Employer must provide alternative employment to disabled employee under RPWD Act; dismissal for absence unjustified without accommodation.

[Judgment of the Court was made by N.SATHISH KUMAR, J.)

The present writ appeals have been filed challenging the order of the learned Single Judge, whereby the writ petition in W.P.(MD) No. 26343 of 2019 was dismissed and the writ petition in W.P.(MD) No. 20175 of 2022 was partly allowed.

2.The brief facts of the case are as follows:

The respondent, who was employed as a Conductor in the Tamil Nadu State Transport Corporation, Kumbakonam, was issued charge memos for unauthorized absence from October 2002 to March 2003. Upon enquiry, the charges were found to be proved, and consequently, he was dismissed from service. The respondent contended that, while working as a Conductor, he met with an accident and was thereafter not in a position to perform his regular duties. He submitted that he was not provided with any light duty and, therefore, filed a writ petition in W.P.(MD) No. 21261 of 2002 seeking assignment to light or clerical work. Although this Court directed the employer to provide such work, he was assigned light duty only in September 2002. Subsequently, he was neither continued in light duty nor given appropriate work and was instead compelled to resume duties as a Conductor. In the meantime, he was also referred to the Medical Board. However, before the Medical Board could issue its certificate, he was dismissed from service.

3. Taking note of these facts, the learned Single Judge, relying on the judgment of the Hon’ble Supreme Court of India in Krushnakant B. Parmar vs. Union of India and another reported in (2012 (3) LLN 116 (SC)), partly allowed the writ petition filed by the respondent/workman. The dismissal order was set aside, and the appellant was directed to pay full back wages for the period from 03.07.2004 to 08.05.2009. For the period from 09.05.2009 till the date of superannuation, the respondent was held entitled to 50% of the back wages. The learned Single Judge also dismissed W.P.(MD) No.26343 of 2019 filed by the Management.

4.Aggrieved by the said orders, the Management preferred the present writ appeals.

5. The learned Additional Advocate General appearing for the appellants contended that the medical certificate relied upon by the respondent was not issued by the Medical Board and that the document relied upon before the Labour Court was not produced. It was further submitted that the respondent did not appear before the Medical Board, and therefore, the question of providing light duty did not arise.

6. Per contra, the learned counsel for the respondent submitted that the respondent had suffered a disability due to an accident during the course of his employment and was therefore entitled to be provided with alternative employment. Despite directions issued by this Court, the respondent was compelled to continue as a Conductor. It was argued that under Section 20(4) of the Rights of Persons with Disabilities Act, 2016, the employer is obligated to provide suitable alternative employment to an employee who acquires a disability during service. Hence, the employer cannot take advantage of the alleged unauthorized absence to justify dismissal.

7. We have heard the submissions on either side and perused the materials available on record.

8. It is not in dispute that the respondent, while working as a Conductor, met with an accident and suffered a disability. Though it is contended that he appeared before the Medical Board, the records indicate that he was referred to Thanjavur Medical College Hospital and thereafter to Government Medical College, Chennai, for MRI scanning, as communicated by letter dated 17.03.2004. The Medical Board ultimately certified on 17.