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2010 Supreme(Mad) 4159
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M.M. SUNDRESH
V. Angappan
Versus
State Express Transport Corporation Limited (Division II) Rep.by its Managing Director & Another
W.P.NO.1111 OF 2005 & M.P.NOS.1241 & 1242 OF 2005
Decided On : 21-09-2010
For the Petitioner:M. Radhakrishnan, Advocate.
For the Respondents:R1, T. Chandrasekaran for Corporation & R2, M/s. Muniratnam, Advocate.
The establishment is obligated to comply with The Persons with Disabilities Act, 1995, Section 47, and delay in filing a writ petition may not bar relief if the petitioner's rights have been rightfully agitated.
Headnote:
Disability Rights - Employment - The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Section 47
Fact of the Case:
The petitioner, a driver, was found medically unfit and subsequently relieved from service. He sought alternative employment, citing The Persons with Disabilities Act, 1995, Section 47(1) which mandates shifting to another post with the same benefits if an employee acquires a disability during service.
Finding of the Court:
The court found that the establishment was bound to comply with Section 47 of the Act, and the petitioner's delay in filing the writ petition did not warrant denial of relief. The petitioner was entitled to benefits from the date of filing the writ petition.
Issues: The issues revolved around the petitioner's medical unfitness, alternative employment, compliance with The Persons with Disabilities Act, 1995, and the delay in filing the writ petition.
Ratio Decidendi: The court held that the establishment must comply with Section 47 of the Act, and the petitioner's delay in filing the writ petition did not bar relief.
Final Decision: The writ petition was allowed, directing the respondents to reinstate the petitioner from January 2005 onwards and compute his salary and retirement benefits accordingly.
1. The petitioner herein joined the service of the Thiruvalluvar Transport Corporation in March 1985 as a Driver. Subsequently, the Thiruvalluvar Transport Corporation has become the State Express Transport Corporation Limited (Division-I), namely the respondents herein. The petitioner was confirmed as a Driver in the month of December 1985 and he continued in the said capacity till 25.05.1999. In the month of February 1999, the petitioner was directed to undergo an eye test. In pursuant to the same, the petitioner was found medically unfit to act as a Driver.
2. Thereafter, a show cause notice was issued to the petitioner on 26.07.1999 asking him to show cause as to why he should not be discharged from service, considering his poor eye sight. The petitioner gave a reply on 05.08.1999 requesting the respondents to give him an alternative employment. However, by the order dated 25.08.1999, the petitioner was relieved from service with an observation that the petitioner would be considered for the alternative employment, if the petitioner gives consent for the same as and when the vacancy arises.
3. Thereafter the petitioner has been making representations repeatedly starting from 02.09.1999 seeking an alternate employment. Finally an order was passed on 13.02.2003 by the respondents stating that there is no vacancies for the post of helper and the petitioners request cannot be considered. Challenging the proceedings dated 25.08.1999, the petitioner has filed the present writ petition with a consequential direction to the respondents to reinstate the petitioner in a suitable post with continuity of service, protection of salary and other benefits.
4. Mr.M.Radhakrishnan, learned counsel appearing for the petitioner submitted that the order impugned as well as the consequential order passed by the respondents are one without power or authority in as much as the provisions contained in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, particularly Section 47(1) which is binding on the respondents have not been complied with.
5. The learned counsel submitted that the Honourable Supreme Court in KUNAL SINGH v. UNION OF INDIA [(2003) 4 SCC 524] has held that Section 47 is mandatory and the same cannot be allowed to be frustrated by the petitioner. The learned counsel has also relied upon the judgment of the Honourable Apex Court in STEEL AUTHORITY OF INDIA v. NATIONAL UNION WATER FRONT WORKERS [(2001) 7 SCC 1] and submitted that the respondent Corporation is coming within the purview of Article 12. A further reliance was also made on the judgment of the Division Bench of this Court in METROPOLITAN TRANSPORT CORPORATION v. THE PRESIDING OFFICER, PRINCIPAL LABOUR COURT AND ANOTHER [(2004) Writ L.R.398] wherein, after considering the scope of Section 47 it was held that the benefit conferred therein will have to be extended by the employer concerned and a duty is cast to comply with the same.
6. Per contra, Mr.Muniratnam, learned counsel appearing for the 2nd respondent submitted that the writ petition is liable to be dismissed for latches in as much as the order impugned was passed in the year 1999 and the petitioner has filed the writ petition in the year 2005. Therefore, the learned counsel submitted that the relief sought for in this writ petition cannot be granted.
7. This Court finds considerable force in the submissions made by the learned counsel appearing for the petitioner. In order to appreciate the contention of the learned counsel appearing for the petitioner, it is useful to refer the provisions contained under Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads as follows:
"S.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,
