K. CHINNUSAMY Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) 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 24/1/2013 onwards. On 14/2/2013, 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 18/5/2015. 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 dtd. 8/10/2015, his disability was ascertained at 35%. Through the proceedings dtd. 27/12/2015, the respondents had relied upon Sec. 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 dtd. 23/9/2016, the petitioner was dismissed from service. Challenging the order of the respondents, denying the light alternate duty dtd. 27/12/2015, as well as the order of dismissal dtd. 23/9/2016, 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 and another' reported in '(2003) 4 SCC 524' and submitted that the provisions of Sec. 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 dtd. 14/2/2013, the petitioner had given his reply dtd. 27/2/2013, 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 18/5/2015 also. It is in this background, the respondents had approached the District Medical Board, seeking for the percentage of disability, which was arrayed at 35% through the report dtd. 8/10/2015.