Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
20. 06.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.16029 of 2014 and M.P.No.1 of 2014 E.Devendrakumar ... Petitioner vs. 1.The Metropolitan Transport Corporation, Represented by its Managing Director, Pallavan Salai, Chennai - 600 002. 2.The Joint Manager (Employees Section) Metropolitan Transport Corporation, Pallavan Salai, Chennai - 600 002. ...Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari, to call for the records of the first respondent in Memo No.11674/P.S.(A)2/MTC/2009 dated 15.05.2014 and quash the same. For Petitioner : Ms.D.Prasanna For Respondents : Mr.P.Kannan Kumar Standing Counsel ORDER
The petitioner was formerly working as a Conductor in the Metropolitan Transport Corporation. A team of Doctors, earlier, examined the petitioner and by a report, dated 16.08.2001, reported that he was not fit for the post of Conductor. Based on the same, he was relieved from service by the General Manager, by an order dated 24.10.2001. Challenging the same, he filed a writ petition before this Court in W.P.No.4066 of 2004. By an order dated 08.12.2006, this Court set aside the said order and directed the respondent to provide alternative employment for the petitioner with continuity of service as per the provisions of The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995. Based on the same, the petitioner was given alternative employment as Helper Non-ITI.
2. Subsequently, the petitioner was again sent for medical examination by the Board. This time, the Board submitted a report, thereby, reporting that his condition was curable by treatment and hence, he would not come under the disability category. Based on the said report, dated 23.12.2011, the General Manager, again posted the petitioner to his original post as Conductor from the post of alternative employment of Helper Non-ITI. Challenging the same, the petitioner filed a writ petition in W.P.No.11557 of 2012, wherein, this Court granted interim stay. On account of the said interim stay, the petitioner continued to work as a Helper Non-ITI. It is stated by the learned counsel for the petitioner that subsequently, the said writ petition has been withdrawn by the petitioner since he was under the impression that he would be allowed to continue as Helper Non-ITI. While so, now the General Manager has passed yet another order by his proceedings in Memo No.11674/P.S.(A)2/MTC/2009, dated 15.05.2014, again restoring the petitioner to his original post of Conductor from the post of Helper Non-ITI. The order is under challenge in this writ petition.
3. I have heard the learned counsel for the petitioner and Mr.P.Kannan Kumar, learned Standing Counsel appearing for the respondents.
4. The learned counsel for the petitioner would submit that the impugned order has been passed based on the Medical Report submitted in the year 2011. She would further submit that after the said report, the petitioner's condition has deteriorated and the Doctors have even gone to the extent of giving opinion that the petitioner should undergo surgery. She would also submit that as of now, the petitioner cannot function as a Conductor, because he is not even able to sit and stand for a long time. Therefore, according to the learned counsel for the petitioner, the impugned order, which has been passed based on the Medical Report of the year 2011 deserves to be set aside.
5. The learned Standing Counsel for the respondent would vehemently oppose this writ petition. According to him, earlier, based on the Medical Report of the year 2011 when the petitioner was restored to the original post of Conductor, he filed a writ petition in W.P.No.11557 of 2012. It was only because of the interim order granted in the said writ petition, he was allowed to continue to work as Helper Non-ITI. The learned Standing Counsel would further submit that the petitioner has chosen to withdraw the said writ petition, thereby, giving up his claim for alternative employment. When that be so, according to the learned counsel for the respondent, it is not open for the petitioner to file the present writ petition on the same grounds.
6. I have considered the above submissions.
7. Admittedly, the impugned order has been passed in the year 2014 based on the Medical Report submitted in the year 2011. There is no indication in the order that the health condition of the petitioner after 29.12.2011 was ever evaluated by any Medical Officer. The crucial point is as to whether, as of now, the petitioner is fit for working as a Conductor or he suffers from any disability. Without assessing the said disability, the impugned order has been passed based on the Medical Report submitted in the year 2011, which, in my, considered opinion, is not correct.
8. In all fitness of things, the respondent ought to have directed the petitioner to undergo medical examination by a Board and based on the report of such Board, action should have been taken. Since the same has not been done, I am inclined to set aside the impugned order with certain directions.
9. In the result, the writ petition is allowed and the impugned order is set aside with the following directions:- i) The respondent shall forward the petitioner for medical examination by a competent Board, within a period of two weeks from the date of receipt of a copy of this order. ii) The Medical Board shall examine the petitioner and evaluate his condition and then submit a detailed report to the respondents within a further period of two weeks. iii) Based on the said report, the General Manager of Metropolitan Transport Corporation shall pass appropriate orders in terms of Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995. iv) It is directed that in the event the General Manager finds that the petitioner is entitled for alternative employment, he shall be allowed to continue to work as Helper Non-ITI or in the event, the General Manager finds that the petitioner is fit for functioning as Conductor, he can be restored to his original post as Conductor. v) It is further directed that until final order is passed in this matter by the General Manager, the petitioner shall be allowed to work as Helper Non-ITI. No costs. Connected miscellaneous petition is closed. 20.06.2014 svki Index : Yes/No To 1.The Metropolitan Transport Corporation, Represented by its Managing Director, Pallavan Salai, Chennai - 600 002. 2.The Joint Manager (Employees Section) Metropolitan Transport Corporation, Pallavan Salai, Chennai - 600 002. S.NAGAMUTHU,J.
Svki W.P.No.16029 of 2014 20.06.2014