@JUDGMENTTAG-ORDER
V. Dhanapalan, J.@mdashThe petitioner has filed this writ petition for a direction to the respondents to provide him an alternative employment in the post of Helper or Office Assistant by retaining the same scale of pay last drawn by him.
2. Upon instructions, the petitioner would state that the respondent Transport Corporation is a public transport undertaking wholly owned by the Government of Tamil Nadu; earlier, such transport undertakings in the state of Tamil Nadu was bifurcated into several units and made as the corporation. The Government of Tamil Nadu, thereafter dissolved all such transport corporations and the public transports in the State were brought under six divisions of Tamil Nadu State Transport Corporation and that Tamil Nadu State Transport Corporation (Kumbakonam Division-IV) Ltd., Pudukottai is concerned in this writ petition.
3. According to the petitioner, he is qualified up to IX standard and he was appointed as Driver in the respondent Corporation on 15.08.1998 and his services were confirmed and made permanent with effect from 15.06.1999. Since the date of his appointment, he was discharging his duties without any blemish whatsoever.
3a. The petitioner would further state that he has been receiving accident free driving award for three consecutive years; while so, by letter dated 04.09.2002, the respondent Corporation directed the petitioner to appear before the Medical Board, Thanjavur Medical College Hospital, Thanjavur; pursuant thereto, the petitioner appeared before the Medical Board on 24.09.2002, 01.10.2002 and 17.10.2002. Thereafter, the petitioner was served with a show cause notice dated 21.12.2002 by the respondent Corporation as to why he should not be discharged from service, as the Medical Board recommended that his eye sight is not fit enough to drive vehicle.
3b. The petitioner submitted his explanation on 30.12.2002 stating the facts as to how the eye drops caused trouble to him during
the first checking. He also requested to send him for a second check-up. Further, he requested to consider his case sympathetically as he has to support his large family. He also pointed out that he has not caused any accident during his term of service. However, without considering his explanation properly, the respondent Corporation passed an order dated 23.01.2003 discharging him from service on medical grounds, however, he was granted liberty to appeal against the said order in 90 days.
3c. Based on the statement of the respondent Corporation, the petitioner made a representation to the Collector, Pudukottai and a representation dated 22.02.2003 to the Managing Director of the respondent Corporation to provide him an alternative employment. However, even after a long lapse of time, no steps were taken. According to the petitioner, he is the only bread winner for his family which consists of his wife, 3 daughters and his old aged father and mother; they live in a rental house and are now suffering inexplicably without any income due to his non-employment.
3d. The petitioner would further state that in his representation dated 22.02.2003, he brought to the knowledge of the respondent with regard to the Government Order and direction of the Supreme court which categorically directed the employers that an employee discharged on medical grounds should be given an alternative job. However, the respondent neither complied with his lawful demand nor has chosen to send any reply even though they have lawful bounden duty.
4. In the counter affidavit, the respondents would submit that the petitioner was appointed on 15.08.1998 as Driver in the erstwhile Marudhu Pandiyar Transport Corporation and his services were confirmed from 15.06.1999. The respondents admitted that the petitioner received accident free award for 2000, 2001 and 2002. While the petitioner was working in the Corporation, he was directed for eye-test before the Medical Officer of the Corporation, as he had crossed 40 years of age. The Medical Officer opined that due to partial defect, ''opinion reserved pending Medical Board''s opinion at Thanjavur''. The petitioner was referred to the Medical Board at Thanjavur. As the instrument for check-up was not available at Thanjavur, he was referred to Government Hospital, Madras for evaluation. Again, the petitioner was referred to Regional Institution of Ophthalmic Hospital, Egmore for further check-up. After detailed examination, the Board opined in their report as "Eyes unfit due to colour vision defect".
4a. The respondents would state that their Transport Corporation is working under the Government of Tamil Nadu, operating vehicles in the interest of the travelling Public. As the petitioner was a driver, he should have clear eye sight for driving the vehicle and as he was found to be suffering from colour vision by the highest Medical Board in Tamil Nadu and as it was unsafe to allow him to drive vehicle, he was served with a show cause notice as to why he should not be discharged on medical grounds. As the reply submitted by the petitioner was not satisfactory, he was discharged on medical grounds by an order dated 23.01.2003.
4b. According to the respondents, the Medical Board was the highest Board in Tamil Nadu and it also constituted a Board on its own to have a check-up of eye cases. The allegation that the application of drops in his eyes had caused dimness in his eyes, due to which wrong report had been sent is not acceptable; if the fact had been brought to the knowledge of the Board, remedial measure would have been taken by the Board itself, but without informing the Board about his problem, only as an after thought, the petitioner has come forward with the false story, which is not acceptable. Eye-test conducted by the Board involves life and survival of the petitioner, that being so, the allegation that his eyes were dim due to the application of drops in the hospital due to some other eye-test, which caused the medical report to be given, is not acceptable. Hence, the allegation that, it is due to the application of eye drops, the defects were cause is not acceptable. As stated earlier, the Transport Corporation is an essential service, operating vehicles in the interest of the travelling public, running passenger vehicle and the drivers with defective eyes cannot be employed, hence the writ petitioner was discharged from service.
4c. The respondents would also submit that a seniority list of the employes who were discharged on medical grounds was maintained in the Corporation and it was proposed to employ them as per the said list and the petitioner stands in Sl. No. 12. The Government has also reduced the norm of the employees from 7.5 to 6.5% per vehicle. And the employees already in service in the Corporation fulfill the norm fixed by the Government and as such no vacancies arise at present for employment. The petitioner is only a 9th standard discontinued candidate and as such, his services cannot be utilized in the corporation. Furthermore, the Government has also banned the appointment of employees as a rationale measure and the petitioner cannot be given alternate employment as of now.
4d. The respondent Corporation would also state that the action taken by them is neither contrary to law nor violation of rules; only due to exigency that prevailed, the matter of the petitioner could not be considered and that only due to the norm fixed by the Government in the appointment ban by the Government, the inadequate qualification of the petitioner, he could not be given alternate employment. Moreover, those individuals discharged on medical grounds prior to him were yet to be accommodated and if the petitioner is appointed, it will be discriminatory among others. Hence, the petition of the petitioner was not considered.
4e. It is also submitted by the respondent Corporation that the Government has passed G.O. No. 746 for fresh appointment of medically discharged employees and the Government has now fixed the norm of employees and according to it, the employees now under service fulfill the above norm and as such, the petitioner cannot be given alternate employment as on date. Moreover, no discrimination among the employees had taken place and a seniority list of the employment is maintained and as and when vacancies arise, they have given employment and that the question of discrimination does not arise.
5. Heard Mr.Ashokpathy, learned Counsel for the petitioner and Mr. V.R. Kamalanathan, learned Counsel appearing for the respondents.
6. Learned Counsel for the petitioner would contend that the respondents have failed to consider several representations of the petitioner, wherein it was brought to the knowledge of the respondents of the directions of the Supreme Court directing the employers to provide alternative employment for employees discharged on medical grounds. It is his further contention that the respondents ought to have considered the representations of the petitioner sympathetically as a person who had worked without any blemish and had won Accident Free Driving Award for 3 consecutive years and that his large family consisting of 6 members is being ruined. Learned Counsel would submit that the petitioner is suffering inexplicably without any employment and his attempt for alternative employment elsewhere is of no avail and his family is put to irreparable loss.
6a. In support of his contentions, learned Counsel for the petitioner has relied on the following decisions:
(i) 2006 (5) CTC 413 [G. Muthu v. The Management of Tamil Nadu State Transport Corporation]
18. ...Thus a rigourous, literal and pedantic interpretation need not be attributed to Section 2(i) of the Act. We are therefore, of the opinion that the intention of the law makers is not to restrict only to those categories of persons mentioned in Section 2(i) of the Act alone to be entitled to the benefits under the Act. If justifiable and reasonable approach is to be made, then it has to be held that Section 2(i) of the Act is not exhaustive.
19. Therefore, as argued by the learned Counsel for the appellant, while the provisions contained in Chapters IV to VII of the Act deals with "Persons with disability" Section 47 alone deals with "an employee who acquires a disability during his service". The said provision clearly says that no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service which means that the person who is employed in an establishment when he acquires a disability, his services cannot be dispensed with or there should be any reduction in rank. Further, the proviso to the said Section clearly states that if he is not suitable for the post he could be shifted to some other post with the same scale of pay and benefits. If it is not possible, he could be kept on a supernumerary post until a post is available or he attains the age of superannuation whichever is earlier. The said provision further states that no promotion shall be denied to any person merely on the ground of his disability. Thus, if we apply Section 47 of the said Act, the order of discharge passed by the respondent dated 26.03.2002 has not leg to stand.
25. ...Their Lordships have clearly stated 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 are writ large in such cases and are indefensible. The service conditions of the 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.
26. 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 more 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 26.03.2002 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.
(ii) 2007 (4) CTC 478 [V. Palanishanmugavel and Ors. v. The General Manager, Tamil Nadu State Transport Corporation (Madurai)]
29. Now, the next question that arises for consideration is as to whether, the term disability u/s 2(i) of the Act requires a certificate from the medical authority either u/s 2(t) or 2(p) of the Act. It is in this regard, the term "Person with disability" assumes significance. The term "person with disability" defined u/s 2(t) of the Act, applies not to the persons who are already in employment but to those persons who are having disability but seeking the benefits under various schemes or welfare measures contemplated under the Act, as it has been narrated in Chapter V, VI and VII apart from some of the provisions in Chapter VIII of the Act. It is in respect of those persons who seek the benefits under various schemes expected to be framed by the appropriate Governments or welfare measures, including the reservation of post in employment or welfare measures, appropriate Government, that "the persons with disability" will have right to approach the appropriate Government for acquiring such welfare measures. It is only to those persons, the certificate by medical authority is contemplated under the Act.
30. On the other hand, in respect of the persons already in employment acquiring disability employment there is absolutely no necessity for any certificate from the medical authority as contemplated either u/s 2(t) of 2(p) of the Act. This view is fortified by the fact that all the disabilities mentioned u/s 2(i) are clearly in terms defined under various provisions of Section 2 itself as stated above which requires no certificate from the authority contemplated under the Act. Therefore, in my view, the contentions of the learned Counsels that unless and until a certificate issued by the competent authority contemplated under the Act is given the benefits u/s 47 of the Act cannot be claimed is an untenable argument. Further as laid down by the Supreme Court, the beneficial legislation like Act 1 of 1996 must be construed with the object of the Act and its purpose must be preferred to the one which obstructs the object and paralyses the purpose. Therefore, the finding of any authority about disability is sufficient for the purpose of the Act.
(iii) (2008) 3 MLJ 865 [General Manager, Tamil Nadu State Transport Corporation v. Udayasuriyan]
6. We find absolutely no merit in the submission of the learned Counsel for the appellant Corporation. In the light of the decision in Kunal Singh v. Union of India and Anr. (supra), it is clear that Section 47 deals with an employee who has acquired disability during service and it is not necessary that he should have suffered 40% disability. The test is whether an employee, after acquiring disability, has become unsuitable for the post he was holding earlier, and it is provided by Section 47 that in such a case, the employee could be shifted to some other post with the same pay scale and service benefits, and if it is not possible to adjust the employee against any such post, he may be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
7. On the other hand, learned Counsel for the respondent Corporation would submit that the petitioner is only a 9th standard discontinued candidate and as such, the services of the petitioner cannot be utillised in the Corporation; furthermore, the Government has also banned the appointment of employees as a rationale measure and as such, the petitioner cannot be given alternate employment. He would also submit that no discrimination among the employees had taken place as alleged by the petitioner and the petitioner was employed only in the year 1999 and when he was sent for medical check-up, he was found to be suffering from defective vision; hence, he was discharged on medical grounds and only due to the fact that there were other employees prior to him, his application is not considered.
7a. Learned Counsel for the respondent Corporation to substantiate his stand has relied on the following:
(i) a decision of the Supreme Court reported in (2003) II LLJ 183 in the case of the Kunal Singh v. Union of India and Anr.
8. The need for a comprehensive legislation for legislation for legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in natural life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the "Meet to Launch the Asian and Pacific Decades of Disabled Persons" was held in Beijing in the first week of December, 1992 by the Asian and Pacific Countries to ensure full participation and equality of people with disabilities in the Asian and Pacific Regions.'' This Meeting was held by the Economic and Social Commission for Asian and Pacific. A Proclamation was adopted in the said meeting. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto, this Act was enacted, which came into force on January 1, 1996. The Act provides some sort of succor to the disabled persons.
9. 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 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 Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during a 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 social beneficial enactment that too dealing with disabled persons intended to given them equal opportunities, protection of rights and full participation, the view that advances the object of the Act 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.
(ii) an unreported judgement of this Court dated 10.08.2007 in a batch of Writ Petitions in W.P. Nos. 37363 of 2002, etc in the case of S. Chengalvarayan v. Tamil Nadu State Transport Corporation (Villupuram)
14. Thus, considering the facts and circumstances and also the judgments referred to above, the petitioners are entitled for alternative employment and the rejection made by the respondents by their impugned orders are liable to be set aside and accordingly set aside. I direct the respondents to provide such alternative employment to the petitioners from the date of their discharge with pay protection, continuity of service and all other attendant benefits for which they are legally entitled to, except back wages.
8. According to the petitioner, he had submitted a representation dated 22.02.2003 to the respondents to consider him for alternative employment and he has also brought to their knowledge with regard to the Government Order and direction of the Supreme Court which categorically directs the employers that an employee discharged on medical grounds should be given an alternative job. However, the respondent Corporation has not considered his request. But, it is the case of the respondent Corporation that a seniority list of the employees who were discharged on medical grounds was maintained in the Corporation and it was proposed to employ them as per the said list and the petitioner stands in Serial No. 12. The Government has also reduced the norm of the employees from 7.5% to 6.5% per vehicle; and the employees already in service in the Corporation fulfill the norm fixed by the Government and as such, no vacancies arise at present for employment.
9. The matter in issue has already been considered by a Division Bench judgment of this Court in G. Muthu''s case (referred to above), wherein, it was held that the petitioner should have been given a suitable employment with pay protection, instead of discharging him from service on the ground of ''colour blindness''. The object which Section 47 of the Act purports to achieve is that appropriate provision should be made for the employees employed in the establishments who acquire a disability during their service. While having this mind, in construing the material provisions of such an Act, if two views are reasonably possible, the Courts should prefer the view which helps the achievement of the object. Welfare legislations are meant to ensure benefits to the needy. They should be interpreted in such a way so that the purpose of the legislation is allowed to be achieved.
10. At this juncture, it is worth referring to a decision of the Apex Court reported in 2006 (2) LLL 45 in the case of State of Karnataka v. C. Lalitha, wherein, their Lordships have held that justice demands that a person should not be allowed to derive any undue advantage over that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. In yet another Supreme Court decision in the case of
11. The service conditions of the workmen such as the driver 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. He should have been given a suitable alternative employment with pay protection, instead of discharging him from service on the ground of ''colour blindness''. The provisions of the Act mandate that no establishment shall dispense with, or reduce in rank, an employee who acquires disability during his service, which means that when a person, who is employed in an establishment acquires disability, his service cannot be dispensed with or there should be any reduction in rank. However, it is the object that if the employee is not suitable for the post, he could be shifted to some other post with the same scale of pay and benefits; if it is not possible to adjust the employee against any post, he can be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Also, no promotion shall be denied to a person merely on the ground of his disability. This avowed object has been dealt with by the Apex Court in many decisions as cited supra.
12. It is also held that in a welfare State like India, benefits of benevolent legislation cannot be denied on the ground of more 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 instant case, the petitioner, who is found to be suffering from colour blindness has been discharged on medical grounds and the stand of the respondents that the requests of other employees, who were similarly placed as that of the petitioner had earlier been rejected and hence the claim of the petitioner could not be considered cannot be sustained.
13. Thus, considering the facts and circumstances of the case and in view of the judgments referred to above, this Court holds that the petitioner herein is entitled for alternative employment and the rejection made by the respondents by their impugned order is liable to be set aside and is accordingly set aside. I direct the respondents to provide such alternative employment to the petitioner from the date of his discharge with pay protection, continuity of service and all other attendant benefits for which he is legally entitled to, except back wages.
The writ petition is allowed with above direction. No costs.
