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2013 Supreme(Mad) 65
HIGH COURT OF JUDICATURE AT MADRAS
R. BANUMATHI & K.K. SASIDHARAN, JJ.
J. Sekar
Versus
Metropolitan Transport Corporation & Another
W.A.No.349 of 2011
Decided on: 04-01-2013
For the Appellant:S. Vaidyanathan for M/s. C.S. Monica & V.T. Arun Thomas, Advocates.
For the Respondents:G. Muniratnam, Advocate.
Headnote:PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES PROTECTION OF RIGHTS AND PARTICIPATION ACT), 1955 - Section 47 and 2(1) & 2 (t) - Alternate employment due to disability - Writ appeal against order in WP contending that appellant had acquired disability during his service and therefore on his re-employment the appellant ought not to have been employed as a new entrant and as per the provisions of the Act, he should have been given alternative employment commensurate with the status and pay protection - ’Disabilities’, and ’persons with disability’, explained - Rights of persons with disabilities and their enablement to enjoy equal opportunities (Para 11-13) - 2006 (5) CTC 413 (DB) followed - Held, word ’disabilities’ draw support not only from Section 2(i) but will also encompass other disabilities (Para 14) - Act is a social beneficial legislation and enactment dealing with disabled persons intended to give equal opportunities protection of right and full participation - 2007 (4) CTC 478, relied on - Held, certificate issued by the Medical Board clearly shows that the appellant has incurred the disability with reference to his job on account of which, he would not be in a position to undertake the normal activities connected with his job. Section 47 of the Act protects interest of an employee who acquired the disability during the course of his service. Such disability does not require a particular percentage, so as to enable him to make a request for alternative employment. It is not possible to assess the disability in all cases with mathematical accuracy. Accordingly, the disability in the case of an employee has to be considered in the light of the nature of job and not with reference to the definition given under the Act The Respondent Corporation has not filed any appeal against the order of the learned single judge dated 10.12.2010 in W.P.No.49656 of 2006. Therefore, the Respondent Corporation has no other alternative than to implement the order passed by the learned single Judge on the basis of the certificate issued by the Medical Board - Directions issued.
Result : Writ Petition disposed of with directions.
R. BANUMATHI, J.
1. The Writ Appeal is preferred against the Order passed by the learned single Judge dated 10.12.2010 in W.P.No.49656 of 2006.
2. The writ petition is filed by the appellant against the order of the second respondent dated 22.11.2006 bearing Ref. Memorandum No.21352/Per Sec. (Admn.) - 2/MTC/2006 by which the second respondent has rejected the representation of the appellant for conferring alternate employment as per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
3. The case of appellant is that he is a graduate in Commerce and joined as a Conductor under the respondent Corporation on 18.05.1989. Since he became medically disabled due to the asthmatic problem, he made representation on 29.05.1995 to confer alternate employment on him. The appellant was directed to appear before the Medical Board, and the Medical Board in its report has stated that he was found to be not medically fit to discharge the duties of the Conductor, based on which the petitioner was discharged on medical grounds on 11.09.1996. In the mean time, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 came into force from 07.02.1996, under which the appellant cannot be discharged and his status is protected. After the representation was made as per the Act, the petitioner was provided alternate employment on 05.12.1996 by the respondent Corporation, by posting him as a Helper Non-ITI as a fresh entrant in the pay scale of Rs.1690-20-2170. While he was discharged on 23.09.1996, his salary was in the scale of pay of Rs.1770-20-2470. The appellant had reported for duty as Non-ITI Helper on 07.12.1996 and was working as a Junior Assistant at Cash and Ticket Section and is now working as a Senior Assistant in the same category and he has been confirmed after satisfactory completion of probation. He had made several representations on 05.11.1997, 09.03.1998, 29.05.1998 and 26.05.1999 to the respondent Corporation to redesignate him as Junior Assistant commensurate with his qualifications. While Non-ITI Helper is equivalent to Attender or Sweeper, which is a 4th category, the petitioner filed WP.No.3794 of 2000 claiming the said relief and that was disposed of on 06.01.2003 with direction to the respondent Corporation to consider the representation of the appellant dated 26.05.1999, on merits. Since no order was passed, the petitioner filed another writ petition in W.P.No.41964 of 2006 to dispose of his representation dated 28.08.2006, along with the earlier representations and by order dated 03.11.2006, the representations were directed to be considered within four weeks time. Pursuant to the said order, the impugned order came to be passed stating that after being discharged on medical grounds, the appellant was employed as a fresh entrant and he has accepted alternative employment as Non-ITI Helper without any reservation and that he worked for ten years and therefore his request cannot be considered.
4. Challenging the said proceedings appellant has preferred Writ Petition in W.P.No.49656 of 2006 contending that Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) (in short, "Disabilities Act") Act came into force on 7.2.1996 and at that time when the appellant was discharged on 11.9.1996, he was entitled to the statutory protection. According to the appellant, at the time when he was discharged in September 1996, his basic salary was Rs.2,045/- in the pay scale of Rs.1770-20-2470 and as per Section 47 of the Disabilities Act, the appellant should be given alternative employment commensurate with the status and pay protection. The appellant, sought for a writ of certiorarified mandamus to quash the proceedings dated 22.11.2006 and consequently direct the respondent Corporation to post him as Junior Assistant or any clerical post, on the administrative side in commensura
