the sole ground of his medical disability. Such a benevolent provision was not adverted to by the respondent management. The petitioner was very coolly discharged from service on account of his medical disability. It is held that the petitioner is entitled to the protection under Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. 14. It is true that a settlement under Section 18(1) of the Industrial Disputes Act was arrived at between the petitioner and the respondent management during the pendency of W.P.No.42388 of 2002 preferred by the management. It is also true that the said settlement also was not brought to the notice of this Court during the pendency of the writ petition either by the petitioner or by the management. On the one hand, the petitioner/workman has been waging a battle as against his discharge from service. On the other hand, it is reported that he entered into a settlement with a management under Section 18 (1) of the Industrial Disputes Act. No employee on his free volition would have thought it fit to forego his backwages even when there is a statutory protection to safe-guard his interest and to reinstate him into service with backwages. As rightly pointed out by the learned counsel appearing for the petitioner/workman, the financial weakness of the petitioner has forced him to clinch a deal under Section 18(1) of the Industrial Disputes Act. 15. A similar case came up for consideration before this Court in E.Sheriff Vs. Tamil Nadu State Express Transport Corporation, Division-I, (formerly known as Tiruvalluvar Transport Corporation) represented by its General Manager, Chennai 600 002 (2007) 5 MLJ 545, wherein it has been held as follows: If the facts of the present case are considered in the light of the above said decisions, it could be seen that neither the petitioner nor the respondent Corporation appear to have been aware of the beneficial provisions of the Act. When the respondent Corporation which is wholly owned Company of the State Government itself was not aware of the beneficial provisions of the Act and has entered into a settlement with the petitioner under Section 18(1) of the Industrial Disputes Act, 1947, the petitioner, who was only a conductor, cannot be expected to be aware of the provisions of the Act. As observed by the Division Bench of this Court in State V. K.Mohammmed Mustafa (Supra), the benefit https://hcservices.ecourts.gov.in/hcservices/ envisaged under Section 47 of the Act can be considered to be in addition to the benefits contemplated under the Government Order. If any additional benefits or higher benefits are contemplated under the Act as compared to the rights conferred under G.O.Ms.No.746 dated 02.07.1981 and if such provisions of the Act are made applicable, it cannot be said that such action in any way derogates from the provisions incorporated in G.O.Ms.No.746 dated 02.07.1981. On the other hand, the same can be said to be additional provisions and a person is entitled to more beneficial provision available either under the Act or under the Government Order. In this case, the Section 18 (1) settlement between the petitioner and the respondent Corporation was entered into only in terms of G.O.Ms.No.746 dated 02.07.1981. As stated above, neither the petitioner nor the respondent Corporation were aware of the beneficial provisions of the Act. As such, the contentions of the Transport Corporation that as the petitioner had entered into a settlement under Section 18(1) of the I.D. Act, the petitioner is estopped from invoking the provisions of Section 47 of the Act cannot be countenanced. It is well settled that there cannot be estoppel against a statute. When the petitioner is clothed with a legal right to claim all the benefits as per Section 47 of the Act, the said right cannot be taken away on the basis of the said 18(1) settlement. As stated above, the settlement itself was arrived at in terms of the above said Government Orders and when the provisions of Section 47 are more beneficial to the petitioner, it is always open to him, to invoke the same and claim the benefits. The ratio laid down by the two Division Bench decisions referred to supra squarely apply to the facts of this case. Therefore, the contention of the learned counsel for the respondent is liable to be rejected and accordingly rejected. 16. In the instant case also, neither the workman nor the management did bring to the notice of the Labour Court the existence of the benevolent Act namely the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. That was the reason why neither of them brought to the notice of the Labour Court the enabling provision under Section 47 of the said Act which prohibits the https://hcservices.ecourts.gov.in/hcservices/ management from sacking an employee on the ground of medical disability. Had it been brought to the notice of the Labour Court, the Labour Court would have ordered not only reinstatement of the petitioner in service with continuity of service, but also full backwages. The workman cannot be expected to know the benevolent provision of law which is available to him, but the management is supposed to know the existence of the benevolent provision for the employee. There can be no estoppel against the provision under Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. Even if the petitioner had already entered into an settlement under Section 18(1) of the Industrial Disputes Act, the petitioner is entitled to invoke the provisions under Section 47 of the said Act, totally ignoring the settlement arrived at against the spirit of the statutory protection available to him. 17. In view of the above facts and circumstances, the management cannot legally deny the statutory right of the petitioner/workman under Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 in the guise of the settlement arrived at between the workman and the management under Section 18(1) of the Industrial Disputes Act. The Labour Court has directed reinstatement of the petitioner with continuity of service only with 50% of backwages whereas the petitioner is entitled to full backwages also. The management is also debarred from sacking him from service on the point of medical disability under Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. 18.Therefore, the order passed by the respondent management based on the settlement arrived between the workman and the management under Section 18(1) of the Industrial Disputes Act stands quashed. The award passed by the Labour Court is modified to the effect that the petitioner is entitled to be reinstated with continuity of service and full backwages and all other attendant benefits. As a result of which W.P.No.42388 of 2002 is dismissed and W.P.Nos.16582 of 2008 and 29029 of 2008 stand allowed. There is no order as to costs. Consequently, the connected miscellaneous petitions are also closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ps https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Labour Court, Salem. 2.The Chairman of the Board of Director, Tamil Nadu State Transport Corporation, (Salem Division II Limited), Ramakrishna Road, Salem – 636 007. 3.The General Manager, Tamil Nadu State Transport Corporation, (Salem Division II Limited), Dharmapuri District. 4.The Management, Tamil Nadu State Transport Corporation, (Salem Division II Limited), Dharmapuri District. 1 cc to M/s. S. Girija, Advocate, Sr. 18902 W.P.Nos.42388 of 2002, 16582 and 29029 of 2008 VSV (CO) kk 30/3 https://hcservices.ecourts.gov.in/hcservices/