Madras High Court
J.Sekar vs Metropolitan Transport Corporation on 4 January, 2013
Author: R.Banumathi
Bench: R.Banumathi, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.01.2013 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE K.K.SASIDHARAN W.A.NO.349 OF 2011 J.Sekar ... Appellant Vs. 1.Metropolitan Transport Corporation, (Chennai Division) Limited, rep.by its Managing Director, Pallavan Illam, Chennai 600 002, 2.Metropolitan Transport Corporation (Chennai Division) Limited, rep.by its General Manager, Pallavan Illam, Chennai 600 002. ... Respondents Prayer: Writ Appeal filed under Clause 15 of Letters Patent Appeal against the Order dated 10.12.2010 made in W.P.No.49656 of 2006 on the file of this Court. For Appellant : Mr.S.Vaidyanathan for M/s.C.S.Monica and Mr.V.T.Arun Thomas For Respondents : Mr.G.Muniratnam JUDGMENT
R.BANUMATHI,J.
The Writ Appeal is preferred against the Order passed by the learned single Judge dated 10.12.2010 in W.P.No.49656 of 2006.
2. The writ petition is filed by the appellant against the order of the second respondent dated 22.11.2006 bearing Ref. Memorandum No.21352/Per Sec. (Admn.) - 2/MTC/2006 by which the second respondent has rejected the representation of the appellant for conferring alternate employment as per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995.
3. The case of appellant is that he is a graduate in Commerce and joined as a Conductor under the respondent Corporation on 18.05.1989. Since he became medically disabled due to the asthmatic problem, he made representation on 29.05.1995 to confer alternate employment on him. The appellant was directed to appear before the Medical Board, and the Medical Board in its report has stated that he was found to be not medically fit to discharge the duties of the Conductor, based on which the petitioner was discharged on medical grounds on 11.09.1996. In the mean time, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 came into force from 07.02.1996, under which the appellant cannot be discharged and his status is protected. After the representation was made as per the Act, the petitioner was provided alternate employment on 05.12.1996 by the respondent Corporation, by posting him as a Helper Non-ITI as a fresh entrant in the pay scale of Rs.1690-20-2170. While he was discharged on 23.09.1996, his salary was in the scale of pay of Rs.1770-20-2470. The appellant had reported for duty as Non-ITI Helper on 07.12.1996 and was working as a Junior Assistant at Cash and Ticket Section and is now working as a Senior Assistant in the same category and he has been confirmed after satisfactory completion of probation. He had made several representations on 05.11.1997, 09.03.1998, 29.05.1998 and 26.05.1999 to the respondent Corporation to redesignate him as Junior Assistant commensurate with his qualifications. While Non-ITI Helper is equivalent to Attender or Sweeper, which is a 4th category, the petitioner filed WP.No.3794 of 2000 claiming the said relief and that was disposed of on 06.01.2003 with direction to the respondent Corporation to consider the representation of the appellant dated 26.05.1999, on merits. Since no order was passed, the petitioner filed another writ petition in W.P.No.41964 of 2006 to dispose of his representation dated 28.08.2006, along with the earlier representations and by order dated 03.11.2006, the representations were directed to be considered within four weeks time. Pursuant to the said order, the impugned order came to be passed stating that after being discharged on medical grounds, the appellant was employed as a fresh entrant and he has accepted alternative employment as Non-ITI Helper without any reservation and that he worked for ten years and therefore his request cannot be considered.
4. Challenging the said proceedings appellant has preferred Writ Petition in W.P.No.49656 of 2006 contending that Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) (in short, "Disabilities Act") Act came into force on 7.2.1996 and at that time when the appellant was discharged on 11.9.1996, he was entitled to the statutory protection. According to the appellant, at the time when he was discharged in September 1996, his basic salary was Rs.2,045/- in the pay scale of Rs.1770-20-2470 and as per Section 47 of the Disabilities Act, the appellant should be given alternative employment commensurate with the status and pay protection. The appellant, sought for a writ of certiorarified mandamus to quash the proceedings dated 22.11.2006 and consequently direct the respondent Corporation to post him as Junior Assistant or any clerical post, on the administrative side in commensurate with his educational qualification and protecting his earlier salary at the time of his discharge from service on medical grounds.
5. Upon consideration of the case of appellant and the respondent Corporation, the learned single Judge held that appellant is entitled to the benefit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, if he has acquired the disability as per the Act. The learned single Judge issued a direction to the respondent Corporation to refer the appellant to the Medical Board as per Rules for obtaining certificate regarding his disability and in the event such certificate is issued to the effect that the disability is as per the Act, the impugned order should go and the appellant's pay as he was drawing at the time when he was discharged on medical grounds should be protected and that the appellant would be entitled for the said pay protection with all other benefits. Being aggrieved by the direction referring him to the Medical Board for obtaining a certificate regarding the disability of the appellant as per the Act, the appellant has preferred this appeal.
6. The learned counsel for appellant contended that the learned single Judge ought to have considered that the appellant was not given alternative employment commensurate with status and pay as the post of Helper is much below the status of Conductor and that the pay scales are different. It was further submitted that at the time when he was discharged from service his pay scale was Rs.1770-20-2470 and as per the decision in (2003) 4 SCC 524 - Kunal Singh Vs. Union of India, medically categorised employees should be given alternative employment commensurate with the status and pay protection. It was further contended that appointing appellant as Non-ITI Helper on the technical side as fresh entrant is arbitrary and violative of Article 14 of the Constitution and also the provisions of the Act. The learned counsel further submitted that Section 2(i) of the Disabilities Act would include all kinds of disabilities, whereby it renders a person incapable of doing the job, which he has already done before acquiring the disability and when the appellant was already discharged on medical grounds as he was suffering from severe Bronchial Asthma the learned single judge ought not to have directed further medical examination of the appellant.
7. Per contra, the learned counsel for respondent Corporation Mr.G.Muniratnam contended that the appellant has accepted the alternative employment as Non-ITI Helper as a fresh candidate without any objection and that he has been working in that capacity for ten years and the writ petition filed after ten years is liable to be dismissed on laches. It was further submitted that the appellant, having accepted the employment as a new entrant in the pay scale of Rs.1690-20-2170 as a Helper Non-ITI Candidate, is estopped from contending that he is entitled to pay protection as per the provisions of the Disabilities Act.
8. The appellant joined the services of respondent Corporation as a Conductor on 18.5.1989 and since he was suffering from Asthma it was decided that he could not be retained in the post of Conductor and by the proceedings dated 11.9.1996 he was discharged from service on medical grounds as "invalidated". At the time he was discharged the appellant was in the pay scale of Rs.1770-20-2470. The operative portion of the discharge proceedings dated 11.9.1996 reads as under:-
@vdnt. M!;j;Jkh nehapdhy; ghjpf;fg;gl;L jFjpaw;w epiyapy; mtiu elj;Jdh; gjtpapy; ePof;f ,ayhJ vd;W Kot[ bra;J mtiu kUj;Jt mog;gilapy; gzpapypUe;J tpLtpf;f Kot[ bra;J cj;jutplg;gLfpwJ/ (Invalidated and discharged from service on medical grounds)"
9. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 came into force on 7.2.1996. By the time the appellant was discharged on 11.9.1996, the Disabilities Act came into force on 7.2.1996.
10. Contention of appellant is that he has acquired disability during his service and therefore on his re-employment the appellant ought not to have been employed as a new entrant and as per the provisions of the Act, he should have been given alternative employment commensurate with the status and pay protection. According to the appellant, Section 47 is mandatory in nature and when it is made out that the employee is inflicted with disability, after the Act came into existence, the Establishment cannot dispense with his service and when he was discharged on the basis of medical disability he should have been given employment commensurate with his status and pay protection. It was further contended that acceptance of alternative employment Non-ITI Helper as a new entrant would not preclude him from claiming the statutory benefit of Section 47 of the Act. As pointed out earlier, by the proceedings in Memo No.9394/PS(Admn) 2/PTC/96 dated 5.12.1996, the appellant was appointed as Helper-Non-ITI. At the time the Disabilities Act came into force and the appellant was discharged on medical grounds, he was suffering from severe Bronchial Asthma.
11. Chapter IV to VIII of the Act deals with persons with disability. Section 47 deals with "the employee who acquired the disability during his service. Section 47 of the Act reads as under:-
"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."
The term 'disability' used in Section 47 can draw support not only in respect of the defined 'disabilities' as contained in Section 2(i) of the Act but will also encompass such other 'disabilities' which would disable a person from performing the work which he held immediately prior to acquisition of such 'disability' and thereby entitle him to avail the benefits conferred under the said provision for having acquired such a 'disability'. Section 47 enables an employee who acquires disability during the course of his service, found to be not suitable for the post to claim shifting to some other post, which is suitable to him but with the same scale of pay and service benefits which he has been receiving earlier. The said beneficial legislation goes further to state that even if such posts are not available supernumerary posts must be created until suitable post becomes available or until he attains the age of superannuation.
12. The definition of "disability" as given under Section 2(i) of the Act which reads as under:
""disability" means -
(i)blindness;
(ii)low vision;
(iii)leprosy-cured;
(iv)hearing impairment;
(v)locomotor disability;
(vi)mental retardation;
(vii)mental illness."
The appellant claims to have acquired disability during his service. Section 2(t) of the Act defines "person with disability". Section 2(t) reads as under:
"person with disability" means a person suffering from not less than forty percent of any disability as certified by a mental authority."
13. In Kunal Singh case (2003) 4 SCC 524, after analysing the various aspects of the Act No.1 of 1996, especially, Sections 2 and 47 of the Act and also the need for comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities, the Honourable Supreme Court held as under:
9. ...... 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 Supreme Court further held that Section 2(t) of the Act 1 of 1996 cannot take away benefits under Section 47 to a person, who suffered permanent invalidity while in service. The Supreme Court in the said judgment held as under:
"10. The argument of the learned counsel for the respondent on the basis of the definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired disability within the meaning of Section 2(i) of the Act and not a person with disability.
14. The expression persons suffering from disability and the scope of Section 47 was elaborately dealt with by the Division Bench in (2006) 5 CTC 413. Observing that the word "disabilities" draw support not only from Section 2(i) of the Act but will also encompass other disabilitites in 2006(5) CTC 413 Division Bench held as under:-
"Having regard to the special features contained in the said Section 47, providing for such a special benefit to an existing employee in an establishment when he acquires a 'disability' as held by us earlier, the application and implementation of the said provision will have to be ensured independent of various other benefits provided under the various other provisions falling under Chapters IV to VII of the Act which are meant for persons 'with disability'. Having regard to the said distinctive features contained in Section 47 of the Act, as compared to the other provisions, we are of the considered opinion that the context in which the benefit has been conferred under Section 47 stands apart from the context of all other provisions where various other benefits have been conferred. In other words, we are of the firm view that the opening set of expressions contained in the definition clause, namely Section 2, which denotes "unless the context otherwise requires" squarely gets attracted to Section 47 and therefore the definition of "disability" as defined under Section 2(i) cannot be blindly applied to the term 'disability' used in Section 47 can draw support not only in respect of the defined 'disabilities' as contained in Section 2(i) of the Act but will also encompass such other 'disabilities' which would disable a person from performing the work which he held immediately prior to acquisition of such 'disability' and thereby entitle him to avail the benefits conferred under the said provision for having acquired such a 'disability'.
15. Observing that it is a social beneficial legislation and that the enactment dealing with disabled persons intended to give equal opportunities, protection of rights and full participation, single Judge of this Court (P.Jyothimani,J.) in 2007(4) CTC 478 - V.Palanishanmugavel and others Vs. The General Manager, TNSTC Ltd., Tirunelveli and others,, held as under:
"25. Therefore except Section 47 almost all other provisions of the said Act 1 of 1996 which deal with either welfare measure or beneficial scheme which are the social aspects of the persons with disability. It is Section 47 which alone imposes, the legal obligation in a mandatory manner by using the term "disability" in its distinctive manner. Therefore, it is clear that while Section 47 applies to a person who is already in an employment who either in course of employment or otherwise while during employment has incurred disability as defined under Section 2(i) of the Act is protected with mandatory duty upon the employer that such person who is already in employment, acquires disability during his services which means that the disability acquired during the course of the employment either in consequence of the nature of employment or otherwise, shall not be dispensed with, reduced in rank, etc."
16.The appellant was discharged from service on medical grounds as he was suffering from Bronchial Asthma. The appellant claims to have acquired disability during his service. Therefore, as per Section 2(t) of the Act, it has to be examined whether the appellant is a person suffering from not less than 40% of any disability as certified by the Medical Authority.
17. The learned single Judge held that if appellant has acquired the disability as per the Act, that has to be certified as per rules and then the appellant would be entitled to the benefits under the Act. Referring to Kunal Singh's case, the learned single Judge held that simply because the appellant has accepted alternative employment as a fresh entrant and that he has waited for ten years appellant is not precluded from claiming the benefits under the Act as there is no estoppel against the statute.
18. The point falling for consideration is, whether the appellant suffered disability within the meaning of Section 2(t) of the Act. As per Section 2(t) of the Act, a person is said to be with disability if he is suffering from not less than 40% of any disability as certified by the medical authority. After the writ petition was disposed of on 10.12.2010, the appellant was referred to a Medical Board and the Medical Board issued a certificate as under:
"This is to certify that Thiru. Sekar has been examined and assessed in the Department of Chest Diseases and is found to suffer from Chronic Persistent Bronchial Asthma with moderate obstruction. He has specific disability to work in a polluted dusty environment and therefore advised to work in a dust free environment. This disability is job environment specific and cannot be calculated on basis of percentage disability."
19. The certificate issued by the Medical Board clearly shows that the appellant has incurred the disability with reference to his job on account of which, he would not be in a position to undertake the normal activities connected with his job. Section 47 of the Act protects interest of an employee who acquired the disability during the course of his service. Such disability does not require a particular percentage, so as to enable him to make a request for alternative employment. In case, it is made out that the disability is job environment specific, and the employee would not be in a position to do the very same job which he was doing till then the situation would attract the provisions of the Act. It is not possible to assess the disability in all cases with mathematical. Accordingly, the disability in the case of an employee has to be considered in the light of the nature of job and not with reference to the definition given under the Act.
20. The learned single judge has given a direction to the Respondent to refer the appellant to the Medical Board for obtaining certificate to decide as to whether he has acquired the disability as per the Act and to pass appropriate orders on the basis of the medical opinion. Now that the Medical Board has issued a certificate that the appellant has specific disability to work in a polluted dusty environment and the disability is job environment specific, it is for the Respondent Corporation to pass appropriate orders.
21. The Respondent Corporation has not filed any appeal against the order of the learned single judge dated 10.12.2010 in W.P.No.49656 of 2006. Therefore, the Respondent Corporation has no other alternative than to implement the order passed by the learned single Judge on the basis of the certificate issued by the Medical Board dated 01.08.2011. Such exercise shall be completed within a period of three months from the date of receipt of a copy of this judgment.
22. The writ appeal is disposed of with the above direction. Consequently, connected miscellaneous petition is closed. No costs.
(R.B.I.,J.) (K.K.S.,J.)
04.01.2013
usk
Index :Yes/No
Internet: Yes/No
R.BANUMATHI,J
and
K.K.SASIDHARAN,J.
Judgment
in W.A.No.349 of 2011
04.01.2013