Andhra HC (Pre-Telangana)
Md. Sukur Miya And Anr. vs Singareni Collieries Company Limited ... on 28 January, 2003
Equivalent citations: 2003(2)ALD335, 2003(3)ALT765
ORDER S. Ananda Reddy, J.
1. This writ petition is filed by two of the workers of the 1st Respondent Company praying for the issue of writ of mandamus declaring the action of the Respondent in terminating the services of the Petitioners on medical grounds, without providing the alternative employment, as per the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to 'the Act'), as illegal, unjust and for a consequential direction to the respondents to provide alternative job to the petitioners.
2. It is stated that the first petitioner was appointed on 1-12-1991 as a Coal Filler. While he was in service, on 30-8-1997, he met with an accident and later he was provided medical treatment in the Area Hospital of the 1st Respondent Company. Later, the 1st Petitioner was referred to the Medical Board as to his medical fitness to continue in the job. Basing on the findings of the Medical Board of the 1st Respondent Company, the 1st Petitioner was terminated from service with effect from 17-12-1997, on the ground that he is medically unfit to continue in the job, which he was carrying on that date, through proceedings dated 23-12-1997.
Similarly, the 2nd Petitioner joined the 1st Respondent Company in the year 1995 and while he was in service, he met with an accident on 13-2-1999. The 2nd Petitioner was also treated in the Area Hospital of the 1st Respondent Company and later he was also referred to the Medical Board as to his medical fitness to continue in the job. On the advise of the Medical Board, which certified that the 2nd Petitioner was also medically unfit to carry on the job, which he was carrying on the date of the accident, orders of termination were issued on 23-7-1999.
3. The grievance of the Petitioners is that when once the petitioners are found to be medically unfit to continue on in their jobs due to the accident that had occurred during the course of their employment, in terms of Section 47 of the Act, the 1st Respondent Company is obligated to provide alternative employment, which the petitioners could discharge. As there is no such attempt made by the 1st Respondent Company, the petitioners have come up with the present writ petition, seeking writ of mandamus declaring the action of the Respondents in terminating the services of the Petitioners as illegal, without jurisdiction as well as contrary to the provisions of Section 47 of the Act.
4. The above claim of the petitioners is contested by the Respondent Company by filing a counter. In the counter, it is stated that the petitioners are workmen within the definition of the Industrial Disputes Act and as such they have got an effective remedy under the provisions of the said Act. Hence, the present writ petition is not maintainable. In the counter it is also stated that the petitioners have not become disabled due to the accidents while in service and therefore, the provisions of Section 47 of the Act have no application. It is also stated that the petitioners were engaged in the underground minisg for which medical fitness is absolutely necessary and as the petitioners were found medically unfit to carry on the underground job, their services were terminated. In the counter, it is also stated that the petitioners are having other benefits provided under various settlements that had taken place between the respondents and the Employees' Union and therefore, the petitioners are not entitled to any relief.
5. At the time of hearing, the learned Counsel for the petitioners contended that the Respondents' organisation is an establishment, as defined under Section 2(k) of the Act and when once it is an establishment under the Act, the provisions of the Act are applicable and if so in terms of Section 47 of the Act, the 1st Respondent Company cannot dispense with the services of the petitioners by termination orders on the ground of medical fitness, but they should be provided with alternative suitable employment, as provided under the said provision. The learned Counsel also contended that though in the counter, the respondents have disputed that the disability was not as a result of the accident that had occurred during the course of the service of the petitioners, but the proceedings issued by the 1st Respondent and its Officers clearly show that the petitioners were treated at the Area Hospital, when they suffered illness as a result of the accident. Therefore, it is contended by the learned Counsel that when once the proceedings of the Officers of the 1 st Respondent Company show that the injury was as a result of an accident, which had occurred while the petitioners were in service, there is no justification in disputing the said fact now. Therefore, the learned Counsel contended that the petitioners are entitled for the relief sought for in terms of Section 47 of the Act. The learned Counsel for the petitioners relied upon a judgment of this Court in Syed Sha Musebulla Alvi v. Secretary, GAD, , and the decision in the case of K. Siva Kumar v. APSRTC in WA No. 1061 of 2000, dated 12-3-2001.
6. The learned Counsel for the respondents, however, reiterated the contentions as to the cause of disability. Apart from that, the learned Counsel also contended that the petitioners are governed by the provisions of the Mining Act, as the 1 st Respondent Company is carrying on the business of mining. The learned Counsel also contended that even assuming that the provisions of the Act are applicable to the petitioners, but the various provisions referred to therein contemplates the constitution of medical authority, as referred to in Section 2(p) of the Act and when such medical authority was not constituted by the appropriate Government, the provisions of the said Act cannot be made applicable. The learned Counsel also contended that in order to get the benefit of the provisions of Section 47 of the Act, the petitioners have to prove that they would come within the purview of the provisions of the said Act. According to the learned Counsel, first of all, the petitioners were not certified as having become disabled due to the accident that had occurred during the course of their employment, as contemplated under the provisions of the Act. When once such material is not available, there is no question of applying the provisions of Section 47 of the Act. Therefore, the learned Counsel contended that the Petitioners are not entitled to the relief sought for.
7. At the time of hearing, however, the learned Counsel for the respondents placed a copy of the Memo No. 10195/DW/ A2/2002, dated 18-11-2002, which was issued by the Government of Andhra Pradesh, Women Development, Child Welfare and Disabled Welfare (DW) Department. A perusal of the said Memo shows that under the said Memo, the Government has given instructions to all the Heads of the Departments and the District Collectors informing them that if there is any dispute as to the genuineness of the certificates as to the disability, they are requested to refer the cases to the State Appellate Medical Board Authority i.e., Sarojini Devi Eye Hospital for visually handicapped, ENT Hospital, Koti, Hyderabad for hearing handicapped and Gandhi Hospital/Osmania General Hospital for Orthopaedically handicapped, whenever any doubt arises and whenever re-verification is considered necessary for assessing the degree of disability accurately.
8. From the above, the issue to be considered is whether the provisions of the Act are applicable to the petitioners and whether they are entitled for the relief sought for.
9. Before considering the merits of the case, it would be proper to refer to the relevant provisions of the Act.
"Sec. 2. Definitions :--In this Act, unless the context otherwise requires:--
(k) "establishment" means a Corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government Company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) and includes departments of a Government.
(p) "medical authority" means any hospital or institution specified for the purposes of this Act by notification by the appropriate Government.
Sec. 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 mat 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."
10. A reference to the above provisions clearly shows that the Act defines the establishments to which the provisions of the Act are applicable. As per Section 2(k) establishment means a Corporation established by or under a Central, Provincial or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government Company, as defined under Section 617 of the Companies Act and includes the departments of Government. From this it is very clear that the 1st Respondent Company is a Company established as well as owned by the Government and it is not in dispute as to the application of the provisions to the 1st Respondent establishment. Further, from the provisions of Section 47 it is also clear that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service. If an employee after acquiring the 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. It is also provided 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. Further, under Sub-section (2), no promotion shall be denied to a person merely on the ground of disability. Under the proviso to said Section, however, the Government is empowered to grant exemption by notification subject to such conditions, if any, to any establishment from the provisions of this Act. But, it is not the case of the 1st Respondent Company that it was given any exemption, though in the counter it was stated that the 1st Respondent Company has applied to the State Government for grant of exemption. As long as no such exemption was granted to the 1st Respondent Company it is under an obligation to comply the provisions of the Act.
11. Coming to the merits of the case, though the Respondent Company disputed that the disability had not occurred due to the accident during the course of service of the petitioners, but the same is devoid of merit, as the proceedings of the Medical Department of the 1st Respondent Company clearly shows that the 1st Petitioner met with an accident on 30-8-1997 while he was on duty and sustained injury to his back. Similarly, the Accident Medical Report dated 13-2-1999 clearly shows that the 2nd Petitioner met with an accident while he was showling, the side wall slipped and fell on his right eye and left leg knee caused injury. These material papers, filed along with writ petition, are not disputed by the respondents. Therefore, from the material on, record it is clear that both the petitioners have acquired the disability as a result of the accidents that had occurred while they were on duty.
12. Though the learned Counsel for the 1st Respondent contended that unless the medical authority is notified in terms of the provisions of the Act, the provisions of the Act cannot be made applicable, as according to the learned Counsel, the authorities notified under the Act has to certify that the petitioners have, become disabled in terms of the provisions of the Act and in the absence of such certification by the authority notified under the Act, the petitioners are not entitled to the relief sought for. I am unable to accept the said contention of the learned Counsel for the 1st Respondent Company. A perusal of the provisions of the Act does not contemplate that in order to get the benefit of the provisions of the Act that any authority notified under the Act has to certify. On the other hand, the Memo filed by the learned Counsel for 1st Respondent shows that even in the case of recruitment the certificates issued by the Medical Officers have to be taken into consideration and whenever there is a dispute as to the genuineness of the claim then only the issue has to be referred to the State Appellate Medical Board Authority. In the present case, admittedly, the Medical Board of the 1st Respondent Company, after conducting necessary tests and verifications, declared that both the petitioners are medically unfit to carry on the job, which they were carrying on as on the date of the accident. When once the Officers of the Respondent Company declared that the petitioners became disabled as a result of the injuries suffered by them, basing on which their services were terminated, it is not open to the 1st Respondent Company to contend that they are not disabled and it should be certified by the medical authorities notified by the State Government under the provisions of the Act.
13. A similar issue was also considered by a learned Single Judge of this Court in the case of Syed Sha Musebulla Alvi v. Secretary, GAD (supra), where the petitioner in that case was an employee of the A.P. State Road Transport Corporation, who suffered disability while in service. As his services were terminated without providing any alternative employment, as provided under Section 47 of the Act, the petitioner approached this Court and this Court accepting the claim of the petitioner, set aside the impugned order of termination passed by the Vice-Chairman and Managing Director of the Corporation. The said view was considered by a Division Bench of this Court in WA No. 1061 of 2000, dated 12-3-2001. Similar view was expressed even by the Apex Court in the case of Anand Bihari v. Rajasthan State Road Transport Corporation, . In the light of the above legal position as well as the findings of this Court, the petitioners are entitled to the relief sought for.
14. Accordingly, the impugned orders of termination are set aside and the 1st Respondent is directed to provide alternative employment to the petitioners within a period of six weeks from the date of receipt of the copy of the order. The petitioners are entitled for all consequential benefits.
15. In the result the writ petition is allowed, accordingly. No costs.