IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No. 20811 of 2008(C) -------------------------------------- PETITIONER: ------------------- H.NISSAM, LINEMAN GRADE-I, UNDER ORDER OF TRANSFER FROM ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, KILIMANOOR, THIRUVANANTHAPURAM DISTRICT TO GENERATION CIRCLE, THRISSUR. BY ADV. SRI.M.ZIYAD. RESPONDENTS: ----------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, PATTOM P.O, THIRUVANANTHAPURAM-4, REPRESENTED BY ITS SECRETARY. 2. CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, PATTOM P.O, THIRUVANANTHAPURAM-4. 3. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, , PATTOM P.O, THIRUVANANTHAPURAM-4. 4. THE EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, NEDUMANGADU, TRIVANDRUM DISTRICT. R1 TO R4 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.20811/2008-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of January, 2009 J U D G M E N T The petitioner claims that he is a physically and mentally disabled person. He is working at the transmission circle of the K.S.E.B, Kottarakkara, as Lineman Grade-I. According to him, his physical disability was caused due to an accident that occurred during the course of his employment, in the year 1998. He claims benefit under Section 47 of the Persons with disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. According to him, the said provision enables him to get protection in the matter of transfer and posting. It is stated that he has got 15% physical disability and 40% permanent mental disability. Exts.P1 and P2 are the certificates relied upon by him. Earlier, the petitioner was transferred from Thiruvananthapuram to Thrissur and then to Kottarakkara. It is submitted the disciplinary action initiated against the petitioner which was pending, has now ended in his favour. The petitioner had approached this Court challenging the transfer order by filing W.P.(C). No.17681/2007 and, this Court by Ext.P4 judgment disposed of the writ petition directing the Electricity Board to consider the claim of the petitioner in accordance with law. The petitioner has filed Ext.P6 W.P.(C) No.20811/2008 -:2:- representation seeking for a suitable posting in the Thiruvananthapuram District. The petitioner has produced Ext.P8 by which the respondents have directed him to rejoin duty which was passed in culmination of the disciplinary proceedings against him. It appears that the wife of the petitioner submitted Ext.P9, in reply to Ext.P8. 2. The respondents have filed a detailed counter affidavit. It is pointed out that the respondents have no information regarding the alleged incident that occurred on 14/09/1998 whereby the petitioner had fallen down from the electric post. The petitioner was present in the office, on that day and on succeeding days and regarding his hospitalisation and other details no materials are placed before the respondents. In paragraphs 8 and 9 of the counter affidavit, the details regarding the action taken against him for dereliction of duty have been elaborated. It is pointed out that pursuant to the judgment in W.P.(C).No.17681/2007, he was transferred to Transmission Circle, Kottarakkara without prejudice to the disciplinary action pending against him. According to the counter affidavit, he joined duty before the Deputy Chief Engineer, Transmission Circle, Kottarakkara on 30/08/2007 and was reposted to Moozhiyar Transmission Construction Circle, Kottarakkara as per order dated 31/08/2007 of the Deputy Chief Engineer, Transmission Circle, Kottarakkara. However, the petitioner did W.P.(C) No.20811/2008 -:3:- not report for duty and hence, the Deputy Chief Engineer initiated disciplinary action against him for unauthorised absence. It is also pointed out that the first respondent rejected the application of the petitioner as per order dated 03/04/2008 finding that the delinquent deserves no sympathetic consideration as the grounds stated in the representation for transfer and the contentions raised in the representation were not true to the facts. Ext.R3(a) is the proceedings dated 22/01/2008, of the State Commissioner for the Handicapped. It is stated therein that the State Commissioner had forwarded the representation of the petitioner to the Appellate Medical Board, Medical College, Thiruvananthapuram and, after examination they reported that the petitioner has no permanent physical disability and, hence, based on the report of the Appellate Medical Board, the disability certificate dated 09/02/2007, issued from the General Hospital, Thiruvananthapuram has been ordered to be cancelled. As regards Ext.P2 certificate dated 30/05/2008, in paragraph (16) of the counter affidavit, it is stated that since the earlier disability certificate under Orthopedics was cancelled by the State Medical Board, Ext.P2 has been referred to the State Medical Board for assessing the genuineness of the Certificate. The respondents are disputing the claim raised based on the relevant provisions of the Central Act. W.P.(C) No.20811/2008 -:4:- 3. The learned counsel for the petitioner submitted that since the matter has been referred to the State Medical Board by the respondents, he will abide by the decision of the State Medical Board after examination conducted by them, and his claim may be considered in accordance with the decision of the State Medical Board regarding the present mental state. 4. Hence, in that view of the matter, this Court is not entering any finding on the merits of the contentions and they are left open. There will be a direction to the respondents to take follow-up action for expeditious decision by the State Medical Board, Thiruvananthapuram. The petitioner will co-operate with the same and he will appear before the State Medical Board for examination as and when informed. Depending upon the result of the said examination and findings by the State Medical Board, further action if any to consider the claims of the petitioner will be taken by the respondents. The action as directed above will be completed within a period of five months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms