IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 14.02.2011 Coram THE HON’BLE MR. JUSTICE VINOD K.SHARMA W.P.No.8607 of 2002 Tamil Nadu State Transport Corporation (Kumbakonam Division-III) Ltd., Maruthupathy, Managiri Road, Karaikudi – 630 307. ... Petitioner .. Vs .. 1. The Presiding Officer, Labour Court, Tiruchirappalli. 2. M.K.Mohammed Gani ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records from the file of the first respondent herein in I.D.No.415 of 1995, on its file and to quash the award dated 17.10.2001. For Petitioner : Mr.S.Jayaraman For R-1 : Court For R-2 : No Appearance O R D E R The petitioner management has challenged the award passed by the Presiding Officer, Labour Court, Tiruchirappalli, dated 17.10.2001. 2. The second respondent/workman was appointed as a driver by the petitioner on 15.09.1986 with effect from 01.09.1986. In the year 1994, the workman was deputed to Pudukkottai Branch, where, he was alleged to have gone on unauthorized leave without any reason. The workman was reported to be suffering from medical disability and was referred to Medical Board, for thorough medical check up, to find out his fitness to work as a driver. 3. The workman was thereafter given alternative duty. The workman was again subjected to medical check, up on 25.10.1991, wherein, it was advised, that the workman may be allowed to do some https://hcservices.ecourts.gov.in/hcservices/ other duty except driving, as he was suffering from epilepsy. The workman had suffered epilepsy attack four to five times within 1 ½ years. The workman was referred to Neuro surgeon, who also found that the workman was not fit for driving. In the medical examination conducted on 23.05.1994, it was reported as under:- "Based on the Neuro Physician and in the interest of the passengers, Thiru Mohammed Gani, driver is considered not fit to drive the heavy passengers vehicles". 4. On the basis of the medical report, by treating him as medically unfit, the workman was discharged from service. 5. The workman raised an industrial dispute, against his discharge. The reference was contested by the petitioner management, on the ground, that the discharge of the workman was on medical ground, therefore it would not fall within the meaning of retrenchment and that the workman was not entitled to reinstatement in service. 6. The motive attributed to the management by the workman was denied. 7. On appreciation of the facts and evidence, the learned Labour Court, in view of settlement dated 23.09.1995, under which, it was agreed, that in the event of workman being declared medically unfit, he should be given an alternative employment, held that the discharge was in violation of statutory settlement, arrived at between the management and the workers union. The discharge was held to be bad and workman was ordered to be reinstated in service with 50% back wages. 8. The learned counsel for the petitioner challenged the impugned award, mainly on the ground that the settlement dated 23.09.1995, was not applicable in the case of workman, as he was discharged prior to the enforcement of the settlement. The settlement being prospective could not be applied retrospectively. 9. This contention of the learned counsel for the petitioner, cannot be accepted, for the reason that the settlement, was for the benefit of the workman, who were unable to perform their duty, due to medical disability. This being a beneficial settlement, had to be interpreted in favour of workman. 10. The workman is otherwise entitled to alternative employment, under Section 47 of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995," (hereinafter referred to as the Act), which reads as under:- 47. Non-discrimination in Government employment.- (1) No establishment shall dispense with, or reduce in rank, https://hcservices.ecourts.gov.in/hcservices/ 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 disbility: 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". Keeping in view the fact that this is a beneficial legislation, it will have retrospective effect. 11. Consequently, the award, being in consonance with Section 47 of the Act, does not call for any interference. 12. This view also finds support from the Judgment of the Hon'ble Supreme Court in Kunal Singh Vs. Union of India reported in (2003(4) SCC 524). 13. However, the impugned part of the award, directing that the appointment of the workman, on a specific post, cannot be upheld, as it is for the management to give him an alternative equivalent post by protecting his emolument. 14. Subject to the modification, the award passed by the learned Labour Court is upheld. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ jrl To The Presiding Officer, Labour Court, Tiruchirappalli. + 1 CC to Mr.S.Jayaraman Advocate (SR.No.10923) RSM(CO) VC(4.3.2011) W.P.No.8607 of 2002 https://hcservices.ecourts.gov.in/hcservices/