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Judgment
D. Hariparanthaman, J.—The Petitioner seeks for issuance of Writ of Mandamus to direct the Respondent-Management to provide
alternate employment with pay protection and continuity of service, backwages and other attend benefits from 13.10.1997, date of discharge on
medical ground, as per Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in
short ""Act""). The Petitioner was employed as Conductor. After completing his duty on 26.10.1996, he remitted the ticket sales amount in the cash
counter at Edappadi Branch and boarded the Bus bearing Registration No. TML-7480 to go to his residence at Cavaripatty. The Bus started at
Edappady bus stand at 3.35 p.m. and it stopped at Kalvadangam Bus stop at 4 p.m., wherein two passengers boarded into the Bus with two
gunny bags and the gunny bags were kept under the seat. The Petitioner was sitting on the seat, where it was kept beneath the seat. When the Bus
was moving, the contents of the bag burst into explosion with loud noise and fire. In the said accident, the Petitioner sustained severe burn injuries
all over his body, particularly, on his head, face, nose and eyes. He was brought to the Government Hospitals in Kumarapalayam and Erode. But,
there were no improvement in the said Hospitals. Finally, he was admitted at Madurai Arvind Eye Hospital and took treatment there for about
three months. Despite the treatment, he lost his eyesight and became completely blind.
He sent a representation dated 28.7.1997 with a request to treat the period of absence as medial leave. While so, he was discharged from the
post of Conductor by order dated 13.10.1997 on the ground that he was medically unfit to continue in service.
The Petitioner has filed the present Writ Petition with the aforesaid prayer.
No counter is filed by the Respondent. However, learned Counsel for the Respondent-Corporation, on instruction, submitted that the
Corporation is maintaining a list for providing employment to the legal heirs of the persons, who were discharged from service on medical
invalidation and that the legal heir of the Petitioner is standing at Serial No. 96 in the said list. He produced a Letter dated 27.10.2006 of the
Petitioner seeking employment to his son in the Transport Corporation. It is submitted that as and when the turn comes, the Petitioner''s son would
be considered for employment.
Heard both sides.
It is not in dispute that the Petitioner was discharged from service only on the ground that he was medically unfit. The Petitioner lost his eyesight
due to the accident that occurred on 26.10.1996, when he travelled in the bus of the Respondent-Corporation, after completing his duty.
It is stated in the Affidavit filed in support of the Writ Petition that the Petitioner filed a Petition for compensation under the Workmen
Compensation Act, before the Deputy Commissioner of Labour, Salem, in W.C. No. 341 of 1997. But, the same was dismissed on 4.5.2001 on
the ground that the accident did not happen during his duty hours. Thereafter, he filed an Application under the Motor Vehicles Act in MCOP No.
48 of 2002, claiming compensation. But, the same was also dismissed on 4.2.2005 on the ground that the Corporation was not responsible for the
blast of the Bus.
From the above said facts, it is clear that the Petitioner was neither given compensation nor alternative employment. At this juncture, it is relevant
to note the proceedings dated 17.10.2006 of the Respondent directing the Petitioner to appear on 27.10.2006. Relevant portion of the said
proceeding is extracted hereunder:
Vernacular omitted
A mere perusal of the above said proceeding shows that the Respondent has not given any reason as to why the Corporation directed the
Petitioner to appear on 27.10.2006.
Pursuant to the above said proceeding, it seems that the Petitioner reported before the Respondent on 27.10.2006 and a letter dated
27.10.2006 from the Petitioner was obtained, seeking employment to his son. Relevant passage from the said letter is extracted hereunder:
Vernacular omitted
Section 47 of the Act mandates that no establishment shall dispense with an employee, who acquires a disability during his service. In a similar
matter, I have passed a detailed order in W.P. No. 3667 of 2012, dated 7.1.2013. Paragraphs 3, 4 & 6 to 10 thereof are extracted hereunder:
Any employee, who acquires disability during his service is given protection u/s 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full participation) Act, 1995 ( shortly ""The Persons with Disabilities Act""). Section 47 of the Persons with Disabilities Act
is extracted here under:
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.
(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.
There is a mandate u/s 47 of the Persons with Disabilities Act that no establishment shall dispense with an employee, who acquires a disability
during his service. The section begins with a non obstante clause and also uses the word ""shall"" thereby indicating the mandatory nature. The
Section mandates that no employee shall be dispensed with service on the ground that he is not suitable to the post due to the acquiring of
disability, while in service and the person, who acquired disability, shall be shifted to some other post with pay protection as per the First Proviso
to the Section and if no other post is available, the Second Proviso mandates to keep the person in a supernumerary post until a suitable post is
available or he attains the age of superannuation. The purport of the section is to give protection to the service of the person who acquired
disability during service. The mandate of Section 47 is that such a person, who already has suffered disability cannot be deprived of his livelihood.
Removing a person from service based on the acquiring of disability is per se illegal in view of Section 47 of the Persons with Disabilities Act. The
establishment covered under the Persons with Disabilities Act cannot say that they would provide him alternate employment in future and in the
mean time he shall suffer.
In V. Palanishanmugavel and others v. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Tirunelveli and others,
2007 (4) CTC 478, this Court has held thus:
While that was the aim of the said Act, the contention that alternate employment will be given as and when vacancy arises, and in such event
the employee will be treated as a new entrant has no legs to stand.
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Therefore for all the forgoing reasons, the Writ Petitions are allowed and the show cause notice or the order of discharge issued against the
Petitioners in respect of the Employees in service acquired disability during the period of service are quashed with a direction to the Respondents
to provide some other post with same pay scale and continuing service benefits from the date of discharge and if such other posts are not available
to keep on a supernumerary post either until a suitable posts are available or they attain superannuation whichever is earlier. This includes their
further right of promotion, etc., as per Section 47(2) of the Act.
In Kunal Singh Vs. Union of India (UOI) and Another, , the Apex Court held as follows:
Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in
Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2
of the Act has given distinct and different definitions of ""disability"" and ""person with disability"". It is well settled that in the same enactment if two
distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that
a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected u/s 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 the section reads
no establishment shall dispense with, or reduce in rank, an employee who acquires a 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 a 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 purpose of the Act. Language of Section 47 is
plain and certain casting statutory obligation on the Employer to protect an employee acquiring disability during service.
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Merely because under Rule 38 of the CCS (Pension) Rules, 1972, the Appellant got invalidity pension is no ground to deny the protection
mandatorily made available to the Appellant u/s 47 of the Act. Once it is held that the Appellant has acquired disability during his service and if
found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not
possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of
superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was
permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.
In G. Muthu Vs. The Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., a Division Bench of this Court has held thus:
After analysing the entire provisions of the Act and also various decisions cited above, we feel that the courts cannot shut its eyes if a person
knocks at its door claiming relief under the Act. In a welfare State like India, benefits of benevolent legislation cannot be denied on the ground of
mere hyper technicalities. When the law makers have conferred certain privileges on a class of persons, like in this case to a disabled person, the
duty is cast upon the judiciary to oversee that the authorities or the persons to whom such a power is conferred, enforce the same in letter and
spirit for which such enactment has been made. In the present case on hand, the Appellant has been discharged on the ground of ''colour
blindness'' without providing alternative job as per Section 47 of the Act, which is unjustified and unreasonable. Hence, the order of the
Respondent dated 26.3.2002 discharging the Appellant on medical grounds has no leg to stand. The Appellant is entitled to the protection u/s 47
of the Act. He should have been given a suitable alternative employment with pay protection, instead of discharging him from service on the ground
of ''colour blindness''. Viewed from any angle, the order of the learned Single Judge dismissing the Writ Petition on the mere ground of laches
without considering the claim of the Appellant on merits is liable to be set aside.
In fine, the Writ Appeal is allowed setting aside the order of the learned Single Judge in W.P. No. 70 of 2005 dated January 6, 2005, thereby
we set aside the order of the Respondent dated March 26, 2002 discharging the Appellant from service on medical grounds. During the pendency
of the Writ Appeal, by an interim order dated April 29, 2005, the Appellant was given employment as Helper based on G.O.Ms. No. 746,
Transport Department, dated July 2, 1981. Since we have held that the Appellant is entitled for the benefit of alternate employment as provided u/s
47 of the Act, we direct the Respondent to provide such alternate employment to the Appellant from the date of his discharge with pay protection,
continuity of service, back-wages and all other attendant benefits for which he is legally entitled to. No costs.
In Bhagwan Dass and Another Vs. Punjab State Electricity Board, the Apex Court held as follows:
This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate
fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were
quite aware of the statutory rights of Appellant-1 and their corresponding obligation yet they denied him his lawful dues by means that can only be
called disingenuous.
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From the materials brought before the Court by none other than the Respondent-Board it is manifest that notwithstanding the clear and definite
legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board''s rolls and to pay
him monthly salary in return of no service. They accordingly persuaded each other that the Appellant had himself asked for retirement from service
and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that
the Appellant had himself made a request for retirement on medical grounds was his letter dated 17.7.1996. The Letter was written when a
charge-sheet was issued to him and in the Letter he was trying to explain his absence from duty. In this Letter he requested to be retired but at the
same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for
retirement.
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In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (Appellant-1) with effect
from 21.3.1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the Appellant must be deemed to be in
service and he would be entitled to all service benefits including annual increments and promotions, etc. till the date of his retirement. The amount of
terminal benefits paid to him should be adjusted against the amount of his salary from 22.3.1997 till date. If any balance remains, that should be
adjusted in easy monthly instalments from his future salary. The Appellant shall continue in service till his date of superannuation according to the
service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the
date of presentation of a copy of the judgment before the Secretary of the Board.
The Respondents cannot say that there is no post of helper as contained in the impugned order dated 26.12.2011. Section 47 contemplates to
adjust the employee in a suitable post and if there is non-availability of suitable post, the Section states that the person who acquired disability shall
be kept on a supernumerary post. Therefore, there is no substance in the order dated 26.12.2011 stating that there is no helper post. Further
more, the impugned order dated 16.8.2004 is clearly illegal since the impugned order removes the Petitioner from service without adjusting him in
a suitable post as contemplated u/s 47 of the Persons with Disabilities Act. The very purpose of Section 47 is not to terminate a person, who has
acquired disability during his service and thereafter provide him employment leisurely. There cannot be any gap in between the disqualification of an
employee due to acquiring disability and adjustment in a suitable post. This is the purpose of Section 47 of the Act. Therefore, I have no hesitation
to set aside the impugned order dated 16.8.2004 terminating the Workman from service without adjusting him in a suitable post as contemplated
u/s 47 of the Act and the subsequent impugned order dated 16.8.2004.
In view of the above said detailed order, which is squarely applicable to the present case, in the same line, a direction is issued to the Respondent-
Corporation to provide suitable alternate employment to the Petitioner with pay protection within a period of four weeks from the date of receipt
of a copy of this order, along with back-wages from the date of discharge, till he is reinstated into service.
In the above terms, the Writ Petition is disposed of. No Costs.