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Judgment
D. Hariparanthaman, J.—The petitioner was employed as a conductor. He was medically found unfit by the Medical Board, Government
General Hospital, Chennai in its letter dated 20.2.2004. Based on the same, the petitioner was removed from service by the impugned order dated
16.8.2004 stating that the petitioner will be given alternate employment based on the seniority list maintained for this purpose. The petitioner made
various representations to give him alternate employment. While so, by another impugned order dated 26.12.2011 the respondent Corporation
declined the request stating that there is no helper post available for giving alternate employment to the petitioner. The petitioner has filed this writ
petition seeking to quash the orders dated 16.8.2004 and 26.12.2011 of the respondent Corporation and for a direction to provide him alternate
employment with all back wages. No counter-affidavit is filed. The writ petition is taken up for final disposal, with the consent of both parties since
the matter is squarely covered by various decisions.
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.
Section 47 of the Persons with Disabilities Act was considered in the following judgments wherein it has been held that providing alternate
employment shall simultaneously take place, once the workman is found to be unfit due to acquiring of disability during his service.
(1). V. Palanishanmugavel and others v. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Tirunelveli and others
(2007 (4) CTC 478)
(2 Kunal Singh Vs. Union of India (UOI) and Another,
(3). G. Muthu Vs. The Management of Tamil Nadu State Transport Corporation (Madurai) Ltd.,
(4). Bhagwan Dass and Another Vs. Punjab State Electricity Board,
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 lights 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 same, the impugned orders are set aside and the respondent
Corporation is directed to provide suitable alternate employment to the petitioner within a period of two weeks from the date of receipt of copy of
this order along with the back wages from the date of termination till he is reinstated into service. The writ petition is allowed on the above terms.
No costs.