The court established that a person with a disability, as per the Persons with Disabilities Act, 1995, should not be disadvantaged due to their disability and is entitled to backwages from the date of seeking protection under section 47 of the Act.

The prayer in the Writ Petition is for issuance of a writ of certiorarified mandamus to quash the order passed by the second respondent dated 31.12.2010, in so far as it relates to denial of backwages and to direct the Management to pay full backwages from 29.7.2011 till the date of the petitioner’s superannuation.

2. The contempt petition had been filed alleging disobedience of the order and direction issued by this Court in W.P.No.11641 of 2009 dated 5.2.2010.

3. Some factual background would be necessary before we approach the controversy/issue in this Writ Petition. The petitioner was initially appointed as a driver on 28.12.1989 in the erstwhile Pallavan Transport Corporation. After the Metropolitan Transport Corporation was formed, his services were transferred to Metropolitan Transport Corporation. When the petitioner was driving the bus on 29.7.2002, a cyclist crossed the road and in order to avert the accident, the petitioner applied sudden break and due to shock, the petitioner fainted. The Conductor of the bus admitted the petitioner in the Government Royapettah Hospital and it is stated that for a period of five days, the petitioner was unconscious and thereafter he re-gained conscious, but due to shock, he suffered paralysis of his right side and became immobile. The Branch Manager of the Mandaveli Branch is said to have visited the petitioner at the hospital. The petitioner was on earned leave between 30.7.2002 and 20.8.2002 and thereafter applied for medical leave on 10.1.2003 for a period of 121 days i.e. from 21.8.2002 to 19.2.2002.

4. Subsequently, the petitioner was served with two communications on 31.1.2005 and 18.4.2005, directing him to appear before the General Manager. It appears that the petitioner did not respond to the said communications and that resulted in issuance of a charge memo for unauthorised absence from 20.12.2010. The said charge memo appears to have returned unserved with the postal endorsement ‘left’. Subsequently the enquiry officer was appointed and due to the petitioner’s non appearance, the enquiry officer proceeded exparte and submitted a report stating that the charges are proved. The Management issued a second show cause notice on 23.5.2005, which also returned with endorsement ‘left. On 23.1.2006, the petitioner submitted a representation and based on the said representation, he was directed to appear before the General Manager, by proceedings dated 16.3.2006. Ultimately, the petitioner was dismissed from services of the Corporation by order dated 4.5.2006. After about 1 ½ years, the petitioner submitted a representation on 30.9.2008 invoking section 47 of the Persons with Disabilities for Equal Opportunities, Protection of Rights and Full Participation Act, 1995. (hereinafter referred to as ‘the Act’). Thereafter, during November 2008, the petitioner filed a Writ Petition before this Court in W.P.No.22736 of 2008. Challenging the order of removal dated 4.5.2006, and for a consequential direction to reinstate the petitioner with all arrears till alternate employment is provided.

5. This Court by an order dated 21.11.2008, disposed of the writ petition with a direction that the petitioner shall file an appeal against the order of removal from service to the Managing Director and it is also open to the petitioner to work out his remedy under the provisions of the Act.

6. The petitioner filed appeals on 10.12.2008 and 3.2.2009 and by an order dated 15.4.2009, the appeal was rejected. Challenging the said order, the petitioner preferred another writ petition being W.P.No.11641 of 2009, wherein a prayer was made to quash the order of dismissal which was confirmed in appeal and for a direction upon the respondents to invoke section 47 of the Act and to provide all benefits as per the Act. This Court after hearing the parties allowed the Writ Petition and set aside the order of removal. For better appreciation, the operative portion of the order is extracted hereunder:

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