The Travancore Titanium Products Ltd & The Managing Director v. Santhosh Kumar Yadav & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 28TH DAY OF JULY 2020 / 6TH SRAVANA, 1942** ## **WA.No.1062 OF 2016** **AGAINST THE JUDGMENT DATED 3.3.2015 IN WPC 24189/2006 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2:** - **1 THE TRAVANCORE TITANIUM PRODUCTS LTD KOCHUVELI, THIRUVANANTHAPURAM-695021,REPRESENTED BY ITS MANAGING DIRECTOR.** **2 THE MANAGING DIRECTOR THE TRAVANCORE TITANIUM PRODUCTS LTD.KOCHUVELI, THIRUVANANTHAPURAM-695021.** **BY ADVS. SRI.K.ANAND (SR.) SRI.JOSEPH SEBASTIAN (PARACKAL) SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON** ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT:** - **1 SANTHOSH KUMAR YADAV W/NO. 1954, RESIDING AT TC 32/987, BEACH P.O., THIRUVANANTHAPURAM-695008.** **2 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R1 BY ADV. SRI.K.T.SHYAMKUMAR SRI. T. RAJASEKHARAN NAIR-SR. G.P.FOR R2** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2020, THE COURT ON 28-07-2020 DELIVERED THE FOLLOWING:** WA No.1062/2016 -:2:- ## **J U D G M E N T** Dated this the 28[th] day of July, 2020 ## _**Shaffique, J.**_ This writ appeal is filed by the appellants who were the respondents in W.P(C) No.24189/2006 against the judgment dated 03/03/2015. The writ petition was disposed of by the learned Single Judge declaring that the petitioner is entitled to the protection envisaged under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act') and he is entitled to continue in any suitable post with protection of equal pay scale and service benefits as available to the post of Work Assistant including the Production Incentive Bonus and Additional Incentive Bonus. 2. The writ petitioner was appointed on 26/9/1996 as a regular employee of the first appellant. He met with an accident on 13/12/2002 and was out of duty since he was bedridden during the period from 13/12/2002 to 24/5/2004. He was treated at Medical College Hospital, Thiruvananthapuram and Ext.P1 is WA No.1062/2016 -:3:- the medical certificate issued from the Department of Orthopedics. He had suffered compound comminuted fracture of tibial condyle of the right leg and the injuries suffered had resulted in shortening of his leg causing partial permanent disability to the extent of 22% as per Mc Bride’s Scale, as evident from Ext.P1. On rejoining the duty, he was assigned with other duty in clerical works outside the production department as he was not fit to do the jobs in production department. The medical committee attached to the establishment of the first appellant had periodically assessed the fitness of the petitioner and had recommended to give the petitioner “other duties” which are suitable for him. 3. On 24/11/1995, Ext.P5 order was issued by the second appellant Managing Director modifying the system with respect to payment of Production Incentive Bonus declaring that no incentive shall be paid to employees who are on other duties and are not performing their normal duties as their contribution to productivity is nil or negligible. The writ petition was filed challenging the said order Ext.P5 as it denied the benefit of “incentive bonus” to disabled employees deputed on other duty, WA No.1062/2016 -:4:- in violation of the provisions of the Act. 4. The impugned order, Ext.P5 was later reviewed and Ext.R1(c) was issued on 2/1/2006 with modifications that employees on other duty/medical ground posted outside their parent departments and not performing their normal work attached to their posts/positions shall be entitled to 50% of the “Production Incentive Bonus” only and they shall not be eligible for the “Additional Production Incentive” applicable to the direct group of employees. 5. The learned Single Judge had considered in detail whether the petitioner is entitled for protection under Section 47 of the Act and held that the disability suffered by the petitioner comes under the following definitions of the Act: I) Section 2(i) which defines “Disability” as _i) blindness; ii) low vision; iii) leprosy-cured; iv) hearing impairment; v) locomotor disability; vi) mental retardation; vii) mental illness._ II) Section 2(o) defines “Locomotor Disability” as disability of bones, joints or muscles leading to substantial restriction of the WA No.1062/2016 ## -:5:- movement of limbs or any form cerebral palsy. III) Section 2(t) defines "Person with Disability" as a person suffering from not less than forty per cent of any disability as certified by a medical authority. IV) Section 47 under Chapter VIII which deals with reliefs for an employee of an establishment acquiring disability during his service, defines as follows: _“(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”._ 6. The petitioner was considered to be a “person with disability” under Section 2(t) though he had suffered only partial permanent disability to the extent of 22%. The learned Single WA No.1062/2016 -:6:- Judge relied on the judgment in _**Kunal Singh v Union of India and Another**_ [(2003) 4 SCC 524] wherein it was observed that Section 47 included in Chapter VIII of the Act deals with an employee of an establishment acquiring disability during his service. If the person had acquired disability as defined under Section 2(i) and 2(o), he cannot be denied such protection on the basis that he will not fall within the definition of persons with disability provided under Section 2(t). The petitioner was considered to be a person who had acquired disability during his service. The learned Single Judge held that by virtue of Section 47, the 1[st] respondent is liable to provide the petitioner with some other post with the same pay scale and service benefits. 7. The learned Single Judge also considered the issue whether the denial of “Production Incentive Bonus” on the basis that the petitioner is not working in the Production Department can be sustained or not. The respondents had contended that the payment of 'Production Incentive Bonus' cannot be considered as pay scale or service benefits, as contemplated under Section 47. The “Production Incentive Bonus” is declared only as an incentive to acquire more production and such benefit is available only to WA No.1062/2016 ## -:7:- those who are directly engaged in the production activities. It was held that the petitioner being a person entitled to protection envisaged under Section 47 of the Act is perfectly entitled to have such benefit. If the petitioner has not acquired disability during his service, he could have definitely continued as “Work Assistant” in the Production Department and he would have been entitled for 'Production Incentive Bonus' declared by the company from time to time. 8. The appellants challenge the impugned judgment of the learned Single Judge wherein it was directed to give full protection to the petitioner under Section 47 of the Act and held that the additional production incentive also forms part of the substantial pay and directed the appellants to disburse the same. 9. The appellants submit that the incentive is only an allowance which is directly linked to the productivity and the same cannot be allowed to those who are not directly connected with productivity. The payment of production incentive bonus and additional production incentive bonus depends upon certain contingencies and therefore it cannot be treated as a substantial pay for any employee. The incentives are given by the company WA No.1062/2016 ## -:8:- only to employees directly involved in production. 10. The learned counsel for the appellants has submitted that similar issues have been discussed in the following cases: i) In _**Titaghur Paper Mills Co. Ltd v. Its Workmen**_ (AIR 1959 SC 1095), the employees had raised dispute as to the payment of production bonus. The Apex Court held that the payment of production bonus is in the nature of an incentive and is in addition to wages. ## ii) In _**Manganese Ore (India) Ltd v Chandi Lal Saha and**_ _**Ors**_ (AIR 1991 SC 520), there was a dispute as to whether the attendance bonus was part of wages paid to workmen. The attendance bonus was considered as an additional payment made to the workmen as a means of procuring their regular attendance with the ultimate object of increasing production. It was held that attendance bonus was only an incentive and it was not a wage. iii) In _**Pandian Roadways Corporation Ltd v. Principal**_ _**Labour Court and Ors.**_ [(2002)ILLJ 111 Mad], there was a dispute as to the nonpayment of performance incentive to the workmen who went on strike. The Madras High Court viewed that WA No.1062/2016 -:9:- performance incentive provided for under the scheme is neither a right nor part of wages which the workers earn by virtue of the conditions of service. Performance incentive is not part of basic wages. The individual workman has no right to such performance incentive automatically unless he satisfies the conditions. 11. The short question to be considered is whether an incentive, especially incentive bonus extended to workmen attached to the production department, will come under service benefit referred to u/s 47 of the Act. There is no dispute about the fact that the incentive is in the form of an allowance which is directly linked to productivity and that, under normal circumstances, it is given only to persons who are working in the production department, unless otherwise stated by the management. The contention of the writ petitioner was that he was originally working in the production department and if he had continued to be so, he would have been entitled for the said incentive. Merely for the reason that he is working in another department on account of his physical inability, the benefit he would have got in the production department cannot be reduced, is the argument. WA No.1062/2016 -:10:- 12. An incentive given by an employer is in addition to the wages as held by the Apex Court in _**Titaghur Paper Mills Co.Ltd**_ (supra). Attendance bonus is also considered as an additional payment to the workmen as held in _**Manganese Ore (India) Ltd**_ (supra). The Madras High Court in _**Pandian Roadways Corporation Ltd**_ (supra) also had opined that performance incentive provided for under a scheme is neither a right nor part of wages which the workers earn by virtue of the conditions of service. We are in agreement with the view taken by the Madras High Court in _**Pandian Roadways Corporation Ltd**_ (supra). When performance incentive is not part of basic wages, it is not a service benefit that all the employees are entitled. It is unfortunate that the writ petitioner met with an accident as a result of which he was permitted to work in another department. But the protection granted u/s 47 of the Act is only to continue in any suitable post with protection of equal pay scale and service benefits. Service benefits apparently do not include any incentive and that too production incentive or additional production incentive, the benefit of which will be extended only to those workmen who is involved in that category of work. Section 47 WA No.1062/2016 ## -:11:- does not enable any person to avail any incentive which regular employees do not have. When such a person is placed in a post with protection of equal pay scale and service benefits, that will not include any incentive that may or may not be payable, which depends upon the scheme evolved by the management from time to time. Under such circumstances, we are of the view that the learned Single Judge was not justified in coming to a conclusion that the production incentive bonus or additional incentive bonus will form part of service benefits. 13. In the result, we set aside the judgment of the learned Single Judge. However, we make it clear that if any incentive has already been paid to the writ petitioner, the same shall not be recovered from him. Writ appeal is allowed of as above. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P.** Rp True copy **JUDGE** P.S. To Judge