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Kattabomman Transport v. The Presiding Officer,2. G. Fathima - W.P. No.16962 of 1995  RD-TN 556 (5 August 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Honourable Mr. Justice P. SATHASIVAM
W.P. No.16962 of 1995
W.M.P. Nos.26904 of 1995 & 23014 of 1997
Corporation ... Petitioner ..Vs..
1. The Presiding Officer,
2. G. Fathima ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of certiorari.
For Petitioner : Mr. John
for M/s Ramasubramaniam
For Respondents : Mr. K. Mohanram for R2
:O R D E R
M/s Kattabomman Transport Corporation, aggrieved by the award of the Industrial Tribunal, Madras dated 11.10.1994 in complaint No.24 of 1988, has filed the above writ petition to quash the same on various grounds.
2. The case of the petitioner is briefly stated hereunder: The second respondent was appointed as a Conductor from 01.02.1981. He was issued a charge memo dated 21.11.1984 for being absent from duty from 01.11.1984 without any leave or prio n. She submitted an explanation with a Certificate issued by a private Doctor which was however not accepted. A domestic enquiry was conducted for his unauthorised absence. Finally, the second respondent was set ex parte on 09.04.1985 and the Enquiry Officer found him guilty of charges of absence from duty.
3. Since the second respondent was frequently absenting himself from duty, the Branch Manager requested the General Manager to send the second respondent before the Medical Board. The Medical Board submitted its report holding that the seco nt is suffering from allergic bronchitics and intolerent to dust and crowded atmosphere and recommended for giving any other job which does not involve crowded atmosphere.
4. The petitioner, after considering the report of the Medical Board, issued a notice dated 26.09.1985 to the second respondent asking him to explain as to why his service as a Conductor should not be discharged. The second respondent submi planation admitting that in view of his continued ill health for the past one year, he could not perform his duty as a Conductor and requested that his services may be discharged and an alternative employment may be provided to him.
5. By Order dated 21.10.1985, the petitioner discharged the second respondent from services on the ground of his continued ill health and not being fit to perform the duty of Conductor. The request of the second respondent for alternative e as considered by letter dated 08.05.1986 and the second respondent was informed that since he has put in less then six years of service, he would not be eligible for alternative employment and his request was rejected.
6. The second respondent raised an industrial dispute which resulted in I.D. No.62 of 1982 before the Industrial Tribunal, the first respondent herein. The Industrial Tribunal by impugned award dated 11.10.94 held that the dismissal of the ondent from service is unjustified and directed reinstatement with backwages, continuity of service and other benefits. Aggrieved by the same, the Transport Corporation has filed the present writ petition.
7. Heard learned counsel appearing for the petitioner as well as second respondent.
8. The only point for consideration in this writ petition is whether the award of the Industrial Tribunal ordering reinstatement with backwages, continuity of service and other benefits is sustainable or not?
9. There is no dispute that even according to the second respondent, he was taking treatment continuously for a period of past one year and he could not perform his duties as Conductor. It is also his case that the treatment taken by him wa . Because of his continuous absence, he was chargesheeted. It is further seen that since his explanation with the Certificate issued by the Private Doctor was not acceptable, a domestic enquiry was ordered. It is further seen that in spite of granting sufficient adjournments, since the second respondent was not present, he was set ex parte on 09.04.1985 and the Enquiry Officer submitted report holding that the charges levelled against him were proved.
10. Thereafter, at the request of the Branch Manager of the petitioner-Corporation, the General Manager sent the second respondent for medical check-up before the Medical Board. Pursuant to the request, the second respondent appeared before l Board. The Medical Board submitted its report which reads as under:-
MEDICAL BOARD REPORT
"Thiru G. Fathima, Conductor of Kattabomman Transport Corporation Limited, has appeared before the Medical on 04.07.1984 and again on 23.07.1985.
He has "ALLERGIC BRONCHITIS" and is INTOLERANT to dust and crowded atmosphere. We may hence be given any other duty like clerical post which does not involve crowded atmosphere."
The said report has been marked as Ex.M31.
11. Based on the report of the Medical Board, the second respondent herein was issued notice dated 26.09.1985 calling upon him to explain as to why his service as Conductor should not be discharged in view of recommendation of the Medical Bo econd respondent submitted his reply admitting his ailment and requested the petitioner-Corporation to provide alternative employment. His request was considered and by Order dated 21.10.1985 and he was discharged from service on the ground of his cont inued ill health for being unfit to perform the duty of the Conductor.
12. The Industrial Tribunal, after interpreting the report of the Medical Board Ex.M31 has concluded that the Medical Board recommended to give an alternative job to the second respondent herein. It is clear from the report of the Medical B he second respondent herein cannot do the work as Conductor. Merely because the Medical Board recommended for alternative job, it is not an automatic that he will be provided with alternative job. In order to overcome such contingencies, the Government of Tamil Nadu passed an Order in G.O. Ms. No.746 Transport Department dated 02.07.1981 providing alternative employment to those persons who are unfit to continue in the same post.
13. It is useful to refer the relevant paragraphs from G.O. Ms. No.746 dated 02.07.1981 (Ex.M36) as follows:- " The Government accordingly direct that the workers in state Transport Undertakings who are declared unfit for continue in the same post, by doctors, while in service, because of eye defect or any other ailment, be discharged on medical grounds and t r service benefits, settled. They should be subsequently provided with alternative employment in posts like "Helpers" depending upon their qualification and experience and suitability for the new posts, without consulting the Employment Exchange. They should be appointed as fresh entrants only in the scale of pay or consolidated pay admissible to the new posts and their services terminated on the date on which they attain in the age of superannuation."
14. I have already referred to the conclusion of the Medical Board which shows that the second respondent herein cannot be continued as Conductor. In such circumstances, she cannot be put in alternative employment as observed by the Industr l, particularly in the light of the above referred Government Order.
15. After going through the report of the Medical Board, explanation offered by the second respondent and G.O. Ms. No.746 dated 02.07.1981, I am unable to accept the conclusion arrived by the Industrial Tribunal. In the normal circumstance a ight of the decision of the Medical Board, if the workman concerned satisfy the other conditions, he will be considered for the post like helpers etc.
16. In this regard, it is relevant to refer the letter of the Government of Tamil Nadu, Transport Department dated 03.01.1986 (Ex.M3) wherein it is clarified that the following categories of employment were not eligible for re-employment as . No.746 dated 02.07.1981. " a. Employees, who have not put in a minimum service of six years in the Corporation.
b. Employees, who have attained the age of 50 years or have put in a total service of 25 years and eligible for voluntary retirement. c. Employees invalidated due to contaqious diseases and leprosy.
2. It is however considered that the condition (b) above, will not be applicable to drivers."
17. By relying on the said clarifications, though it is stated that the second respondent had not completed six years of service, the Industrial Tribunal while considering issue No.1 and 2 and after taking note of Official appointment i.e. From 10. 981 (Ex.W1), her confirmation on 03.08.83 (Ex.W3) and other documents accepted the case of the workman and arrived at a conclusion that he had six years of service and he is eligible for alternative employment. In the light of the documentary evidence, I accept the said finding of the Tribunal.
18. Learned counsel for the second respondent, while drawing my attention to the decision of the Supreme Court reported in NARENDRA KUMAR CHANDLA v. STATE OF HARYANA & OTHERS ((1994) 4 S.C.C. 460) would contend that in view of the observatio reunder particularly in paragraph 7, instead of dismissing her from service, she may be provided with alternative employment. Absolutely, there is no dispute regarding the observations of the Hon'ble Supreme Court and as a matter of fact in order to ame liorate the persons like the second respondent, the Government have issued G.O. Ms. No.746 Transport Department dated 02.07.1981 providing alternative employment for the post like helpers etc.
19. In the light of what is stated above, the impugned award of the Industrial Tribunal dated 11.10.1994 is set aside. Further, I hold that inasmuch as the second respondent herein had completed six years of service at relevant time, he is o the alternative job. Accordingly, the petitioner is directed to consider the claim of the second respondent in accordance with G.O. Ms.No.746 Transport Department dated 02.07.1981 and pass appropriate orders within a period of eight weeks from the dat e of receipt of copy of this Order.
20. The writ petition is allowed to the extent mentioned above. Consequently, the connected W.M.Ps. Are closed. No costs. 05-08-2002
The Presiding Officer,
P. SATHASIVAM, J.
W.P. No.16962 of 1995
W.M.P. Nos.26904 of 1995
& 23014 of 1997
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