IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01/04/2004 CORAM THE HON'BLE MR.JUSTICE P.D. DINAKARAN Writ Petition No.4201 of 2003 Rajamani .. Petitioner -Vs- State Express Transport Corporation Ltd. rep. by its General Manager (Division 1) Anna Salai chennai 600 002. .. Respondent Petition under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr.K. Chairman Selvaraj For Mr. Kumarichelvan Bosco For Respondent : Mr.V.R. Kamalanathan :O R D E R Aggrieved by the proceedings of the respondent dated 27.11.2002, the petitioner, who was invalidated on medical grounds for having found not suitable for the post of Conductor at the scale of pay 5185-95-7 450, and was appointed as Helper in the scale of pay 3240-60-4680 as a fresh entrant in the respondent Corporation, has preferred the above writ petition for a writ of Certiorarified Mandamus to call for the records relating to the order of the respondent dated 27.11.2002 and quash the same and direct the respondent to reinstate him with continuity of service with backwages safeguarding and protecting the pay and allowances earned by him. 2. The petitioner challenges the impugned proceedings on the ground that he should have been appointed in some other post in the same pay scale and service benefits, of course, bringing to the notice of this Court that he suffered disability due to the accident which had taken place on 1.8.1998, during the course of his employment. 3. The relief sought for by the petitioner was resisted by the respondent Corporation on the following grounds: (a) the petitioner is entitled only to the order of reinstatement in any of the suitable post as per G.O.Ms.No.746, Transport Department dated 2.7.1981, treating him as a fresh entrant and therefore, in view of the appointment of the petitioner in the post of Helper as a fresh entrant on compassionate ground, the petitioner cannot have any grievance against the impugned proceedings; (b) the petitioner, having obtained an award dated 22.9.2003 in W.C.No.103 of 2000 under the provisions of the Workmen's Compensation Act for the disability he suffered during the course of his employment, viz. in the accident held on 1.8.1998, is not entitled to seek any further benefit with regard to the alleged disability; (c) in any event, since the competent authority, viz. the Deputy Commissioner of Labour, in his award dated 22.9.2003 made in W.C.No.103 of 2000, found that the petitioner has suffered only 35% disability for the purpose of working out compensation under the provisions of the Workmen's Compensation Act, the petitioner is not entitled to the benefits of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Disabilities Act'), as he cannot be considered as a ' person with disability' as defined in Section 2(t) of the Act, which reads as follows: 2. Definitions.- In this Act, unless the context otherwise requires, - .... (t)"person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority; ... " 4. I have given careful consideration to the submissions of both sides. 5. Under the rival contention made by the parties concerned, the following issues arise for my consideration: (i) Whether the award of compensation by the Commissioner under the provisions of the Workmen's Compensation Act, is a bar to the petitioner to seek the relief under the provisions of the Disabilities Act? (ii) Whether the finding of the Commissioner under the provisions of the Workmen's Compensation Act with respect to the percentage of the disability of the petitioner is a bar to seek the benefit under the provisions of the Disabilities Act? (iii)Whether the appointment of the petitioner by the impugned proceedings of the respondent Corporation in the post of Helper as a fresh entrant, based on the G.O.Ms.No.746, Transport Department dated 2.7.1 981 is valid in law? 6. Issue No.(i): Whether the award of compensation by the Commissioner under the provisions of the Workmen's Compensation Act, is a bar to the petitioner to seek the relief under the provisions of the Disabilities Act? 6.2. The Workmen's Compensation Act was enacted to provide for the payment, by certain classes of employers to their workmen, of compensation for injury by accident, provided such accident had taken place during the course of their employment and the workmen have suffered a disablement whether partial or permanent. Whereas, Disabilities Act was enacted to provide for the following: (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of person with disabilities; (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream. 6.3. Even though the Acts referred to above come under one umbrella, viz. welfare legislation, and differ in their object. The benefits conferred under the Disabilities Act is in addition to the Workmen's Compensation Act and not in derogation of t ame, as evident from Section 72 of the Disabilities Act, which reads as follows: Section 72: Act to be in addition to and not in derogation of any other law- The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities." 6.4. Issue No.(i) is answered in negative. 7.1. Issue No.(ii): Whether the finding of the Commissioner under the provisions of the Workmen's Compensation Act with respect to the percentage of the disability of the petitioner is a bar to seek the benefit under the provisions of the Disabilities Act? 7.2. The 'person with disability' is defined under Section 2(t) of the Disabilities Act, which reads as follows: 2. Definitions.- In this Act, unless the context otherwise requires, - .... (t)"person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority; ... " 7.3. The 'medical authority' is defined under Section 2(p) of the Disabilities Act, which reads as follows: 2. Definitions.- In this Act, unless the context otherwise requires, - .... (p) "medical authority" means any hospital or institution specified for the purposes of this Act by notification by the appropriate Government; .... 7.4. It is true that the Deputy Commissioner, by his award dated 22.9.2003 in W.C.No.103 of 2000 found that the petitioner's disability was to the tune of 35% for the purpose of calculating compensation under the provisions of the Workmen's Compensation Act. But, even as per the records placed before the Deputy Commissioner, the medical officer who was examined as PW2, certified under Ex.P3 that the petitioner suffered 50% disability. 7.5. I do not find any similar provision, viz. Section 2(p) and 2(t) of the Disabilities Act in the Workmen's Compensation Act, except for the definition of "qualified medical practitioner defined under Section 2(i) of the Workmen's Compensation Act. Therefore, there is no evidence as alleged by the respondent that the petitioner has suffered disability less than 40% to deny the benefit of the Disabilities Act to the petitioner, unless and otherwise the medical authority, as defined under Section 2(t) of the Disabilities Act, is of the opinion that the petitioner is not a person with disability as defined under Section 2(t) of the Disabilities Act. 7.6. The findings of the Commissioner that the petitioner suffered only 35% of the disability, therefore, is not a bar for the petitioner to seek the benefit of the provisions of the Disabilities Act. 7.7. Issue No.(ii) is answered accordingly. 8.1. Issue No.(iii): Whether the appointment of the petitioner by the impugned proceedings of the respondent Corporation in the post of Helper as a fresh entrant, based on the G.O.Ms.No.746, Transport Department dated 2.7.1981 is valid in law? 8.2. In this regard it is relevant to refer Section 47 of the Act, which reads as follows: "Section 47: Non-discrimination in Government employments- (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. (3) 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 ay be specified in such notification exempt any establishment from the provisions of this section." (emphasis supplied) 8.3. The Apex Court, in Narendra Kumar Chandla v. State of Haryana [JT 1994(2) S.C.94], held 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 posts 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." ...... "An employee cannot be thrown out and that the employee has to be given light duty of alternate duty, which may suit his health conditions and that he should be given pay protection also." 8.4. Again the Apex Court in Kunal Singh v. Union of India [2003 (2) Supreme 102], interpreting Sections 47 and 72 of the Act, held as follows: "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 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 but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a 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 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 statutory obligation on the employer to protect an employee acquiring disability during service. 10. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who had acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability. 11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules canot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads:- Section 72: Act to be in addition to and not in derogation of any other law- The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities." (Emphasis supplied) 8.5. Following the above decisions of the Apex Court, this Court also granted relief to the employees who suffered disability by reinstating them in suitable alternative post, by orders dated 13.12.1999 made in W.P.No.13408 of 1999, 11.8.2003 made in W.P.No.40270 of 2002 and 16.3.2004 made in W.P.No.8214 of 1999 and 25.3.2004 made in W.P.No.1 2356 of 2003. 8.6. It is a trite law that the disabled employee is entitled to be posted in the same scale of pay and service benefits and if it is not possible to adjust the employee against that post, he must be kept on supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier, and that no promotion shall be denied to the person merely on the ground that he was disabled. 8.7. There cannot be any doubt that the respondent should not dispense with the service of the petitioner nor reduce his rank, as it is not in dispute that he acquired the impugned disability during his service and he is entitled to some other post with the same pay scale and service benefits. Further, if it is not possible to adjust the petitioner in any post, he should be kept on supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier, and his promotion shall not be denied merely on the ground of disability, as per Section 47 of the Disabilities Act. 8.8. In the circumstances, I am constrained to interfere with the impugned proceedings insofar as the appointment of the petitioner in the post of Helper as a fresh entrant is concerned and direct the respondent Corporation to pass appropriate orders in terms of Section 47 of the Disabilities Act, within a period of thirty days from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs. Index : Yes Internet : Yes kpl To The General Manager (Division 1) State Express Transport Corporation Ltd. Anna Salai, Chennai 600 002. kpl 