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Judgment
Honourable Mr. Justice R. Sudhakar
This writ petition is filed to call for the records relating to impugned termination order Memo No. 8325/PP(NI)2/Ma.Po.Ka1/98, dated
4.8.2000 from the respondent and quash the same and further direct the respondent to provide alternative employment to the petitioner as per
G.O. Ms. No. 86 Personnel and Administrative Reforms Department dated 8.2.1996. The case of the petitioner falls u/s 47 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act 1995) Act 1 of 1996 (herein after referred to as ''The Act'').
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:
Narendra Kumar Chandla Vs. State of Haryana and others, .
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 petitioner seeks benefit of Section 47 of the Act by challenging the order of discharge from service on medical grounds.
The brief facts of the case are as follows:-
The petitioner - Murugan was working as a driver at the Adyar Depot of respondent- Transport Corporation. He was assigned with employee
No. 50631. On 15.5.1998, while he was on duty in bus route No. 47G, there was an accident and in that accident, he was severely injured. He
sustained multiple injuries in his arms and neck. He was on medical leave for more than five months. On recovery, the Orthopaedics Specialist
gave a certificate dated 14.10.1998, which reads as follows:-
TO WHOM IT CONCERNS
This is to certify that Mr. P. Murugan, aged 25 years, was involved in a Road Traffic accident on 15.5.98. He sustained multiple injuries to both his
arms and legs. He dislocated both his wrists, fractured his tibial plateau of his knee and fractured the metatarsal bones of right foot.
The wrist dislocations were reduced under general anesthesia and the tibial fracture was fixed by open reduction and internal fixation. He has made
a satisfactory recovery but is still unable to do strenuous work with left hand. I have advised him not to undertake driving of any bus, but instead
take up a conductors job or otherless demanding job.
Dr. AB Govindaraj, FRCS.
Dr. Rangarajan Memorial Hospital, SMF.
After medical treatment and based on the medical certificate as above, the petitioner made an application on 5.12.1998 to the respondent-
Transport corporation stating that he is medically unfit to drive heavy vehicles and sought for alternative employment. This application was received
and thereafter he was referred to the Regional Medical Board, Government Stanly Hospital by letter dated 10.3.1999 and the Medical Board
opined that the petitioner is not fit to drive heavy vehicles and hence, he is advised to be given sedentary light desk work. As stated in the counter,
the respondent felt that the report of the Medical Board dated 3.5.1999 is ambiguous and therefore, the petitioner was once again referred to the
Regional Medical Board wide letter dated 17.9.99 and the Regional Medical Board gave another opinion on 18.4.2000 stating as follows:-
Tenderness of the Tip of the Screws present move 0-160. Anterior drawer sign positive"" ENT Log 10. There is weakness of Quadricaps"". He is
unfit to drive Heavy Vehicles.
Based on the medical report, a show cause notice was issued on 12.6.2000 in memorandum No. 8325/P.PP/2/.MPK1/98 calling upon the
petitioner to explain in writing as to why he should not be discharged from service on medical grounds. This was based on the second Regional
Medical Board''s opinion dated 18.4.2000. The show cause notice also refers to the petitioner''s application dated 5.12.1998 seeking alternate
employment. A reply was given by the petitioner on 27.6.2000 stating that though he has been found not fit to drive heavy vehicles, he however
can be accommodated in any other employment in the respondent - Transport Corporation based on his disability. Not satisfied with the reply, the
General Manager of the respondent - Transport Corporation passed an order holding that the petitioner is invalidated on medical grounds and
consequently discharged him from service with immediate effect. The order of discharge is based on the second report of the Regional Medical
Board dated 18.4.2000. Challenging the said order, the present writ petition has been filed.
In the counter affidavit, the Assistant Manager (legal) referring to G.O. Ms. No. 316, Transport Department dated 9.11.1994, stated that the
employees, who are medically unfit and discharged from service and have not put in minimum service of 240 days in the Corporation are not
entitled for alternative employment after invalidation and discharged from service on medical grounds. Since the petitioner has not put in 240 days
of employment, he is not entitled to the benefit. Therefore, the writ petition has to be dismissed.
The main plea of the respondent in the counter affidavit is that the petitioner did not work for more than 240 days and therefore, he is not
entitled to the benefit. The other plea taken is that the Medical Board has opined that he is unfit to drive heavy vehicles and therefore, the order of
discharge is correct.
The order of discharge is illegal and contrary to law. The impugned proceedings of the respondent deserves to be interfered with as it failed to
take into consideration the provisions of the Act 1 of 1996, which had already come into force on the date when the accident happened and on the
date when the impugned order came to be passed and the reasons are as hereunder:-
(i) It is admitted that the petitioner''s employment Number is 50631 at Adyar Depot of the respondent - Transport Corporation. After the
accident, he made an application on 5.12.1998 based on his employment number. He gave the medical certificate for reemployment under
differently abled person category and the respondent referred the petitioner to the medical Board and the first opinion dated 3.5.1999 given by the
medical Board recommends that the petitioner should be given desk job and he is not fit to drive heavy vehicles. Not satisfied with the
recommendations of the Medical Board, the second opinion is sought, in which, it is stated that the petitioner is unfit to drive heavy vehicles.
Therefore, the respondent endeavour to get the second report is only with an intention to discharge the petitioner from service on medical grounds
and not to consider the petitioner''s claim for alternate employment. This will be contrary to Section 47 of the Act 1 of 1996.
(ii) Neither in the show cause notice nor in the impugned order, it has been stated that the petitioner is only a casual labour or daily rated employee
and therefore, he is not entitled to seek the benefit of the re-employment under any category. This is a new stand taken in the counter affidavit,
which cannot be accepted.
It is only in the counter affidavit that the respondent has referred to the G.O.Ms.No. 316/Tpt(C1)/Department, Transport Department dated
9.11.1994 and alleged that the petitioner has not put in minimum period of service. This plea has not been taken in the show cause notice or in the
order under challenge. The respondent is trying to improve the case on the basis of the counter affidavit, which has been deprecated by the
Hon''ble Apex Court in the decision reported in Mohinder Singh Gill and another - v. - The Chief Election Commissioner, New Delhi and others
AIR 1978 Supreme Court 851. Para 8 of the decision in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and
Others, reads as follows:-
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by
the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw
attention to the observations of Bose, J., in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, :
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer
making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to
have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
There is no dispute raised in the show cause notice or in the order with regard to the nature of employment of the petitioner. Therefore, Section
47 of the Act 1 of 1996 will come into play in a case of this nature and it provides that no employee shall be dispensed with or reduced in rank
when he acquires a disability while in service. It also provides for adjustment of the employee against any post suitable to his disability. The
impugned order passed by the respondent - Transport Corporation discharging the petitioner from service on medical grounds is contrary to law
as it passed after Act 1 of 1996 came into force.
The Division Bench of this Court in the decision Muthu - V. - Management of Tamil Nadu State Transport Corporation (Madurai) Ltd.,
reported in (2007, 1, LLJ 9)has clearly held that in similar circumstances, the Transport Corporation should not deny employment on mere Ipse
dixit.
(31) After analysing the entire provisions of the Act and also various decisions cited above, we feel that the Courts cannot shut its eyes if a person
knocks at its door claiming relief under the Act. In a welfare State like India, benefits of benevolent legislation cannot be denied on the ground of
mere hyper-technicalities. When the law makers have conferred certain privileges on a class of persons, like in this case to a disabled person, the
duty is cast upon the judiciary to oversee that the authorities or the persons to whom such a power is conferred, enforce the same in letter and
spirit for which such enactment has been made. In the present case on hand, the appellant has been discharged on the ground of ''colour blindness''
without providing alternative job as per Section 47 of the Act, which is unjustified and unreasonable. Hence, the order of the respondent dated
March 26, 2002 discharging the appellant on medical grounds has no leg to stand. The appellant is entitled to the protection u/s 47 of the Act. He
should have been given a suitable alternative employment with pay protection, instead of discharging him from service on the ground of '' colour
blindness''.
In view of the above, the Court has no hesitation to hold that the order under challenge has no legal basis and it is contrary to the benevolent
provisions of Act 1 of 1996 and accordingly, the same is set aside. In the writ petition, the petitioner sought for a relief under another provisions
viz., G.O. Ms. No. 86 Personnel and Administrative Reforms Department, dated 8.2.1996. It is not necessary to look into it as the provisions of
Act 1 of 1996 is squarely applicable to petitioner claim. The respondent is therefore directed to provide employment in terms of Act 1 of 1996
more particularly in terms of and Section 47 of the Act 1 of 1996. The petitioner is entitled to alternate employment in terms of Section 47 of the
Act from the date of discharge with pay protection, continuity of service, backwages and all other attendant benefits. This writ petition is allowed
as above. No costs.