G. Selvarajan vs The Presiding Officer, Labour Court and The General Manager, Tamil Nadu State Transport Corporation, Division-I

N. Paul Vasanthakumar, J.—By consent of both parties, the writ petition itself is taken up for final disposal.

Petitioner seeks to quash the award of the Labour Court, Salem, dated 22.4.2004 made in I.D. No. 654 of 2001 and reinstate the petitioner in

service by providing him a suitable job with all backwages and attendant benefits.

Petitioner joined the second respondent Corporation as driver in the year 1984. In the year 1997, petitioner was asked to appear before the

Dean of Mohan Kumaramangalam Medical College Hospital, Salem, for periodical medical check up and accordingly petitioner appeared before

the Dean and eye vision check up was done to the petitioner. The Dean issued a certificate on 18.12.1997 certifying that owing to defective eye

vision of left eye of the petitioner, he is unfit to work as a Driver. Based on the said certificate, the second respondent discharged the petitioner

from service by order dated 6.2.1998, which order was challenged before the first respondent herein in I.D. No. 65 4 of 2001. The Labour

Court, by award dated 22.4.2004, justified the discharge order and directed the second respondent to provide alternate appointment to the

petitioner after settling terminal benefits within a period of three months. The said award was passed based on G.O.Ms. No. 746 dated 2.7.1981

as well as 12(3) settlement, which is under challenge in this writ petition.

The learned Counsel for the petitioner submitted that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1996, mandates the second respondent to give alternate appointment in the case of physical disability. Section 47 of the said

Act states that the disabled employee shall be retained in service either in the same post or shifted to some other post with same scale of pay and

service benefits and if alternate suitable post is not available, the concerned employee shall be kept on a supernumerary post until a suitable post is

available or until he attains the age of superannuation, whichever is earlier, and he shall not be denied promotion merely on the ground of his

disability. Learned counsel for the petitioner further submits that the second respondent is bound by Section 47 of the Act as no exemption order is

issued by the Government for not complying with the said section in respect of the second respondent Corporation.

Similar issue arose before the Honourable Supreme Court in the decision reported in (2003) 2 Sup 102 (Kunal Singh v. Union of India and

Anr.), wherein at para 9, it is held as follows,

Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in

Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2

of the Act has given distinct and different definitions of ""disability"" and ""person with disability"". It is well settled that in the same enactment if two

distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that

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 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. Section 47 contains a clear directive that the employer shall not dispense with or reduce

in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with

disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act

and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is

plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.

A Division Bench of this Court in the decision reported in 2003 WLR 398 (Metropolitan Transport Corporation v. Presiding Officer, Principal

Labour Court and Anr.) upheld the order of the learned single Judge cancelling the order of medical invalidation. Similar view was taken by

another Division Bench of this Court in the decision reported in (2005) 2 LW 565 (Metropolitan Transport Corporation Limited, Chennai v. K.

Ravichandran), and also in P. Thangamarimuthu Vs. Tamil Nadu State Transport Corporation, Madurai (Division-I) Ltd., . In an earlier decision I

have also taken similar view, which is reported in S. Rajendran Vs. The Deputy Commissioner of Police, Crime and Traffic and The Commissioner

of Police, .

In the light of the above settled legal position, the impugned award of the Labour Court is unsustainable and the same is hereby set aside. The

writ petition is allowed. The second respondent is directed to reinstate the petitioner in service with effect from 6.2.1998 with all service benefits

and backwages, within a period of two weeks from the date of receipt of copy of this order. In case the petitioner is unable to perform the duties

of a Driver, he may be provided alternate employment, but without any monetary loss.

The writ petition is allowed with the above directions. No costs. Connected WPMP is closed.