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Madras High CourtWP(MD)/13832/2014allowed

K.Sakthi Muppudathi v. The General Manager

2017-12-22Honourable Mrs Justice V.Bhavani Subbaroyan5 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 15.12.2017 PRONOUNCED ON : 22.12.2017

CORAM:

THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN W.P(MD)No.13832 of 2014 and M.P(MD)No.1 of 2014 K.Sakthi Muppudathi ... Petitioner vs.

1. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Limited, Virudhunagar Region, Virudhunagar.

2. The Managing Director, Tamil Nadu State Transport Corporation (Madurai) Limited, Madurai.

... Respondents PRAYER:- Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the first respondent, dated 15.07.2014 made in parvai Viruthu Pa.Si.E3, 1163, quash the same and consequently direct the first respondent to sanction the Medical Leave, Earned Leave and Bonus for the period of 02.06.2001 to 17.12.2008. For Petitioner : Mr.V.Sasikumar For Respondents : Mr.A.P.Muthupandian

ORDER

This Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the first respondent, dated 15.07.2014 made in parvai Viruthu Pa.Si.E3, 1163, quash the same and consequently direct the first respondent to sanction the Medical Leave, Earned Leave and Bonus for the period of 02.06.2001 to 17.12.2008. 2.It is submitted by the petitioner that he was appointed as a driver in the first respondent-Transport Corporation and during the course of employment, he met with an accident on 19.12.1999 near

Kallikudi at Kovilpatti, Madurai Road. A criminal case was also registered against the petitioner under Sections 279, 337 and 338 I.P.C in Crime No.234 of 1999 and later he was acquitted from the said criminal charges. Due to the said accident, the petitioner had sustained injuries on his right thigh and thereafter, he was directed to appear before the Medical Board to evaluate the disability. The Medical Board gave its finding on 02.06.2001 by stating that due to the fracture sustained by the petitioner on his right thigh, the petitioner became unfit to be a driver and based on the said Medical Board's evidence, he was discharged from service on 02.06.2001. The petitioner has filed a petition in Case No.

5 of 2002 before the Special Commissioner for Disabled, Chennai under Section 62(b) read with Section 47(1) of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, (hereinafter referred to as 'the Act') seeking alternate employment in the said Transport Corporation. The said petition was allowed by an order, dated 24.01.2005. Inspite of the same, he was not given an alternate employment. Hence, the petitioner has filed a Writ Petition in W.P(MD)No.5512 of 2007 for issuance of a Writ of Mandamus, directing the respondent therein to comply with the order passed by the Special Commissioner for the Disabled, Chennai in Case No.5 of 2002, dated 24.01.2005, by providing a suitable job to him. This Court, by an order, dated 06.12.

2007, has directed the respondent therein to reinstate the petitioner in any one of the alternate post in terms of Section 47 of the said Act, within a period of two weeks from the date of receipt of a copy of that order. The arrears of pay and other benefits payable to the petitioner shall be calculated and paid to the petitioner within a period of four weeks from the date of the original order. 3.By proceedings in Parvai:Chattam/Sa.A.2/252/2008, dated 11.08.2008, the first respondent informed that necessary steps have been taken to implement the order of this Court and on 01.01.2009, the first respondent had settled the backwages for a period from 02.06.2001 to 17.12.2008.

Accordingly, a sum of Rs.5,20,311.20/- was settled and the petitioner was informed that the sanction of earned leave, medical leave and bonus will be paid to him at a later point of time. Inspite of his repeated request and demand, the first respondent has not taken any steps to pay the said balance amount. The petitioner has sent a representation to the first respondent on 30.05.2014.

4.The first respondent in his proceedings in Parvai Viruthu.Pa.Si.E3-1163, dated 15.07.2014, informed that no procedure is available for providing bonus and other amounts to a person, who was removed from service. The petitioner would further submit that the petitioner suffered from diabetic and due to his left foot got damaged, he applied for medical leave, but due to the action of the respondents for non-sanctioning the medical leave during the discharge period, only four months leave was granted including two months loss of pay. If the medical leave has been sanctioned, as per the order of this Court, he would not have suffered loss of pay.

Hence, the petitioner has filed the present Writ Petition. 5.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 6.The learned counsel appearing for the petitioner submitted that the impugned order has been passed after five years and no appeal was filed by the respondents against the order of this Court in W.P(MD)No.5512 of 2007 and no opportunity was given to the petitioner while passing the impugned order.

7.The learned counsel appearing for the respondents submitted that the impugned order has been passed by the respondents, after considering the facts and circumstances of the case and the same need not be interfered with at the hands of this Court and prayed for dismissal of the Writ Petition.

8.The applicability of the Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, to the Transport Corporation employees was considered by this Court and the the Supreme Court in Kunal Singh Vs. Union of India reported in (2003) 4 SCC 524, wherein in paragraph No.9, it is held as follows:- "9.Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment, Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It should be borne in mind that Section 2 of the Act has given distinct and different definitions of 'disability' and 'person with disability'.

It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquire disability during his service, is sought to be projected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicates its mandatory nature. The very frame and contents of Section 47 of the said Act reads as follows:- "47.Non-discrimination in Government employment.

Provided further that if it is not possible to adjust

the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section."

9.From the impugned order, it is seen that the petitioner was ousted from service due to his medical disability. Aggrieved over the same, the petitioner has filed a Writ Petition in W.P(MD)No.5512 of 2007, wherein, the respondents were directed to reinstate the petitioner in any one of the alternate post in terms of Section 47 of the said Act and to pay arrears and other benefits. The Transport Corporation has also paid a sum of Rs.5,20,311.20/- from 02.06.2001 to 17.12.2008 and he has been posted on 18.12.2008 as non-ITI Helper and from 02.06.2001 to 17.12.2008, he is seeking Medical Leave, Earned Leave Salary and Bonus and the respondents have rejected the claim stating that there is no procedure to pay the amount. 10.

It is pertinent to point out that in identical circumstances, in such type of cases, the Honourable Supreme Court has clearly stated that the Medical leave, Earned Leave and Bonus has to be calculated and paid. Therefore, this Court is of the view that the petitioner is entitled for the arrears of pay and the other benefits which shall be calculated and paid to the petitioner and the respondents cannot deny the same by stating that there is no procedure. The respondents have also not filed an appeal against the order of this Court in W.P(MD)No.5512 of 2007 and the order passed by this Court has become final. When that being the position, the respondents are liable to pay the said amounts to the petitioner. 11.

Accordingly, a direction is issued to the respondents to settle all the amounts to the petitioner which he is entitled to, as sought for in this Writ Petition, within a period of four weeks from the date of receipt of a copy of this order. In view of the above stated facts and circumstances, the impugned order, dated 15.07.2014 passed by the first respondent is set aside and the Writ Petition stands allowed. No costs.

Sd/- Assistant Registrar (AD-II) /True Copy/ Sub Assistant Registrar

To

1. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Limited, Virudhunagar Region, Virudhunagar.

2. The Managing Director, Tamil Nadu State Transport Corporation (Madurai) Limited, Madurai.

PS TE/SKN-RSK/SAR-1 : 10/01/2018 : 5P/3C Order made in W.P(MD)No.13832 of 2014 22.12.2017