Disposed

S.Gopakumar, v. Kerala State Road Transport Corporation

Kerala HC13 Aug 2019WP(C)/14433/2019

Case brief

AI extract

What is this about?

The High Court at Ernakulam heard a writ petition challenging a direction to the petitioner, a person with disability employed by KSRTC, to resume duties as a Conductor. The Court interpreted the Rights of Persons with Disabilities Act, 2016 and directed the State Commissioner for Persons with Disabilities to consider the petitioner's complaint under Section 80(b) within one month while providing

What did the court decide?

Directed the 3rd respondent to consider the petitioner's complaint under Section 80(b) of the Act within one month, with notice and hearing.

S.Gopakumar, Vs Kerala State Road Transport… — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941 WP(C).No.14433 OF 2019(D)

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PETITIONER :

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S.GOPAKUMAR, AGED 55 YEARS ASWATHI BHAVAN, MUNDELA P.O., VELLANADU, THIRUVANANTHAPURAM DISTRICT - 695 543.

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BY ADV. SRI.N.SASIDHARAN UNNITHAN

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RESPONDENTS:

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1 KERALA STATE ROAD TRANSPORT CORPORATION, REP. BY THE MANAGING DIRECTOR, KSRTC, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM - 695 023.

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2 ASSISTANT TRSANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, VELLANADU DEPOT, THIRUVANANTHAPURAM DISTRICT - 695 543.

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3 STATE COMMISSIONER FOR PERSONS WITH DISABILITIES SOCIAL WELFARE INSTITUTION COMPLEX, POOJAPPURA, THIRUVANANTHAPURAM - 695 012.

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4 STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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BY SRI MANU RAJ K.J- GOVERNMENT PLEADER ; SRI T.P.SAJAN- STANDING COUNSEL- KERALA STATE ROAD TRANSPORT CORPORATION

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.14433 OF 2019(D)

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JUDGMENT

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The petitioner, who is a Conductor of the Kerala State Road Transport Corporation, presently working at Vellanad Depot, and who is stated to be a person with disability, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 note dated 07.12.2018 of the 2^nd respondent Assistant Transport Officer, whereby the petitioner, who is now working as Station Master on temporary basis, was required to join duty as Conductor with effect from 10.12.2018. The petitioner has also sought for a declaration that he is entitled to suitable alternative employment in KSRTC and other benefits under sub-section (4) of Section 20 of the Rights of Persons with Disabilities Act, 2016; a writ of mandamus commanding respondents 1 and 2 to restore the light duty already allowed to him as per Ext.P5 memorandum; a writ of mandamus commanding respondents 1 and 2 to treat the period

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WP(C).No.14433 OF 2019(D)

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from which he was kept out of the light duty as duty for all purpose, including pay and allowances; and a writ of mandamus commanding the 3^rd respondent to dispose of Ext.P7 complaint with notice to the petitioner and also to the 1^st respondent, at the earliest.

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On 27.05.2019 when this writ petition came up for admission, the learned Standing Counsel for KSRTC and also the learned Government Pleader for respondents 3 and 4 sought time to get instructions.

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On 05.08.2019, when this writ petition came up for consideration, the learned Government Pleader was directed to get instructions from the 3^rd respondent as to the present status of Ext.P7 complaint.

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Heard the learned counsel for the petitioner, the learned Standing Counsel for KSRTC, representing respondents 1 and 2, and also the learned Government Pleader appearing for respondents 3 and 4.

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WP(C).No.14433 OF 2019(D)

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Sub-section (4) of Section 20 of the Rights of Persons with Disabilities Act, 2016 mandates that, no Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service. Going by the first proviso to sub-section (4), if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits. The second proviso to subsection (4) provides further 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, whichever is earlier.

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Clause (k) of Section 2 of the Act defines 'Government establishment' to mean a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government

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WP(C).No.14433 OF 2019(D)

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company as defined in Section 2 of the Companies Act, 2013 and in cludes a Department of the Government. KSRTC is a Road Transport Corporation notified by the State Government under Section 3 of the Road Transport Corporation Act, 1950. Therefo re, the KSRTC is a Government establishment for the purpose of clause (k) of Section 2 of the Act.

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Clause (s) of Section 2 of the Act defines the term 'person with disability' to mean a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. Clause (c) of Section 2 defines the term 'barrier' to mean any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society.

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A reading of the aforesaid provisions would

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WP(C).No.14433 OF 2019(D)

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indicate that, for a person to qualify as a 'person with disability', he should suffer a disability, long term physical, mental, intellectual or sensory impairment, which presents an impediment in his full and effective participation in the society equally with others. The words, 'in interaction with barriers' in paranthesis are also of material significance. As already noticed, the word 'barrier' is also defined in clause (c) of Section 2 of the Act.

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A reading of the aforesaid provisions make it explicitly clear that the impairment referred to in clause (s) of Section 2 of the Act is long term, physical, mental, intellectual or sensory impairment, and is further qualified with the words 'in interaction with barriers'. It is thus expressly made clear that such disability is one, which in interaction with any of the factors such as communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural, as indicated in clause (c) of Section 2 of

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WP(C).No.14433 OF 2019(D)

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the Act, obstruct the person with the disability to fully and effectively participate in the Society.

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The learned Government Pleader, on instructions, would submit that Ext.P7 complaint made by the petitioner is still pending consideration before the 3^rd respondent and the said respondent shall take an appropriate decision on that complaint, within a time limit to be fixed by this Court.

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The learned counsel for the petitioner would submit that, leaving open all legal and factual contentions, this writ petition may be disposed of by directing the 3^rd respondent to consider and pass appropriate orders on Ext.P7 complaint made by the petitioner, under clause (b) of Section 80 of the Rights of Persons with Disabilities Act, 2016.

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Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 3^rd respondent to consider and pass appropriate orders on Ext.P7 complaint made

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WP(C).No.14433 OF 2019(D)

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by the petitioner, under clause (b) of Section 80 of the aforesaid Act, strictly in accordance with law, with notice to the petitioner and an authorised Officer of the 1^st respondent Corporation, and after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/14/8

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WP(C).No.14433 OF 2019(D)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE FIR NO.382/13 OF ARUVIKKARA POLICE STATION.

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EXHIBIT P2 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED FROM THE MEDICAL COLLEGE HOSPITAL THIRUVANANTHAPURAM.

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EXHIBIT P3 TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED FROM THE MEDICAL COLLEGE HOSPITAL THIRUVANANTHAPURAM.

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EXHIBIT P4 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 2/7/2015 ISSUED BY THE STANDING DISABILITY ASSESSMENT BOARD.

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EXHIBIT P5 TRUE COPY OF THE MEMORANDUM DATED 22/6/2017 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P6 A TRUE COPY OF THE NOTE NO.E1/2994/18/VLND DATED 7/12/2018 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 29/1/2019 OF THE PETITIONER.

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EXHIBIT P8 A TRUE COPY OF THE LETTER NO.201/S2/19/SCPWD DATED 2/2/2019 OF THE 3RD RESPONDENT.

S.Gopakumar, v. Kerala State Road Transport Corporation

Case brief

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S.Gopakumar, v. Kerala State Road Transport Corporation

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