R. Balakrishnan, v. Tamil Nadu State Transport
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY and M.P.(MD).No.1 of 2014 R.Balakrishnan ... Petitioner Vs.
1.Tamil Nadu State Transport Corporation (Madurai) Ltd., Bye pass Road, Madurai, Represented by the Managing Director.
2.The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Virudhunagar Region, Virudhunagar.
3.The Branch Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Sivakasi Branch, Virudhunagar District.
4.The Senior Assistant Engineer, Tamil Nadu State Transport Corporation (Madurai) Ltd., Sivakasi Branch, Virudhunagar District.
... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the second respondent dated 01.08.2014 in j.mnlhf tpUJ eph;.m2.163.2014 insofar as reduction of rank and denial of promotion and quash the same in reference to such aspect and consequently direct the respondents to extend all the benefits under "Persons with Disabilities (Equal Opportunities, Protection of the Rights and Full Participation) Act, 1995 and rules and grant continuity of service, pay protection, back wages and all other attendant and consequential and monetary benefits to the petitioner.
For Petitioner :
Mr.N.Dilip Kumar 1/5
For Respondents :
Mr.J.Senthil Kumaraiah Standing Counsel
ORDER
Heard Mr.N.Dilip Kumar, learned counsel for the petitioner and Mr.J.Senthil Kumaraiah, learned Standing Counsel for the respondents.
2. This Writ Petition has been filed challenging the impugned order dated 01.08.2014 passed by the second respondent insofar as reduction of rank and denial of promotion and quash the same in reference to such aspect and consequently direct the respondents to extend all the benefits under "Persons with Disabilities (Equal Opportunities, Protection of the Rights and Full Participation) Act, 1995 and rules and grant continuity of service, pay protection, back wages and all other attendant and consequential and monetary benefits to the petitioner.
3. The brief facts of the case are that the petitioner was appointed as a Conductor on 01.11.1988, was made permanent in the year 1989, then was awarded senior grade in the post of Conductor in the year 1998, Selection Grade on 01.08.2011. The petitioner's spinal cord was injured while he was in service in June 2008 and he was admitted in Madurai City Hospital on 18.05.2009 and Surgery was performed on 31.05.2009. He was discharged from hospital on 10.06.2009. The petitioner had submitted an online application on 09.07.2009 followed by yet another representation dated 24.09.2009 seeking alternative employment. The respondents did not consider his application but issued charge memo on 26.05.2009 alleging unauthorized absence. Thereafter, he was engaged as a Clerk on 10.07.2009 and the action for unauthorized absence was dropped on 29.07.
2009. On 01.05.2010, he was assigned to act as cashier. On 14.12.2011, again the petitioner was directed to discharged the duty of the Conductor. Because of the physical inability, the petitioner submitted an application for leave on medical grounds on 14.12.2011 itself. Again, the petitioner had submitted the application for alternative employment on 17.12.2011.
4.The petitioner had filed writ petition in W.P. (MD). No.159 of 2012. In the meanwhile, the respondents again initiated departmental proceedings on 16.01.2012 alleging unauthorized absence. In the writ petition, this Court directed the respondents to pass an order on the representation for disposal of the disciplinary proceedings. Aggrieved over, the petitioner filed Writ Appeal in W.A.No.325 of 2012. In the meanwhile, the respondents submitted before the Division Bench that already the petitioner was referred to Medical Board and it was assessed the disability of the petitioner is 25%. Recording the said submission, the Division Bench vide order dated 06.08.2013 directed the respondents to pass orders.
2/5
5. The petitioner submitted a detailed explanation on 05.09.2013, since the respondents did not consider the claim of the petitioner, the petitioner preferred contempt petition. The respondents submitted a proceeding dated 13.12.2013, in which the petitioner request for alternative employment was rejected. Again, the petitioner filed W.P. (MD). No. 873 of 2014 and this Court vide order dated 03.04.2014, passed a final order holding the respondents are bound to consider alternative employment without reference to percentage of disability. Then the petitioner was directed to appear before the Committee on 27.05.2014 and the Sub-Committee directed the petitioner to join in the Office of Diesel Pump Operator and maintenance of records. However, the fourth respondent did not allow the petitioner to join duty.
6. On 01.08.2014, the impugned order was issued by the second respondent granting alternative remedy with a specific condition that this post is degraded to the cadre of non I.T.I. Helper with effect from 01.08.2014. Thereafter, two charge memos were issued on 24.07.2014 and 11.11.2014 stating that the petitioner slept during the working hour and unauthorizedly absence for a day. Inspite of his physical inability, the respondents are directing the petitioner to do heavy work like moving heavy things in the maintenance records. Aggrieved over the attitude of the respondents, the petitioner has filed this Writ Petition claiming promotion and to grant pay protection.
7. The respondents had filed a counter affidavit stating that the petitioner was granted alternative employment as non I.T.I helper w.e.f. 01.08.2014 and the said alternative employment was in consonance with the Disability Act. His pay and scale of pay also protected by the impugned order. In the counter it has been stated as under:
S. No.
Incident Date Nature of Offence Punishment Awarded 1.
28.08.2014 Absent of duty Fine Rs.75 2.
04.12.2014 Absent - More than 10 days Pending 3.
31.12.2014 Attacked the Foremen in Depot Gate Pending 4.
28.02.2015 Absent to duty Fine Rs.100 5.
01.06.2015 Absent to duty Pending 6.
02.06.2015 to 05.06.2015 Absent to duty Pending 3/5
"I submit that the petitioner was subjected to the following mentioned disciplinary actions during his service as Non ITI Helper based on the specific reports against the petitioner.
The above disciplinary actions have been taken by following the procedure established by law".
8. Thereafter, the petitioner was given employment as Diesel Pump Attender without any interference and the allegation of the petitioner that he was disturbed from doing his duty is incorrect. Therefore, the grievance of the petitioner was addressed according to the rules and regulations and prayed for dismissal of this Writ Petition.
9. The learned counsel for the petitioner has circulated synopsis and dates of events. The petitioner was discharged from the post of conductor on 14.12.2011. Thereafter for two spells he was not granted job by the respondents. Regarding the first spell is concerned, on 14.12.2011 to 06.06.2014, in spite of representation by the petitioner, the respondents did not consider the claim of the petitioner's disability act. The respondents are bound to grant alternative employment either on their own motion or on application. In this case, the petitioner has submitted an application. Inspite of the same, the respondents have not act up on the application. The respondents have directed the petitioner to appear before the Sub-Committee to assess his disability.
The petitioner appeared before the Sub-Committee with a medical certificate and it is stated 25% of disability is being assessed. The Sub-Committee thereafter has granted the post of I.T.I helper. The petitioner is aggrieved since he was degraded from the post without pay protection. But the counter of the respondents says the pay protection is granted to the petitioner. On perusing the records, it is seen that the respondents had posted the petitioner in degraded post. There is no clarity in the counter affidavit of the respondents whether the pay protection was granted or not. Both the petitioner and the respondents have not submitted any detailed facts regarding the pay protection. Therefore, this Court directing the respondents to grant pay protection, if pay protection was already was not granted.
10. As far as the second spell, from 08.12.2014 to 18.01.2015 is concerned, it is not known why again the petitioner was not allowed to carry on with the duty in the alternative employment. It is submitted by the petitioner as and when there are some changes in the management he is being disturbed. Therefore, this Court is directing the respondents not to disturb the petitioner from the alternative employment. The petitioner is also entitled to the pay protection and this Court directs the respondents to pay all monetary benefits and the said exercise shall be completed within a period of six weeks from the date of receipt 4/5
of a copy of this order.
11. With the above direction, this Writ Petition is disposed of. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar (CS-I) // True Copy // / /2022 Sub Assistant Registrar(CS) Nsr Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To 1.The Managing Director, Tamil Nadu State Transport Corporation (Madurai) Ltd., Bye pass Road, Madurai.
2.The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Virudhunagar Region,Virudhunagar.
3.The Branch Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Sivakasi Branch,Virudhunagar District.
4.The Senior Assistant Engineer, Tamil Nadu State Transport Corporation (Madurai) Ltd., Sivakasi Branch,Virudhunagar District.
+1 CC to M/s.N.DILIPKUMAR, Advocate ( SR-6314[F] dated 15/02/2022 ) 14.02.2022 AP(26.02.2022) 5P 6C 5/5