S. Annamalai vs The Secretary to Government

K.K. Sasidharan, J.—This writ petition is directed against the order dated 28.09.2012, whereby and whereunder, the second respondent rejected the request made by the petitioner to revise his salary, taking into account his original appointment as Conductor and to grant him continuity of service and all other attendant benefits in the light of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

THE FACTS

The petitioner was appointed as a Conductor on 01.01.1989 by the Tamil Nadu State Transport Corporation. During the course of his employment, he met with an accident. The petitioner was given alternative employment as Junior Tradesman. The petitioner having found that he was not given the scale of pay applicable to the post of Conductor, submitted a representation. The representation was rejected by the second respondent by placing reliance on the Government order in G.O. Ms.No.746, Transport Department, dated 02.07.1981. The legality and correctness of the said order is challenged in this writ petition.

The Tamil Nadu State Transport Corporation, through its Deputy Manager, filed a counter affidavit justifying the impugned order. According to the Corporation, the petitioner was given alternative employment as Junior Tradesman. It was a new appointment and as such, he is not eligible to count his earlier service. Similarly, his right is only to claim the salary applicable to the post of Junior Tradesman.

I have heard the learned counsel for the petitioner and the learned standing counsel for the Transport Corporation.

ANALYSIS

It is the admitted case of the parties that the petitioner suffered a disability during the course of his employment. The petitioner was appointed as Junior Tradesman as he was not in a position to work as Conductor. The claim made by the petitioner under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was rejected primarily on two grounds.

The first ground relates to the Government order in G.O. Ms.No.746, Transport Department dated 02.07.1981, which provides that workers in State Undertakings who are declared unfit by doctors for continuance in the same post while in service to be terminated on medical grounds and their service benefits should be settled and provided with alternative employment.

The other reason relates to the settlement made under Section 12(3) of the Industrial Dispute Act.

The core question that arises for consideration is as to whether the second respondent was correct in rejecting the request made by the petitioner for equal pay notwithstanding Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

The first ground taken by the second respondent to deny the request of the petitioner appears to be on account of the Government order in G.O. Ms.No.746, Transport Department, dated 02.07.1981. The said Government order was passed long before the commencement of Act 1/96. The applicability of the Government order in G.O. Ms.No.746, Transport Department, dated 02.07.1981 was considered by the Division Bench of this Court in Metropolitan Transport Corporation V. The Presiding Officer, Principal Labour Court and another ? 2004 Writ L.T.398. The relevant observation of the Division Bench reads thus:

"The order of the Government of the year 1981 on which the appellant relies being an order which is clearly inconsistent with the Act certainly cannot be given effect to. The Government is duty bound to implement the provisions of the Act."

The binding nature of G.O. Ms.No.746, Transport Department, dated 02.07.1981 was considered by the Division Bench of this Court in K. Ganesan Vs. The Managing Director, Metropolitan Transport Corporation Chennai, Limited, . The Division Bench was of the view that no advantage could be derived by the Transport Corporation from Government Order in G.O. Ms.No.746 dated 02.07.1981 as it was enacted much prior to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

The second respondent cannot be heard to say that G.O. Ms.No.746, Transport Department dated, 02.07.1981 would prevail over Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Act 1/96 is a beneficial peace of legislation enacted for doing social justice. The provisions of such an act cannot be sidelined by placing reliance on a Government order, which was issued long before. Therefore, I am of the view that the second respondent was not in correct in denying the petitioner''s request for sanctioning pay equal to the post of Conductor, on the basis of G.O. Ms.No.746, dated 02.07.1981.

The next ground relates to settlement made under Section 12(3) of the Industrial Disputes Act. The settlement made by the Management with the Union under Section 12(3) of the Act would not prevent the employee from claiming the benefits conferred by a Statute. There is absolutely no merit in the contention taken by the second respondent that in view of the settlement under Section 12(3) of the Act, the petitioner was not correct in claiming different scale of pay.

The nature and scope of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. was considered by the Hon''ble Supreme Court in Kunal Singh Vs. Union of India (UOI) and Another, . The Hon''ble Supreme Court made it clear that wherein an employee after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. It was further held that if it is not possible to give him any post, he could be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Such being the legal position, the second respondent erred in rejecting the request made by the petitioner.

In the result, the impugned order dated 28.09.2012 is set aside. The second respondent is directed to consider the request made by the petitioner afresh within two months from today in the light of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the law laid down by the Hon''ble Supreme Court and the Division Bench of this Court as stated supra.

In the upshot, I allow the writ petition. No costs.