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Judgment
D. Hari Paranthaman, J.—The petitioner was employed as Driver in the respondent Corporation. The employees of the respondent Corporation are sent periodically for eye checkup. Accordingly, the petitioner was sent for eye checkup to the Joseph Eye Hospital, Melapudur, Trichy for examination of his eyes on 20.04.2015. After examination, the Hospital found that he is not fit for driving as he suffered from "Reg Green Defect in colour vision testing". Thereafter, he was sent to the Medical Board at Government Ophthalmic Hospital, Egmore, Chennai. The Special Medical Board of the said Hospital examined the petitioner on 11.06.2015 and certified that the petitioner is not fit for driving. The certificate reads as under:
"Both eyes colour vision defective - Unfit for driving. Alternative job may be given if found eligible."
While so, the second respondent passed the impugned order dated 03.10.2015 providing him alternative employment as Conductor. But, he was asked to take Conductor licence for the same. The petitioner filed this writ petition seeking to quash the aforesaid order and for direction to provide him alternative employment with pay protection as per Section 47(1) of Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
When the matter came on 24.11.2015, this Court passed the following order:
"Mr. D. Sivaraman, learned counsel takes notice for the respondents. The petitioner was a driver. He was found not fit due to lack of eye vision. While so, the General Manager of the Corporation issued the impugned order, providing him as Conductor and he was directed to get Conductor licence. When this Court has pointed out that the impugned order is ex-facie violative of Section 47(1) of Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the learned counsel for the Corporation has submitted that the matter may be posted after two weeks and that he would get the matter settled in the manner known to law."
In these circumstances, the respondent Corporation has issued an Office Order dated 05.12.2015, providing alternative employment to the petitioner as Helper in Re-condition section at Thuvakudi in Trichy.
The learned counsel for the petitioner has submitted that the said order does not state about pay protection.
The learned counsel for the respondent Corporation has submitted that his pay as Driver would be protected. The said submission is recorded.
It is useful to extract Section 47 of the Act, as 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."
As per Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, an employee shall not be discharged from service on a finding that he is unfit to hold the post due to medical reasons. On the other hand, he shall be provided any alternative employment, i.e., he cannot suffer due to non-employment, due to his unfitness on medical reasons. Hence, in all cases where the employees are discharged on the ground of unfitness and provided alternative employment subsequently, they are entitled to wages for the period of non-employment. It is a well settled principle.
In this context, it is useful to extract Paragraphs 17, 19 and 20 of the judgment of the Apex Court in Bhagwan Dass and Another Vs. Punjab State Electricity Board, :
"17. From the materials brought before the Court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board''s rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act...
18....
We understand that the officers concerned were acting in what they believed to be the best interests of the Board. Still under the old mindset it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty-bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity of largesse but their right as equal citizens of the country.
In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant 1) with effect from 21 March 1997 must be held to be bad and illegal. In view of the provisions of S.47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions, etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from 22 March 1997 till date. If any balance remains, that should be adjusted in easy monthly instalments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board."
In view of the discussions of the Apex Court, the respondent-Corporation is directed not to discharge any workman, who is found not suitable for the post due to the acquiring of disability, but to provide alternative employment with pay protection, as per Section 47 of the Act. Particularly in cases where workmen acquired disability during and out of employment and the same is very well known to the Corporation, the respondent Corporation has also moral responsibility besides the legal duty under Section 47 of the Act to provide alternative employment and the workmen shall be paid wages during the interregnum, if any.
As far as the backwages for the interregnum period, the learned counsel for the petitioner submitted that the petitioner would be satisfied if the interregnum period is treated as duty for all purposes except for paying monetary benefit. According to him, if the interregnum period is counted for the purpose of fixing of pay, promotion, review, increment, pension etc., the petitioner would be satisfied. Therefore, according to him, the petitioner is not claiming any actual monetary benefit for the said period.
Since the respondent Corporation has resolved the issue in the satisfactory manner, the learned counsel for the petitioner has submitted that he would be satisfied, if the period of absence is treated as continuity of service for all purposes, except for making actual monetary benefits.
In these circumstances, the writ petition is disposed of directing the respondent Corporation to protect the pay of Driver and also provide continuity of service for all purposes, except for making actual monetary benefits.
The writ petition is disposed of in the above terms. No costs. Consequently, the connected miscellaneous petition is closed.