Andhra HC (Pre-Telangana)
A.P. State Road Transport Corporation ... vs M.V. Ramana Rao on 11 August, 2003
Equivalent citations: 2003(6)ALD322, 2003(5)ALT463, (2004)ILLJ361AP
JUDGMENT
Devinder Gupta, CJ
1. We have heard the learned Counsel for the appellant and gone through the impugned order passed by learned Single Judge allowing the writ petition of the respondent and directing the appellant to provide suitable employment to the respondent by protecting his pay scale and other service benefits. Appropriate orders were directed to be passed within one month from the date of receipt of the said order.
2. Writ petitioner/respondent was appointed by the appellant and has been working, in Podjli Depot since 1993. Representation was submitted by respondent on 24-11-2001 requesting for change of duties and assign some other duties stating that he was suffering from ear problem and has been advised not to drive vehicles failing which the problem will get aggravated. Respondent was referred to Tarnaka Hospital of the appellant. The Senior Medical Officer vide Medical Certificate dated 29-1-2002 certified that respondent was unfit for A-1 category driver's job due to defective hearing and 'Tinnitus'. Relying on the said medical report, respondent was placed under forced leave with effect from 30-1-2002. Respondent was then asked to change his profession of driving to some other work since as per the regulations which were in vogue viz., Circular No. 112/87 dated 24-10-1987, it was not possible for the appellant to provide alternate job except the post of cleaner and once a candidate is certified unfit for 'A' category job, basing on his option, willingness and fitness, either he should be provided cleaner post subject to availability of vacancy and order of seniority or he should be retired from service under the scheme of medical invalidation and during the interregnum period he has to be placed under forced leave for a period of one year or until appointed as cleaner whichever is earlier. After the respondent was placed under forced leave, he filed W.P. No. 18143 of 2002 seeking direction to provide suitable job after taking into consideration his qualification etc. It was disposed of on 2-12-2002 directing the respondent to give his option for the post within a period of three weeks. Respondent also submitted representation dated 30-12-2002 requesting the appellant to provide him alternate job as per the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act'). This claim of respondent was turned down by Regional Manager by order dated 17-1-2003, which led to the respondent's filing writ petition, submitting that since the respondent had suffered disability during his service, he was entitled to be accommodated against any post with the same pay scale and benefits and until a suitable post is available he has to be kept on supernumerary post. This petition was resisted by the appellant on the ground that provisions of Section 47 of the Act are not applicable and the disease of Tinnitus' with which the respondent is suffering does not come under the meaning of 'disability' enumerated in Section 2 of the Act. There is no nexus between nature of duties performed and the disease with which the respondent was suffering. Learned Single Judge by the impugned order turned down the submission made on behalf of the appellant holding that considering the nature of duties being performed by the respondent and the disease which he was suffering with would make the impairment to be 'disability', as defined under Clause (i) of Section 2 of the Act.
3. Clause (i) of Section 2 defines 'disability' to mean "blindness, low vision, leprosy-cured, hearing impairment, loco motor disability, mental retardation, mental illness" and 'person with disability' has been defined in Clause (t) to mean "a person suffering from not less than forty per cent of any disability as certified by a medical authority"; 'medical authority' has been defined in Clause (p) to mean "any hospital or institution specified for the purposes of this Act by notification by the appropriate Government" and 'appropriate Government' in relation to State as defined under 'Sub-clause (ii) of Clause (a) would mean the State Government. Learned Counsel for the appellant contended that since respondent had sought benefit of the provisions of Section 47 of the Act, it is for the respondent to obtain appropriate medical certificate from the Competent Medical Board under the provisions of the Act, namely Medical Board constituted by the State Government and in the absence of such medical certificate from the said Board it was not permissible for the appellant to extend the benefits of Section 47 to the respondent. Reliance has been placed upon the Andhra Pradesh Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1997. Chapter II of the said Rules lays down the guidelines for evaluation of various disabilities and the Rules provide that Disability Certificate would be issued by a Medical Board duly, constituted by the State Government and such Medical Board shall consist of at least three members out of which one may be a specialist in a particular field for blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation, mental illness etc., and the Medical Board will, after examination, certify the permanent disability, in case of permanent disability and where there are no chances of variation in the degree of disability. Wherever there is any chance of variation in the degree of disability, the Medical Board will indicate the period of validity in the certificate. State Government was authorized to appoint an appellate Medical Board in the event of there being dispute in the issue of certificate as also its validity.
4. Insofar as the applicability of the provisions of Section 47 of the Act to respondent is concerned, there is no challenge made in the appeal. The only challenge made is that respondent has not produced the requisite medical certificate, which point was not taken to contest the claim of respondent in the writ petition and has been taken up for the first time in the appeal.
5. Having considered the submission made at the Bar, we are of the view that the very basis of the challenge now being made is erroneous inasmuch as in case appellant has taken a decision to dispense with the services of the respondent asking him to go on forced leave on the basis of medical examination of respondent, it was incumbent on the part of the appellant to have obtained the requisite certificate from the same medical authority since it is only the Medical Board which can issue such a certificate of permanent disability or partial disability. Appellant cannot be permitted to blow hot and cold by relying on the said medical certificate for one purpose and denying the said certificate for some other purpose. Learned Single Judge was justified in observing that provisions of the Act have to be interpreted in a meaningful manner and it will be for the Medical Board to certify a person to be unfit for job and whether the employee suffered disability during the course of his employment or beyond the course of his employment. In the absence of disability certificate stating anything contrary, the disability of the nature like the one which the respondent got must be presumed to have taken place during his service only. The very salient principle which must be followed in this case would be that when at the time of initial entry into service an employee who is found to be fit enough to enter the job and suffers any disability during the course of employment, it is for the Medical Board to certify that nature of job being performed by the employee was not such which could have led to such disability or impairment. Learned Single Judge rightly invoked the common sense principle and observed that for Driver getting disability of hearing impairment after he is taken into service will be deemed to have had disability during the course of his employment. In this appeal, we do not find any ground to interfere with the impugned order passed by learned Single Judge and accordingly proceed to dismiss the appeal.
6. However, considering the facts and circumstances of the case, two weeks' further time is granted to enable the appellant to comply with the order passed by the learned Single Judge.
7. Appeal is accordingly dismissed. No costs.