IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 19589 of 2010(W) -------------------------- PETITIONER: --------------- ABDUL KALAM.K.M, S/O.MUHAMMED ALI, KOLLAM THAZHCHAYIL HOUSE, NIRANAM P.O., THIRUVALLA, PATHANAMTHITTA (FIELD WORKER- (PF NO.2289) B-2 DIVISION, KODUMON ESTATE, PLANTATION CORPORATION OF KERALA, PATHANAMTHITTA. BY ADV. SRI.S.SUBHASH CHAND SRI.T.NIKLAVU RESPONDENTS: --------------- 1. PLANTATION CORPORATION OF KERALA LIMITED, OFFICE OF THE PLANTATION CORPORATION OF KERALA LIMITED, KOTTAYAM REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE GENERAL MANAGER (C), PLANTATION CORPORATION OF KERALA LIMITED, OFFICE OF THE PLANTATION CORPORATION OF KERALA LIMITED, KOTTAYAM. 3. THE MANAGER, KODUMON ESTATE, PLANTATION CORPORATION OF KERALA LIMITED, NEDUMANKAVU P.O., PATHANAMTHITTA. 4. FIELD EXECUTIVE, B2 DIVISION, KODUMON ESTATE, PLANTATION CORPORATION OF KERALA LIMITED, NEDUMANKAVU P.O., PATHANAMTHITTA. BY GOVT. PLEADER SRI. ARAVINDKUMAR BABU FOR R1 ADV. SRI.V.ABRAHAM MARKOS FOR R1 SRI.MATHEWS K.UTHUPPACHAN, SC, FOR R1 SRI.BINU MATHEW FOR R1 SRI.TERRY V.JAMES FOR R1 4RI.B.J.JOHN PRAKASH FOR R1 SRI.TOM THOMAS (KAKKUZHIYIL) FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. --------------------------- W.P.(C) No. 19589 OF 2010 -------------------------- Dated this the 14th day of July, 2010 J U D G M E N T The petitioner is a rubber tapper in the Kodumon Estate of the first respondent. From Exts.P2 and P3 medical certificates produced by the petitioner, it would appear that the petitioner underwent Supra Coronary Ascending Aortic replacement with Aortic Valve replacement (Open Heart Surgery) on 22.4.2009. As per Ext.P3 certificate, the disability of the petitioner is assessed at 65%. 2. The petitioner applied for a lighter work contending that on account of the ailment and treatment that he had undergone he will not be in a position to do heavy work as a tapper in a Rubber Plantation. Thereupon, the first respondent issued Ext.P4 directing that he will be given field work. 3. Again, the petitioner represented by Ext.P5 that he is not in a position to discharge field work and that in view of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act for short), he should be given a WPC No.19589/2010 2 category change involving still higher duties. That request was ordered to be considered by this Court and finally Ext.P8 order has been issued stating that the maximum possible leniency has been shown to him and that he cannot again be given a category change. It was thereupon the petitioner has filed this writ petition claiming that the disability suffered by he petitioner is a disability defined in the Act and therefore he is entitled to the benefits available under Section 47 of the said Act. Disability has been defined in Section 2(i) of the Act as follows:- Disability means:- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; 2. Among the above, what is claimed by the petitioner is locomotor disability. The expression locomotor disability has been defined in the Act under Section 2(o), which reads thus: “locomotor disability” means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy; WPC No.19589/2010 3 3. A reading of this provision shows that locomotor disability is a disability of joints, bones or muscles leading to substantial restriction of the movement of the limbs. The certificate produced by the petitioner shows that he had undergone an open heart surgery. There is nothing on record to show that as a result of the surgery undergone by the petitioner, he has suffered the disability of the bones, joints or muscles resulting in substantial restriction of the movement of the limbs. If that be so, the disability suffered by the petitioner, which is certified in Ext.P3 medical certificate, cannot be accepted as locomotor disability, as defined in Section 2(i) read with Section 2(o) of the Act. If that be so, Section 47 of the Act is not applicable and therefore the impugned order cannot be said to be in violation of the provisions of the Act. The writ petition fails and it is accordingly dismissed. ANTONY DOMINIC (JUDGE) vps WPC No.19589/2010 4 WPC No.19589/2010 5