LAWS(MAD)-2006-1-58

K KAMATCHI Vs. MANAGING DIRECTOR

Decided On January 06, 2006
K.KAMATCHI Appellant
V/S
TAMIL NADU STATE TRANSPORT CORPORATION LTD. Respondents

JUDGEMENT

(1.) THIS writ petition is filed challenging the order of the first respondent dated 15. 03. 2001 and also for directing the first respondent to provide alternative employment to the petitioner in terms of Sections 82 and 83 of the Memorandum of Settlement dated 28. 09. 1995 under Section 12 (3) of the industrial Disputes Act, 1947 with continuity of service etc.

(2.) THE petitioner was appointed as a Conductor in Rani Mangammal transport Corporation on 01. 09. 1997 and the said Corporation has now merged with the Tamil Nadu State Transport Corporation Limited, namely the second respondent. Though he was appointed as a Conductor, he was allotted to work as a Cashier along with two other persons. While so, on 28. 01. 1998, when travelling from the Head Office at Dindigul to Dindigul City, he incurred physical disability as a result of an accident and on the ground of the said major injury, he was hospitalised. On his appearing before the Regional medical Board, he was certified that he was invalid for the post of a conductor. The first respondent, ultimately, by order dated 05. 04. 2004, has discharged the petitioner from service on the ground of medical disability. It was aggrieved against the said order, he filed W. P. No. 2933 of 2000, which was dismissed by an order dated 16. 06. 2000 on the basis that the discharge order was not challenged. That writ petition was considered on the pretext that the dis charge was on disciplinary grounds. The writ appeal filed against the said order in W. A. No. 1426 of 2000 was also dismissed by a division Bench on 07. 09. 2000. Thereafter, the petitioner made a representation to the first respondent requesting him to give an alternative employment in terms of Rules 82 and 83 of the Memorandum of Settlement, which was entered into under Section 12 (3) of the Industrial Disputes Act. Since there was no reply, he filed a writ petition in W. P. No. 151 of 2001, in which there was a direction by this Court to consider the representation of the petitioner dated 28. 10. 2000 and pass orders and accordingly, an order was passed on the petitioner's representation on 01. 02. 2001. It is pursuant to the order of this Court, the impugned order is passed by the first respondent stating that since the petitioner was discharged on medical grounds, he is kept in the waiting list of similar candidates in which he is at Sl. No. 5, and as and when his turn comes, he will be considered. It is this order which is challenged in the present writ petition.

(3.) MR. AR. L. Sundaresan, learned counsel for the petitioner would state that even though the prayer in the writ petition is to provide alternative employment to the petitioner in terms of Section 82 and 83 of the memorandum of Settlement dated 28. 09. 1995 under Section 12 (3) of the industrial Disputes Act, 1947, by virtue of the subsequent enactment of the central Act on the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (Act 1 of 1996), the petitioner will be entitled for some other employment, as it has also been held by the supreme Court subsequently while interpreting the said provision. The learned counsel for the petitioner would state that as per Section 2 (k) of the said act, which defines 'establishment', the second respondent establishment would come within the purview of the same. The Act came into existence on 01. 01. 1996. According to the learned counsel for the petitioner, after the Act has come into existence, by virtue of the provisions of Section 47 (1) of the Act, no establishment shall dispense with, or reduce in rank, the service of any employee, who acquires a disability during his service. The first proviso to the said Section states that if an employee, after acquiring disability is not suitable for the post he was holding at the time of his acquiring the disability, he could be shifted to some other post with the same pay scale and service benefits. The second proviso to the Section states 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.