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High Court of Judicature at Madras
M. VENUGOPAL, J.
R. Manimaran
Versus
Managing Director, Metropolitan Transport Corporation Limited, Anna Salai
W.P. No. 2545 of 2010
Decided On: 20-08-2013
PERSONS WITH DISABILITIES ACT - REMOVAL FROM SERVICE - ALTERNATIVE EMPLOYMENT - ENTITLEMENT - SCOPE OF SECTION 47 - INDUSTRIAL DISPUTES ACT, 1947 - APPLICABILITY - WRIT JURISDICTION - MAINTAINABILITY.
Fact of the Case:
The Petitioner, a driver in the Respondent Transport Corporation, was removed from service after a domestic enquiry found him guilty of unauthorized absence from duty for more than eight days. The Petitioner challenged the order of removal, contending that he was entitled to alternative employment under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as he had acquired a disability during his service.
Finding of the Court:
The Court held that the Petitioner was not entitled to seek relief under Section 47 of the Persons with Disabilities Act, 1995, as he had not exhausted his remedy before the competent forum under the Industrial Disputes Act, 1947. The Court observed that the Petitioner's removal from service was ordered after a domestic enquiry in which he had participated, and that the order of removal had not been set aside by any competent forum. The Court further held that the provisions of the Persons with Disabilities Act, 1995, were in addition to and not in derogation of any other law, and that the Petitioner was required to first pursue his remedy under the Industrial Disputes Act, 1947, before seeking relief under the Persons with Disabilities Act, 1995.
Issues: 1. Whether the Petitioner was entitled to alternative employment under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 2. Whether the Petitioner had exhausted his remedy before the competent forum under the Industrial Disputes Act, 1947. 3. Whether the provisions of the Persons with Disabilities Act, 1995, were in addition to and not in derogation of any other law.
Ratio Decidendi: 1. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. 2. An employee who is aggrieved by an order of removal from service is required to first pursue his remedy before the competent forum under the Industrial Disputes Act, 1947, before seeking relief under the Persons with Disabilities Act, 1995. 3. The provisions of the Persons with Disabilities Act, 1995, are in addition to and not in derogation of any other law.
Final Decision: The Court dismissed the Writ Petition, leaving the parties to bear their own costs. The Court clarified that the dismissal of the Writ Petition would not preclude the Petitioner from working out his remedy before the competent forum under the Industrial Disputes Act, 1947.
1. The Petitioner has preferred the instant Writ Petition praying for issuance of Writ of Certiorarified Mandamus in calling for the records of the Respondent pertaining to the order in Proceedings No.8994/Sa.Pi. / (O.NG)/15/Ma.Po.Ka/2007 dated 25.8.2009 and to quash the same. Further, he has sought for passing of an order by this Court in directing the Respondent to provide suitable alternative employment under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995, within a time limit.
The Summation of Essential Facts:
2. The Petitioner initially was selected as trainee driver in the Respondent/Transport Corporation, by an order dated 02.11.1995, after being sponsored by the Employment Exchange. Soon after completion of Training, he was posted to work as Casual Labour Employee (C.L. Driver) in Ayanavaram Depot, by an order dated 26.03.1996. Later, he was posted as a temporary Driver on daily wages at the rate of 112/- per day. His service was regularised with effect from 01.09.1998 by an order dated 31.10.1998. He continued to work in the same Depot as Driver.
3. He continued to work without any problem and in July 2005, due to some malfunction in his spinal cord, he began to feel acute pain in the back. After examining him, the Doctors informed that nerves in the spine that connect all parts of the body in the brain were affected and a surgery was necessary to get cured. Fearing the huge amount he required to spend and also even after surgery, it was not sure of 100% success he was unable to undergo surgery and turned towards Ayurvedic Medicine and treatment. In the meanwhile, his one leg and one arm were also affected to the extent of less movements. It so happened that he had to be in continued treatment for a long period.
4. The Petitioner was unable to attend his duty and he immediately informed the authorities in the Ayanavaram Depot (Controller and the Branch Manager) and also applied for medical leave. He continued to do so because he was not fortunate enough to get his sickness cured in short time. But he continued to keep the authorities informed then and there.
5. The Respondent/Transport Corporation for the first time issued a charge memo dated 06.03.2007 alleging that the Petitioner had not reported for duty and continued to remain absent from 17.07.2005 for more than eight days without prior permission and thereby the daily work in the Depot in operating bus services were affected and this caused revenue loss to the Transport Corporation. He was called upon to offer his explanation to the said charge memo within seven days. Further, he was directed to appear before the Special Grade Assistant Manager (Legal - Disciplinary Proceedings). The Petitioner in March 2007 was more or less in bed unable to sent a reply and also unable to go and appear before the Authority as directed. In the domestic enquiry, the Management witness had categorically deposed that "Thiru.Manimaran, Driver (Writ Petitioner) (S.No.50053) on 17.7.2005, gave prior medical intimation stating that he was sick and subsequently, on 29.08.2006 gave another prior intimation letter ...". Inspite of the same, the Respondent issued a charge memo calling for his explanation and also directed him to appear before the Authority alleging that he was absent for more than eight days from 17.07.2005, on which day he submitted his leave letter praying for the grant of medical leave to him. Also, it was not known why the Management issued a charge memo to him on 06.03.2007 after 28 months.
6. The Respondent/Transport Corporation issued a show cause notice dated 19.02.2008 to the Petitioner calling upon him to offer his explanation against the provisional conclusion of imposing the extreme punishment of removing from service and that too without conducting any enquiry so as to find out whether the charges were proved or not. He submitted his explanation on 12.03.2008. By means of the
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