The central legal point established in the judgment is the mandatory protection provided to employees acquiring disability during service under Section 47 of the Persons with Disabilities Act, and the illegality of denying alternate light duty based on disability percentage.

ORDER :

Prayer in WP.No.42344/2016: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records connected with the order of dismissal dated 23.09.2016 passed against the petitioner by the second respondent in his proceedings Pa.Mu.No.27-3923-D8-TNSTC-2013-16, quash the same and also direct the respondent/Management to reinstate the petitioner with continuity of service, back wages and all other attendant benefits.

Prayer in WP.No.42345/2016: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records connected with the orders dated 27.12.2015 passed by the second respondent in Proceedings No.E1A/4359- Pa.Pi/TNSTC/Salem/2015, quash the same and also direct the respondents to provide the petitioner with permanent alternative employment in the cadre equal to the post of Conductor with pay protection continuity of service and all other attendant benefits as per Section 47 of the Persons with Disabilities (Equal Opportunities Protection and of Rights and Full Participation) Act 1995 duly considering his physical disability to continue in the post of Conductor as per the considered and categorical opinions of the Medical Board.

The petitioner herein while serving as a Driver under the respondents/Corporation, suffered from 'Spondylitis Arthritis', which incapacitated him to perform the duty as a driver. In this connection, he had remained unauthorizedly absent from 24.01.2013 onwards. On 14.02.2013, charges came to be framed against him for unauthorized absence and an inquiry was also conducted. Pending the inquiry proceedings, the petitioner was subjected to Medical Board, which gave him opinion that he can be given light duty work and that he is unfit for driving. A similar opinion was given by the District Medical Board, Namakkal on 18.05.2015. The respondents thereafter seems to have referred the petitioner to the same District Medical Board, for ascertaining the percentage of disability and by a report dated 08.10.2015, his disability was ascertained at 35%. Through the proceedings dated 27.12.2015, the respondents had relied upon Section 2(t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (for short 'the Act') and stated that since the locomotor disability should be 40% or more and since the petitioner's disability is only 35%, an alternate light duty cannot be given. The inquiry thereafter continued and ultimately by an order dated 23.09.2016, the petitioner was dismissed from service. Challenging the order of the respondents, denying the light alternate duty dated 27.12.2015, as well as the order of dismissal dated 23.09.2016, both the aforesaid Writ Petitions have been filed.

2. The learned counsel for the petitioner placed reliance on a decision of the Hon'ble Supreme Court in the case of 'Kunal Singh Vs. Union of India & another' reported in '(2003) 4 SCC 524' and submitted that the provisions of Section 2(t) of the Act, will not apply to the persons in service and therefore, the reasoning adopted by the respondents in rejecting his request for alternate light duty, cannot be sustained. She further submitted that the inquiry itself has been made without following the proper procedures and that the impugned order of dismissal is a non-speaking order.

3. When the respondents had framed charges under the Charge Memo dated 14.02.2013, the petitioner had given his reply dated 27.02.2013, stating that, in view of his locomotor disability, he had remained absent. Thereafter, the respondents have subjected the petitioner to the Regional Medical Board at Salem, for examination, which had also opined that he can be given a light duty work and that he is unfit for driving. The opinion was reiterated by the District Medical Board, Namakkal on 18.05.2015 also. It is in this background, the respondents had approa