Kerala High Court
K.Santhosh Khan vs Malabar Cements Limited on 29 November, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938
WP(C).No. 32378 of 2016 (V)
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PETITIONER(S):
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K.SANTHOSH KHAN,
AGED 45 YEARS, S/O. ABDUL KARIM,
RESIDING AT 'SWAPNA", RANDATHANI,
MALAPPURAM.
BY ADVS.SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENT(S):
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1. MALABAR CEMENTS LIMITED,
REPRESENTED BY MANAGING DIRECTOR, WALAYAR,
PALAKKAD-678624.
2. THE MANAGING DIRECTOR,
MALABAR CEMENTS LIMITED, WALAYAR,
PALAKKAD-678624.
3. THE GENERAL MANAGER (P&A),
MALABAR CEMENTS LIMITED, WALAYAR,
PALAKKAD-678624.
4. THE DEPUTY GENERAL MANAGER (P&A),
MALABAR CEMENTS LIMITED, WALAYAR,
PALAKKAD-678624.
BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
WP(C).No. 32378 of 2016 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY
M.K.HAJEE ORPHANAGE HOSPITAL, MALAPPURAM
DATED 29-11-2010.
EXHIBIT P2 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY
M.K.HAJEE ORPHANAGE HOSPITAL, MALAPPURAM DATED
26-09-2016.
EXHIBIT P3 A TRUE COPY OF THE TEST RESULT CONDUCTED ON THE
PETITIONER AT WISH SPEECH AND HEARING CLINIC DATED
24-9-16.
EXHIBIT P4 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT RE-
DESIGNATING THE PETITIONER AS OPERATOR IN C GRADE
DATED 26-5-2014.
EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 16-7-2014.
EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 30-9-14.
EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE STATE HUMAN RIGHTS
COMMISSION DATED 3-3-2016.
RESPONDENT(S)' EXHIBITS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
ANU SIVARAMAN, J.
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W.P.(C) No.32378 of 2016
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Dated this the 22nd day of November, 2016
JUDGMENT
The prayer in this writ petition is to accommodate the petitioner in a suitable post equivalent to the post held by him in the first respondent company. It is contended that the petitioner was appointed as Mechanic Grade-B in the first respondent company in 2004 and was promoted as Mechanic Grade-A in 2009. The petitioner claims that he is entitled to a further promotion as Vth Grade Mechanic in 2014. He states that on 11.03.2008, while he was working in the Cherthala plant of the first respondent, he met with an accident in the plant, which resulted in the impairment of his hearing capacity. It is stated that the petitioner had made an application for convenient posting in an appropriate post on account of his disability. By Ext.P2 order, the second respondent had designated the petitioner as Grade-C Operator in the clerical wing, taking his request into account. W.P.(C) No.32378 of 2016 -2- It is stated that the said post is far below the post which was held by the petitioner, and the orders are violative of Section 47 and the provisos under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to 'the Act' for short). A statement has been filed on behalf of the respondents, contending that the petitioner had already been granted a suitable posting in the clerical cadre, taking into account his disability and that no further indulgence would be shown in the petitioner's case.
2. I have considered the contentions advanced on either side. Section 47 of the Act specifically provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The first proviso to the section provides that 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. It is further provided that if it is not W.P.(C) No.32378 of 2016 -3- 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.
3. It is submitted by the learned counsel for the respondents at the time of argument that the petitioner had not produced a disability certificate, as contemplated in the Persons with Disabilities Rules, to enable a consideration of his claim in terms of Section 47 of the Act. It is contended by the learned counsel for the respondents that Ext.P2 was an order issued on a sympathetic consideration of the petitioner's health condition, and in order to enable consideration of his claim under Section 47 of the Act, the petitioner is duty bound to produce the disability certificate as provided under the Rules.
4. It is clear from a reading of Section 47 of the Act that what is contemplated is the retention of the employee W.P.(C) No.32378 of 2016 -4- who suffers a disability while in service in the same post or in any other post with the same scale of pay and service benefits. It is the specific case of the petitioner that he was entitled for promotion as Vth Grade Mechanic in 2014, and the same has been denied to him, only because of the disability suffered by him.
In the above view of the matter, I am of the opinion that the respondents are duty bound to consider the claim of the petitioner for retention in a post equivalent to the post he would have held but for his having acquired the disability. To enable such consideration, the petitioner shall produce a disability certificate as provided in Rule 47 of the Act, before the respondents within a period of one month from the date of receipt of a copy of this judgment. If such a disability certificate is produced before the respondent, along with an application for consideration of his claim for retention under Section 47 of the Act, the said application will be taken up by W.P.(C) No.32378 of 2016 -5- the competent among the respondents with notice to the petitioner, and orders passed thereon, after hearing the petitioner also in person within a period of two months thereafter.
Writ petition is disposed of as above.
Sd/-
ANUJUDGE SIVARAMAN, vs