Madras High Court
N. Vadivel vs Tamil Nadu State Transport Corporation on 16 May, 2024
W.P.No.26844 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.05.2024
CORAM
THE HONOURABLE Mrs. JUSTICE R.KALAIMATHI
W.P.No.26844 of 2015
and M.P.Nos.1 and 2 of 2015
N. Vadivel ...Petitioner
vs.
1. Tamil Nadu State Transport Corporation
(Villupuram) Ltd. represented by its Managing
Director, Vazhuthareddy, Salamedu,
Villupuram.
2. The General Manager,
Kancheepuram Region,
Tamil Nadu State Transport Corporation,
(Villupuram) Ltd, Kancheepuram.
3. The District Medical Board,
Represented by its Dean,
Rajiv Gandhi Government General Hospital,
Park Town, Chennai – 3. … Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, for issuance of Writ of Mandamus directing the respondents 1
and 2 to provide me forthwith suitable alternative employment/light
job without involving in heavy stress and strain, with continuity of
service, pay protection, arrears and all other service and attendant
benefits with effect from 23.12.2014, together with interest at the
Page No.1/18
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W.P.No.26844 of 2015
rate of 12% per annum, award costs.
For Petitioner : Mr.V.Ajay Khose
for Mr.R. Krishnaswamy
For R1 and R2 : Mr.M. Aswin
Standing Counsel
For R3 : Mr.E. Sundaram
Government Advocate
ORDER
The writ petitioner met with an accident on 23.12.2014 in the course
of employment and became unfit for the post of conductor. During the
pendency of this writ petition, he was provided with alternative
employment on 08.05.2019. He seeks a direction to order for continuity of
service, pay protection, arrears and all other service and attendant
benefits with effect from 23.12.2014 together with interest at the rate of
12% per annum. Hence this writ petition.
2. The petitioner joined as a conductor in the respondent Transport
Corporation on daily wages and subsequently, he was given temporary
scale of pay from 23.09.1997.
(i) While he was on duty as conductor he met with an accident on
23.12.2014 and due to which he sustained fractures on both hands (above
the wrist) and on the left side of the head (above the ear). He was under
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treatment as an inpatient from 23.12.2014 till 29.12.2014.
(ii) The petitioner gave a representation to the respondents 1 and 2
requesting to provide alternative employment. During pendency of this
writ petition, he was provided with alternate employment.
(iii) He was paid salary for the month of January 2015 and after
adjusting leave to his credit from February 2015 onwards he was not paid
any salary. He was given alternative employment on 08.05.2019 as a
Helper-Non ITI in the same scale of pay which he was drawing in the year
2015 seeks for a direction to grant continuity of service, pay protection,
arrears and all other attendant benefits with effect from 23.12.2014
together with interest at the rate of 12% per annum.
3. Mr.V.Ajay Khose, the learned counsel for the writ petitioner took
this Court to the details of Sections 2(i), 2(i)(v), 2(k), 2(o) and Section 24
of the Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995. It is his further contention that though he
was provided with alternative employment only during the pendency of this
writ petition, Section 47 of the above said Act was not fully complied with.
4. To strengthen his arguments, the following judgments were
referred to:
1. Kunal Singh Vs. Union of India and another [2003 (4) SCC
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524]
2. A. Subramani Vs. The Management of Tamil Nadu State
Transport Corporation, (Coimbatore Division-I) Limited,
Udhagamandalam, and another [2007 (5) CTC 386]
3. Vikas Vs. State of Maharashtra [2021 (2) Mh.L.J. 131]
4. G. Muthu Vs. The Management of Tamil Nadu State
Transport Corporation (Madurai) Ltd. [2006 (5) CTC 413]
5. Balasubramanian and others Vs. The Management of Tamil
Nadu State Transport Corporation Ltd. (Madurai Division – II)
Ltd., Tirunelveli [W.P.Nos.24435 and 24918 of 2003 etc.
batch cases dated 04.09.2007]
6. Managing Director, Tamil Nadu State Transport Corporation
(Salem) Limited Vs. A. Kannan [2014 (1) TN MAC 808]
5. Per contra, Mr.M.Aswin, learned Standing Counsel for the
respondents 1 and 2 / Tamil Nadu State Transport Corporation, would
stoutly object by stating that on the strength of the disability certificate, the
petitioner was given with alternative employment and re-designated as
Helper-Non ITI and permitted to continue his work at Kalpakkam branch
vide in Ku.No.06/Pa2/ThaAaPoKa(Vizu)/Kanchi/2018 dated 08.05.2019
with pay protection. It was further contended that the employee moved a
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petition before the Commissioner under Workmen's Commission Act,
1923 in W.C.No.32 of 2018 and an amount of Rs.10,51,792/- with 12%
interest was ordered as compensation. Against which, the management
has preferred an appeal in C.M.A.No.2977 of 2022 by depositing the
entire compensation amount before the Authority. The main contention of
the Transport Corporation is that he was given continuity of service and in
respect of arrears of salary he has filed W.C.No.32 of 2018 and the entire
award amount is deposited. Therefore, he is not eligible to claim arrears
in this writ petition. The respondents 1 and 2 / Transport Corporation is
not liable to pay any amount to the employee.
6. The relevant governing provision is Section 47 of the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (herein after mentioned as the Disabilities Act,
1995), an Act came into effect based on the proclamation on the full
participation and equality of the people with disabilities in the Asian and
Pacific region which was held at Beijing from 1st to 5th December, 1992.
The said meeting was convened by the Economic and Social Commission
for Asia and Pacific. In order to implement the Proclamation, this Act was
enacted by the Parliament and came into effect on 01.01.1996. It is
beneficial to extract Section 47 of the Disabilities Act, 1995:
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“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 condition, if any, as may be
specified in such notification, exempt any establishment from
the provisions of this section.”
7. From a bare reading of the said provision, it transpires that it is a
mandatory provision that the establishments which are covered under this
Act shall not reduce in rank of an employee who acquires disability during
his employment.
8. The first proviso mandates that if an employee after acquiring
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disability, if he is not suitable for the post he was holding, he could be
shifted to some other post with the same scale of pay and service
benefits. The second proviso provides 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. Section 47(2) of the Disabilities Act mandates that
his promotion shall not be denied merely on the ground of his disability.
9. The Disabilities Act, 1995 was amended in the year 2016 and the
Act is called as the Rights of Persons with Disabilities Act, 2016. Much
earlier to the enactment of the Disabilities Act, 1995, it is interesting to
note that the Hon'ble Supreme Court ordered to evolve a scheme in order
to provide relief to workmen who became unfit or incapacitated to work
during the course of employment in Anand Bihari Vs. Rajasthan State
Road Transport Corporation, Jaipur reported in AIR 1991 SC 1003.
The Hon'ble Supreme Court formulated certain guidelines and it was
observed that:
“... there is no justification in treating the cases of
workmen like drivers who are exposed to occupational
diseases and disabilities on par with the other employees.
The injustice, inequity and discrimination is writ large in such
cases and is indefensible. The service conditions of the
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workmen such as the drivers in the present case, therefore,
must provide for adequate safeguards to remedy the situation
by compensating them in some form for the all-round loss
they suffer for no fault of them.” Thirdly, as argued by the
learned counsel for the appellant, there will not be too many
claims on false pretext. The Corporation can very well refer
the persons to the Medical Board to verify their plea of
disability and take all precautions to ensure that no false
claim is entertained. On that score, deserving persons
cannot be denied the benefits under the Act.”
10. In Kunal Singh vs. Union of India and another reported in
2003 (4) SCC 524, the appellant was a constable in the Special Service
Bureau. When he was on duty, he suffered injury in his left leg which led
to permanently incapacitated for service by the medical board's report and
consequently he was terminated from the service. Challenging the
termination order, he claimed that he should have been assigned with
alternative duty, which was dismissed by the High Court and he preferred
an appeal before the Hon'ble Supreme Court. It was observed that
although no argument was advanced before the High Court on the basis
of Section 47 of the Act, it was heard and concluded that merely because
under Rule 38 of the CCS (Pension) Rules, 1972, the appellant got invalid
pension is no ground to deny the protection mandatorily made available to
the appellant under Section 47 of the Act. It was further held that as the
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appellant acquired disability during his service and if he was found to be
unsuitable for the post he was holding, he could have been shifted to
some other post with same pay scale and service benefits. It is relevant to
note that based on the provision of Section 47, the Hon'ble Supreme
Court also held that if it is not possible to adjust him against any post, a
direction was given that he could be kept on a supernumery post until a
suitable post was available or he attains the age of Superannuation,
whichever is earlier.
11. The main objection put forth by Mr.M.Aswin, learned Standing
Counsel for the respondents 1 and 2 is that since the petitioner was
provided with compensation under Workmen's Compensation Act, he has
been precluded from claiming benefits as provided under Section 47 of the
Disabilities Act, 1995, and at present he is working as a Helper Non ITI
since 08.05.2019. In this regard Section 72 of the Disabilities Act, 1995 is
extracted hereunder for proper appreciation:
“72.Act to be in addition to and not in derogation of
any other law:
The provisions of this Act, or the rules made thereunder
shall be in addition to, and not in derogation of any other law
for the time being in force or any rules, order or any
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instructions issued thereunder, enacted or issued for the
benefit of persons with disabilities.”
12. On perusal of the above said Section, it explicates that the
provisions of the Disabilities Act have to be considered in addition to any
other law or order and not in derogation of any law or order or instructions
issued for the benefits of persons with disabilities.
13. The object of the Workmen's Compensation Act is that it
provides for payment of compensation to workmen and their families in the
case of personal injury caused by accident or by certain occupational
diseases arising out of and in the course of employment resulting in
disablement or death.
14. Insofar as Section 72 of the Disabilities Act, 1995 is concerned,
it puts an embargo on the employer to the effect that the provisions of the
Disabilities Act are to be considered in addition to any other law or order,
which means the protection and benefits envisaged under Section 47 of
the Disabilities Act must be conferred on the employee in addition to the
benefits provided under the Workmen's Compensation Act.
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15. My views are well fortified by the Hon'ble Division Bench of this
Court in A. Subramani Vs. The Management of Tamil Nadu State
Transport Corporation (TNSTC) and another reported in 2007 (5) CTC
386. In the said case, the appellant was working as a conductor in the
Tamil Nadu State Transport Corporation. On 15.09.1996, when he was
on duty on the route from Mettupalayam to Coimbatore, he fell down from
the running bus and suffered grievous injury on his head. He was in coma
for a period of 45 days and he was under treatment for nearly about four
months and he was referred to the Medical Board at Udhagamandalam
Government Hospital after he joined his service. The Medical Board
opined that he was unfit to take up the work involving prolonged standing
or walking. A notice was issued by the Corporation as he has become
disabled and therefore, he should be discharged from the post of
Conductor and he was so discharged from the service on 29.09.1998. But
the Claim Petition in W.C.No.205 of 1999, the authority under Workmen's
Compensation Act, Coimbatore passed an award for Rs.2,30,568/-. The
appellant raised an industrial dispute in I.D.No.254 of 2000 under Section
2-A(2) of the Industrial Dispute Act for alternative employment with
continuity of service. The Labour Court, Coimbatore vide Award dated
08.02.2005 declared that the appellant is entitled for the same under
Section 47 of the Disabilities Act, 1995 and issued direction to reinstate
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the appellant with full back wages.
16. The objection now sought to be raised by the respondent
Corporation was also raised in the writ petition filed by the respondent
corporation by challenging the award of the Labour Court to the effect that
workman having received the compensation under the Workmen's
Compensation Act cannot again claim alternative employment in terms of
Section 47 of the Disabilities Act as he cannot pursue both the remedies.
The learned Single Judge accepted the contention of the management
and concluded that the workmen is not entitled to enjoy both the benefits
i.e. the compensation under Workmen's Compensation Act and alternative
employment under the Disabilities Act and ordered to recover Rs.5,000/-
per month from his salary. In appeal, the Hon'ble Division Bench of this
Court has held that the benefit conferred under Section 47 of the
Disabilities Act, 1995 must be considered in addition to the benefits
conferred under the Workmen's Compensation Act and the impugned
order of the learned Single Judge was ordered to be set aside by directing
the Corporation to pay arrears of back wages to the appellant as per the
award of the Labour Court within a period of six weeks.
17. It is relevant to note that the Labour Court passed an award for
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the Workmen who is entitled for the relief sought for under Section 47 of
the Disabilities Act and directed that the 1st respondent to reinstate the
appellant with full back wages.
18. In yet another similar case, the Hon'ble Division Bench of this
Court in G.Muthu Vs. The Management of Tamil Nadu State Transport
Corporation reported in 2006 (5) CTC 413, it was held that the appellant
is entitled for the benefit of alternative employment as provided under
Section 47 of the Disabilities Act and directed the respondent to provide
such alternative employment 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.
19. The petitioner is already a physically challenged person, was
appointed as a conductor on temporary basis with effect from 14.09.1993
under the disability quota and his services were regularised on 23.09.1997
with effect from 26.02.1997.
20. On perusal of records, it appears that when the respondent bus
proceeded towards Trichy from Kalpakkam along the G.S.T. Road on
23.12.2014, just opposite to Villupuram Depot-II while a pedestrian
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crossed the road from the right side by climbing on the median and
jumped towards left side of the road, in order to avoid hitting him the driver
of the bus tried to turn the bus to the left side. But the bus lost its control
and dragged towards the left and came to a hault after hitting the tamarind
tree on the left side of the road. The petitioner was standing near the
steps by issuing tickets to the passengers and he was thrown out from the
bus and lost consciousness.
21. From the perusal of medical records, it transpires that the
petitioner suffered cranial vault fracture, displaced fracture of bilateral
nasal bones, fracture of distal radius left and right. For both the wrist,
implants were fixed / for the fracture of nasal bone, he was managed
conservatively. On 15.07.2015 for the problem of neck pain, he took
treatment at the same Parvathy hospital, Chennai, wherein the
neurosurgeon had recommended to provide him alternative job. The said
certificate is extracted hereunder:-
“This is to certify that Mr.N.Vadivel, 41 years/Male, has
an unstable right hip due to old septic sequalae and he
sustained bilateral distal radius fractures 6 months ago. He
underwent surgery and now has deficient grip strength in
both hands. So he is advised and recommended to be given
a sitting job.”
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22. Just 12 days thereafter grant of the said certificate, the petitioner
had sent requisition to the managing director of the Tamil Nadu State
Transport Corporation, Villupuram dated 27.07.2015 claiming for
alternative employment and medical expanses with full benefits, which
was received by the management on 29.07.2015. After a month on
26.08.2015, the present writ was sought to be filed to order to provide him
alternative employment with full attendant benefits with effect from the
date of accident with interest at the rate of 12% per annum.
23. The date of accident was 23.12.2014. He suffered fracture over
head and fracture of both hands besides nasal bone fracture. After eight
months, he sent the requisition to provide for alternative employment.
Having suffered these fractures, one cannot expect injured person to act
immediately. Therefore, in the given circumstances, the eight months
delay need not be seriously looked into.
24. Mr.V.Ajaykhose, learned counsel for the petitioner submitted
that though an interim order to provide alternative employment to the
petitioner was passed on 27.08.2015 itself, he was only given alternative
employment as Helper-Non ITI on 08.05.2019.
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25. When one reads Section 47 of the Disabilities Act, it does not
envisage any time lag for shifting him to other post. But in this case, after
five years and seven months from the date of order of this Court, the
petitioner was provided with alternative employment In the opinion of this
Court, it is a clear violation of welfare legislation.
26. Though, Disabilities Act is a comprehensive Legislation, the
beneficiaries in order to get the benefits of this Act, at the earliest and to
obliviate their sufferings, the below said directives would enable the
employer/Medical Board to achieve the object of the welfare/special
legislation namely Disabilities Act.
i) When once the Employer comes to the notice about the disability
of an employee suffered during the course of employment, the process of
medical examination and disability assessment shall be completed within
a period of four weeks from such notice.
ii) The Employer may take all precautions to ensure that no false
claim is entertained.
iii) The Employer to refer the persons to Medical Board to verify the
plea of disability.
iv) The Medical Board shall give opinion within two weeks from the
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date of referral to obliviate any delay.
v) Time taken by the Medical Board for medical examination / for
disability assessment / for providing alternative posts ought to be treated
as part of employment. Obviously, the employee shall be entitled to be
paid back wages for the entire period.
27. In fine, this writ petition stands allowed. The respondent 1 and 2
are directed to pay all the attendant benefits with effect from 24.12.2014
after adjusting the payment made, if any. This exercise shall be
completed within a period of six [6] weeks from the date of receipt of a
copy of this order. Consequently, connected miscellaneous petitions are
closed. No costs.
16.05.2024
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
Speaking Order / Non-Speaking Order
mac/ssn
To
1. The Managing Director,
Tamil Nadu State Transport Corporation
(Villupuram) Ltd., Vazhuthareddy, Salamedu,
Villupuram
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2. The General Manager,
Kancheepuram Region,
Tamil Nadu State Transport Corporation,
(Villupuram) Ltd, Kancheepuram.
3. Dean, District Medical Board,
Rajiv Gandhi Government General Hospital,
Park Town, Chennai – 3
R.KALAIMATHI, J.,
mac/ssn
and M.P.Nos.1 and 2 of 2015
16.05.2024
https://www.mhc.tn.gov.in/judis
