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Judgment
T. Raja, J.—The present writ petition is directed against the impugned order dated 15.5.2002 passed by the respondent-Tamilnadu State
Transport Corporation (Villiupuram Division-1) Ltd., rep. by its General Manager (Traffic), Villupuram in Ka. Ku. No. 12886/Ni. 7/TNSTC (V.
Ko. 1) Lt d/97, dated 15.5.2002, to quash the same and consequently direct the respondent to provide the petitioner alternative employment with
continuity of service, pay protection and arrears of employment and other attendant benefits from the date of discharge to the date of attaining the
age of superannuation and also to pay him all the terminal benefits including pension. The writ petitioner joined the services of the respondent as
Driver on 07.6.1981. He has undergone the first review on completion of six years and subsequently, he was found fit to continue as a Driver.
Therefore, he was promoted as a Senior Driver in 1987. Again, he was subjected to second review on completion of 14 years. Even on the
second review he came up successfully by completing the test. As a result, he was upgraded to Selection Grade Driver by giving higher scale of
pay. When the Neyveli Depot was newly opened in the year 1998 he was transferred to Neyveli Depot. After joining Neyveli Depot; he suffered
with acute increased back pain and the same was also complained. He requested the Branch Manager to provide him light duty. Accepting the
request of the petitioner, the Branch Manager has also provided light duty and the petitioner was also involved in parking the vehicles inside the
depot in addition to the work of Duty Controller. While he was doing both parking of vehicles and Duty Controller work, he was paid with the
salary for the post of Selection Grade Driver. Later on, when he has crossed the age of 40 years, he was issued with the memo dated 06.5.2000
in which he was asked to appear before the Medical Board for medical check up. In response to the said memo dated 6.5.2000 when the
petitioner appeared before the Medical Board, after completion of the medical check up, the Medical Board sent a report to the respondent
management certifying that the petitioner was unfit for the post of Driver. On receipt of the said certificate issued by the Medical Board, the
respondent issued a show cause notice dated 16.8.2000 and informed the petitioner that the Medical Board has given a report on 12.7.2000
informing the respondent that the petitioner was suffering from colour blindness and therefore, he was not fit for the post of Driver. As a result, the
respondent indicated that they had proposed to discharge him from service on medical grounds. On receipt of the said notice dated 16.8.2000 the
petitioner submitted a detailed reply pointing out that he has rendered faithful service without any accident in his entire service career. Therefore, his
request for continuing in the service of the respondent management should be considered by providing-any alternative duty so as to sustain himself
along with his family. On receipt of the said reply he was asked to continue the same light work, namely, parking of the vehicles inside the depot
and also discharging Duty Controller work. All of a sudden, he was issued with the impugned order dated 15.5.2002. This is after two years from
the date of issuing show cause notice and informed him that he was medically discharged from service with effect from 14.6.2002, On receipt of
the said order dated 15.5.2002, the petitioner wrote a letter dated 20.5.2002 with a request to provide any light duty or alternative employment.
But there was no response or reply from the respondent. As a result, the petitioner has come to this Court challenging the impugned order.
(i) The learned counsel appearing for the petitioner submitted that though the petitioner was found unfit for the post of Driver by the Medical
Board, the medical certificate issued by the Medical Board would apply only for driving vehicles on public road and place and it is not a bar or
disqualification for continuing him in the light duty of parking the vehicles inside the despot, therefore, the learned counsel submitted that not
continuing the service of the petitioner in the light duty and discharging him from service is bad and illegal.
(ii) By relying upon sections 47 and 72 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995,
the learned counsel for the petitioner further argued that in view of G.O. Ms. No. 746, Transport, dated 2.7.1981, if the petitioner is discharged
from service oh medical grounds and thereafter, he should be kept in the seniority list of similarly ""placed discharged employees and thereafter, as
and when vacancy arises, the request for light duty or alternative employment would be considered, cannot be accepted as it is totally contrary to
section 47 read with section 72 of the Act. According to the learned counsel, section 47 mandates the respondent Corporation not to discharge
any employee who suffers disability during his service, for, even if an employee after acquiring disability is not suitable for the post he was holding
earlier, he can be shifted to some other post with the same pay scale and service benefits. Even, if it is also not possible for the employer to adjust
the employee against any such post, he will be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation
whichever is earlier. On this basis, the learned counsel further contended that eventhough the Medical Board has issued a medical certificate that
the petitioner has become unfit to drive the vehicle, when section 47 of the Act clearly shows that the petitioner should be accommodated in any
other department by giving any light duty and even if there is no provision for continuing the petitioner''s service with any light duty, he should be
accommodated by creating any supernumerary post. In G.M., T.N. State Transport Corporation Ltd. Vs. Udayasuriyan, ) this Court while
considering Section 47 of the Act held that the employee after acquiring disability could be shifted to some other post with the same scale and
service benefits. Therefore, the only test to be considered by the respondent Corporation is whether after acquiring the disability, the person
concerned, has become unsuitable for the post he was holding earlier. In the present case, when the petitioner was issued with a certificate by the
Medical Board holding that he was unfit for the post of Driver and the Branch Manager on his own accepting the contentions of the petitioner has
provided the light duty of parking the vehicles in the depot, the same light duty work should have been given to the petitioner as alternative job. As
the respondent has failed to consider the same, he pleaded, the impugned order has to be set aside.
(iii) He further pleaded that during the pendency of this matter the petitioner having reached the age of superannuation on 31.03.2009, the question
of providing alternative employment or light duty work also will not arise, therefore, by considering the object of section 47 readwith section 72 of
the Act along with the ratio laid down by the Apex Court mentioned supra the service benefits whatever he is legally entitled to, should be given by
issuing a suitable direction to the respondent Corporation,
In reply, the learned counsel appearing for the respondent submitted that when the petitioner was invalidated on the basis of the certificate dated
12.7.2000 issued by the medical board certifying that he was unfit for the post of Driver, he was issued with the show cause notice dated
16.8.2000 to submit his explanation as to why he should not be discharged from service on medical ground. Subsequently, on receipt of his
explanation, finding no merits in his explanation he was discharged from service with effect from 14.6.2002, after the expiry of one month notice
period. Thereafter, he was settled with the service benefits as well. While so, in respect of granting alternative employment to the petitioner, the
same can be considered only as an when vacancy arises based on the seniority list maintained by the respondent for the discharged employees on
medical grounds. Therefore, when the petitioner is not denied employment and he is going to be considered, the writ petition filed by the petitioner
seeking direction to provide suitable light duty with continuity of service with pay protection cannot be considered.
(i) The argument of the learned counsel for the respondent cannot be accepted for the simple reason that when the Medical Board after
analysing the suitability of the petitioner who was serving as Driver certified that he was unfit for the post of driver, it goes without saying that he is
permanently disqualified from driving any vehicle. However, the Branch Manager has provided light duty by directing him to park the vehicles
inside the Depot and the petitioner was doing the same without giving any room for complaint. Whileso, after two years from the date of issuance
of show cause notice, the respondent issued the impugned order dated 15.5.2002 informing that he would be medically discharged from service
with effect from 14.6.2002 and subsequently, he was also relieved from service on 14.6.2002. Therefore, the question is whether the respondent
was right in discharging the petitioner without giving any alternative employment. To find an answer it is pertinent to look at Section 47 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and Ful Participation) Act 1995 which is 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 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.
A mere reading of the above section unambiguously shows that no establishment shall dispense with the service of an employee or reduce him in
rank if he has suffered any disability during his service. This section further provides if any employee after suffering disability is not suitable for the
same post he was holding, he could be shifted to some other post with the same scale of pay and other service conditions. Further, it is provided if
it is not possible to adjust the employee against any post, the petitioner is entitled to be kept on a supernumerary post until a suitable post is
available or he attains the age of superannuation, whichever is earlier.
(ii) This Court also while considering a similar issue in G.M., T.N. State Transport Corporation Ltd. Vs. Udayasuriyan, held that to attract section
47 the test is whether an employee after acquiring disability has become unsuitable for the post he was holding earlier, and it is provided by Section
47 that in such a case, the employee could be shifted to some other post with the same pay scale and service benefits, and if it is not possible to
adjust the employee against any such post, he may be kept in a supernumerary post until a suitable post is available or he attains the age of
superannuation, whichever is earlier.
(iii) Another learned Division Bench of our High Court in The Management of Tamil Nadu State Transport Corporation (Villupuram Division-III)
Ltd. Vs. B. Gnanasekaran, while elaborately dealing with the same issue u/s 47 of the Act held that a decision of another Division Bench in General
Manager, Tamil Nadu State Transport Corporation v. A. Sengaan (Writ Appeal M.D. No. 96 of 2007) decided on 26.4.2007) does not lay
down the correct law, and came to the conclusion that the purport of the Disabilities Act is to give effect to the Proclamation of Full Participation
and Equality of the People with Disabilities in the Asian Pacific Region held in Beijing in the first week of December, 1992, to which our country is
a signatory, which was intended with a proclamation in the following terms:
i) To spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education,
training, employment and rehabilitation of: persons with disabilities;
ii) to create barrier-free environment for persons with disabilities;
iii) to remove any discrimination against persons with disabilities in the sharing of development benefits vis-a-vis non-disabled persons;
iv) to counteract any situation of abuse and exploitation of persons with disabilities;
v) to lay down a strategy for comprehensive development of programmes and, services and equalisation of opportunities for persons with
disabilities; and
vi) to make special provision of the integration of persons with disabilities into the social maintenance.
It was held that: in view of the object of the Disabilities Act, the contention that alternate employment will be given as and when vacancy arises and
in such an event, the employee would be treated as a new entrant has to be rejected. It was also held that there is no necessity for any certificate
from a medical authority as contemplated u/s 2(t) or Section 2(p) of the Disabilities Act.
Further an interesting observation is made that the workmen are not denizens of an animal farm to be eliminated ruthlessly the moment they become
useless to the establishment. They have not only to live for the rest of their lives but also to maintain the members of their family and other
dependents, and to educate and bring up their children. They cannot be considered to be the liability to the Corporation or the Government. But
the need of their patronage to others conveyed the clear meaning and message to all the employees that the Corporation or the management is
there to protect their right to livelihood as an integral scheme which will improve not only their performance but also qualitative work-in this context
it is also pertinent to refer paragraph 11 of the judgment which is as follows
In A. Veeriya Perumal Vs. The Secretary to Government, Health and Family Welfare Department, 5 a Division Bench of this Court, to which
one of us (A.P. SHAH, CJ.) was a party, set aside the punishment imposed on an employee as the employee was mentally unsound when he had
committed the alleged misconduct. The Bench held that sub-section (1) of Section 47 is clear in terms that
...no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service""''. The Bench further held that the
right to livelihood, which is an integral facet of the right to life as guaranteed under Article 21 of the Constitution of India, coupled with the
projection u/s 47 of the Disabilities Act entitles the employee who was incapacitated during service for continuance of service in suitable alternative
post with same scale of pay drawn by and other service benefits. It was also held that the appellant/employee''s right to alternate employment
cannot be deprived solely on ground of medical invalidation, as his right is protected u/s 47 of the Disabilities Act.
In the light of the above, as rightly pleaded by the learned counsel for the petitioner, when the petitioner, after disability, has successfully discharged
the light duty in parking the vehicles in the depot, the respondent Corporation ought to have continued the services of the petitioner with the same
light duty. As the petitioner was refused all of a sudden even that light duty, the arguments advanced by the learned counsel appearing for the
respondent are to he rejected. In view of the same, the impugned order is set aside.
Consequently, W.P. No. 38237/2002 is allowed. No costs. The respondent Corporation is directed to provide the petitioner the service benefits
as though he continued in service till he reached the age of superannuation on 31.3.2009. It is needless to mention that the petitioner is entitled to
receive all service benefits including pension and the same shall be disbursed within a period of three months from the date of receipt of a copy of
this order.