IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA WP.No.5542/2007 AND MP.Nos.1&2/2007 K.Ramakrishnan .. Petitioner Versus 1.The Presiding Officer Labour Court, Pondicherry. 2.Managing Director Tamilnadu State Transport Corporation [Villupuram Div-I] Limited, Villupuram. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records from the 1st respondent relating to the award in ID.No.13/2003 dated 24.02.2006 and quash that portion of the said award dated 24.02.2006 published in the Government Gazette dated 27.06.2006, Pondycherry directing the reinstatement of the petitioner treating him as fresh entrant and consequently set aside the order of the 2nd respondent made in proceedings No.90/53/E7/TNSTC [VPM]/2003 dated 18.11.2006 fixing the scale of Rs.4,270-60-5710 and direct the 2nd respondent to fix the salary of the petitioner in appropriate time scale without reduction in emoluments he was drawing and pay the arrears with effect from 01.06.2002 to the petitioner and grant all other attendant benefits as per the provisions of Section 47 of the Persons with Disabilities [Equal Opportunities and Protection of Rights and Full Participation] Act, 1995. For Petitioner : MrS.Ayyathurai For R2 : Mr.T.Chandrasekaran R1-Labour Court ORDER By mutual consent of the learned counsel for the petitioner and the learned counsel for the 2nd respondent, the main writ petition itself is taken up for final disposal. 2.The petitioner has come forward with the above petition seeking for the relief of quashing the portion of the award passed by the first respondent in I.D.No.13/2003 dated 24.02.2006 published in the Government Gazette dated 27.06.2006, Pondichery https://hcservices.ecourts.gov.in/hcservices/ directing the reinstatement of the petitioner treating him as fresh entrant and consequently set aside the order of the 2nd respondent dated 18.11.2006 fixing the scale of Rs.4,270-60-5710 and direct the 2nd respondent to fix the salary of the petitioner in appropriate time scale without reduction in emoluments he was drawing and pay the arrears with effect from 01.06.2002 to the petitioner and grant all other attendant benefits as per the provisions of Section 47 of the Persons with Disabilities [Equal Opportunities and Protection of Rights and Full Participation] Act, 1995. 3.[a] The case of the petitioner is that he was appointed as driver in the 2nd respondent Corporation. While he was on duty on 20.05.2002 in the bus bearing Registration No.TN-32-N-1493 route No.335 from Poothurai to Chennai, met with an accident at about 7.30 p.m. due to stone pelting incident near Navakulam which is 1 Km from Jipmer hospital, Pondicherry. The petitioner sustained grievous injury in his right eye in the said accident which resulted in the loss of vision to the extent of 30% as per medical opinion. Thereafter, the petitioner was denied employment on the basis of the medical opinion and the 2nd respondent/Corporation, by its order dated 09.06.2003, removed the petitioner from service based on the medical opinion holding that the petitioner is not fit for driving the vehicle. [b]The petitioner filed an application for compensation before the Additional Commissioner for Workmen compensation [Pondicherry] claiming compensation on the basis of 100% loss of earning capacity as a result of denial of any employment by the 2nd respondent/Corporation. The Commissioner after hearing both sides, passed an order dated 29.12.2004 directing the 2nd respondent Management to pay a sum of Rs.3,91,368/- within 30 days from the date of receipt of that order copy. The Management was also directed to pay an interest at the rate of 12% per annum from the date of application, i.e., 25.11.2002. The petitioner received a sum of Rs.1,96,000/- as an interim relief as per the order of this court. [c]The petitioner due to the removal from service on medical ground, raised an industrial dispute in I.D.No.13/2003 relating to his non-employment and the same was referred to the 1st respondent for adjudication. The Labour Court took the dispute on file as ID.No.13/2003 and after hearing both sides, the impugned award was passed by the 1st respondent on 24.02.2006 directing the 2nd respondent-Corporation to provide alternative employment to the petitioner as a fresh entrant. Aggrieved against the said award, the Corporation filed a writ petition in WP.No.30246/2006 and an order of stay was granted by this court. Thereafter, the 2nd respondent-Corporation sought for withdrawing the said writ petition and this court dismissed the said writ petition by its order dated 17.11.2006 as withdrawn. https://hcservices.ecourts.gov.in/hcservices/ [d]Subsequently, the Corporation passed an order dated 18.11.2006 appointing the petitioner as Helper [Non-ITI] in the time scale of Rs.4270-60-5710 as a fresh entrant purporting to be an order in compliance with the order of the 1st respondent. As the petitioner was suffering from non-employment, he attended duty without prejudice to his rights under the provisions of the Persons with Disabilities [Equal Opportunities and Protection of Rights and Full Participation] Act, 1995, [hereinafter referred to as the Act]. The petitioner being aggrieved against the impugned award insofar as the same relates to the portion of the direction to the 2nd respondent to provide alternative employment in the post like Helper, commensurate with his qualification as a fresh entrant, the petitioner has come forward with the present writ petition seeking for the above said prayer. 4.Mr.S.Ayyathurai, learned counsel for the petitioner would contend that the impugned award insofar as directing the 2nd respondent to provide alternative employment to the petitioner as a fresh entrant is contrary to the provisions of the Act. It is contended that the petitioner having been appointed by the 2nd respondent as helper ought not to have been made as a fresh entrant and the petitioner is entitled to the benefits as per the provisions of section 47 of the Act. It is contended that as per provision u/s.47 of the Act, the petitioner after acquiring disability in the event of not suitable for the post he was holding, viz., as a driver, he could be shifted to some other post with the same pay scale and service benefits and he cannot be treated as a fresh entrant. It is submitted that the petitioner would come under the category of acquiring disability during the course of his service. He would further contend that it is not necessary for the employee should have suffered 40% disability for invoking the benefit of provision u/s.47 of the Act. Learned counsel, in support of his contention placed reliance on the decision of this court in MANAGEMENT OF TAMIL NADU, STATE TRANSPORT CORPORATION [VILLUPURAM DIVISION-III] LTD., KANCHEEPURAM Vs. B.GUNASEKARAN reported in 2007 [5] MLJ 1 . 5.Per contra, Mr.T.Chandrasekaran, learned counsel for the 2nd respondent would contend that there is no illegality or infirmity in the impugned award passed by the 1st respondent-Labour Court. It is contended that in compliance of the award passed by the 1st respondent, the 2nd respondent has provided an alternative employment to the petitioner, viz., the post of Helper. It is pointed out that the petitioner also joined duty as a Helper and he was also paid an amount of compensation to the tune of Rs.3,91,368/-. It is further contended that in order to invoke the provision u/s.47 of the Act, the petitioner should have suffered 40% disability. But the petitioner, as per the medical opinion, only suffered 30% disability. In order to substantiate the said contention, the learned counsel for the 2nd respondent would place reliance on the provision u/s.2[t] of the Act-" Definition to a person with disability" and contended that as per the said https://hcservices.ecourts.gov.in/hcservices/ provision, it requires 40% of disability as certified by the medical authority to claim benefit u/s.47 of the Act. Therefore, it is submitted that the petitioner is not entitled to claim that he should not be treated as a fresh entrant. 6.I have given my careful and anxious consideration to the rival submissions made on either side and also perused the materials available on record including the impugned award passed by the 1st respondent. 7.The only grievance of the petitioner in the instant case is to the effect that he should not be treated as a fresh entrant. As already pointed out that the petitioner has challenged only in respect of the portion of the impugned award passed by the 1st respondent dated 24.02.2006 to the effect that the petitioner should be provided with alternative employment as per his qualification and experience by treating the petitioner as a fresh entrant. The fact remains that in compliance of the award passed by the 1st respondent, the petitioner has been appointed as a Helper as per the order dated 18.11.2006. But he was treated only as a fresh entrant. The reason assigned by the 2nd respondent as per the counter filed before this court is that the petitioner has suffered only 30% disability as per the medical opinion and as such, he cannot invoke the provision u/s. 47 of the Act for seeking the relief of appointment to any post with the same salary and other benefits as he was holding the earlier post in view of section 2[t] of the Act. It is relevant to refer to the said provision 2[t] which reads here under:- "2. Definitions. - In this Act, unless the context otherwise requires, - (a) - (d) ... ... ... (e) ' cerebral palsy' means a group of non- progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the prenatal, perinatal or infant period of development; (f) - (h) ... ... ... (i) 'disability' means - (i) blindness ; (ii) low vision ; (iii) leprosy cured ; (iv) hearing impairment ; (v) locomotor disability ; (vi) mental retardation ; (vii) mental illness ; (j) ... ... ... (k) 'establishment' means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) https://hcservices.ecourts.gov.in/hcservices/ and includes departments of a Government; (l) - (n) ... ... ... (o) '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; (p) - (s) ... ... ... (t) 'person with disability' means a person suffering from not less than forty per cent of any disability as certified by a medical authority;" 8.It is equally important to refer to provision u/s.47 of the Act which reads here under:- "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: 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. (2) 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 may be specified in such notification, exempt any establishment from the provisions of this section." 9.The scope of the above said provisions as rightly pointed out by the learned counsel for the petitioner have been dealt with by the Hon'ble Apex Court in MANAGEMENT OF TAMIL NADU, STATE TRANSPORT CORPORATION [VILLUPURAM DIVISION-III] LTD., KANCHEEPURAM Vs. B.GUNASEKARAN reported in 2007 [5] MLJ 1, wherein the Apex court has held as hereunder:- "8.The provisions of Section 2 read with Section 47 of the Disabilities Act fell for consideration of the Supreme Court in Kunal Singh vs. Union of India (supra). The Court highlighted the distinction between the terms 'disability' and 'person with disability' and held that Section 47 https://hcservices.ecourts.gov.in/hcservices/ contemplates a disability acquired during service. Shivaraj Patil, J., speaking for the Bench, observed as follows : (SCC pp.529&530) "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 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 https://hcservices.ecourts.gov.in/hcservices/ disability during service. The argument of the learned counsel for the respondent on the basis of the 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 has acquired disability within the meaning of Section 2( i ) of the Act and not a person with disability." 9. In the light of the decision in Kunal Singh's case, 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 may be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. " (emphasis supplied) 10.The principle laid down by the Hon'ble Apex Court in the decision cited supra in respect of the interpretation and scope of section 2[t] and section 47 of the Act is squarely applicable to the facts of the instant case. The Apex court in the decision cited supra has clearly highlighted the distinction between the terms "Disability" and "Persons with Disability" and ultimately held that Section 47 of the Act contemplates a disability acquired during service. In view of the same, this court has no hesitation to hold that the petitioner would come under the category of an employee acquiring disability during his service as per provision u/s.47 of the Act. 11. For the aforesaid reasons, this court is constrained to set aside the impugned award insofar as the same relates to the portion of treating the petitioner as a fresh entrant. This court is also constrained to set aside the order of the 2nd respondent in proceedings No.90/53/E7/TNSTC [VPM]/2003 dated 18.11.2006 fixing the scale of Rs.4,270-60-5710. 12.Accordingly, the writ petition is allowed. No costs. The 2nd respondent is directed to fix the salary of the petitioner in appropriate time scale without reduction in emoluments he was https://hcservices.ecourts.gov.in/hcservices/ drawing and pay the arrears with effect from 01.06.2002 to the petitioner and grant all other attendant benefits as per the provisions of Section 47 of the Persons with Disabilities [Equal Opportunities and Protection of Rights and Full Participation] Act, 1995. It is made clear that the said exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar /True Copy/ Sub Asst.Registrar ap To 1.The Presiding Officer Labour Court, Pondicherry. 2.The Managing Director Tamilnadu State Transport Corporation [Villupuram Div-I] Limited, Villupuram. +1CC to Mr.S.Ayyathurai, Advocate Sr.19172 +1CC to Mr.T.Chandrasekaran, Advocate Sr.18994 WP.No.5542/2007 RS1(CO) DRL : 01/04/2010 https://hcservices.ecourts.gov.in/hcservices/