Madras High Court
A. John Peter vs The General Manager, Tamilnadu ... on 21 March, 2003
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The brief facts leading to the Writ Petition are as follows:
The petitioner was employed as conductor in the erstwhile Pandian Roadways Corporation on daily wages from the year 1976. When the said Corporation was bifurcated in the year 1983, the petitioner was allotted to Maruthupandiar Transport Corporation and his services were regularised with effect from 1.10.1978 as conductor. Thereafter all Transport Corporations were brought under the Respondent Corporation and from then onwards, the petitioner was continuously working in the respondent Transport Corporation. While he was on duty as conductor in the bus bearing Registration No. TN-67-N-0022 owned by the Respondent Corporation, plying between Madurai and Ramanathapuram, the said bus met with an accident on 15.12.1997 and the petitioner sustained grievous multiple injuries like fracture in the forearm, shortening of leg by six inches, fracture in the left knee and fracture in left hip. He was admitted in the Government Hospital, Ramanathapuram and was later discharged after the ailments were cured. On 10.7.1998, the petitioner wrote to the respondent to provide alternate employment as he may not be in a position to work as a conductor. He was subjected to medical examination before the Medical Board, Government Headquarters Hospital, Ramanathapuram which certified on 21.8.1998 to the effect that " he is fit for duty other than the conductor duty which requires working in billing posting". Inspite of the said recommendation of the Medical Board, by the impugned order dated 29.10.1998, the petitioner was removed from service on medical grounds and the said order is challenged in this Writ Petition.
2. The question arises for consideration is as to whether the petitioner could be removed from service on the ground that he was incapacitated to hold the post of conductor.
3. The right of the petitioner to continue in employment shall be considered with reference to his right to livelihood. Article 21 of the Constitution of India reads as follows:
"Article 21: Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law"
4. Article 21 protects "the right to livelihood as an integral facet of right to life". Such right includes the right to live with human dignity. Such human dignity could be achieved only if there is a protection to the employment, of course, subject to disciplinary proceedings.
5. The Apex Court, while considering the absorption of an employee, who is physically incapacitated due to the disease while in service in NARENDRA KUMAR CHANDLA VS STATE OF HARYANA AND OTHERS has held as follows:
"Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as LDC. Admittedly, on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs. 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs.1400-2300 and direct to pay all the arrears of salary"
6. Keeping the disability sustained by the employee while in service and the possibility of the employee loosing his livelihood in mind the Legislature enacted "Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
7. Section 47 of the said Act reads as under:
"47. Non discrimination in Government employments (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 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"
8. Section 47(1) is clear in terms that "no establishment shall be dispensed with or reduce in rank, an employee who acquires a disability during his service. In fact under Section 47(2) there is a right conferred to persons sustained disablement even for promotion and no establishment shall deny promotion to a person merely on the ground of his disability. In fact, the scope of Section 47 came up for consideration before the Apex Court in the judgment reported in KUNAL SINGH VS UNION OF INDIA (2003 AIR SCW 1013) and the Apex Court has held thus:
" An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires 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 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 purposes of the Act. Language of Section 47 is plan and certain casting statutory obligation on the employer to protect an employee acquiring disability during service"
9. The right to livelihood which is integral facet of right to life as guaranteed under Article 21, coupled with the protection under Section 47 of the Act, entitles the employee who was incapacitated during service for continuance of service in suitable alternative post with same scale of pay drawn by him on the date of incapacity and all service benefits attached to such post which was held by him.
10. On the above settled position, the submissions made on behalf of the respective counsels should be considered.
11. The learned counsel for the petitioner brought to my notice the decision of this Court reported in M. GOPAL VS MANAGEMENT OF STATE EXPRESS TRANSPORT CORPORATION LIMITED (2000 Writ Law Reporter 817). The learned Judge while considering the similar case of dismissal of a driver of the State Express Transport Corporation Limited, Division I, Coimbatore, who was discharged from service on the ground that he was medically unfit due to the accident, gave a direction to consider the representation of the petitioner in the light of the observation made thereunder for entitlement of the petitioner therein for continuance of service.
12. On the contrary, the learned counsel for the respondent brought to my notice, the decision reported in S. PALANIVEL VS MANAGING DIRECTOR, TAMILNADU STATE TRANSPORT CORPORATION AND ANOTHER ( 2003(1) L.L.N. 355) and contended that though the petitioner may be entitled to alternate employment, he is not entitled to either continuance of service or the last drawn pay in terms of G.O.Ms.No. 746 Transport dated 2.7.1981.
13. It is true that this Court while considering the said Government Order which was in fact upheld by this Court, on the ground that while applying the Government Order there is no non-employment or termination of service of the employee and it was only a discharge on medical grounds and that employee was entitled to be appointed as per G.O.Ms.No.746, by fresh recruitment and paid salary accordingly. The facts of the said case is entirely different to the facts of the present case.
14. While considering the Government order in that case where the employee was discharged on the ground of medically unfit, this court held that it was not a case either termination or non employment of service and hence the employee is entitled to the benefit of G.O. for fresh employment. However, in this case, the injuries sustained by the petitioner due to the accident while he was in service, are not disputed. Equally, the petitioner was subjected to the medical examination before the Medical Board which in fact certified that the petitioner is fit for duty other than the conductor duty which requires working in billing posting. The recommendation of the Board is not that the petitioner is totally unfit for employment. Strangely, by the impugned order, the respondent has completely ignored the recommendation of the Medical Board and has gone one step further, by saying that there was recommendation by the Medical Board that the petitioner is unfit for duty. Such a reason is not supported by the recommendation of the Board. While that being so, the petitioner was removed from service on the ground that he is medically unfit. In my view such an order of removal cannot be sustained. I also find that prior to the impugned order was passed, the petitioner was not given any opportunity. Opportunity to the petitioner assumes much importance in this case as he was armed with recommendation of the Medical Board for some suitable post and the recommendation of the Medical Board was totally misconstrued by the respondent as if the Medical Board has certified that the petitioner is totally unfit for any job. On this ground also the impugned order is liable to be set aside,and accordingly, it is set aside.
15. Coming to the submission of the learned counsel for the respondent that the petitioner is entitled to an alternate employment and that too on the basis of fresh appointment with fresh salary attached to the new post, I am unable to agree with the said submission as it is the categorical pronouncement of the Apex Court in NARENDRA KUMAR CHANDLA's Case referred to supra, that in terms of Section 47 of the Act, disability cannot be a ground for dismissal/removal of the employee from service and such employee is entitled to an alternate suitable employment with protection of last drawn salary and continuity of service. Hence the judgment relied on by the learned counsel for the respondent is not applicable to the facts of the present case. Therefore, the petitioner is entitled to a suitable alternate employment with protection to his last drawn salary and continuity of service with all benefits.
16. Accordingly, the Writ Petition is allowed. No costs.