Madras High Court
The General Manager, Tamil Nadu State ... vs A. John Peter on 7 April, 2005
Author: N.V. Balasubramanian
Bench: N.V. Balasubramanian, P.K. Misra
JUDGMENT N.V. Balasubramanian, J.
1. By consent of both the parties, the writ appeal itself is taken up for consideration, though the stay petition is listed today.
2. Heard learned counsel for the appellant and learned counsel for the respondent.
3. The writ appeal is preferred against the order of this Court passed in W.P. No. 4310 of 2001 dated 21.3.2003. We are of the view that interest of justice would be met by directing the appellant herein to pay the salary as per G.O. Ms. No. 746 dated 2.7.1981 and holding that the respondent herein would also be entitled to arrears of pay, if any, till the date of impugned order of termination.
4. The main submission of learned counsel for the respondent is that the respondent is entitled to protection of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act'). He referred to section 47 of the Act and also the Proviso to that section and submitted that even if 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. Mr. A.L. Somayaji, learned senior counsel, on the other hand, submitted that since the respondent has availed the benefits under the Workmen's Compensation Act claiming 100% disability, he is not entitled to question the order of termination. We are unable to accept the submission of Mr. A.L. Somayaji, learned senior counsel for the appellant as the scope of the Workmen's Compensation Act is different from the scope of equal opportunity to be granted to a disabled person under the Act. The mere fact that he has availed the benefits under the Workmen's Compensation Act is not a ground to deny the statutory benefit under section 47 of the Act, if he is otherwise eligible to be called as a disabled person within the meaning of the Act.
5. We are of the view that the question whether the respondent herein is a person suffering from disability has to be certified by a Medical Board. Under Rule 4 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996, the Medical Board, duly constituted by the Central/State Government, is the authority to issue the necessary disability certificate. Learned counsel for the appellant has submitted that it is not clear whether the State Government has constituted a Medical Board or not. If the State Government has not constituted any such Medical Board so far, we direct the State Government to constitute a Medical Board for the purpose of examining the respondent and the Medical Board has to examine the respondent herein and certify whether he is a person suffering from disability or not within the meaning of the Act and whether he is eligible to claim the benefit under the Act or not. We are of the view that the entire exercise should be done within a period of three months from the date of receipt of a copy of this order.
6. It is stated by learned counsel for the respondent that the respondent has attained superannuation on 31.3.2005. We are of the view that since the respondent reached the age of superannuation, he would be entitled to claim only monetary benefits. Accordingly, we direct the appellant herein to pay to the respondent the arrears of pay, if any, till the date of termination of service, namely, 29.10.1998 and also the amount due to him as per G.O.Ms. No. 746 from the date of termination of service till the date of his superannuation. The appellant is directed to pay the amounts to the respondent within a period of eight weeks from the date of receipt of a copy of the order. If the respondent is found to be a disabled person within the meaning of the Act, he would be entitled to further amount as provided under section 47 of the Act, and the amounts paid in pursuance of the order of this Court shall also be taken into consideration at the time of payment of further amount. It is open to the parties to approach this Court for any further direction, if any need arises.
7. With the above directions, the writ appeal stands disposed of. No costs. Connected WA. MP. No. 2734 of 2004 is closed.