IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.10921 of 2007 and WPMP.No.38587 of 2005 The Managing Director Tamil Nadu State Transport Corporation (Villupuram) Ltd., Kancheepuram Region. .. Petitioner vs. 1.The Presiding Officer I Additional Labour Court Chennai. 2.G.Murugesan .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. For petitioner : Mr.T.Chandrasekaran (Standing Counsel) Spl.Govt.Pleader For respondents : Mr.V.Ajoy Khose for R.2 ORDER The writ petition is directed against the award of the Labour Court passed in I.D.No.666 of 1999 dated 10.5.2006, by which the Labour Court allowed the industrial dispute filed by the second respondent/workman by passing the award of reinstatement with backwages, continuity of service and all other attendant benefits. 2. The second respondent was employed as a Conductor in the writ petitioner Corporation. On the allegation of unauthorized absence, charges were framed against the second respondent as per Model Standing Order and the second respondent submitted his explanation and not satisfied with the same, domestic enquiry was conducted and in the domestic enquiry, the Enquiry Officer held that the charges against the second respondent stood proved and thereafter, the second show-cause notice was issued, for which the second respondent https://hcservices.ecourts.gov.in/hcservices/ submitted his explanation and ultimately, the petitioner management dismissed the second respondent from service on 5.5.1998 and that was challenged by the second respondent by raising an industrial dispute. The second respondent has also attained the age of superannuation on 01.7.2005. 3. The Labour Court’s award is challenged by the petitioner management on the ground that the unauthorized absence for a period of more than 8 days has been proved and therefore, it is against the Model Standing Order, especially Order 24(6) and as per the Standing Orders, the second respondent ought to have given prior information about his absence well in advance to the management and while the leave letter was received only on 23.8.1997, the absence was from 3.8.1997. 4. A reference to the award passed by the Labour Court shows that the charges framed against the second respondent are relating to unauthorized absence during the period between 3.8.1997 and 23.8.1997. The Labour Court found that the enquiry conducted by the Enquiry Officer was fair and proper. It is the contention of Mr.T.Chandrasekaran, learned counsel for the petitioner that the Labour Court traversed beyond the question which had been raised before it and the question of medical disability was not an issue before it and in spite of it, the Labour Court traversed into that for the purpose of passing the award. 5. On the other hand, a reference to the award of the Labour Court shows that in fact, the Labour Court considered the evidence let in by the second respondent who has stated that he made prior information to the management about his sudden illness over telephone. The Labour Court also considered the evidence of management witness M.W.1 to the effect that the medical certificate was produced on 23.8.1997 and in spite of it, the second respondent was not permitted to join and he was permitted to join only on 30.8.1997. It is stated that the second respondent was medically disabled and therefore, he has given an application for the purpose of alternate employment and the Labour Court has considered Ex.W9, which shows that he has been taking treatment as a patient. The application for alternate employment due to his disability, marked as Ex.W-11 was also considered, based on which it was concluded that the petitioner has been suffering from certain disability and in spite of the request being made by the second respondent, his application for alternate employment was not considered. 6. By relying upon the judgment of the Supreme Court in Kunal Singh vs. Union of India [(2003) 4 SCC 524] wherein the provisions of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 were construed, the Labour Court has come to the conclusion that a suitable alternate employment should have been given to the second https://hcservices.ecourts.gov.in/hcservices/ respondent, and the Labour Court also gave a finding that the management has adopted backdoor method in sending away the second respondent instead of complying with the statutory requirements as per the Act stated above. The Labour Court has found that that the Enquiry Officer’s report is perverse, even though it is in conformity with the principles of natural justice, and has come to the conclusion that the second respondent is entitled for reinstatement with backwages and in my considered view, there is nothing wrong in it. When there is a factual finding given by the Labour Court in respect of all aspects, it is not possible for this Court to interfere with the award of the Labour Court, since under Article 226 of the Constitution of India, while deciding about the validity or otherwise of the award of the Labour Court, this Court is not sitting in appeal for reappreciating the evidence. 7. The fact that the second respondent has been suffering from disability is not in much dispute. While so, during the course of employment, if an employee becomes disabled, it is the duty on the part of the management to protect his service conditions as per section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as it was held by the Supreme Court cited supra, which has been consistently followed by all Courts in India. The Hon’ble First Bench of this Court in which I was also a party, in Management of Tamil Nadu, State Transport Corporation (Villupuram Division III) Ltd., Kancheepuram vs. B.Gnanasekaran [2007 (5) MLJ 1] reiterated the stand holding that the right conferred under the said Act is referable to Article 21 of the Constitution of India and that has been available under the Constitution of India even before the said Act came into existence. It was in Bhagwan Dass vs. Punjab State Electricity Board [(2008) 1 SCC 579] the Supreme Court again reiterated that the language of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is casting a statutory obligation on the employer to protect the employee acquiring disability during service. In fact, the Hon’ble Apex Court in the said judgment has suggested that it is the duty of the employer or officials of the employer to explain to the poor employee who may not be aware of the legal position, and the relevant portion of the judgment is as follows: " 18. Appellant 1 was a Class IV employee, a lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal https://hcservices.ecourts.gov.in/hcservices/ rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the officers concerned of the Board, to our mind, was deprecable." 8. The Hon’ble First Bench of this Court again in A.Veeriya Perumal vs. The Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai 600 009 [2006 WLR 800] has reiterated the very object of the Act in the following words, " 10. Keeping the disability sustained by the employee while in service and the possibility of the employee losing his livelihood in mind, the Legislature enacted the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995." 9. It is also brought to the notice of this Court that the petitioner who has attained the age of superannuation in the year 2005 is suffering from cancer and undergoing treatment in his old age. Taking into consideration the totality of the situation, I am of the considered view that there is absolutely nothing to interfere with the award of the Labour Court. Accordingly, the writ petition fails and the same is dismissed. No costs. kh After pronouncement of the order, it is now submitted by the learned counsel for the second respondent that amount due as per the Award of the Labour Court has not been settled. 2. In view of the above submission, it is needless to state that the Tamil Nadu State Transport Corporation shall take steps to settle the amount as per the Award of the Labour Court expeditiously, in any event, within a period of eight weeks from the date of receipt of a copy of this order. nvsri To The Presiding Officer I Additional Labour Court Chennai. 1 cc To Mr.T.Chandrasekaran, Advocate, SR.86916 1 cc To Mr.V.Ajoyghuse, Advocate, SR.86421 Order in W.P.No.10921 of 2007 NSM (CO) RH (22.12.10) https://hcservices.ecourts.gov.in/hcservices/