Devandrakumar vs The General Manager, Metropolitan Transport Corporation Ltd.

M. Jaichandren, J.—The Writ Petition has been filed praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order in Ref. Ku. No. 00212/Papi-Nir. 6/MTC/2001, dated 24.10.2001, passed by the respondent, quash the same and consequently direct the respondent to reinstate the petitioner in a suitable light duty with continuity of service, pay protection and back wages and other attendant benefits.

Heard the learned Counsel for the petitioner as well as for the respondent.

The brief facts of the case, as stated by the petitioner, are as follows:

The petitioner had joined the service of the respondent corporation as a loading man on 02.03.1984. He was appointed as a conductor, on 03.05.1988. Through out his career, he had rendered service without any blemish and he was working in the Ambattur Depot of the respondent corporation. On 19.03.2001, when he was proceeding to the depot from his residence, he had sustained some injuries in his spinal cord. Thereafter, he was admitted in various hospitals including the Kilpauk Government Hospital, Chennai. Since the petitioner was not in a position to continue to work in the post of conductor, he had requested the respondent by a letter, dated 04.07.2001, to provide him with a suitable alternate employment.

The respondent corporation had directed the petitioner to appear before the Medical Board. The Medical Board by its report, dated 16.08.2001, had given an opinion stating that the petitioner was not fit for the post of conductor. Thereafter, the respondent had issued a show cause notice, dated 05.09.2001, proposing to discharge the petitioner from service on the ground that he was unfit for the post of conductor. The petitioner had submitted his explanations, dated 19.09.2001 and 08.10.2001, requesting the respondent not to discharge him from service without considering the explanations submitted by the petitioner. However, the respondent had discharged the petitioner from service by an order, dated 24.10.2001. Thereafter, the petitioner had written a letter, dated 25.07.2001, requesting the respondent to provide him with an alternate employment. Later, a reply was sent by the respondent, dated 01.08.2002, stating that the petitioner''s request for alternate employment was being considered and his name was included in the seniority list for taking appropriate action. However, the petitioner had not received any orders from the respondent till the date of the filing of the writ petition. Therefore, the petitioner has come before this Court by way of a writ petition, under Article 226 of the Constitution of India.

In the counter affidavit filed on behalf of the respondent, it has been stated that the petitioner was appointed as a conductor and he had joined duty, on 23.05.1988, in the respondent corporation, with staff No. 13526. During the month of April, 2001, he had represented that he may be provided with alternate employment, since he was unable to continue as a conductor due to severe back ache. The petitioner was sent before the Medical Board for examination. The Government Medical Board in its report dated 16.08.2001, had stated that the petitioner was not fit for the post of conductor. Based on the report submitted by the Medical Board, an explanation was called for from the petitioner, vide letter, dated 05.09.2001, as to why he should not be discharged from service. The petitioner had submitted his explanation to the show cause notice. After examining the explanation submitted by the petitioner, the respondent had issued an order, dated 24.10.2001, discharging the petitioner from service, with one month notice pay. However, the petitioner''s name had been registered in the waiting list for alternate employment and as such he was placed in the 17th position in the waiting list.

It has been further stated on behalf of the respondent corporation that the petitioner''s claim could be examined only in accordance with G.O. Ms. No. 746, Transport Department, dated 02.07.1981, which reads as follows:

The Government accordingly direct that the workers in State Transport Undertakings who are declared unfit for continuance in the same posts, by Doctors, while in service, because of eye defect or any other ailment, be discharged on Medical Grounds and their service benefits, settled. They should be subsequently provided with alternative employment in posts like ''Helpers'', depending upon their qualification and experience and suitability of the new posts, without consulting the Employment Exchange. They should be appointed as fresh entrants only in the scale of pay or consolidated pay, admissible to the new posts and their service terminated, on the date on which they attain the age of superannuation.

In the other hand, the learned Counsel for the petitioner had submitted that the petitioner should be provided with alternate employment by the respondent corporation, in accordance with the provisions of The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 of the Act reads as follows:

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.

The learned Counsel appearing for the petitioner had relied on the decision of the Supreme Court in Kunal Singh Vs. Union of India (UOI) and Another, .

The Supreme Court, while dealing with Section 47 of The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, had held that "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 u/s 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."

8.1. In a recent decision of this Court in P. Thangamarimuthu v. Tamil Nadu State Transport Corporation, Madurai (Division - I) Ltd. reported in 2006 (1) CTC 124, it has been held that the benefits conferred u/s 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 cannot be deprived or taken away as the Government Order, in G.O. Ms. No. 746, Transport Department, dated 02.07.1981, cannot be override the provision of the Act.

From the facts of the case it is clear that the petitioner had suffered serious injuries due to which he was unable to continue in service as a conductor. The Medical Board, after assessing the petitioner, had submitted a report on 16.08.2001, stating that the petitioner was unfit for the post of conductor. Even though, the respondent corporation is relying on G.O. Ms. No. 746, Transport Department, dated 02.07.1981, in which it has been stated that an employee discharged on medical grounds should be appointed as a fresh entrant in an alternative employment depending upon their qualification, experience and suitability to the post, according to the provisions of Section 47 of Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, it is clear that such persons with disabilities should be provided with alternate employment in a suitable post as stated by the Supreme Court in its decision in Kunal Singh v. Union of India cited supra. Without doubt, the provisions of The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, will prevail over an executive order issued in G.O. Ms. No. 746, Transport Department, dated 02.07.1981, when there is a conflict between the two.

At this stage of the hearing of the case, the learned Counsel appearing for the petitioner had submitted that the petitioner is willing to give up his claim for back wages. However, the petitioner would be entitled for continuity of service and the consequential benefits of employment. In such circumstances, the order passed by the respondent in Ref. Ku. No. 00212/Papi-Nir.6/MTC/2001, dated 24.10.2001, is set aside and the respondent is directed to reinstate the petitioner in a suitable post, in accordance with the provisions of The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, with continuity of service and consequential benefits (without back wages), within a period of eight weeks from the date of receipt of a copy of this order.

With the above directions, the writ petition is disposed of No costs.