Madras High Court
A.Rajendran vs Tamil Nadu Khadi And Village Industries ... on 12 April, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD).No.10646 of 2012
A.Rajendran .. Petitioner
Vs.
1.Tamil Nadu Khadi and Village Industries Board,
Represented by its Chief Executive Officer,
Kuralagam,
Chennai 600 108.
2.The Assistant Director,
Tamil Nadu Khadi and Village Industries Board,
Dindigul. .. Respondents
PRAYER : Writ Petition is filed under Article 226 of the Constitution
of India to issue a Writ of Certiorarified Mandamus calling for the
records relating to the impugned order of the first respondent in
Ref.Na.Ka.No.14600/E2(3)/2007, dated 03.07.2012 and quash the
same and consequently directing the respondents to assign
alternative duty to the petitioner with all consequential benefits.
For Petitioner : Mr.S.Anwar Sameer
For Respondents : Mr.G.Karnan
http://www.judis.nic.in
2
ORDER
The prayer sought for in this writ petition is for a Writ of Certiorarified Mandamus calling for the records relating to the impugned order of the first respondent in Ref.Na.Ka.No. 14600/E2(3)/2007, dated 03.07.2012 and quash the same and consequently directing the respondents to assign alternative duty to the petitioner with all consequential benefits.
2. The case of the petitioner, according to the affidavit filed in support of this petition, is as follows:-
The petitioner was appointed as 'Office Assistant' at the respondent Board in the year 1984. Thereafter, in the year 1992, he was promoted as 'Second Grade Assistant'. While so, he was suffered from paralytic stroke during November 2005. The petitioner underwent continuous medical treatment. Since the petitioner's health condition was not improved at that time, he submitted an application on 05.01.2007 seeking permission to go on voluntary retirement. However, the respondents did not pass any orders on the said application.
3. Thereafter, because of the continuous treatment, the petitioner recovered from illness and became fit to work. Therefore, http://www.judis.nic.in 3 the petitioner made an application, on 27.04.2008, withdrawing his request for going on voluntary retirement and he also sought for permission to join duty. However, no orders were passed by the respondent Board on the said application also. Thereafter, on 30.08.2008 also, the petitioner had made a detailed request for permitting him to rejoin duty. Since no orders were passed, the petitioner approached this Court by filing writ petition in WP. (MD).No.10293 of 2008, wherein the petitioner sought for a Writ of Mandamus seeking a direction against the respondent Board to permit the petitioner to rejoin duty as Second Grade Assistant in the Office of the second respondent.
4. The said writ petition was disposed of by this Court by order dated 27.02.2012, wherein, a direction was given that, the petitioner shall make a request to the respondent Board seeking an alternative job for employment within the meaning of Section 47 (A) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, (herein after referred to as 'the Act').
5. In that order, this Court had further directed that, on receipt of such application to be given by the petitioner, the first respondent was directed to consider the request of the petitioner by looking into http://www.judis.nic.in 4 the provisions of 47(A) of the Act and find out as to whether there was any possibility of accommodating the petitioner in any other alternative employment.
6. Pursuant to the said order passed by this Court, the petitioner had given a request on 14.03.2012 to the respondent Board seeking alternative employment under the provisions of the Act. The said request made by the petitioner had been rejected and an order to that effect has been passed by the first respondent on 03.07.2012 stating that the petitioner, since had been referred to the Medical Board once again, after the order passed by this Court and he was certified unfit to join the very same work and there was no scope for giving any alternative employment to the petitioner in the respondent Board, the petitioner was directed to be discharged on the ground of medical invalidation from 13.06.2012. Aggrieved over the said order, dated 03.07.2012, the petitioner filed the present writ petition with the aforesaid prayer.
7. I have heard Mr.S.Anwar Sameer, learned counsel appearing for the petitioner and Mr.G.Karnan, learned standing counsel appearing for the respondents.
8. The learned standing counsel for the respondent Board, by http://www.judis.nic.in 5 relying upon the averments made in the counter affidavit filed by the respondent Board, would submit that, after the order passed by this Court in the first round of writ petition cited supra, considering the petitioner's health condition, he has been referred to the Medical Board. The Medical Board, having at Rajaji Government Hospital, furnished the reports on 27.12.2006 and 10.04.2012 and opined that the petitioner is unfit to do any other duty in the post of Khadi Assistant Grade-II. That apart, he has difficulties in speech and calculation also. He is able to walk and to do his activities of daily living himself. With his residual right sided Hemiparesis, he would have speech difficulty, writing difficulty, memory impairment and calculation difficulty.
9. In view of the said reports submitted by the Medical Board, the petitioner could not be considered to rejoin duty in the post, which he had already worked and he was also not able to be accommodated to any other post available in the respondent Board. Thereafter, in order to permit the petitioner to be discharged on medical invalidation, by considering his absence period, as medical leave etc., the impugned order, dated 03.07.2012 was passed.
10. Therefore, the learned standing counsel would submit that, since the petitioner's health condition had been continuously http://www.judis.nic.in 6 worst for several years right from 2001, he was not fit to consider for any job in the respondent Board. Therefore, the respondent Board, after obtaining the report from the Medical Board in this regard, had taken the decision practically and pragmatically that the petitioner was permitted to discharge by way of medical invalidation. Therefore, there is no good reason to interfere with the impugned order passed by the respondent Board.
11. The learned standing counsel appearing for the respondents would further submit that, during the pendency of the writ petition, since the petitioner attained the age of superannuation on 31.01.2015, an order was passed on 30.01.2015 in consonance with the impugned order. Accordingly, the petitioner was permitted to go by way of medical invalidation from 13.06.2012 from the respondent Board and his absence period from 01.06.2006 to 13.06.2012 was treated as medical leave without salary and whatever dues available, shall be paid to him. The said order was passed on 30.01.2015 without prejudice to the outcome of the decision to be made in this writ petition.
12. However, the learned counsel appearing for the petitioner would submit that, the petitioner had been working at the respondent Board from 1984 onwards and from 1992, he was placed http://www.judis.nic.in 7 in the post of Second Grade Assistant. After working for more than 20 years, the petitioner suffered with stroke and therefore, he was not able to attend his duty. Therefore, he had given a request on 05.01.2007 for voluntary retirement. However, no order was passed by the respondent Board and no decision was taken in this regard. Further, the petitioner was not discharged on medical invalidation. Subsequently, on taking continuous treatment, the petitioner's health condition has improved and therefore, in the year 2008, since the petitioner's has become well to attend duty, he made a request on 27.04.2008 to the respondent Board to permit him to join duty. Since no action was taken and no permission was given to the petitioner to join duty, he had once again given a detailed request on 30.08.2008. In spite of these repeated requests, the petitioner was not permitted to join duty.
13. Further, the learned counsel for the petitioner would submit that, the petitioner approached this Court and filed a writ petition, wherein a direction was given to consider his request, within the meaning of Section 47(A) of the Act and only thereafter, once again the petitioner was referred to the Medical Board and based on such medical report, the impugned order was passed.
14. In this regard, the learned counsel for the petitioner would http://www.judis.nic.in 8 further submit that, either the respondent Board should have accepted the petitioner's voluntary retirement as early as in the year 2007 itself, when a said request was made by the petitioner, as petitioner was having the eligible year and service to get pension, could have continued to receive the pension from the date i.e., from 2007 or at least when the petitioner made request in April 2008, the petitioner could have been permitted to rejoin the duty and in order to show the bonafide to join duty, the petitioner had already approached this Court by filing the writ petition seeking the prayer of direction to the respondent Board to permit the petitioner to join duty and during the pendency of the said writ petition also, the respondent Board did not come forward to permit the petitioner to join duty and the order was passed in the writ petition and once again the respondent Board referred the petitioner to the Medical Board in the year 2012.
15. In the meanwhile, because the petitioner was not able to get full medical treatment, as he was out of duty, the health condition of the petitioner was further deteriorated and therefore, the Medical Report was given by the Medical Board stating that the petitioner was not fit to the same job. Assuming that the petitioner was not able to perform the same duty, under the provision of the Act, a suitable job should have been given to the petitioner and he may be kept on a http://www.judis.nic.in 9 supernumerary post until a suitable post is available or he attains the age of superannuation within the meaning of Section 47(1) of the Act.
16. None of the aforesaid action had been taken by the respondents and therefore, there is absolutely no reason whatsoever on the part of the petitioner and all along, only the respondent Board have not given any reason for the petitioner's non-performing duty for several years and therefore, showing the same, the petitioner's lawful right of getting salary and pensionary benefits, cannot be decided by passing the impugned order sending the petitioner on medical invalidation in the year 2012. Therefore, the learned counsel submits that the impugned order is liable to be interfered with.
17. In support of his contention, the learned counsel appearing for the petitioner would rely upon the decision of Hon'ble Apex Court in Anil Kumar Mahajan Vs. Union of India and others reported in (2013) 7 SCC 243.
18. I have considered the said rival submissions made by the learned counsel appearing for both sides and also perused the materials placed before this Court.
http://www.judis.nic.in 10
19. The aforesaid facts are not in controversy between the parties, the petitioner was working at the respondent Board as a permanent employee from 1984 and till he suffered the disease of paralytic stroke in the year November 2005, he had been continuously serving at the respondent Board. Therefore, he had already completed 21 years of continuous service.
20. After he suffered with illness in the year 2005, though he had taken treatment, since his condition was not much improved, he decided to go for VRS by tendering his letter for voluntary retirement on 05.01.2007. However, for the reasons best known, the respondents have not acted upon the request of the petitioner for voluntary retirement and kept the same as pending for years together. Thereafter, the petitioner, after getting some improvement or recovery from his illness, on 27.04.2008, made a request to the respondents to rejoin duty and thereafter, on 30.08.2008, he has also made a further request to rejoin duty and both these requests had not been considered and acted upon by the respondents. It is to be noted that during these years, the petitioner is out of duty and his letter for voluntary retirement dated 05.01.2007 was very well before the respondent Board, but it had not acted upon either to permit the petitioner to go for voluntary retirement or to permit him to join duty.
http://www.judis.nic.in 11
21. Only at that juncture, the petitioner approached this Court by filing a writ petition in W.P(MD)No.10293 of 2008, where this Court, on 27.02.2012, passed the following order:-
“...11. According to the respondents, the proposal sent to the first respondent for giving compulsory retirement to the petitioner is still pending and no final orders have been passed. At any event, as this Court by order dated 29.03.2011 has directed the respondents not to pass final orders, the respondents should now consider the request of the petitioner for rejoining the duty. For such purpose, the petitioner has already made a request through his representation dated 30.08.2008. Apart from the said representation, the petitioner has now come forward with further request to consider his case for any other alternative employment as contemplated under Section 47 (A) of the Persons with Disabilities (Equal Opportunites, Protection of Rights and Full Participation) Act, 1995.
12. Therefore, it is the duty on the part of the first respondent to consider the case of the petitioner and pass orders accordingly. As the petitioner has come forward with the present relief of seeking alternative employment under Section 47 (A) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and http://www.judis.nic.in 12 Full Participation) Act, 1995, the petitioner is directed to give a fresh representation to the first respondent within a period of two weeks from the date of receipt of a copy of this order and,as and when any such representation is made by the petitioner, the first respondent shall consider the same and pass orders on merits and in accordance with law within a period of six weeks thereafter. It is needless to say that while considering the representation of the petitioner, the first respondent should also look into the provisions of Section 47 (A) of the Persons with Disabilities (Equal Opportunites, Protection of Rights and Full Participation) Act, 1995 and find out as to whether there is any possibility of accommodating the petitioner in any other alternative employment.
13. With these observations, the writ petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs.”
22. Pursuant to this direction, the petitioner's request seeking alternative job under Section 47(A) of the Act, was considered by the respondent Board and the impugned order, dated 03.07.2012, was passed.
http://www.judis.nic.in 13
23. In this context, the right of the disabled person under the Act, especially, under Section 47 can be looked into. Hence, the said provision is extracted hereunder:-
“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.
24. Under the second proviso to Section 47(1)of the Act, if the employer is failed 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. http://www.judis.nic.in 14
25. In this context, it is the submission of the learned standing counsel appearing for the respondents that, though pursuant to the order of this Court referred to above, the case of the petitioner was referred to Medical Board, Rajaji Government Medical College Hospital, and a report was submitted by the Medical Board stating that he is not fit to join duty, since he is having lot of memory impairment, as he was not able to write and he is having the problem in speech, also no suitable job was available, wherein the petitioner could be accommodated, the petitioner could not be fit in any of the job in the respondent Board.
26. Assuming that there is no suitable job available in the respondent Board, in order to accommodate the petitioner, under the provision of the Act, the petitioner, no doubt, could be entitled to get the supernumerary post, till the age of superannuation, which is mandated in the second proviso to Section 47(1) of the Act.
27. In this context, the judgment referred to by the learned counsel appearing for the petitioner cited supra i.e., (2013) 7 SCC 243 can be pressed into service. In the said decision, the Hon'ble Apex Court, after having taken note of the said proviso, has held as follows:-
http://www.judis.nic.in 15 “...20.The appellant was appointed in the service of the respondents as an IAS Officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15.10.2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even if it is presumed that the appellant became insane, as held by the enquiry officer, mental illness being one of the disabilities under Section 2(i) of the 1995 Act, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.
21.In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of the appellant or to compulsorily retire him from service. The High Court also failed to notice the relevant facts and without going into the http://www.judis.nic.in 16 merits allowed the counsel to withdraw the writ petition merely on the basis of the finding of the enquiry officer. In fact the High Court ought to have referred the matter to a Medical Board to find out whether the appellant was insane and if so found, in that case instead of dismissing the case as withdrawn, the matter should have been decided on merits by appointing an advocate as amicus curiae.
22.It is informed at the Bar that in normal course the appellant would have superannuated from service on 31.07.2012. In that view of the matter, now there is no question of reinstatement of the appellant though he may be entiltled for consequential benefits including arrears of pay. Having regard to the facts and finding given above, we have no other option but to set aside the order of compulsory retirement of the appellant dated 15.10.2007 passed by the respondent; the order dated 22.12.2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA.No.2784 of 2008 and the impugned order dated 20.04.2010 passed by the High Court of Delhi in Anil Kumar Mahajan V. Union of India and the case is remitted to the respondents with a direction to treat the appellant as continued in the service till the date of his superannuation. The appellant shall be paid full salary minus the subsistence http://www.judis.nic.in 17 allowance already received for the period from the date of initiation of departmental proceeding on the ground that he was suffering from mental illness till the date of compulsory retirement. The appellant shall also be provided with full salary from the date of compulsory retirement till the date of superannuation in view of the first and second provisos to Section 47 of the 1995 Act. If the appellant has already been superannuated, he will also be entitled to full retiral benefits counting the total period in service. The benefits shall be paid to the appellant within three months, else the respondents will be liable to pay interest at the rate of 6% per annum from the date the amount was due, till the actual payment.”
28. As has been held by the Hon'ble Apex Court, since the second proviso to Section 47(1) of the Act mandates that the disabled employee shall be kept in any supernumerary post, if there is no suitable post is available, the employer can adjust the employee for the time being either till the suitable post is available or he/she attains the age of superannuation, whichever is earlier. The petitioner shall definitely be entitled to claim the said benefit of a supernumerary position till his superannuation.
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29. It is the fact that the petitioner attained the age of superannuation on 31.01.2015. Therefore, the first respondent on 30.01.2015 has passed an order in Na.Ka.No.23496/E2(3)2014-15. The said order reads thus:-
“Miz jp;z;L;f;fy; (fjh; fpuhkj; njhop;y;fs;) cjtp ,af;Feh; mYtyfj;jpy; fjh; cjtpahsh; epiy-2 Mf gzpGhpAk; jpU.m.,uhN[e;jpud;; vd;gtiu fjh; cjtpahsh; epiy-2 Mf gzpGhpa jFjpaw;wth; vd 13.06.2012y; kJiu ,uh[h[p muR kUj;Jtkid kUj;JtFOtpduhy; mwpf;if toq;fg;;gl;lij njhlh;e;J md;dhiu kUj;Jt ,ayhik fhuzq;fSf;fhd Xa;tpy; nry;y ghprPypf;fg;gLk; vd njhptpf;fg;gl;l jiyikr; nray; mYtyhpd; eltbf;if e.f.vz;.14700-,.2(3)-2007> ehs; 03.07.2012d; Njjpapl;l Mizapid js;Sgb nra;AkhWk; kPs gzptoq;ff; NfhhpAk; nrd;id cah;ePjpkd;w kJiu fpisapy; hpl; kD vz; 10646(MD)/2012-d; top jdpahh; tof;F njhlh;e;jhh;. VdNt kUj;Jt ,ayhik fhuzkhf 13.06.2012 Kjy;
Xa;tpy; nry;y mDkjpf;f Nkw;gb tof;fpd; jPh;g;ghiz vjph;Nehf;fg;gl;lJ Mdhy; jdpahhpd; taJ Kjph;T fhuzkhf Xa;T ngWk; Njjp 31.01.2015 Mifahy; Nkw;gb tof;fpd; kPJ gpd;dhspy; toq;fg;glTs;s jPh;g;ghiz W.P.(MD),No.10646/2012-
f;F Fe;jfk; ,y;yhky; fPo;fz;l Miz
toq;fg;gLfpwJ.
1. 13.06.2012-y; kJiu ,uh[h[p muR
kUj;Jtkidapd; kUj;Jtf; Fotpduhy;
toq;fg;gl;l cly; jFjpapd;ik rhd;wpd;
http://www.judis.nic.in
19
mbg;gilapy; ,g;gzpahsiu 13.06.2012 Kjy; kUj;Jt ,ayhik fhuzq;fSf;fhd Xa;tpy; nry;y mDkjpf;fg;gLfpwJ.
2. ,ilg;gl;l fhykhd 01.06.2006 Kjy;
13.06.2012 tiuapyhd fhyj;jpid kUj;Jt
tpLg;G kw;Wk; Cjpakpy;yh tpLg;ghf
tud;Kiwg;gLj;jpl jpz;Lf;fy;
cjtp ,af;FeUf;F (fjh; fpuhkj; njhopy;fs;) mDkjp toq;fg;gLfpwJ.
3. jdpahUf;F ghh;it-2d; top epYit cs;sjhf njhptpf;fg;gl;l njhif &.88>443/-I md;dhhpd; Xa;T+jpag; gad;fspypUe;J gpbj;jk;
nra;J nfhs;sTk; &.10>018/-f;fhd jzpf;ifj;
jilfs; epth;j;jp nra;ag;gLk; tiu
mj;njhifia epWj;jk; nra;jplTk; thhpa
Xa;T+jpa gphpit Nfhug;gLfpwJ.
fh.ghyr;re;jpud;>
jiyikr; nray; mYtyh;.”
30. As has been discussed in the above paras, from the year 2005 till 2012, for the seven long years, though the petitioner had been suffered with stroke for some time and subsequently, according to him, he recovered from such illness and he made a request to rejoin duty in the year 2008 by making the applications dated 27.04.2008 and 30.08.2008, the said applications were not considered by the respondents. Admittedly, in the said http://www.judis.nic.in 20 circumstances, the petitioner had approached this Court and obtained an order in W.P.(MD).No10293 of 2008, dated 27.02.2012.
31. After getting order from this Court, the respondent Board started action and sent the petitioner to the Medical Board of Rajaji Government Hospital, Madurai and after receiving the report from the Medical Board, the respondent Board decided that the petitioner would not be fit for any job available in the respondent Board. Assuming that at the time, when the said petition was filed viz., in the year 2012, the petitioner became unfit, the next course of action, which was available to the respondent Board is to keep the petitioner in a supernumerary position, invoking the second proviso to Section 47(1) of the Act, as that was mandated under the said Act and the same has been reiterated in the decision referred to above. Otherwise, the respondent Board could have accepted the request for voluntary retirement given by the petitioner as early as on 05.01.2007. Here also, for the reasons best known, the respondent Board have not acted upon the said request of the petitioner, which is an inaction on the part of the respondent Board.
32. Because of these inaction on the part of the respondents, the petitioner cannot be made to suffer. As rightly pointed out by the learned counsel appearing for the petitioner, if the application of the http://www.judis.nic.in 21 petitioner for voluntary retirement was accepted, the petitioner would have been in a position to get the pension, as he had completed 21 years of service, which is eligible to get the pension from the respondent Board. Therefore, in the opinion of this Court, the petitioner shall be entitled to claim the benefits.
33. In the light of the above discussions and the reasons cited therein and in view of the mandatory provisions under the Act, this Court is of the firm view that the impugned order shall not stand in the legal scrutiny. Therefore, it requires interference of this Court and accordingly the same is quashed.
34. In view of the impugned order, dated 03.07.2012 in Ref.Na.Ka.No.14600/E2(3)/2007, having been quashed by this Court, the subsequent order, dated 30.01.2015 in Na. Ka. No. 23496 / E2 (3) /2014-15, which was passed with a condition that the said order was passed without prejudice to the order to be passed in this writ petition, shall not have any effect.
35. In the result, the following directions are issued:-
(i) That the impugned order is quashed;
http://www.judis.nic.in 22
(ii) The petitioner shall be entitled to get service benefits including salary;
(iii) Since admittedly the petitioner has been out of service, particularly, from the year 2005 till he attained the age of superannuation, it may not be justifiable for the petitioner to seek full salary from the respondent Board and as the respondent Board has already been suffered with financial instability, the petitioner shall be entitled to claim 50% of the salary for the said period; and
(iv) The respondents are directed to calculate 50% of the salary for the petitioner with all attendant benefits and disburse the same to the petitioner, within a period of twelve weeks from the date of receipt of a copy of this order.
36. With these directions, the Writ Petition is allowed to the terms indicated above. No costs.
12.04.2018 Index : Yes/No Internet : Yes/No sji http://www.judis.nic.in 23 To
1. The Chief Executive Officer, The Tamil Nadu Khadi and Village Industries Board, Kuralagam, Chennai 600 108.
2. The Assistant Director, Tamil Nadu Khadi and Village Industries Board, Dindigul.
http://www.judis.nic.in 24 R.SURESH KUMAR, J.
sji W.P.(MD).No.10646 of 2012 12.04.2018 http://www.judis.nic.in