1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.11.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD)No.1175 of 2011 and M.P.(MD)No.2 of 2011 The Management of Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Kumbakonam Region, rep.by its General Manager, Kumbakonam. ... Appellant/Respondent Vs. S.Karthikeyan ...Respondent/Petitioner Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 18.11.2010, made in W.P.(MD)No.11389/2009. PRAYER IN WP(MD)No. 11389 of 2009: Praying for the issue of a Writ of mandamus to direct the respondent to provide he petitioner a suitable alternative employment with pay protection, continuity of service, back wages from 16.2.2010 and all other attendant benefits in accordance with Section 47(1) of the persons with Disabilities (Equal opportunities, protection of Rights and Full participation) Act 1995. For Appellant : Mr.S.Baskaran For Respondent : Mr.R.Murugan for Mr.S.Arunachalam JUDGMENT [Judgment of the Court was delivered BY K.N.BASHA, J] The appellant, the Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., has preferred this writ appeal challenging the order of the writ court, dated 18.11.2010, made in W.P.(MD)No.11389 of 2009, directing the appellant herein to provide an alternative employment to the respondent herein, commensurate with his disability. 2.Mr.R.Murugesan, learned counsel, representing the counsel on record for the respondent, takes notice for the respondent. By mutual consent of the learned counsel for the parties, the writ appeal itself is taken up for final hearing at the time of admission itself. 3.Learned counsel for the appellant would submit that the medical opinion is not clear to the effect that the respondent herein is totally unable to work as a Driver and the same was not considered by the writ court and as such the order passed by the writ court is liable to be set aside. It is further contended that the respondent is suffering from only heart ailment and as such, as per the definition to 'disability' contained in Section 2(i) of the Persons with Disabilities (Equal https://hcservices.ecourts.gov.in/hcservices/ 2 Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short "the Act"), it cannot be said that the respondent cannot perform duties as a driver. The learned counsel for the appellant would further submit that all these factors have been overlooked by the writ court. 4.Per contra, the learned counsel appearing for the respondent would submit that there is no infirmity or illegality in the order passed by the writ court. It is contended by him that the writ court passed orders on the basis of the medical opinion to the effect that it is not possible for the respondent to perform his duties as a driver. Learned counsel would further contend that the case of the respondent would come within the provisions under Section 47(1) of the Act as it is the opinion of the Medical Board that the respondent cannot perform his duties as a driver. 5.We have given our careful consideration to the rival contentions put-forward by both the counsel and perused the materials available on record, including the order passed by the writ court. 6.The fact remains that the Medical Board has given an opinion to the effect that the respondent herein cannot perform his duties as a driver. Therefore, the writ court has rightly allowed the writ petition filed by the respondent holding that on the basis of the medical opinion, the appellant is bound to provide alternative employment to the respondent herein, commensurate with his disability. 7.The only contention raised by the learned counsel for the appellant is to the effect that the respondent was suffering only from heart ailment and the same would not attract the definition of 'disability', defined under Section 2(i) of the Act. We are unable to countenance such a contention, in view of the specific provision under Section 47(1) of the Act to the following effect. "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." 8.A reading of the above said provision, more particularly proviso to Section 47(1) of the Act would make it abundantly clear that if an employee acquired with disability is not suitable for the post he was holding, then he could be shifted to some other post with the same pay scale and service benefits. It is rightly pointed out by the writ court that the Medical Board's opinion makes it crystal clear that respondent cannot perform his duty as a driver and, therefore, as mandated by the proviso under Section 47(1) of the Act, the appellant herein is duty bound to provide alternative employment to the respondent commensurate with his disability. 9.In view of the foregoing reasons, we are of the view that the appellant has not made out any ground warranting interference in the https://hcservices.ecourts.gov.in/hcservices/ 3 order of the writ court. Accordingly, the writ appeal stands dismissed. No costs. Connected M.P.(MD)No.2 of 2011 is also dismissed. It is made clear that the appellant herein shall provide alternative employment to the respondent, as per the order of the writ court, within a period of three weeks from the date of receipt of a copy of this order. SD ASST REGISTRAR ( Records ) /TRUE COPY/ SUB ASST REGISTRAR gb TO: THE GENERAL MANAGER, TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM)LIMITED., KUMBAKONAM REGION, KUMBAKONAM. 1CC TO MR. S. BASKARAN, ADVOCATE, SR: 37501: DM::2011:NOVEMBER:12:: Judgment IN W.A.(MD)No.1175/2011 and M.P.(MD)No.2 of 2011 Dated:02.11.2011 3P:3C:: https://hcservices.ecourts.gov.in/hcservices/