Madras High Court
Tamil Nadu State Transport ... vs A.Sambantham on 26 April, 2021
W.A.(MD).No.213 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MS.JUSTICE R.THARANI
W.A.(MD).No.213 of 2018
and
C.M.P.(MD).No.1120 of 2018
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Rep. by its Managing Director,
Tamil Nadu State Transport Corporation
Kumbakonam Division I,
Railway Station New Road,
Kumbakonam 612 001 ... Appellant
Vs
A.Sambantham,
S/o.Arumugam,
Keezha Theru,
26, Sethur Post - 609 112
Mayiladuthurai Taluk,
Nagapattinam District. ... Respondent
PRAYER : Appeal against the order dated 02.01.2017 passed in W.P.No.4034
of 2009.
For Appellant :Mr.D.Sivaraman
Standing counsel
For Respondents :Mr.T.Antony Arulraj
JUDGMENT
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W.A.(MD).No.213 of 2018
(Judgment of the Court was delivered by N.KIRUBAKARAN, J)
Workman lost his vision;
Is it due to his invitation?
Loss of vision is due to medical reason:
The employer should have exhibited responsibility by providing alternate
duty. However, the instant case demonstrates appellant's irresponsibility.
2.The present Appeal has been preferred by the Transport Corporation
against the order of the learned Single Judge quashing the order passed by the
appellant by which the appellant denied statutory rights as well as pensionary
benefits to the respondent.
3.The facts of the case is that the respondent/workman was appointed as
a driver in the Tamil Nadu State Transport Corporation, Kumbakonam in the
year 1980. During his tenure of service, the respondent lost his vision.
Thereafter, based on the medical ground, the respondent was discharged from
duty on 05.01.1998. Though the respondent has been approaching the appellant
time and again seeking for an alternate employment and he was sent to medical
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board by the appellant, no employment was given to the respondent and in the
meanwhile, the respondent attained the age of superannuation on 31.12.2008.
4.Prior to attaining the age of superannuation, the respondent filed a writ
petition in W.P.(MD).No.9560 of 2008 and the same came to be dismissed on
04.11.2008. Since the respondent did not enclose the copy of the representation
or acknowledgement sent to the appellant, this Court dismissed the Writ
Petition with liberty to the respondent to make a fresh representation to the
appellant and on such representation, the appellant was directed to consider the
same in the light of the provisions made in The Persons With Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
without any delay and pass orders.
5.Pursuant to the said order, the appellant passed an order dated
11.03.2009, rejecting the respondent's request for alternate employment. The
said order of rejection was challenged before this Court before the learned
Single Judge in W.P.(MD).No.4034 of 2009. The learned Single Judge vide
order dated 02.01.2017 quashed the order passed by the appellant against which
the present Writ Appeal has been filed.
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W.A.(MD).No.213 of 2018
6.Mr.D.Sivaraman, learned Standing Counsel would submit that when the
respondent/workman sustained loss of vision, he cannot be given an alternate
employment as he was a driver in the appellant/Transport Corporation.
Therefore, based on the medical advice only, the respondent was rightly
discharged from service on 05.01.1998. Hence, the order passed by the learned
Single Judge has to be set aside. However, Mr.Antony Arulraj, learned Counsel
for respondent would justify that the impugned order is in consonance with the
provisions of The Persons With Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995.
7.Heard Mr.D.Sivaraman, learned Standing Counsel appearing on behalf
of the appellant/Transport Corporation and Mr.Antony Arulraj, learned counsel
appearing on behalf of the respondent/workman.
8.There is no dispute with regard to the fact that the respondent was
employed as a driver in the appellant/Transport Corporation from the year 1980
onwards. While serving as a driver, the respondent lost his vision. Nobody
would like to loose the vision voluntarily. There are numerous medical and
physiological reasons for losing the vision, for that matter any disease. When
such is the position, the respondent/workman cannot be held responsible for
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W.A.(MD).No.213 of 2018
loss of his vision. Unless there is negligence or misdeed on the part of the
workman for the reasons stated in the service conditions, the workman cannot
be discharged or terminated from service.
9.It is admitted by the appellant that the respondent lost his vision during
his service. When such is the position, it is the onerous duty of the
appellant/Transport Corporation to take care of the workman and consequently,
his family by giving all benefits including alternate employment in the
appellant/Transport Corporation.
10.The Parliament thought it fit to enact a statute to protect the interest of
the workman like the respondent herein and passed a beneficial legislation
called “The Persons With Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995”. The rights of the disabled are
protected under the Act. The Act has been passed based on the international
proclamation and it has been categorically stated in the preamble of the Act,
which is extracted as follows:
“An Act to give effect to the Proclamation on the Full
Participation and Equality of the People with Disabilities in the Asian
and Pacific Region.
WHEREAS the Meeting to Launch the Asian and Pacific Decade
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W.A.(MD).No.213 of 2018
of Disabled Persons 1993-2002 convened by the Economic and Social
Commission for Asia and Pacific held at Beijing on 1st to 5th
December, 1992, adopted the Proclamation on the Full Participation
and Equality of People with Disabilities in the Asian and Pacific
Region;
AND WHEREAS India is a signatory to the said Proclamation;
AND WHEREAS it is considered necessary to implement the
Proclamation aforesaid."
Article 256 of the Constitution of India reads as follows:
"256. Obligation of States and the Union :
The executive power of every State shall be so exercised as to ensure
compliance with the laws made by Parliament and any existing laws
which apply in that State, and the executive power of the Union shall
extend to the giving of such directions to a State as may appear to the
Government of India to be necessary for that purpose."
The Government is bound by the aforesaid international covenants and
proclamation.
11.In view of that, to give full effect to the proclamation on the full
participation and equality of people with disabilities in asian and pacific region,
the Act has been passed and has been given effect from 01st January 1996.
12.A cursory perusal of the Act, especially Section 2(i) of the Act
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W.A.(MD).No.213 of 2018
envisages that the persons who are suffering from disabilities, especially
blindness, low-vision, leprosy-cured, hearing impairment, locomotor disability,
mental retardation and mental illness have to be protected. Further, Section 47
of the Act speaks about non-discrimination in Government employment and the
said section is usefully reproduced hereunder:
"47.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."
13.The appellant is a Government of Tamil Nadu undertaking fully
sponsored and administered by Government of Tamil Nadu, coming under the
definition of State under Article 12 of the Constitution of India. Therefore, the
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W.A.(MD).No.213 of 2018
Act will in its full vigor apply to the appellant/Transport Corporation.
Moreover, the appellant is covered under Section 2(k) of the Act which reads as
follows:
2. Definitions. -In thisAct, unless the context otherwise requires,-
a. ....
b. ....
k."establishment" means a corporation established by or under a
Central, Provincial or State Act, or an authority or a body owned or
controlled or aided by the Government or a local authority or a
Government company as defined in section 617 of the Companies Act,
1956 (1 of 1956) and includes Departments of a Government;
14.Section 47 of the Act makes it clear that no establishment shall
dispense with the services of an employee who acquired disability during his
service and such employee should be shifted to alternate post in the same pay
scale and service benefits and if it 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.
15.In view of the aforestated position of law, the respondent/workman
should have been given an alternate post and if it is not possible, he should
have been kept in supernumerary post till he attained superannuation. As per
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W.A.(MD).No.213 of 2018
the mandate of the Act, the respondent/workman is entitled to the following
benefits.
1.The respondent/workman should not have been discharged from
service on 05.01.1998.
2.The respondent/workman should have been provided with an equal
alternate post.
3.If in case, it is not possible to provide alternate post, the
respondent/workman should have been kept in a supernumerary post
until suitable post is available or he attains the age of superannuation.
4.There cannot be any reduction in the post or all other benefits.
16.Taking into consideration of the above aspects, the learned Single
Judge relying upon Section 47 of the Act has rightly held that the respondent is
deemed to have been in service till he attained superannuation. However, the
learned Single Judge had directed to give only the pensionary benefits to the
respondent/workman without noting that respondent has sought for quashing of
the order and direction to pay regular pensionary benefits together with arrears
of all consequential benefits. Even the order passed by the learned Single Judge
has not been implemented by the Appellant and the same is being challenged
before this Court.
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17.The prayer sought for in the Writ Petition reads as follows:
"Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the
records relating to the impugned order of the respondent in
Ref.j/m/ngh/f-Fk;g-r2/10/2008, dated 11.03.2009 and quash the same
and consequently direct the respondent to pay regular pensionary
benefits to the petitioner together with the arrears and all
consequential benefits"
The respondent/workman has sought for arrears of salary and other
consequential benefits, apart from regular pensionary benefits. The
respondent/workman should have come by way of an Appeal against the partial
order allowing of the Writ Petition only granting the pensionary benefits. As
stated above, the respondent sought for all the benefits including the arrears of
salary. Even in the absence of any appeal by the respondent/workman, this
Court would go into the issue of granting benefits to the workman against the
order of the learned Single Judge, since it is the duty and responsibility of this
Constitutional Court not only to protect the poor workman who lost his vision
during service but also to implement the beneficial Act passed by the
Parliament. In view of that, this Court while sustaining the order passed by the
learned Single Judge granting pensionary benefits also grants arrears of salary
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W.A.(MD).No.213 of 2018
and all other consequential benefits deeming the respondent/workman to be in
service till he attained superannuation on 31.12.2008.
18.Eventhough the prayer sought for by the petitioner in the Writ Petition
is to quash the order dated 11.03.2009 by which the appellant herein had denied
alternate employment, the impugned order which has been passed against the
respondent/workman is the discharge order dated 05.01.1998 by which the
respondent/workman was discharged from service on medical ground. Though
the said order has not been challenged by the respondent, this Court cannot
mechanically decide the matter based on the prayer sought for before this
Court, but should go into the very root of the matter. The root cause of the case
is the discharge order dated 05.01.1998 which has been passed in violation of
Section 47 of The Persons With Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995. In view of the same, the order
dated 05.01.1998 is quashed, even though it has not been challenged by the
respondent. It is the duty of the appellant/Transport Corporation to go by the
Act passed by the Parliament and give benefit to the disabled employee. The
appellant/Transport Corporation cannot shirk its responsibility in not only
denying the benefit to the respondent/workman but also frustrating the very
noble intention of the Parliament in enacting the Act. The establishment
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W.A.(MD).No.213 of 2018
Corporations/Authorities which are coming under Article 12 of the Constitution
are bound by the Acts passed by the Parliament as well as by the legislature and
that should clearly act in furtherance of the Act and not in violation of the Act,
failing which this Court is entitled to deprecate and condemn those authorities
who violate the statutes, apart from awarding exemplary costs.
19.This is not the first time the appellant/Transport Corporation is
negligent in implementing the Act passed by the Parliament. In numerous cases,
in case of disability, the usual order of discharge has been passed prejudicing
the rights of the workmen, compelling them to approach the Labor Court as
well as this Court. It not only violates the rights of the workmen but also
frustrates the intention of the Parliament. Further, the judicial time is also
wasted unnecessarily because of the wrong orders passed by the
appellant/Transport Corporation. This Court had an opportunity to deal with
similar type of cases before the Principal Bench and one of us [NKKJ] while
sitting in a Division Bench authored a judgment in the case of Managing
Director, Tamil Nadu State Transport Corporation Ltd., Vs. E.Humayun Sheriff
awarding costs of Rs.50,000/- to be paid by one of the State Transport
Corporation. Inspite of the said order, the appellant or similarly placed
Transport Corporations are bent upon passing such irresponsible orders which
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W.A.(MD).No.213 of 2018
have been regularly set aside by this Court and therefore, the attitude of the
appellant/Transport Corporation needs to be deprecated or condemned. Though
this Court is justified in awarding heavy costs, this Court is not awarding
exemplary costs, in view of the bad financial position of the appellant/Transport
Corporation.
20.In fine, the Writ Appeal is dismissed with the following directions:
1.The order of the learned Single Judge quashing the order dated
11.03.2009 and granting pensionary benefit alone to the
respondent/workman is upheld.
2.The order of discharge dated 05.01.1998 passed by the appellant,
though is not challenged before this Court is quashed, since it violates
Section 47 of the Act.
3.The respondent/workman is deemed to have been in service from
05.01.1998 till he attained superannuation on 31.12.2008.
4.In view of the above, the respondent/workman is entitled to salary for
the aforesaid period from 05.01.1998 to 31.12.2008.
5.His service is deemed to have been ended only on 31.12.2008 and
therefore, the entire service period upto 31.12.2008 is deemed to be
considered as service for calculating pensionary benefits and other
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W.A.(MD).No.213 of 2018
statutory benefits.
6.The arrears of salary and statutory benefits calculating arrears and
pension should be paid within 12 weeks from the date of receipt of a
copy of the order.
7.Failure to pay the amount within the stipulated period would render the
appellant to pay the said amount along with 16% interest for the said
amount till the entire amount is paid.
Connected miscellaneous petition is closed. No costs.
(N.K.K.,J) (R.T.,J)
26.04.2021
pgp
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W.A.(MD).No.213 of 2018
N.KIRUBAKARAN, J.
and
R.THARANI, J.
pgp
W.A.(MD).No.213 of 2018
Dated : 26.04.2021
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