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2010 Supreme(Mad) 3992
High Court of Judicature at Madras
HONOURABLE MR. JUSTICE P. JYOTHIMANI
K. Periasamy
Versus
The State of Tamil Nadu rep. by the Secretary to the Government Department of Transport, Chennai & Others
W.P. No. 8942 of 2003
Decided On : 08-09-2010
For the Petitioner:Ms. M. Srividya, Advocate.
For the Respondents:R1 - N. Senthil Kumar, AGP, R2 to R4 - V.R. Kamalanathan, Advocate.
The central legal principle established in the judgment is the mandatory nature of the employer's obligation under Section 47(1) of the Persons with Disabilities Act, 1995 to provide alternate employment to employees who acquire disabilities during employment, without reducing pay or benefits.
Headnote:
Persons with Disabilities - Employment Rights - Act 1995, Section 47(1) - 2(o) - 9, 18, 30, 47 - The court discussed the provisions of the Persons with Disabilities Act, 1995, particularly Section 47(1), which imposes a statutory obligation on the employer not to terminate the service of an employee who acquires a disability during employment. The court highlighted the mandatory nature of this provision and its interpretation by the Supreme Court, emphasizing the duty of the employer to provide alternate employment without reducing pay or benefits. The judgment also referenced previous court decisions that upheld the rights of employees with disabilities and emphasized the need for employers to create supernumerary posts if suitable employment is not available.
Fact of the Case:
The petitioner, a driver at a state transport corporation, suffered permanent disability in an accident during employment. The corporation terminated his service on medical disability grounds, failing to provide alternate employment as required by law.
Finding of the Court:
The court found that the employer's failure to provide alternate employment to the petitioner, as mandated by Section 47(1) of the Act, was unjustified and unreasonable. It held that the petitioner was entitled to continuous employment benefits and pensionary benefits from the date of termination.
Issues: The main issue was the employer's non-compliance with the statutory obligation under Section 47(1) of the Act to provide alternate employment to the petitioner after acquiring a disability during employment.
Ratio Decidendi: The court emphasized the mandatory nature of Section 47(1) and the duty of the employer to provide alternate employment without reducing pay or benefits, as interpreted by the Supreme Court and previous court decisions.
Final Decision: The Writ Petition was allowed, and the respondents were directed to compute and pay all monetary and pensionary benefits due to the petitioner from the date of termination, treating him as if he had been in continuous employment.
1. It is an yet another case where the mandate imposed on the employer by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called as Act) under Section 47(1) has not been complied with in its true spirit, which requires interference by this Court.
2. The petitioner was appointed as a Driver in the third respondent State Express Transport Corporation and his appointment was made permanent from 1.9.1980. It is seen that while he was in service and during the course of employment when driving the Corporation vehicle on 12.11.1996, the bus involved in an accident resulting in the fracture on his legs and permanent disability. It is in the form of locomotor disability as defined under section 2(o) of the Act which means the disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. After undertaking treatment, his disability was confirmed by medical reports and thereafter the third respondent has issued a show cause notice on 5.5.1999 intimating to the petitioner about the disability suffered by him stating that he is not competent to continue the post of Driver. The petitioner gave a reply on 17.5.1999 to the said show cause notice and ultimately it appears that on 18.7.1999, the third respondent has passed an order of termination of the petitioner from service on the ground of medical disability.
3. In the said order of termination, the third respondent has stated that if the petitioner desires he can apply for alternate employment. Challenging the said order, the petitioner has moved this court by filing W.P.No.15959 of 2000 and ultimately by an order dated 20.9.2000, taking note of a similar circumstance where this Court in W.P.No.7820 of 1999 by applying the provisions of the Act 1 of 1996 has directed the payment of salary and reinstatement, has disposed of the Writ Petition directing the third respondent to consider the representation of the petitioner dated 27.7.1999 by which the petitioner has sought for alternate employment with pay protection.
4. After the disposal of the Writ Petition, the petitioner has made further representation to the third respondent on 3.10.2000 requesting the third respondent to reinstate him, cancelling the order of termination dated 18.7.1999 and payment of salary for the period from the date of his termination. In response to the said representation and based on the order passed by this Court in the above said Writ Petition, the third respondent has passed an order on 1.1.2001 confirming the factual matrix of relieving of the petitioner on the disability ground, however stating that in respect of providing alternate employment to the petitioner, he is kept in the list of such persons and his serial number is 7 and based on the availability of post and qualifications, suitable orders will be passed.
5. It is not in dispute that after passing of the said order dated 1.1.2001, the respondents have not passed any order providing alternate employment or reinstating the petitioner into service. It is seen that the petitioner has in fact made a representation to the Honble Chief Minister on 3.7.2001 and inasmuch as the respondents have not taken steps to reinstate him in the job by cancelling the order of termination, the present Writ Petition has been filed for direction to reinstate him in any suitable post without causing reduction in salary, seniority and other attendant benefits.
6. Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 imposes statutory obligation on the part of the employer not to dispense with the service of a person employed on the reason that he acquires disability, acquisition of such disability need not deprive him. When once it is proved that during the course of employment, such disability has occurred, it is the duty of the employer not to dis
