IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.12.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.30478 of 2008 V.Ganesan ... Petitioner vs. 1.Managing Director, Tamilnadu State Transport Corporation, (Villupuram Division-1) Ltd., Villupuram. 2.The Presiding Officer, Labour Court, Cuddalore. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records of the impugned order in I.D.No.87/2002 dated 1.5.2008 passed by the second respondent and quash the same, consequently direct the first respondent to provide alternate employment with pay protection in the light of order in G.O.Ms.No.746 Transport, dated 2.7.1981 with all monetary as well as service benefits. For Petitioner : Mr.T.Arunkumar For 1st Respondent : Mrs.Rita Chandrasekaran for M/s.Jayesh B.Dolia for R1 R2 : Court ----- O R D E R This Writ Petition is filed to issue a Writ of Certiorarified Mandamus, calling for the records of the impugned order in I.D.No.87/2002 dated 1.5.2008 passed by the second respondent and quash the same, consequently direct the first respondent to provide alternate employment with pay protection in the light of order in G.O.Ms.No.746 Transport, dated 2.7.1981 with all monetary as well as service benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was working as driver in the respondent corporation. He was on medical leave from 10.1.1998 to 10.6.1998 stating that he was suffering from neck pain. Petitioner was directed to appear before the Medical Board, Cuddalore and the Medical Board opined that the petitioner cannot drive vehicle, but can perform other duties. Since the petitioner was found unfit to perform the duties of the driver, a show-cause notice dated 11.11.1998 was issued calling upon the petitioner to state as to why he should not be discharged from duty on medical grounds. Explanation was submitted by the petitioner on 27.11.1998 stating that in the event of accepting the Medical Boards opinion that he is unfit to drive the vehicle, he should be given alternate employment. Respondent, however, rejected petitioner's plea and discharged him from service by order dated 27.12.1998. Petitioner challenged the same before the Labour Court, Cuddalore in I.D.No.87 of 2002 and the Labour Court upheld the order of the discharge. On the plea with regard to alternate employment, the Labour Court held that there was no request from the petitioner for alternate employment and also accepted the respondent's plea with regard to ban on employment. The claim was, therefore, dismissed. Aggrieved thereby, the present writ petition is filed. 3. First respondent was noticed and the counter-affidavit has been filed reiterating the findings of the Labour Court. 4. The petitioner in this case is entitled to succeed in view of the specific provisions in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 of the Act reads as follows:- "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: Narendra Kumar Chandla vs. State of Haryana, (1994) 4 SCC 460. 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. https://hcservices.ecourts.gov.in/hcservices/ (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, exempt any establishment from the provisions of this section." 5. The Apex Court in Kunal Singh – vs. - Union of India and another – vs. - Union of India and another reported in (2003)4 Supreme Court Cases 524 has emphasized the need to provide alternate employment in case of such a claim. The Act mandates the respondent employer to provide alternate employment. Para 12 of the Apex Court's decision which is relevant is as follows:- "12. Merely because under Rule 38 of the CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act." The provisions of the Act and the Apex Court decision will enure to the benefit of the petitioner. The so-called ban order will not be applicable to the petitioner's claim under the Act and further in the reply to the show-cause notice there was a plea for alternate employment and that has been overlooked by the Labour Court and hence, the award of the Labour Court dismissing petitioner's claim is erroneous and contrary to law. 6. In such view of the matter, the award of the Labour Court is set aside. The first respondent employer is directed to provide suitable employment in terms of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) with all consequential benefits. Considering https://hcservices.ecourts.gov.in/hcservices/ the long pending grievance of the petitioner, the disability suffered affecting his life and livelihood, the first respondent is directed to provide alternate employment in terms of the aforesaid Act within a reasonable period of time, in any event on or before 12.2.2010. The Writ Petition is allowed. However, considering the plea made by the counsel for the respondent that they will extend the benefit of the Special Act 1 of 1996, there will be no order as to costs. ts Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Managing Director, Tamilnadu State Transport Corporation, (Villupuram Division-1) Ltd., Villupuram. 2.The Presiding Officer, Labour Court, Cuddalore. + 1 cc to Mr.T.Arunkumar, Advocate SR No.68092 DM(CO) SR/30.12.2009 Order in W.P.No.30478 of 2008 https://hcservices.ecourts.gov.in/hcservices/