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Judgment
N. Paul Vasanthakumar, J.—In W.P. No. 9582 of 2007, the State Express Transport Corporation Limited, challenged the award of the
Labour Court made in I.D. No. 107 of 1998 dated 12.8.2005 ordering reinstatement by providing alternate employment to the second respondent
therein with continuity of service and backwages.
In W.P. No. 9518 of 2007, the workman/Driver prayed for issuing a direction to the Transport Corporation to implement the award dated
12.8.2005 in the above industrial dispute within the stipulated time.
For the purpose of convenience, the parties herein will be referred to as ''Transport Corporation'' and ''Workman''.
The case of the Transport Corporation is that the workman was dismissed from service for the charges of abstaining from duty without
permission or leave from 1.3.1996 and thereby causing dislocation of work and financial loss to the Transport Corporation. The Workman was
appointed as Driver in the Transport Corporation on 1.12.1987. On 28.12.1993 he was assigned the duty with another driver by name Vadivel
for plying Fleet No. 968, Route No. 180 from Tirunelveli to Chennai. The Workman completed his part of duty i.e., driving the bus from
Tirunelveli to Trichy and was taking rest in the seat provided behind the driver''s seat. When the other driver Vadivel was driving the bus from
Trichy to Madras, the bus met with an accident near Ulundurpet and the workman sustained injuries. He was granted special leave from
29.12.1993 to 30.9.1994 and medical leave from 1.10.1994 to 29.2.1996. According to the Transport Corporation, the second respondent has
not obtained any further leave at any point of time but he remained absent even thereafter. Therefore, the Workman absented without leave for the
period from 1.3.1996. The Workman was directed to appear before the Medical Board on 6.4.1996, but he failed to appear and continued to
abstain from the work. Consequently, the disciplinary proceeding was initiated for the above said charges. Enquiry date was fixed as 2.9.1996 and
the same was sent to the workman and the workman failed to attend for enquiry, though he acknowledged the enquiry notice. Hence the enquiry
Officer conducted exparte enquiry and found that the charges were proved. The second show cause notice was issued on 24.10.1996 and
explanation was called from the Workman. After considering the explanation, the workman was dismissed from service by order dated 11.2.1997.
The said order was challenged by the workman by raising I.D. No. 107 of 1998 and the same was contested by the Transport Corporation and
the Labour Court by order dated 12.8.2005 set aside the order of dismissal and ordered reinstatement of the workman by providing alternate
employment commensurate with the last drawn wages with continuity of service and all other attendant benefits. The said award was challenged by
the Transport Corporation on the ground that the second respondent wilfully abstained from service without obtaining leave or permission from
1.3.1996. The workman failed to appear before the Medical Board in spite of the direction given on 6.4.1996 and thereby the workman violated
Clause 16 of the Standing Orders, which was proved during domestic enquiry, which was not rightly considered by the Labour Court.
The learned Counsel for the Transport Corporation submitted that granting of relief by providing alternate employment considering the
disablement of the workman which is not even the subject matter of reference, is unsustainable and the charges having been found proved, the first
respondent was not justified in setting aside the order of dismissal.
The learned Counsel appearing for the workman on the other hand submitted that the workman due to the accident sustained injuries in both his
legs due to fracture. The said accident had occurred during the course of his employment and there was no negligence on the part of the second
respondent as he was only a co-driver during the time of accident and the workman was seated behind the other driver Vadivel, who actually
drove the bus. The workman was admitted in the Government Hospital, Ulundurpet, and later on shifted to Cuddalore General Hospital and in
spite of the treatment at Cuddalore, injuries did not heal and he was shifted in an ambulance to Palayamkottai and in view of the continuous
treatment taken, he was prevented from attending duty and he was continuously on medical leave. It is further stated that the Transport
Corporation did not either reject the medical leave or directed the workman to report for duty. The Transport Corporation was fully aware of the
accident and also sanctioned leave till 28.2.1996 and the disciplinary proceeding initiated against the Workman is unsustainable and the same was
rightly set aside by the Labour Court in the above referred industrial dispute. The learned Counsel for the workman further submitted that the
workman suffered 40% disability due to the accident and he filed claim petition before the Motor accident Claims Tribunal, Villupuram, in MCOP
No. 862 of 1994 and the Tribunal found that the Workman has sustained 40% disability due to the said accident and he is not in a position to drive
any vehicle. For the said disability and injury sustained, the Tribunal awarded a sum of Rs. 1,01,800/- and the Transport Corporation was directed
to pay the compensation. The said order has also become final and therefore it is beyond doubt that the workman sustained disability during the
course of the employment and as per Section 47 of the Persons with Disaibilities (Equal Opportunity, Protection of Rights and Full Participation)
Act, 1995, the first respondent was right in setting aside the order of dismissal and ordering alternate employment with continuity of service and
backwages.
I have considered the rival submissions made by the learned Counsel appearing for the Transport Corporation as well as the Workman/Driver.
The point in issue is whether the second respondent sustained injury due to the accident occurred during the course of his employment and the
workman having sustained 40% disability is entitled to get alternate employment and whether the Transport Corporation is justified in dismissing
the second respondent due to his absence from 1.3.1996.
Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as follows:
Section 47. Non-Discrimination of 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 applicability of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, to
the Transport Corporation employees was considered by this Court in the following decisions:
(i) 2004 WLR 398 (DB) Metropolitan Transport Corporation V. The Presiding Officer, Principal Labour Court and Anr.
(ii) 2006 (1) CTC 124 P. Thangamarimuthu v. Tamil Nadu State Transport Corporation, Madurai (Division-I), Madurai.
(iii) 2006 (5) CTC 413 (DB) G. Muthu v. The Management of Tamil Nadu State Transport Corporation (Madurai) Ltd. Madurai.
(iv) The Management of Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd. Vs. B. Gnanasekaran, .
(v) Unreported Judgment of Division Bench in W.A(MD) No. 436 of 2007 dated 9-10-2007 Tamil Nadu State Transport Corporation
(Kumbakonam Division-I) Limited, Kumbakonam v. M. Kamaraj.
The above said Judgments were rendered on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995, and following the decision of the Supreme Court reported in Kunal Singh Vs. Union of India (UOI) and Another, ,
wherein in paragraph 9, it is held thus,
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 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. 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 a 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.
The contra view taken by a Division Bench of this Court in W.A(MD) No. 96 of 2007 dated 26.4.2007 in the case of the General Manager,
Tamil Nadu State Transport Corporation v. A. Sengaan, was found as not laying down the correct law, in the latest decision of another Division
Bench of this Court in the decision reported in The Management of Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd. Vs. B.
Gnanasekaran, , wherein in paragraph 17 the Division Bench held as follows:
In the instant case, the respondent workman became unfit for the duty of the driver as he lost knee movement and there is no possibility of
regaining his normal movement. It is not disputed before us that the workman is suffering from locomotor disability within the meaning of Section
2(o) of the Disabilities Act. In view of the Supreme Court''s decision in Kunal Singh v. Union of India and Anr. (supra) it is clear that the
acquisition of disability is not the same as a person with disability and it was not necessary for the workman to establish that he suffer more than
40% disability. In our considered opinion the decision of the Division Bench in General Manager, Tamil Nadu State Transport Corporation v. A.
Sengaan (supra) does not lay down the correct law.
In the said Judgment, while upholding my order, the Division Bench directed to implement the order in the writ petition, within a period of two
weeks from the date of judgment, i.e., 10.7.2007. I am also informed that the said order was complied with by the Transport Corporation.
From the above Judgment of this Court it is evident that the Transport Corporation cannot deny alternate appointment to the its workman, who
sustains physical disablement during the course of the employment.
13.In the present case, the fact of employment of the Workman as Driver in route No. 180 as co-Driver on 28.12.1993 for the trip from
Tirunelveli to Chennai is admitted. The accident occurred at Ulundurpert when the workman was travelling in the bus as co-Driver and sustaining
of injuries due to the said accident are also admitted. The Transport corporation, taking note of the accident and injuries sustained by the
workman, granted special leave from 29.12.1993 to 30.9.1994 and medical leave from 1.10.1994 to 29.2.1996 is also admitted in the affidavit
filed in support of the writ petition filed by the Transport Corporation. Workman''s continuous treatment even after 1.3.1996 is also not in dispute.
The disability certificate which was produced before the Motor Accident Claims Tribunal also shows that the workman sustained 40% disability
due to the said accident, for which, compensation was also awarded. A specific finding is also given by the Tribunal that the workman is not in a
position to drive any vehicle. Hence there is a judicial finding against the Transport Corporation.
From 1.3.1996, the Workman was said to be on leave without any sanction of leave. Act 1 of 95 came into force on 7.2.1996. As per
Section 47 of the said Act (extracted above), the Transport Corporation is bound to offer alternate employment to the workman. Admittedly, no
alternate employment is provided to the workman. Had the alternate employment was provided and the Workman refused to attend to duty, the
Transport Corporation could have initiated action against the workman for not reporting to duty, without sanction of the leave. Hence I am of the
view that the workman is entitled to get alternate employment in the Transport Corporation at least from 7.2.1996. As the earlier period of
absence i.e., special leave from 29.12.1993 to 30.9.1994 and medical leave from 1.10.1994 to 29.2.1996 having been sanctioned, the workman
is entitled to get alternate employment from 1.3.1996.
Further, the Labour Court also considered the disability sustained by the Workman during the course of the employment and also the 40%
disability assessed by the Doctor which was accepted by the Motor Accident Claims Tribunal for awarding compensation. The said findings of the
Labour Court cannot be treated as perverse finding warranting interference by this Court in the writ petition filed under Article 226 of Constitution
of India. The Labour Court ordered reinstatement by providing alternate employment with salary protection, backwqages and continuity of service.
However, in the light of Section 47 of the Act, the workman is entitled to get alternate employment from 1.3.1996 with salary protection,
promotional opportunities if he is otherwise eligible with monetary and service benefits and not from the date of dismissal i.e., from 11.2.1997. The
Transport Corporation is directed to give alternate employment to the Workman with all benefits from 1.3.1996 within a period of two weeks
from the date of receipt of copy of this order.
W.P. No. 9582 of 2007 is ordered in the above terms. No costs. Connected miscellaneous petitions are closed.
In view of the order passed in W.P. No. 9582 of 2007, no further order is required to be passed in W.P. No. 9518 of 2007 filed by the
second respondent for implementing the award of the Labour Court. Hence W.P. No. 9518 of 2007 is also disposed of.