Friday, June 12, 2015

Disabled person is entitled benefits under Sec.47 of PD Act, 1995

The Madras High Court Bench here has directed Tamil Nadu State Transport Corporation (TNSTC) to pay back wages to an employee who was discharged from service in 1997 on account of physical disability but reinstated in 2012 following a court order passed in accordance with Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Allowing a writ petition filed by R. Subramanian, Justice S. Vaidyanathan held that the corporation was not right in denying back wages to the employee since his discharge from service, without providing him an alternative employment as envisaged under the PWD Act, was itself illegal. He said that the principle of ‘no work, no pay’ would not be applicable in cases of the present nature.

“This court is of the view that the petitioner is entitled to all the benefits as if he is in continuous service and the entire back wages will have to be paid to the petitioner. The petitioner has also attained the age of superannuation on May 21, 2013 (after his reinstatement in the post of Helper in 2012)… Therefore, the amount due to the petitioner cannot be said to be a gratis or a bounty,” the judge said.

He ordered payment of back wages to the petitioner within three months along with interest at the rate of six per cent per annum. He also directed the TNSTC to pay gratuity, if not paid already, with interest at the rate of 10 per cent per annum.

“If any of the amounts mentioned supra are not paid within the time stipulated, the arrears will carry interest at the rate of 15 per cent per annum,” the judge added.


Also read the FULL Judgment as follows:


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24-04-2015
CORAM: THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
W.P. (MD) No. 7912 of 2013
R.Subramanian : Petitioner
Vs.
The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam Division I) Ltd., Kumbakonam - 612 001. Thanjavur District. : Respondent
Prayer: Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the respondent in Tha.A.Po.Ka/Kumba/E-4/120/2013, dated 11.02.2013 and quash the same insofar as denial of payment of back wages to the petitioner alone and consequentially direct the Respondent to disburse all the back wages from 15.12.1997 to the Petitioner with subsequent interest accrued thereon and pass such further or other order as the Hon'ble Court may deem fit and thus render justice.
For Petitioner: Mr.R.K.Karunanidhi
For Respondent: Mr.K.Sathiyasingh, Standing Counsel
This Writ Petition has been filed challenging the impugned order dated 11.02.2013 denying payment of back wages to the petitioner alone and consequential direction to the respondent to disburse all the backwages from 15.12.1997 with subsequent interest accrued thereon.  
2. Admittedly, the petitioner is a disabled person and he is entitled to the benefit in terms of the provisions to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act), 1995. Earlier, the petitioner had approached this Court by filing writ petition in W.P.(MD)No.6331 of 2012 and this Court, on 17.12.2012, had passed the following order:
"3.Therefore, the Writ Petition is disposed of, directing the respondent to provide alternative employment to the petitioner, in terms of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, within a period of two weeks from the date of receipt of a copy of this order. The petitioner is also entitled to all other benefits, as per the Act. No costs."
3.After the above order passed by this Court, the respondent has reinstated the petitioner with effect from 15.12.1997 viz., the date on which he was relieved from service, with continuity of service, other attendant benefits and with pay protection but without back wages and provided alternative employment as "Helper". Hence, the petitioner has come forward with this writ petition.
4. In support of his contention (the learned counsel appearing for the petitioner would rely upon the following decisions:
1) AIR 2003 SC 1623 (Kunal Singh vs. Union of India).   
2) 2007 (4) CTC 478 (V.Palanishanmugavel Vs. The Manager, TNSTC, Tirunelveli and others).
3) 2007 LLJ 49 (G.Muthu Vs. The Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai).
4) 2005 (2) L.L.J. 1 (Bhagawan Dass Vs. Punjab State Electricity Board).  
5) CDJ 2009 MHC 4837 (A.Arumugam Vs. The Director of School Education), DPI Campus and others).
6) CDJ 2010 MHC 7452 (P.Varadharajan Vs. State Express Transport Corporation and others).
7) Order passed by this Court in W.P. (ND) No. 5856 of 2011, dated 19.12.2011 (A.Mani Vs. The Managing Director, TNSTC,  Kumbakonam and others).
8) Order passed by this Court in W.P. No. 3667 of 2012, dated 07.01.2013 (T.N.Ravichandran Vs. The Secretary to Government, Transport Department, Secretariat, Fort St. George, Chennai – 9 and another).
5. This Court in A.Mani’s case held as follows:
"4.The learned counsel for the petitioner has been given a copy of the said order. However, the learned counsel for the petitioner stated that this order did not talk about any back wages. It is needless to state that already this Court in more than one writ petition emphasized that Section 47(1) is an injunction against the employer from dispensing with the service of a person who has become disabled. The disability has to be considered under the provisions of the Act. Therefore, it is needless to state that such person, if the services were dispensed With or discontinued or denial of alternative employment, is also entitled for wages, as if, there was no denial of employment. Taking note of the direction issued by this Court, since the respondents offered the alternative employment, it is for the petitioner to make any representation in case the wages are not paid and the respondents have positively response to such representation. If any adverse orders are passed, it is always open to the petitioner to make the grievance of the same before an appropriate forum."
6. Taking into consideration the submissions made by the learned counsel for the petitioner and also the decision of this Court, this Court is of the view that the petitioner is entitled to all the benefits as if he is in continuous service and the entire back wages will have to be paid to the petitioner. The petitioner has attained the age of superannuation on 21.05.2013. The respondent is unable to refute the contentions of the petitioner. The amount due to the petitioner is not gratis or bounty.
7. Therefore, the respondent is directed to pay the retiral benefits and the back wages to the petitioner with interest at the rate of 6% per annum, within a period of three months from the date of receipt of a copy of this order. As far as pensionary benefit is concerned, the petitioner is entitled to get pensionary benefits from the data of retirement, if not already paid, with interest at the rate of 9% per annum. Further, if the gratuity amount is not paid, which has to be paid with interest at the rate of 10 per annum, within ten days from the date of receipt of a copy of this order. It is also made clear that if any of the amounts mentioned supra is not paid within the time stipulated, the arrears of the same will carry interest at the rate of 15% per annum. It is also open to the respondent to invoke the decision reported in Central Co-operative Consumers’ Store Ltd., Vs. Labour Court, H.P. at Shimla and another [(1993) 3 SCC 214) with regard to recovery from the officers concerned. The relevant portion of the above decision reads as under:
"5.Public money has been wasted due to adamant behaviour not only of the officer who terminated the services but also due to cantankerous attitude adopted by those responsible for pursuing the litigation before the one or the other authority. They have literally prosecuted her. Despite unequal strength the opposite party has managed to survive. We are informed that the opposite party has been reinstated. This was put forward as bonafide conduct of petitioner to persuade us to modify the order in respect of back wages. Facts speak otherwise. Working life of opposite party has been lost in this tortuous and painful litigation of more than twenty years. For such thoughtless acts of its officers the petitioner-society has to suffer and pay an amount exceeding three lakhs is indeed pitiable. But considering the agony and suffering of the opposite party that amount cannot be a proper recompense. We, therefore, dismiss this petition as devoid of any merits and direct the petitioner to comply with the directions of the High Court within the time granted by it. We however leave it open to the society to replenish itself and recover the amount of back wages paid by it to the opposite party from the personal salary of the officers of the society who have been responsible for this endless litigation including the officer who was responsible for terminating the services of the opposite party. We may clarify that the permission given, shall have nothing to do with the direction to pay the respondent her back wages. Step if any to recover the amount shall be taken only after payment is made to the opposite party as directed by the High Court.”
8. With the above direction and observation, this Writ Petition stands disposed of. No costs.
To
The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam Division I) Ltd., Kumbakonam - 612 001. Thanjavur District.
===========================================================
Judgment Sources: Mr. R. KARUNANIDHI, ADVOCATE, Madurai Bench of Madras High Court, Lawyers Chamber No.99, Madurai Bench of Madras High Court, Madurai - 625 023. Tamil Nadu, India. Mobile: 99945 13250. E-mail: karunalegist@gmail.com.

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