V. Angappan vs State Express Transport Corporation Limited (Division II)

M.M. Sundres, J.—The Petitioner herein joined the service of the Thiruvalluvar Transport Corporation in March 1985 as a Driver.

Subsequently, the Thiruvalluvar Transport Corporation has become the State Express Transport Corporation Limited (Division-I), namely the

Respondents herein. The Petitioner was confirmed as a Driver in the month of December 1985 and he continued in the said capacity till

25.05.1999. In the month of February 1999, the Petitioner was directed to undergo an eye test. In pursuant to the same, the Petitioner was found

medically unfit to act as a Driver.

Thereafter, a show cause notice was issued to the Petitioner on 26.07.1999 asking him to show cause as to why he should not be discharged

from service, considering his poor eye sight. The Petitioner gave a reply on 05.08.1999 requesting the Respondents to give him an alternative

employment. However, by the order dated 25.08.1999, the Petitioner was relieved from service with an observation that the Petitioner would be

considered for the alternative employment, if the Petitioner gives consent for the same as and when the vacancy arises.

Thereafter the Petitioner has been making representations repeatedly starting from 02.09.1999 seeking an alternate employment. Finally an

order was passed on 13.02.2003 by the Respondents stating that there is no vacancies for the post of helper and the Petitioner''s request cannot

be considered. Challenging the proceedings dated 25.08.1999, the Petitioner has filed the present writ petition with a consequential direction to the

Respondents to reinstate the Petitioner in a suitable post with continuity of service, protection of salary and other benefits.

Mr. M. Radhakrishnan, learned Counsel appearing for the Petitioner submitted that the order impugned as well as the consequential order

passed by the Respondents are one without power or authority in as much as the provisions contained in The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995, particularly Section 47(1) which is binding on the Respondents have not

been complied with.

The learned Counsel submitted that the Honourable Supreme Court in Kunal Singh Vs. Union of India (UOI) and Another, has held that

Section 47 is mandatory and the same cannot be allowed to be frustrated by the Petitioner. The learned Counsel has also relied upon the judgment

of the Honourable Apex Court in Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc.,

and submitted that the Respondent Corporation is coming within the purview of Article 12. A further reliance was also made on the judgment of

the Division Bench of this Court in Metropolitan Transport Corporation v. The Presiding Officer, Principal Labour Court and Anr. (2004)

WL.R.398 wherein, after considering the scope of Section 47 it was held that the benefit conferred therein will have to be extended by the

employer concerned and a duty is cast to comply with the same.

Per contra, Mr. Muniratnam, learned Counsel appearing for the 2nd Respondent submitted that the writ petition is liable to be dismissed for

latches in as much as the order impugned was passed in the year 1999 and the Petitioner has filed the writ petition in the year 2005. Therefore, the

learned Counsel submitted that the relief sought for in this writ petition cannot be granted.

This Court finds considerable force in the submissions made by the learned Counsel appearing for the Petitioner. In order to appreciate the

contention of the learned Counsel appearing for the Petitioner, it is useful to refer the provisions contained u/s 47 of The Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads as follows:

Section 47. 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 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.

A reading of the above said provision would make it clear that it is mandatory on the establishment to comply with the said provisions. In other

words, if an employee is found to be having any physical disability and not suitable for the post in which he is working, he has to be shifted to some

other post with the same service benefits. Such an employee shall not be dispensed with or reduced in rank and in a case where there is no post a

supernumerary post will have to be created and further no benefit shall be denied to such an employee solely on the ground of his disability. The

Respondents being the statutory authorities are bound to comply with the provision which is a beneficial legislation. Considering the said scope, the

Division Bench of this Court in Metropolitan Transport Corporation v. The Presiding Officer, Principal Labour Court and Anr. (2004) WL.R.398

has observed as thus:

In this case, there is no dispute about the fact that the disability was the result of an accident which had occurred when he was attending to his

duty - a nail in the bus has pierced into his leg.

We must notice here the decision of the Supreme Court in the case of Kunal Singh Vs. Union of India (UOI) and Another, decision rendered

in a case of a constable in the special service who had been invalidated from service on the basis of a report of the medical Board. The Court held

that Section 47 of the Act required that his position and pay be protected. In that case the Court set aside the order of the employer terminating

the service of the employee on the ground that he was medically unfit to be continued in service. The failure on the part of the employer to give

effect to the special enactment was held to have vitiated the order of termination.

Therefore, this Court is of the opinion that merely on the ground of delay and laches, the Petitioner cannot be denied the relief. It is seen from

the facts that the impugned order merely states that the Petitioner''s case will be considered in future. The Petitioner also expressed his consent by

making several representations. The representation of the Petitioner was rejected by the Respondents on 13.02.2003. Even on an earlier occasion

as early as on 18.04.2002, it was stated that the Petitioner''s case would be considered in future. Therefore in view of the specific stand taken by

the Respondents, the contention of the learned Counsel for the Respondents that the writ petition will have to be dismissed for latches will not hold

good against the Petitioner. The Petitioner has been rightfully agitating his rights and the Respondents have never denied the rights of the Petitioner

totally but only said the request cannot be considered in view of the non-availability of the post.

Therefore when the Petitioner is ready and willing to work and agitating his rights before the Respondents, through various representations and

correspondences between the Petitioner and the Respondents, it cannot be said that the writ petition is liable to be dismissed for laches. Further as

held by the Honourable Apex Court as it was followed by the Division Bench of this Court as stated supra, it is the duty imposed by the

Respondents to comply with Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,

1995. For the failure of the Respondents to comply with the said provisions the Petitioner cannot be made to lose his valuable and vested rights.

When an appointment is made, the right given under the Act would flow in favour of the employee concerned.

However, it is seen that even though the Respondents have sent a letter on 13.02.2003, the Petitioner has filed the writ petition only on

05.01.2005. It is no doubt true that the Petitioner has been making several representations even thereafter. Taking into consideration of the facts

that the Petitioner was not working over these years and he agitated his rights before the Court of law only on 05.01.2005, this Court is of the

opinion that the interest of justice would require that the Petitioner should be given the benefits from the month of January 2005 onwards. The

learned Counsel for the Petitioner Mr. M. Radhakrishnan submitted that the Petitioner has retired from service on 30.06.2010. The learned

Counsel further submitted that what is required is the computation of the monetary benefits to the Petitioner.

Taking into consideration of the above said facts, particularly that the Petitioner has not been working over these years, this Court is of the

opinion that the fairness would require that the Petitioner should be given the benefits from the month of January 2005 which is the date of filing the

writ petition instead of granting the same from the order impugned in the writ petition.

Therefore, the writ petition is allowed to the effect that the Respondents herein are directed to take into service of the Petitioner from January

2005 onwards and compute the salary and pay the same till the date of his retirement.

The Petitioner''s pension and retiral benefits will have to be computed as if the Petitioner has got continuity of service from the date of his

joining till his retirement by considering the same on par with his junior who is immediately below the Petitioner. It is made clear that the Petitioner

shall not be entitled for the salary from the date of passing of the impugned order till December 2005. The entire payment due to the Petitioner will

have to be paid within a period of three months, from the date of receipt of a copy of this order.

The writ petition is allowed accordingly. Consequently, connected miscellaneous petitions are closed. No costs.