(Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 10.12.2012 made in W.P.No.9766/2010 insofar as not declaring the action of the 2nd respondent in terminating the services of the appellant by an order dated 28.09.1998 on medical grounds and the order of the 2nd respondent dated 16.6.2000 in appointing the appellant as fresh entrant and in pay scale lower than that of Mechanic, in not paying the arrears of difference of salary between the pay scale of Mechanic and Helper (Technician) and in not paying the salary for the period from 28.9.1998 till the date of reinstatement viz., 27.6.2000 as arbitrary and legal and liable to be set aside.)
M. Sathyanarayanan, J.
1. The writ petitioner is the appellant. The appellant filed W.P.No.9766/2010, challenging the order of termination dated 28.09.1998, terminating him on medical grounds, passed by the second respondent and his subsequent order dated 16.06.2000 insofar as appointing him as fresh entrant in a pay scale lower than that of Mechanic, as illegal, arbitrary and contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (in short "Disabilities Act") and consequently directing the respondents to treat his services to be a continuous one right from the date of his initial appointment in the year 1974, pay arrears of difference in salary between the pay scale of Mechanic and in the Helper (Technician) pay salary for the period from 28.09.1998 till the date of his reinstatement on 27.06.2000. The said writ petition, after contest, was disposed of by setting aside both the orders of the second respondent with a further direction that for calculating the payment of terminal benefits, the services rendered by him from the year 1974 till the date of his retirement on 30.06.2010, shall be taken into account; however, he is not entitled to pay protection and the pay of the petitioner in the post of Helper has to be fixed by taking into account the earlier service rendered by him. The writ petitioner, aggrieved by the latter portion of the above said order, has filed this writ appeal.
2. Facts leading to the filing of this writ appeal, narrated in brief, are as follows:
2.1. The writ petitioner/appellant herein joined the services of the Tamil Nadu State Transport Corporation as Grade III Fitter and was posted at Vellore. The name of the said Corporation was changed as Thanthai Periyar Transport Corporation and Pattukottai Azhagiri Transport Corporation during the year 1983 and once again it was changed as Tamil Nadu State Transport Corporation (Villupuram Division) Limited.
2.2. According to the appellant herein, he was working honestly and sincerely, without giving any room for complaint. During the year 1998, he has developed chest pain and according to him, it was due to doing strenuous job in the shed by carrying heavy tools and handling heavy spare parts etc., and in view of the same, he was also taking treatment in Government Hospital, Vellore as an inpatient as well as an outpatient and was advised to take treatment continuously and inspite of same, he was trying to discharge his duty as a Mechanic.
2.3. The appellant/writ petitioner, having felt that on account of said illness, he was unable to carry on strenuous work as Mechanic, made a representation to the first respondent on 02.03.1998 requesting them to give light work, taking note of his health condition and therefore, he was asked to undergo medical examination in the Government Hospital at Vellore. The Medical Board, attached to the s
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id Hospital opined that he was fit enough to work as a Mechanic and has not given any opinion as to whether he should be given light work or not? The appellant, left with no other alternative, continued to work as Mechanic.2.4. The appellant/writ petitioner, in the course of his employment, on 19.05.1998 fell down and became unconscious and therefore, the respondents once again referred him to the Medical Board for their opinion and the Medical Board, after examining the appellant, gave a report dated 14.07.1998 stating that he is a case of "IHD" and therefore, he is not fit to work as a Mechanic. The appellant, on the basis of the above said opinion given by the Medical Board, submitted a representation dated 07.09.1998 praying for alternative employment including that of Helper and on account of his health condition, sought employment as Helper and also indicating that he is ready to forego his past services and that he has to look after his aged parents, his wife and his son and daughter, aged 10 and 12 years respectively.2.5. However, the second respondent, has failed to take into consideration the said representation and issued a show cause notice dated 17.09.1998 calling upon him to explain as to why his services should not be terminated as he can no longer discharge the work of Mechanic. The appellant, in response to the said show cause notice, submitted his reply dated 24.09.1998 reiterating the stand taken by him in his earlier representation dated 07.09.1998 and prayed for alternative employment as Helper. However, the respondents, vide order dated 28.09.1998 has terminated him from service on the ground of invalidation from service on medical grounds and directed the concerned officials to pay him Provident Fund, Gratuity and other amounts due and payable to him. Subsequently, the second respondent has settled the terminal benefits to the appellant.2.6. The appellant submitted another representation dated 25.01.1999 to the first respondent stating that his health condition is improving now and he has been settled with terminal benefits by the management and in order to safeguard himself, his wife, his children and aged parents, requested the management to grant alternative employment. The second respondent, vide proceedings dated 16.06.2000, granted him the job of Helper by treating him as a Fresh Entrant for all purposes in the time scale of Rs.3240-60-4680, subject to other conditions. The appellant/writ petitioner had also joined in the said post and retired on 30.06.2010.2.7. The writ petitioner filed the above said writ petition during April 2012 for the above said relief by taking a stand that by getting appointed as Helper, he did not waive his right and the right conferred on him under the Disabilities Act is a statutory right and it cannot be waived and the act of the respondents in not providing him alternative employment with pay protection violates his Constitutional Right and consequently, he has lost substantial sums by way of salary. It is further urged by the appellant/writ petitioner in the said writ petition that he is not questioning his appointment as Helper and his prime intention was to safeguard his family from starvation and to give education to his children and therefore, he has not chosen to question the order appointing him as Helper on time and in the said circumstances, the delay in approaching the Court is neither willful nor wanton and there was also no delay as the illegality continues to be perpetuating and consequently, the cause of action was also a continuous one.2.8. The respondents had filed the counter affidavit stating among other things that after issuing show cause notice dated 17.09.1998 and considering his representation, he was discharged on medical grounds by the order dated 28.09.1998 and he has been settled with a sum of Rs.59,522/- being Provident Fund amount and Rs.50,844/- being Gratuity amount and subsequently, he submitted a representation dated 25.01.1999 praying for appointment as a fresh entrant as Helper and it was considered and an order came to be passed on 16.06.2000 appointing the appellant/writ petitioner as Helper and he has also reported to duty on 27.06.2000 and attained superannuation on 30.06.2010. It is further averred by the respondents in the counter that the petitioner, at the time of discharge from service on medical grounds, did not protest and also received the terminal benefits without any reservation and therefore, it is not open to him to contend the order appointing him as Helper, nearly after 10 years, at the verge of his retirement and therefore, the writ petition is liable to be dismissed on the ground of laches.2.9. The appellant/writ petitioner has filed his reply affidavit to the counter affidavit filed by the respondents, stating among other things that merely because he has received the terminal benefits, it does not mean that illegal order of termination can be justified and after termination of his services, the respondents took nearly 2 years to give appointment as Helper and in that process, he has lost salary for 2 years and consequently, he has to undergo untold hardship and further that admittedly, the post of Helper is lower in rank than the post of Mechanic with a lesser pay and in the light of statutory provisions, he is entitled to the relief as prayed for.2.10. The learned Judge, considering the factual aspects and the decisions rendered by this Court as well as by the Hon'ble Supreme Court of India under Section 47 of the Disabilities Act, has held that the order of termination and the order appointing the petitioner as Helper (Fresh Entrant) are liable to be set aside and for calculating the payment of terminal benefits, the service rendered by the petitioner from 1974 till the date of his retirement have to be taken into account and also held that the writ petitioner is not entitled to get pay protection, but the pay of the petitioner in the post of Helper has to be fixed, taking into account the earlier service rendered by him.3. Mr.Balan Haridass, learned counsel appearing for the appellant/writ petitioner contended that the learned Judge, though referred to number of decisions rendered by this Court as well as the Hon'ble Supreme Court of India under Section 47 of the Disabilities Act, has failed to give the statutory entitlement due to him and having set aside the order appointing the appellant/writ petitioner as Helper (Fresh Entrant), the learned Judge ought to have directed the respondents to provide him with alternative employment with pay protection as Mechanic, but unfortunately failed to pass such an order. It is the further submission of the learned counsel appearing for the appellant that even prior to the order of termination, the appellant/writ petitioner made a representation to appoint him as Helper and was willing to forego his entire past services for the sole reason that there was an urgent necessity of immediate employment to safeguard his family consisting of aged parents, his wife and two minor children and the said representation was not at all taken into consideration while passing the order of discharge on medical grounds and even in his subsequent representation, he made a similar request and the order appointing him as fresh entrant as Helper dated 16.06.2000 does not even refer to his representation dated 25.01.1999 and therefore, it is not open to the respondents to contend that only because of his representation dated 25.01.1999, he has been treated as fresh entrant and appointed as Helper, which is a lower level post than that of the Mechanic.4. During the course of hearing of this writ appeal, this Court suggested to the appellant as well as to the respondents to find out the possibility of amicable settlement and in response to the same, the appellant/writ petitioner has filed an additional affidavit dated 02.04.2014 and it is relevant to extract para 4 of the said affidavit:"4. It is submitted that I attained the age of superannuation on 30.06.2010 and I have retired. The respondent's have not paid any terminal benefits on my retirement on 30.06.2010. My terminal benefits have to be calculated for my entire service from 4.10.1974 to 30.06.2010 by treating the entire service as a continuous one. It is submitted that I am willing to get my terminal benefits if the same is calculated by taking into my entire service as one from 4.10.1974 to 30.06.2010 as a continuous one and by giving notional pay fixation and pay protection in the post of Mechanic. I am willing to forego arrears of salary. I should be also paid pension on the basis of the notional pay fixation and pay protection in the post of Mechanic by taking into the service from 4.10.1974 to 30.06.2010. If the respondents are agreeable to this, the writ appeal may be disposed off on the basis of the consent. If the respondents are not agreeable, then the writ appeal may be decided on its merits."5. The learned Standing Counsel appearing for the respondents, on instructions, would submit that the management of the respondents is not willing and would further submit that admittedly, the appellant/writ petitioner made a representation dated 25.01.1999 praying for his appointment as Helper as a fresh entrant and it was sympathetically considered and an order came to be passed on 16.06.2000 appointing him as Helper (Fresh Entrant) and having enjoyed the benefits and retired on 30.06.2010, only at the fag end of his career, during April 2012, he has filed the writ petition and since he has failed to explain the reasons for approaching this Court belatedly, the writ petition ought to have been dismissed on the ground of delay and laches.6. The learned Standing Counsel appearing for the respondents/management, on merits of the case, has submitted that the appellant has waived his statutory right knowing pretty well about the consequences and in fact he was discharged on medical grounds on 28.09.1998 and subsequently, all terminal benefits were settled in his favour and he has received the same without any protest and thereafter, submitted a representation on 25.01.1999 praying for appointment as Helper on account of his family circumstances and it was sympathetically considered by the management and he was given appointment as Helper (Fresh Entrant), vide order dated 16.06.2000 and therefore, it cannot be said that he has been put to any prejudice or hardship. Lastly, it is submitted by the learned Standing counsel appearing for the respondents that the learned Judge, taking into consideration Section 47 of the Disabilities Act, has set aside the order of termination and the order appointing him as Helper and considering the fact that the writ petitioner has accepted his appointment as a fresh entrant in the post of Helper, has rightly held that his pay has to be fixed in the post of Helper by taking into consideration of his past services and the reasons assigned by the learned Judge are unsustainable in the light of the facts and circumstances and hence, prays for dismissal of this writ appeal.7. This Court paid its anxious consideration and best attention to the rival submissions and also perused the materials available on record in the form of typed set of documents as well as the affidavit of the petitioner dated 02.04.2014.8. The facts stated above are not in dispute and the moot point to be considered in this writ appeal is whether the appellant/writ petitioner is entitled to the benefits/protection under Section 47 of the Disabilities Act in the light of the facts and circumstances of this case.9. Section 47 of the Disabilities Act reads as follows:“47. Non-discrimination in government employment.-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:Provided 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.(2) No promotion shall be denied to a person merely on the ground of his disability:Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”10. The nature and purpose of the said Section came up for consideration in a celebrated decision rendered by the Hon'ble Supreme Court of India in Bhagwan Dass and Another v. Punjab State Electricity Board [(2008) 1 SCC 579]. The facts of the said case would disclose that the appellant before the Hon'ble Apex Court was an employee of Punjab State Electricity Board and on account of his visual impairment, became totally blind and he remained on unauthorized absence between 18.01.1994 to 21.03.1997 for which he has been issued with two memos and he did not comply with the same and therefore, he was departmentally proceeded. During the subsistence of the departmental enquiry, the appellant submitted a representation stating that since he has became visually impaired and he cannot discharge his duty, requested that his wife may be provided a suitable job. The Electricity Board, taking into consideration the said representation, has passed an order retiring him retrospectively and the charge sheet was also withdrawn. However, the appellant realizing that he is entitled to get protection under Section 47 of the Disabilities Act, requested them for withdrawal of his request for retirement and prayed for benefits under the said provision and it was rejected. The appellant made a challenge before the Punjab and Haryana High Court and he was unsuccessful and he preferred an appeal before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India, with great anguish, observed as follows:"2. This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of Appellant 1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous."The Hon'ble Supreme Court of India has considered the scope of Section 47 of the Disabilities Act and referred to its earlier decision in Kunal Singh v. Union of India [(2003) 4 SCC 524] and Umesh Kumar Nagapal v. State of Haryana [(1994) 4 SCC 138] and held that the act of the Punjab Electricity Board in terminating the services of the appellant must be held to be bad and illegal and in view of the provisions of Section 47 of the Disabilities Act, he must be deemed to be in service and shall be entitled to all service benefits including annual increment, promotion etc., till the date of his retirement and also granted him all other consequential reliefs.11. A Division Bench of this Court in the decision in The State v. K.Mohammed Mustafa [2007 Writ L.R.256] has considered Kunal sSingh case (cited supra) and the judgment dated 25.08.2006 made in W.A.No.136/2005 and held that notwithstanding the provisions contained in G.O.Ms.No.746 dated 02.07.1981, the appellant herein, namely, Tamil Nadu State Transport Corporation, Madurai Division -IV has to confer the benefits under Section 47 of the Disabilities Act, as it is more beneficial than to the provisions contained in the said Government Order and hence, upheld the order passed by the learned Single Judge quashing the show cause notice issued by the management for terminating the services of the respondent therein.12. In yet another decision rendered by a Division Bench of this Court in A.John Peter v. T.N. State Transport Corporation, Kumbakonam Division-III Limited [2008 (1) TCJ 640], Bhagwan Dass case (cited supra) and other decisions were considered and on the facts of the case found that the respondent/workman who was in the services of the Tamil Nadu State Transport Corporation has lost his knee movement and found that the stand taken by the management that since the disability is only a less percentage, he is not entitled to alternative employment and allowed the plea of the workman with a direction, directing the management to grant salary and allowances to the workman from the date of his termination till the date of his superannuation together with all attendant benefits and in addition, to pay 6% interest on the amounts to be paid with liberty to adjust the amounts already paid.13. In M.S.Sivasubramani v. The Managing Director, Tamil Nadu State Transport Corporation (Salem) Ltd., & Another [CDJ 2012 MHC 2566], a learned Single Judge (N.Paul Vasanthakumar, J.) has considered the question of grant of benefit of continuous pay protection and attendant benefits to the writ petitioner therein from the date of discharge from his duty as Conductor on 28.06.1993 to the date of re-appointment as Office Attender on 13.10.1993 in the light of the provisions of Section 47 of the Disabilities Act. The learned Judge, while considering the legal issue, has considered the following decisions:(i) R.Mani v. Labour Court, Trichy and Another [(2008) 8 MLJ 1079](ii) Judgment dated 18.03.2010 made in W.A.No.482/2009(iii) Order dated 24.03.2008 made in W.P.No.19928 of 2005, which ws confirmed by the First Bench of this Court in W.A.No.2073/2010 by order dated 25.10.2010.(iv) Narendra Kumar Chandla v. State of Haryana [AIR 1995 SC 519](v) A.Subramani v. Management of Tamil Nadu State Transport Corporation (Coimbatore Division-I) Limited, Udhagamandalam and Another [(2007) 6 MLJ 225 = 2007 (5) CTC 386 (DB)(vi) Judgment dated 18.03.2010 made in W.A.No.482 of 2009 and on the facts of the case found that even though the petitioner therein was discharged from 01.07.1993, he has not chosen to challenge the same and there is a delay of more than 17 years and held that the petitioner therein was serving and receiving salary as Office Attender all these years and therefore, he is not entitled to get backwages/difference in wages, but held that, the period of discharge from 01.07.1993 is to be counted for the purpose of notional increment and all other benefits other than backwages.14. In P.Ravichandran v. T.N. Civil Supplies Corpn. Ltd., [(2008) 3 MLJ 787], a learned Single Judge of this Court [N.Paul Vasanthakumar, J.] has considered the scope of Disabilities Act and after considering the decisions in G.Muthu v. Management of T.N. State Transport Corporation (Madurai) Ltd., [(2006) 4 MLJ 1669 (Mad)], K. Selvaraj g. State Express Transport Corporation [2007-II-LLJ-300 (Mad)], Kunal Singh case (cited supra), Management of Tamil Nadu State Transport Corporation v. B.Gnanasekaran [(2007) 5 MLJ 1 (Mad)], P.Thangamarimuthu v. Tamil Nadu State Transport Corporation, Madurai [(2006) 1 MLJ 452 (Mad)] and State v. K.Mohammed Mustafa [2007-II-LLJ-407 (Mad-DB)] has held that mandatory duty/statutory obligation is cast upon an employer to protect the employee who has acquired disability during service and the Disabilities Act, being a beneficial legislation, prevails over service rules and accordingly granted the relief of alternative employment to the petitioner therein equal to the cadre of electrician and other consequential benefits.15. In S.S.Anandaraja v. Managing Director, TNCSC Ltd., [(2011) 5 MLJ 581], a learned Single Judge of this Court (N.Paul Vasanthakumar, J.) has extensively considered the earlier decisions rendered under Section 47 of the Disabilities Act and on the facts of the case found that forcing the petitioner therein to do technical work even after his heart surgery, is to be treated as violation of human rights as well as Article 21 of the Constitution of India and held that the respondents, namely, the Tamil Nadu Civil Supplies Corporation is not justified in contending that the service rules do not proceed on technical side and administrative side and granted the relief of alternative employment equal to the cadre of Technical Assistant Operator.16. On the other hand, learned counsel appearing for the respondents, in order to buttress their points, placed reliance upon the following decisions:(i) State of Karnataka v. C.K.Pattamashetty and Another [(2004) 6 SCC 685](ii) Krishna Bahadur v. Purna Theatre and Others [(2004) 8 SCC 229](iii) U.Mangapati Sarma v. State of Andhra Pradesh and Others [(2009) 16 SCC 248]17. In State of Karnataka v. C.K.Pattamashetty and Another [(2004) 6 SCC 685], it has been held that persons appointed as Honorary Visiting Professor cannot be placed on par with salaried employees and on the fact of the case found that the respondents who were appointed as Honorary Professors cannot claim parity with Lecturers, who was an salaried employee.18. In Krishna Bahadur v. Purna Theatre and Others [(2004) 8 SCC 229], waiver of statutory rights was put into issue and it has been held as follows:"10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct."19. In U.Mangapati Sarma v. State of Andhra Pradesh and Others [(2009) 16 SCC 248], appellant therein made a challenge to the higher post and accepted the lower post and therefore, he was estopped from making such claim to the higher post.20. In the considered opinion of this Court, the decisions rendered by the Hon'ble Supreme Court of India in Bhagwan Dass case (cited supra), followed in number of decisions rendered by this Court as referred to above, would squarely applicable to the facts of this case and the decisions relied on by the respondents/management are not applicable in the facts and circumstances of this case for the following reasons.21. Admittedly, the appellant/writ petitioner, while working as a Mechanic, developed illness in the form of heart ailment and he was initially referred to the Medical Board at the Government Hospital, Vellore. The Medical Board, in its report dated 13.04.1998 have come to the conclusion that the appellant/writ petitioner have recovered from illness and fit to resume duty from 13.04.1998 and thereafter, he continued to perform his job as Mechanic. Subsequently, during the course of his employment, on 19.05.1998, he fell sick and became unconscious and he was once again referred to the Medical Board attached to the very same hospital and the Medical Board has given its opinion dated 14.07.1998 stating that the appellant/writ petitioner is a case of "IHD" and he is unfit for work as Mechanic. The appellant/writ petitioner, having became aware of the said opinion, submitted a representation dated 07.09.1998 to the second respondent praying for alternative employment even if it is a post of Helper and taking into consideration of his family circumstances, he is willing to get employed as Helper and also prepared to forego his past services. However, the respondents did not take into consideration the said representation and issued a show cause notice dated 17.09.1998 calling upon him to state reasons as to why he did not appear before the Medical Board. In response to the same, the appellant/writ petitioner has submitted his reply dated 24.09.1998 taking the very same stand. However, the second respondent, though referred to the reply to the show cause notice dated 24.09.1998, has not considered the contents of the same and passed the order dated 28.09.1998 terminating the appellant/writ petitioner on medical grounds and further indicated that he will be settled the terminal benefits in the form of Provident Fund, Gratuity in his favour.22. On 25.01.1999, the appellant herein submitted a representation to the second respondent stating that he has received Provident Fund and Gratuity and since he has to protect his family consisting of his wife, aged parents and two minor children, prayed for alternative employment. The second respondent has considered the same vide proceedings dated 16.06.2000, appointing him as Helper and indicated that he will be treated as fresh entrant for all purposes in the time scale of Rs.3240-60-4680. The appellant/writ petitioner joined the said post and continued to work as Helper and at the fag end of his service, filed W.P.No.9766/2010 on 26.04.2010 praying for quashment of the order of termination and the order appointing him as Helper with a further direction to provide him alternative employment and other benefits in terms of Section 47 of the Disabilities Act and it came to be disposed of as above.23. It is to be pointed out at this juncture that the appellant/writ petitioner was appointed as Helper vide proceedings dated 16.06.2000 as fresh entrant by taking into consideration of his representation dated 25.01.1999. It is the stand of the respondents/management that the appellant having received the terminal benefits without any protest and also willing to forego his past services and prayed for appointment as Helper by way of fresh entrant, it was sympathetically considered and he was given the said employment and having worked for nearly 10 years, at the fag end of his career, has belatedly chosen to make a challenge and therefore, the same is unsustainable in law not only on the ground of delay and laches, but also on merits.24. Disabilities Act is a beneficial legislation and the Courts, while interpreting such legislation, has to prefer that construction which helps to carry out the benevolent purpose of the Act and does not unduly extend the area or the scope of exception. The decisions of the Hon'ble Supreme Court of India as well as the decisions rendered by this Court as cited above, would clearly indicate that Courts cannot shut its eyes if a person knocks at its door claiming relief under the Act and in a welfare State like India, benefits of benevolent legislation cannot be denied on the ground of mere hyper-technicalities and when the law maker conferred certain privileges on a class of persons, like a disabled person, duty is cast upon the judiciary to oversee that the authorities or the persons to whom such a power is conferred, enforce the same in letter and spirit for which such an enactment has been made.25. A learned Single Judge of this Court (N.Paul Vasanthakumar, J.) in the decision in S.S.Anandaraja v. Managing Director, TNCSC Ltd., [(2011) 5 MLJ 581] has considered the said issue in extenso with almost identical facts and on a thorough analysis of the earlier judgments, including Bhagwan Dass case (cited supra) held that person, who suffered disability during the course of his employment, is entitled to get lighter duty with pay protection and all other benefits as contemplated under Section 47 of the Disabilities Act.26. Though the learned Standing Counsel appearing for the respondents made a vehement and forceful submission that the appellant having agreed to forego the benefit of past services and also agreed to be employed as a fresh entrant in a lower grade as Helper with lesser pay and therefore, at a belated point of time, it is not open to him to contend otherwise, this Court is of the considered view that the said submission lacks merit and substance in view of the mandatory duty cast upon the respondents/management in terms of Section 47 of the Disabilities Act.27. It is once again pertinent to point out at this juncture that even prior to his discharge on medical grounds, the appellant herein made a plea that he is ready and willing to get employed as Helper and also undertook to forego his past services, which was not at all considered and he was discharged from service on medical grounds on 28.09.1998. On 25.01.1999, the appellant submitted a representation to the first respondent stating among other things that in order to protect his family, he prays for alternative employment and it is also the stand of the respondents in the counter affidavit that he was provided with employment as a fresh entrant as Helper based on the basis of the above said representation dated 25.01.1999. However the representation dated 25.01.1999 does not indicate that the appellant/writ petitioner requested for reappointment as a fresh entrant with willingness to forego the benefit of his past services and in the light of the above said uncontroverted facts, it is not open to the respondents to urge that only on account of his request, he has been given appointment as a fresh entrant as Helper, which is a lower grade post with a lesser scale of pay. It is also the case of the appellant that he has to protect his family consisting of his wife, two minor children and aged parents and even assuming that he has expressed willingness to be appointed as Helper with lesser pay, the same cannot be put against him as he is under disability coupled with unequal bargaining power.28. The decision in Krishna Bahadur v. Purna Theatre and Others [(2004) 8 SCC 229], relied on by the respondents is also not applicable for the reason that nothing has been placed on record to show that waiver on account of some compromise came into being and the conduct of the appellant herein also do not indicate that he waived his statutory right under the provisions of the Disabilities Act. As already pointed out, Disabilities Act, being a beneficial legislation, has to be interpreted liberally in favour of the person who suffered disability.29. The learned Judge, in the impugned order, though quashed the order of termination/discharge from service dated 28.09.1998 and the order appointing the appellant as a fresh entrant as Helper dated 16.06.2000, has failed to grant the benefits, namely, alternative employment equal to the cadre of Mechanic with pay protection and in the light of the above facts and circumstances and legal position enunciated in the above cited judgments, the said portion of the order is liable to be set aside.30. The appellant/writ petitioner in the supplemental/additional affidavit dated 02.04.2014 also expressed his willingness to get his terminal benefits if the same is calculated by taking into consideration of his services from 04.10.1974 to 30.06.2010 as continuous one and pay protection in the post and also willing to forego arrears of salary. Of course, it is stated in the said affidavit that if the respondents/management are not agreeable, the writ appeal may be disposed of on the basis of consent.31. The fact remains that the appellant got appointment as Helper (Fresh Entrant) on 16.06.2000 and just before his age of superannuation on 30.06.2010, filed the writ petition on 26.04.2010 claiming the relief and the said fact has also been taken into consideration while granting the relief as regards backwages in respect of equivalent post of Mechanic.32. In the result, this Writ Appeal is partly allowed and the portion of the impugned order passed in the writ petition viz., "the appellant/writ petitioner is not entitled for pay protection as given under Section 47 of the Disabilities Act and the pay of the appellant/writ petitioner in the post of Helper has to be fixed by taking into account the earlier service rendered by him" is set aside with the following direction:The services rendered by the appellant/writ petitioner from 04.10.1974 to 30.06.2010 is to be treated as continuous one in the post of Mechanic or any other equivalent post with notional pay fixation and pay protection for the purpose of terminal benefit and the appellant/writ petitioner is not entitled to arrears of salary in the post of Mechanic from the date of his termination dated 28.09.1998 till the date of his retirement on 30.06.2010 and the respondents are directed to confer the said benefits to the appellant/writ petitioner within a period of eight (8) weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.
"2014 (1) CWC 853" == "2014 (2) LLN 753,"