IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.09.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.8942 of 2003 K.Periasamy ..Petitioner -vs- 1. The State of Tamil Nadu rep.by the Secretary to the Government Department of Transport Fort St.George, Chennai 9 2. The Tamil Nadu State Express Transport Corporation Limited rep.by its Managing Director Pallavan Salai, Chennai 2 3. The General Manager (Administration) The Tamil Nadu State Express Transport Corporation Limited Pallavan Salai, Chennai 2 4. The Branch Manager The Tamil Nadu State Express Transport Corporation Limited (division I), Salem 636 007 ..Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of Mandamus directing the respondents to reinstate the petitioner in service in any suitable post without causing reduction in salary, seniority and other attendant benefits with backwages and continuity of service forthwith and allow this Writ Petition with exemplary cost. For petitioner : Ms.M.Srividya For respondents : Mr.N.Senthil Kumar, AGP for R1 Mr.V.R.Kamalanathan for R2 to R4 https://hcservices.ecourts.gov.in/hcservices/ O R D E R It is an yet another case where the mandate imposed on the employer by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called as 'Act') under Section 47(1) has not been complied with in its true spirit, which requires interference by this Court. 2. The petitioner was appointed as a Driver in the third respondent State Express Transport Corporation and his appointment was made permanent from 1.9.1980. It is seen that while he was in service and during the course of employment when driving the Corporation vehicle on 12.11.1996, the bus involved in an accident resulting in the fracture on his legs and permanent disability. It is in the form of locomotor disability as defined under section 2(o) of the Act which means the disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. After undertaking treatment, his disability was confirmed by medical reports and thereafter the third respondent has issued a show cause notice on 5.5.1999 intimating to the petitioner about the disability suffered by him stating that he is not competent to continue the post of Driver. The petitioner gave a reply on 17.5.1999 to the said show cause notice and ultimately it appears that on 18.7.1999, the third respondent has passed an order of termination of the petitioner from service on the ground of medical disability. 3. In the said order of termination, the third respondent has stated that if the petitioner desires he can apply for alternate employment. Challenging the said order, the petitioner has moved this court by filing W.P.No.15959 of 2000 and ultimately by an order dated 20.9.2000, taking note of a similar circumstance where this Court in W.P.No.7820 of 1999 by applying the provisions of the Act 1 of 1996 has directed the payment of salary and reinstatement, has disposed of the Writ Petition directing the third respondent to consider the representation of the petitioner dated 27.7.1999 by which the petitioner has sought for alternate employment with pay protection. 4. After the disposal of the Writ Petition, the petitioner has made further representation to the third respondent on 3.10.2000 requesting the third respondent to reinstate him, cancelling the order of termination dated 18.7.1999 and payment of salary for the period from the date of his termination. In response to the said representation and based on the order passed by this Court in the above said Writ Petition, the third respondent has passed an order on 1.1.2001 confirming the factual matrix of relieving of the petitioner on the disability ground, however stating that in respect https://hcservices.ecourts.gov.in/hcservices/ of providing alternate employment to the petitioner, he is kept in the list of such persons and his serial number is 7 and based on the availability of post and qualifications, suitable orders will be passed. 5. It is not in dispute that after passing of the said order dated 1.1.2001, the respondents have not passed any order providing alternate employment or reinstating the petitioner into service. It is seen that the petitioner has in fact made a representation to the Hon'ble Chief Minister on 3.7.2001 and inasmuch as the respondents have not taken steps to reinstate him in the job by cancelling the order of termination, the present Writ Petition has been filed for direction to reinstate him in any suitable post without causing reduction in salary, seniority and other attendant benefits. 6. Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 imposes statutory obligation on the part of the employer not to dispense with the service of a person employed on the reason that he acquires disability, acquisition of such disability need not deprive him. When once it is proved that during the course of employment, such disability has occurred, it is the duty of the employer not to dispense him from service and in case where he is not suitable for the post he was holding, he should be posted in a suitable post without disturbing the scale of pay and other service benefits, which he has been obtaining before the date of disability. In fact the Section makes it clear that in case where the employer is unable to fit him into a suitable post, it is his duty to create supernumeray post by way of fiction until such post is available or until he attains the age of superannuation whichever is earlier. This means that even in cases where the employer is unable to provide suitable employment commensurate to the nature of disability acquired by the employer, the right of the employee to continue to receive his salary with attendant benefits is assured till the date of superannuation. 7. This obligation imposed by the statutory provision has been reiterated by the Supreme Court in Kunal Singh vs. Union of India and another reported in (2003) 4 SCC 524. In the said judgment, the Supreme Court has explained the distinction between the term "disability" and "the person with disability" holding that the cases where the persons were employed with disability, the Act contemplates the scheme of rehabilitation and while a person, who acquires disability as per the definition of the term "disability" under Act, he is protected under section 47(1) of the Act. Shivaraj V.Patil and H.K.Sema, JJ in uncertain terms have held that the obligation imposed on the employer under section 47 of the Act is mandatory. It is useful to refer to the following paragraph: "9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure https://hcservices.ecourts.gov.in/hcservices/ 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 a 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 not protected, would not only suffer himself, 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 the section reads “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service”. The section further provides 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; 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 a 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 casting statutory obligation on the employer to protect an employee acquiring disability during service." 8. The dictum laid down by the Supreme Court has been followed by all the Courts in India. To indicate a few decisions of the Division Bench of this Court, it is useful to refer to the paragraph Nos.18, 19 and 30 of the judgment in MUTHU G. VS. MANAGEMENT OF TAMIL NADU STATE TRANSPORT CORPORATION (MADURAI) LTD., MADURAI reported in 2006 (5) CTC 413: "18.. Thus a rigorous, literal and pedantic interpretation need not be attributed to Section 2 https://hcservices.ecourts.gov.in/hcservices/ (i) of the Act. We are therefore, of the opinion that the intention of the law makers is not to restrict only to those categories of persons mentioned in Section 2(i) of the Act alone to be entitled to the benefits under the Act. If justifiable and reasonable approach is to be made, then it has to be held that Section 2(i) of the Act is not exhaustive 19. Therefore, as argued by the learned counsel for the appellant, while the provisions contained in Chapters IV to VII of the Act deals with "Persons with disability". Section 47 alone deals with "an employee who acquires a disability during his service". The said provision clearly says that no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service which means that the person who is employed in an establishment when he acquires a disability, his services cannot be dispensed with or there should be any reduction in rank. Further, the proviso to the said Section clearly states that if he is not suitable for the post he could be shifted to some other post with the same scale of pay and benefits. If it is not possible, he could be kept on a supernumerary post until a post is available or he attains the age of superannuation whichever is earlier. The said provision further states that no promotion shall be denied to any person merely on the ground of his disability. Thus, if we apply Section 47 of the said Act, the order of discharge passed by the respondent dated 26.3.2002 has no leg to stand. 25. Their Lordships have clearly stated that "there is no justification in treating the cases of workmen like drivers who are exposed to occupational diseases and disabilities on par with the other employees. The injustice, inequity and discrimination are writ large in such cases and are indefensible. The service conditions of the workmen such as the drivers in the present case, therefore, must provide for adequate safeguards to remedy the situation by compensating them in some form for the all-round loss they suffer for no fault of them." Thirdly, as argued by the learned counsel for the appellant, there will not be too many claims on false pretext. The Corporation can very well refer the persons to the Medical Board to verity their plea of disability and take all https://hcservices.ecourts.gov.in/hcservices/ precautions to ensure that no false claim is entertained. On that score, deserving persons cannot be denied the benefits under the Act. 26. After analysing the entire provisions of the Act and also various decisions cited above, we feel that the Courts cannot shut its eyes if a person knocks at its door claiming relief under the Act. In a welfare State like India, benefits of benevolent legislation cannot be denied on the ground of more hyper technicalities. When the law makers have conferred certain privileges on a class of persons, like in this case to a disabled person, the duty is cast upon the judiciary to oversee that the authorities or persons to whom such a power is conferred, enforce the same in letter and spirit for which such enactment has been made. In the present case on hand, the appellant has been discharged on the ground of "colour blindness' without providing alternative job as per Section 47 of the Act which is unjustified and unreasonable. Hence, the order of the respondent dated 26.3.2002 discharging the appellant on medical grounds has no leg to stand. The appellant is entitled to the protection under section 47 of the Act. He should have been given a suitable alternative employment with pay protection, instead of discharging him from service on the ground of "colour blindness'. Viewed from any angle, the order of the learned Single Judge dismissing the Writ Petition on the mere ground of laches without considering the claim of the appellant on merits is liable to be set aside." 9. That was also followed by the subsequent Division Bench of this Court in General Manager, Tamil Nadu State Transport Corporation vs. Udayasuriyan reported in (2008) 3 MLJ 865 and paragraph 6 reads as follows: "6. We find absolutely no merit in the submission of the learned counsel for the appellant Corporation. In the light of the decision in Kunal Singh v. Union of India and another (supra), it is clear that Section 47 deals with an employee who has acquired disability during service and it is not necessary that he should have suffered 40% disability. The test is whether an employee, after acquiring disability, has become unsuitable for the post he was holding earlier, and it is provided by Section 47 that in such a case, the employee could be shifted to some other https://hcservices.ecourts.gov.in/hcservices/ post with the same pay scale and service benefits, and if it is not possible to adjust the employee against any such post, he may be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier." 10. The order of the First Bench of this Court presided by A.P.Shah, C.J, (his Lordship as he then was), to which I was a party in Management of Tamil Nadu, State Transport Corporation (Villupuram Division-III) Ltd., Kancheepuram vs. B.Gnanasekaran reported in (2007) 5 MLJ 1, while analysing the entire provisions of the Act clarified an unreported judgment of the Division Bench in General Manager, Tamil Nadu State Transport Corporation vs. A.Sengaan in Writ Appeal M.D.No.96 of 2007 decided on 26.4.2007 indicating that the judgment of the Supreme Court in Kunal Singh's case was not brought to the Division Bench. In the above said case, it is observed in paragraph 9 as follows: "9. In the light of the decision in Kunal Singh v. Union of India and another (supra), it is clear that Section 47 deals with an employee who has acquired disability during service and it is not necessary that he should have suffered 40% disability. The test is whether an employee, after acquiring disability, has become unsuitable for the post he was holding earlier and it is provided by Section 47 that in such a case, the employee could be shifted to some other post with the same pay scale and service benefits and if it is not possible to adjust the employee against any such post, he ay be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. It seems that the decision of the Supreme Court in Kunal Singh vs. Union of India and another (supra) was not brought to the notice of the learned Judges who rendered the judgment in General Manager, Tamil Nadu State Transport Corporation v. A.Sengaan (supra)." 11. The said provision, namely Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is based on the celebrated concept that the workman, who acquires disability during the course of employment cannot be decategorised by treating him as an animal to eliminate ruthlessly the moment he became useless to the establishment. 12. As opined by the Supreme Court in Anand Bihari v. R.S.R.T.Corporation, reported in (1991) 1 SCC 731, wherein the Supreme Court has held that in similar circumstance where the Transport Corporation has decategoried an employee, who was driving heavy motor vehicle belong to the Corporation on the basis that he https://hcservices.ecourts.gov.in/hcservices/ has acquired disability during the course of employment, it was not the fault on his part. It was in those circumstance the Court has held that the action of the Corporation is not proper and equitable and is unjustified observing that the workmen are not denizens of an animal form to be eliminated ruthlessly the moment they become useless to the establishment. The court ultimately directed the employer to provide suitable alternate employment. 13. It is also relevant to point out that even before the Act 1 of 1996 came into existence, the highest Court in India has taken such view that on physical disability if an employee is found to be not fit for the post which he was holding, it is the duty of the employer to provide alternate employment. That was the decision taken in Narendra Kumar Chandla vs. State of Haryana reported in (1994) 4 SCC 460, where a Sub-Station Attendant of the Haryana State Electricity Board due to a surgical operation has become physically disabled and found to be unfit to hold the post of Sub-Station Attendant and on the basis of the Medical Board's suggestion, a direction was issued to provide a clerical or non-technical post. Such a stand has been taken by the Apex Court even before the Act came into existence on the basis of the rights conferred under Article 21 of the Constitution, which is the basic structure of the Constitution enabling any person to live with human dignity. Now that the Act has come into existence, the provisions of which are mandatory as held by the Supreme Court and it is also held that as per Section 47 of the Act, if a person acquires disability during the course of employment, he is entitled to get alternate employment, if he was found unfit to hold the post which he was holding at the time of accident. 14. Under the facts and circumstances of the case, the petitioner is entitled to the relief claimed. The submission of the learned counsel for the respondents Mr.V.R.Kamalanathan that the respondents should not be directed to pay the backwages for the period when the petitioner was not actually in service also has no meaning. Reliance is placed on an another order of this Court in W.P.No.37363 of 2002 dated 10.8.2007 to insist his point that the petitioner may be directed to provide alternate employment with continuity of service etc., but the backwages should not be allowed. On the factual matrix, it is admitted that in the normal course, the petitioner has already reached the age of superannuation in the year 2006. As stated above, the third respondent having taken a stand as early as 1.1.2001 agreeing to provide alternate employment to the petitioner, has not taken any steps till the date of superannuation of the petitioner. In such circumstances, the order passed by this Court in different circumstances, of course, under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 cannot be made applicable for the purpose of supporting the contention of the learned counsel for the respondents Corporation in denying the right to the petitioner to the https://hcservices.ecourts.gov.in/hcservices/ salary to be paid for the period from the date of termination till the date of his retirement. On the other hand, as elicited above, the proviso to Section 47 (1) of the Act makes it abundantly clear that even in cases till the date of superannuation, the employer is unable to find a suitable job to the employee, who has acquired disability, it is the duty of the employer to create supernumerary post, which is by way of fiction and pay all monetary and other benefits due to him without obstructing his right of salary which he was earning at the time when he was terminated from service. 15. In such view of the matter, the Writ Petition stands allowed with a direction against the respondents to compute the monetary benefits due to the petitioner from the date of termination order, namely 18.7.1999 by treating him as if he has been in continuous employment and pay all monetary benefits with all other benefits to which he was entitled in the normal course and also pay the pensionary benefits due to him and settle the entire amount within a period of 8 weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Secretary to the Government, Department of Transport Fort St.George, Chennai 9 2. The Managing Director Tamil Nadu State Express Transport Corporation Limited, Pallavan Salai, Chennai 2 3. The General Manager (Administration) The Tamil Nadu State Express Transport Corporation Limited, Pallavan Salai, Chennai 2 4. The Branch Manager, The Tamil Nadu State Express Transport Corporation Limited (division I), Salem 636 007 1 cc To Mr.V.R.Kamalanathan, Advocate, SR.66683 1 cc To Mr.N.S.Sivakumar, Advocate, SR.66807 W.P.No.8942 of 2003 NSM (CO) RH (13.10.10) https://hcservices.ecourts.gov.in/hcservices/