The duty of the Management to provide alternative employment to employees found unsuitable for their current post, as per Section 47 of the Persons with Disabilities Act, and the inapplicability of estoppel against statute.

N. PAUL VASANTHAKUMAR, J.

1. The Writ Appeal is filed against the order made in W.P. No. 9546 of 2012 dated 29.01.2013, wherein the appellant has sought for a declaration declaring that the action of the first respondent in not offering suitable alternate employment to him with effect from 16.10.1998 i.e. the date of discharge from service by an order dated 15.9.1998, is illegal and contrary to the provisions of the Persons with Disabilities (Equal Opportunities Protection of Rights & Full Participation) Act, 1995 [hereinafter referred to as the Act], and violative of Article 14 16 and 21 of the Constitution of India and consequently to direct the respondents to provide him alternate employment commensurate with status with effect from 16.10.1998, with all consequential benefits.

2. Even though such a prayer was made in the writ petition, the appellant subsequently filed an additional affidavit dated 17.06.2012, stating that he was willing to give up the entire backwages from 16.10.1998 till 31.03.2012, if he is given the benefits with pay protection commensurate with status, continuity of service and other consequential benefits with effect from 16.10.1998. The learned Single Judge, without considering the said aspects, has dismissed the writ petition on the ground that after the delay of 14 years, the appellant has filed the writ petition seeking the above said direction. Aggrieved by the said order, the appellant has filed this writ appeal, relying upon the provisions contained under Section 47 of the Act as well as the Judgment rendered by one of us (NPVJ) reported in G. Kandasamy vs. Tamil Nadu State Transport Corporation Ltd. Villupuram, 2010 (3) LLN 380: 2002 (2) SCC 244 and also the Judgment rendered in W.A. No. 349 of 2011 dated 04.01.2013.

3. The facts leading to the filing of the writ appeal by the appellant was that he was appointed on 20.02.1987 as a driver DR 2396. He used to drive 260 kms a day for 18 hours. Due to the stress of driving, he sustained severe back pain as well as shoulder pain, resulting in problem in L2 and L3. The Management advised the appellant to appear before the Medical Board by letter dated 04.05.1998. He also appeared before the Medical Board and he was also admitted as in-patient for giving treatment between 09.06.1998 and 26.06.1998. While he was in hospital, a representation was submitted on 19.06.1998 seeking suitable alternative employment. The appellant was discharged from hospital on 26.06.1998 and he was found unfit for the post of Driver by the Medical Board on 08.07.1998. Without considering the representation of the appellant dated 19.06.1998, the 1st respondent has issued a show cause notice dated 21.08.1998, calling upon the appellant as to why he should not be discharged from service, as the Medical Board has found that he was unfit for the post of Driver.

4. On 31.08.1998, the appellant submitted a detailed representation and prayed for alternative employment in terms of Section 47 of the Act. The Management, without considering the said request, discharged the appellant from service by order dated 15.09.1998 with effect from 16.10.1998. According to the appellant, he was given alternate appointment as Helper by order dated 12.11.1998, which is lower in cadre, that too treating as fresh appointment with a basic pay of Rs. 1690/- and also stating that the earlier services rendered by him as a driver will be forfeited. The appellant after serving for about 13 years as Helper, made claim by way of filing the above writ petition. As already stated, the appellant has given up the difference in salary for the period from 16.10.1998 till 31.03.2012.

5. The said claim of the appellant was opposed by the Management by contending that the appellant was already given alternate employment in the post of Helper and the appellant, having accepted the said offer of appointment and joined the said post without any demur, cannot claim alternative employment in terms of Section 47 o