Thursday, October 29, 2020

Mumbai High Court declares BMC circular illegal, directs payment of full salaries to disabled employees for absence during pandemic period

Dear Colleagues,

Please refer to my earlier post  'NAB takes the BMC to High Court for denying full salaries to disabled and older employees during lockdown' detailing the public interest litigation filed by the National Association of Blind after the civic body did not pay full salaries to the 268 visually impaired employees.

Accepting the petitioner's contention that the country’s richest civic body had shown “its inhuman an insensitive face, much to the detriment and prejudice of its physically disabled employees” the Division Bench of Chief Justice Dipankar Datta and Justice G.S. Kulkarni of the Bombay High Court, in their 63-page judgment passed on 28th October 2020 (Wednesday),  has held that the BMC's circular and its action of withholding pay during the pandemic were illegal and said, "we direct the corporation to ensure that none of the physically disabled employees, who did not report for duty during the pandemic are denied pay benefits “which they would have been entitled to, but for the pandemic and had they reported for duty”.

On 27 March 2020, the central government through an OM issued by DoPT exempted all government employees with disabilities from reporting for duty during the lockdown saying, "“All ministries and departments are advised to exempt persons with disabilities (PwD) from duties while drawing up roster of employees required to attend to essential services”.

Similar directions were issued by the Maharashtra government on 21 April 2020 exempting disabled employees from attending offices and that the period of absence may be treated as Special Leave without loss of pay. 

On May 2, the BMC announced that its disabled staffers were entitled to a special leave without loss of pay. But, on May 26, it issued a circular  that it was not a special leave, but a permissible leave which requires sanction and involves a pay loss. The circular directed that its disabled employees be given leave which is permitted under the Municipal Services Act. Under this, if these employees have used up sanctioned leaves, they will not get a salary if they don’t report for work. The BMC has nearly 1,150 physically disabled employees, including 278 visually impaired.

The judges noted that while the BMC initially favoured exemption, a “change of mindset resulted in revision of its earlier decision” and it was not backed by tangible evidence of physically disabled employees not facing inconvenience or discomfort while travelling to their workplace or “reference to any incident that could act as a trigger for such decision”. “If the civic body was not inclined to offer financial benefits, like pay physically disabled employees who do not report for duty, it was its duty as a model employer to make special arrangements for public transport or special measures to ensure hassle-free travel for these employees...”

The judges added that the right to free access is a right guaranteed by the Right of Persons with Disabilities Act 2016. Although it casts a duty on the state, nothing prevented the BMC as local authority from taking suitable measures for its physically disabled employees.

The judges said the BMC’s ‘flip-flop’ has intrigued them and there was no explanation for it. “This volte-face deserves to be viewed seriously and disapproved strongly.” 

The court said, “The circular requires judicial intervention. The circular and its action of withholding pay is held illegal.”  The Bench said that the payment must be made in two instalments, the first must be paid before Diwali and the second must be paid within 45 days from the date of the first instalment.

Watch out this space for the PDF Judgement soon...

Wednesday, October 21, 2020

Manhattan Federal Judge Paul Engelmayer rules "NYC has violated the ADA by not installing accessible pedestrian signlas for the blind."

Dear Colleages, 

A federal lawsuit, brought by the the American Council of the Blind in 2018, sued NYC Govt. on behalf of plaintiffs Michael Golfo and Christina Curry, claiming that out of the city’s 13,000 pedestrian traffic signals, just over 2 percent conveyed information in a way that is accessible to blind pedestrians. 

The lawsuit argued that the city’s Department of Transportation violated the Americans with Disabilities Act by neglecting to add audible features to crosswalk signals that let visually impaired people know when they have the traffic signal. There are about 205,000 blind or otherwise visually-impaired people who live in the city and face this inaccessible and hostile environement. 

The arguments have found favour with the District Judge Paul A. Engelmayer and on 20 Oct 2020, the court ruled  the current “near-total absence” of accessible crossing information violates the ADA and the Rehabilitation Act of 1973, the federal disability law that preceded the ADA.

The tuesday ruling notes that blind pedestrians in New York will typically stop at the curb and assume they are at a point where they can cross the street. Without any accessible indicator of a crossing, however, blind pedestrians cross somewhere other than the crosswalk 30 percent of the time. This leaves them to rely on other auditory cues, which is prohibitively difficult with New York’s level of ambient noise. 

In particular, Engelmayer ruled the city had failed to equip traffic signals with accessible pedestrian signals — APS for short — which include alarms or other audible alerts. The Court held that the absence of non-visual crossing information at more than 95% of the City’s signalized intersections denies plaintiffs meaningful access to the City’s signalized intersections and the pedestrian grid, in violation of the ADA and Rehabilitation Act,” Engelmayer wrote.

“The Court further holds that some, but not all, of the City’s projects with respect to traffic signals gave rise to a duty under these statutes to add APS [Accessible Pedestrian Signals]—a duty that the City has largely breached.”

The Court ordered  the NYC lawyers to seek an agreement with petitioners to make more intersections safe for pedestrians who cannot see. The two sides must submit a letter to the court by Oct. 30 laying out a path forward to come to a resolution, which could include benchmarks and deadlines for adding APS to street signals.   Though, the court's ruling itself does not specify how many signals must be installed.

Mayor de Blasio spokeswoman Laura Feyer said the city is already working to expand accessibility for blind people at crosswalks — but declined to provide a timeline for the installation of more infrastructure to make good on the judge’s ruling. 

“The city is dedicated to making our streets more accessible to all New Yorkers with and without disabilities, including those who are blind or have low vision,”  “We will continue to install APS across the city and are consistently working to increase access for the blind and low vision community in all facets of life.”  said Feyer.

Sources: 

1. pressfrom dot info

2. NYDailyNewsdotcom







Monday, September 28, 2020

NAB takes the BMC to High Court for denying full salaries to disabled and older employees during lockdown

Dear Colleagues,

National Association of Blind (NAB) Mumbai has dragged the Brihanmumbai Muncipal Corporation (BMC) to the Mumbai High Court in a public interest litigation (PIL) which seeks payment of full salaries to 278 visually impaired BMC employees for the period when the lockdown was implemented in its strictest form – March 23 to June 30.  

An affidavit opposing the PIL signed by Vishwanath Jadhav, joint chief personnel officer of the establishment section of the BMC’s General Administration Department,  says that paying full salaries to these employees will adversely affect its finances.

It was learnt that the BMC denied full salaries for the strictest lockdown phase to not just its visually-impaired employees, but also to the physically disabled and those above 55 years of age, who were exempted from attendance on health grounds, the affidavit indicates. 

The affidavit, defending BMC’s decision to not pay full salaries to the visually impaired employees, refers to the money “the BMC may have to pay” to the physically disabled as well.

It says, “If these categories of employees are granted special leave without loss of pay, the respondent corporation will be required to pay approximately Rs12.22 crore (Rs 2.75 crore for visually impaired employees and Rs 9.47crore for other disabled employees).”

The next sentence specifies another category of employees which may seek parity from the BMC if the court were to ask it to pay salaries for the same period to the disabled employees.

The affidavit says, “Similarly, the corporation has granted relaxation in attending duties to approximately 283 employees beyond 55 years of age having health issues such as diabetes, high blood pressure and dialysis (for kidney ailments). Similar demand will be raised by these categories of employees, even though they are not eligible, and if they are to be treated according to the same principle, then the corporation will have to pay approximately Rs 422.59 crore, which will adversely affect its financial condition.”

Appearing for the NAB, advocate Uday Warunjikar,  submitted before the court that BMC had nullified its liability to the visually impaired employees with retrospective effect, as its directive issued in March, only exempted these employees from attending offices. However, a directive issued on May 26, 2020 said that the relevant period will be treated as “permissible leave.”

He said that while he had details of only one employee at the time of filing the PIL, the NAB had managed to get details of more than 25 employees to show that it wasn’t just the salary for the relevant period, which was affected, but the situation continues as the BMC was recovering “arrears” of salary deductions from them, forcing them to work on zero or extremely low pay.

The PIL cites the directives of the state government as well as the Centre since March 2020 to show that they had exempted disabled employees from attendance and one such directive said that they be treated on “leave without loss of pay.”

Senior Advocate BV Bukhari, appearing for the BMC, submitted that the BMC was not bound by the resolutions or notifications of the state or the Central government, as it was a local self-government body.

He said that the BMC was not only following the Rights of Persons with Disabilities Act, but, in fact, was doing more than what other governments were doing.

The court, however, questioned the BMC’s assertion that it was not bound to follow the notifications of the state or the Central government, saying it was doing so in certain other aspects related to the pandemic. 

The bench has reserved its judgement on the PIL. 

Update (29 Oct 2020):

....... Read subsequent post on the PIL judgement here:  "Mumbai High Court declares BMC circular illegal, directs payment of full salaries for absence during pandemic period"


Thursday, August 27, 2020

Kerala HC: Aided Private Education Institutions are 'State' and need to implement reservation for persons with disabilities [Judgement Included]

Dear Colleagues,

This judgement by a single bench of Kerala High Court at Ernakulam Bench sets a long pending issue to rest whether private aided education institutions come under the term "establishment" and are bound to follow the mandate of reservation of jobs. There were several writ petitions tagged to the present case with similar prayers. Many educational institutions seeking protection of 'minority' institution have been defying the law of the land regarding reservation in jobs for persons with disabilities despite being funded by the State claiming that they don't need to reserve or fill up seats by persons with disabilities as they are not 'state'. 

Petition was finally heard on 22 July 2020 and judgement delivered on 26 Aug 2020. The lead case has been WP(C).No.4753 OF 2020(T) Renjith J.V. Vs. State of Kerala and Others. Other petitions tagged were all from the year 2019 i.e. WP(C).224/2019(C), WP(C).1806/2019(A), WP(C).2800/2019(Y).  

The Rights of Persons with Disabilities Act 2016 only supplements and enhances the earlier reservation of 3% to now 4% and must be implemented in right earnest. There is a need to raise awareness, break the stereotypes and ensure that the private institutions are made aware of their legal responsibilities before they are sanctioned the government aids and grants.

Read the Judgement embedded below or Download Judgement. WP(C).No.4753 OF 2020(T) 


Thursday, July 30, 2020

Delhi HC seeks response of All States & UTs on PIL by NFB for Food grains to Disabled under Various poverty alleviation Schemes [Order Included]

New Delhi, 30 Jul 2020

Delhi High Court on 29 Jul 2020 sought response of all the states and union territories on a PIL seeking directions to them and the Centre to provide benefits of the various food security and poverty alleviation schemes to persons with disabilities (PWDs). The PIL is titled as W.P.(C) 3976/2020 National Federation of Blind Vs. Union of India & Anr.

A bench of Chief Justice D N Patel and Justice Prateek Jalan issued notices to all the states and union territories (UTs) seeking their stand on the plea after they were also impleaded as parties in the petition by National Federation of Blind (NFB).  The high court listed the matter for further hearing on August 13.

Earlier,  the Bench had issued notices to Union of India (Min. of Consumer Affairs- Respondent 1) and DEPWD (Responder 2) on 07th July 2020 returnable on 22 Jul 2020, when this PIL seeking 5% reservation in all poverty alleviation schemes and food-grains to people with vision impairment and other disabilities under various poverty alleviation Schemes was filed by the NFB.

Counter Affidavit of DEPWD (Respondent-2).

Department of Empowerment of Persons with Disabilities, Ministry of Social Justice & Empowerment, i.e. the 2nd respondent submitted the following in its counter affidavit-

“The Central Government has enacted the Rights of Persons with Disabilities Act, 2016 (RPwD) and the rules thereto in 2017. As per Section 37 (b) of the RPwD Act, 2016, the appropriate Governments are required to frame schemes and programmes in favour of Persons with Benchmark Disabilities (benchmark disability means disability of 40% or more) to provide for 5% reservation in poverty alleviation schemes and development schemes giving priority to women and benchmark disabilities.

The food security programme under the National Food Security Act, 2013 is mainly aimed at uplifting of the poor and hence construed as a poverty alleviation programme. Therefore, the provision of reservation as per Section 37 (b) of the RPwD Act mandating of 5% in food security is applicable.

As per Section 96 of the RPwD Act, the provisions of the Act shall be in additional to, and not in derogation of the provisions of any other law for the time being in force. Therefore, the provisions of the RPwD Act, 2016 have to be read with the relevant section of the National Food Security Act, 2013 for ensuring synergetic implementation of both the Acts. The benefit of 5% reservation in food security programme can be extended to the persons with benchmark disabilities on the basis of certificate of disability issued by the competent medical authorities of the States/UTs.

It may be mentioned that as per allocation of Business Rules 1961, notified by Cabinet Secretariat, Government of India, "the Department of Empowerment of Persons with Disabilities is the nodal Department of overall policy, planning and coordination of programs for Persons with Disabilities. However, overall management and monitoring etc. of the sectoral programs in respect of this group shall be the responsibility of the concerned Central Ministries, State Governments and Union Territory Administrations. Each Central Ministry or Department shall discharge nodal responsibility concerning its own sector." Therefore, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution, Government of India being nodal authority for ensuring implementing food security programmes need to take appropriate measures in line with provisions of the RPwD Act, 2016. "

Hearing on 22nd July 2020

Mr. S. K. Rungta, General Secretary of the petitioner had argued that as per the provisions of Section 37(b) of the Rights of Persons with Disabilities Act, 2016 (the Disabilities Act), a reservation of 5% has been provided to persons with disabilities in all poverty alleviation and various developmental schemes. He further submitted that poverty alleviation schemes enacted under any law for the time being in force are also covered under Section 37(b) of the Disabilities Act.

He had further argued that the Pradhan Mantri Garib Kalyan Anna Yojana and schemes established under the National Food Security Act, 2013 are also poverty alleviation schemes and, therefore, covered under Section 37(b) of the Disabilities Act. He had submitted that under Section 24(1) of the Disabilities Act, the benefit of Pradhan Mantri Garib Kalyan Anna Yojana should be extended and made applicable to all the persons who are covered under the Disabilities Act, 2016, whether or not they have ration cards. He had requested that when such persons come to collect their ration for the first time, the relevant formalities may be completed for issuance of ration cards to them at the earliest to enable them to get their ration next time under the scheme.

The petitioner had sought directions to the Centre to ensure that states and Union Territories provide benefits of welfare schemes, like Pradhan Mantri Garib Anna Kalyan Yojana, to PWD also during the COVID-19 pandemic.

Remarks of the Bench on 22 Jul 20
The bench, on the last date of hearing on July 22, had remarked that Persons with Disabilities have been excluded from welfare schemes "from time immemorial". The bench had observed, "Fact that persons with disabilities get marginalised from every scheme does not require a debate".

The Central Govt. Counsel had sought time to seek instructions and the matter was fixed for 29 Jul 2020.

Response of The Ministry of Consumer Affairs  (Respondent-1)

Respondent-1 filed its response to the PIL and contended that the National Food Security Act (NFSA) is neither a poverty alleviation nor a development scheme. It said that unlike the targeted Public Distribution System (PDS), which was based on poverty levels, NFSA uniformly covers 67 per cent of the total population in the country. NFSA not only covers the Antyodaya Anna Yojana (AAY) but also the below poverty line and a certain portion of the above poverty line category.

The ministry of Consumer Affairs stated in its affidavit that all the beneficiaries are provided foodgrains at the same issue price. The NFSA has been therefore delinked from the poverty estimates.  It also stated that disability as an eligibility criteria already exists in the AAY guidelines and majority of the states and UTs have included it for identification of beneficiaries and priority households under NFSA.

"Notwithstanding this, the central government has further issued directions to all state governments on July 24 to ensure coverage of all disabled persons. This was reiterated over video conference with the states on July 24, 2020," the affidavit said. It also said that 5 Kg foodgrains per month for two months i.e. May and June 2020 was provided to about 8 crore migrant labour, who are not covered under NFSA or state scheme PDS cards, at a cost of Rs 3,500 crore and the validity of the scheme has been extended till August 31.

Therefore, "disabled persons can be covered under this scheme" and they can avail its benefits for the months of July and August without a ration card, the ministry has said.

Arguments

The petitioner has contended that Persons with disabilities are neglected when reliefs under various food security measures are implemented as most of them do not have ration cards. The central government had earlier told the court that ration cards are required under NFSA to provide food grain to over 80 crore people and compartmentalising them under various categories, including disabled, makes it difficult to identify the priority households.

The Centre had also claimed that it is the responsibility of the states and UTs to identify priority households. NFB has contended that under the PWD Act of 1995, a 3 per cent reservation was provided for all disabled persons in poverty alleviation schemes and this was increased to 5 per cent under the RPWD Act of 2016.

Therefore, the government should ensure that at least 5 per cent of the beneficiaries for foodgrain under the schemes like, Antyodaya Anna Yojana and Pradhan Mantri Garib Anna Kalyan Yojana, are persons with disabilities. It has also said that most of the PWDs are in institutions as they are neglected by their families and such institutions do not provide an address proof to their inmates and therefore, they are unable to get ration cards.

The petitioner said that under the NFSA, the Centre has to ensure States and UTs identify the PWDs who are eligible for foodgrains under the various schemes and to provide the same to them. The petition has sought a direction to the Centre to "consider the cases of persons with disabilities and visually impaired persons even without ration cards on the basis of their disability certificates and/ or Unique Disability ID (UDID) for getting benefit under National Food Security Act" and the Pradhan Mantri Garib Anna Kalyan Yojana.

Besides that, it has also sought that foodgrains be provided free of cost to poor persons with disabilities  as was done for migrant labourers and others during the present pandemic.

Next Date of hearing:
After issueing notices to various States and UTs seeking their response, the matter is now listed for further hearings on 13 August 2020.

Download Court Orders : 

W.P.(C) 3976/2020  | National Federation of Blind Vs. Union of India & Anr

07 Jul 2020   - Notice Issued
22 Jul 2020   - Arguments on Counter Affidavits & Court's observations
29 Jul 2020   - Notice to All Stats & UTs
13 Aug 2020 - Next hearing...


Wednesday, July 29, 2020

Landmark licence review triggered after RNIB, UK complained against refusal to allow entry in restaurant to a blind man with his guide dog

A blind man who was refused entry to a restaurant with his guide dog has instigated a landmark licence review which could set a precedent for disability training in the hospitality industry.

Artur Ortega said managers at Manjal in Canary Wharf told him he could not dine if he wanted to bring his trained dog Mercer inside.

Under the Equality Act, guide dog and other assistance dog owners have the right to enter most premises and vehicles with their animals. READ the guide in PDF Here.

The Royal National Institute of Blind People (RNIB) complained to Tower Hamlets Council on Mr Ortega’s behalf. It has triggered a licensing review, believed to be the first of its kind for a restaurant in the UK. The charity wants conditions added to the diner’s licence, which will ensure staff have to go through training so they know the rules around discrimination against service dog owners.

Jack Holborn, the lawyer the charity has employed for the review, said they do not want to see Manjal, which has since moved to nearby Marsh Wall, lose its licence, but added: “The law is already very clear. What we are asking for is that restaurant staff have training to ensure things like this do not happen. We would like to see this added to all premises’ licences.”

Samantha Fothergill, of the RNIB, said: “This is an area where local authorities can and must use their licensing powers to stamp out this practice. We believe licensing powers can be used to require staff to be trained, to require the display of a sticker welcoming assistance dogs and, ultimately, to revoke licences where refusals happen.”

Mr Ortega, a software engineer, and his colleagues were refused entry to the Indian restaurant last July.

Ms Fothergill said: “When Mr Ortega complained, the manager was called but he also confirmed guide dog Mercer was not welcome. The manager told Mr Ortega that not everyone liked dogs and that he should show some understanding of Asian culture.” Mr Ortega said when the table was booked he had explained he was bringing a guide dog and he told staff that under the Equality Act he was allowed to bring Mercer inside. He said: “I felt completely humiliated to be discriminated against in such a rude way.”

He added that he had been to Manjal before with Mercer and had not been turned away. Naveen Bhandari, from Manjal, later wrote a letter to Mr Ortega apologising for the incident and offered the group a complimentary meal.

He said managers had realised their mistake and were going to allow Mr Ortega to dine there — but in the 15 minutes while they were preparing a table for him he had left.

Related news: Standard dot co dot UK 

Thursday, July 16, 2020

Himachal HC to Doctors - Stop the practice of issuing Disability Certificates that can't stand legal scrutiny [Judgement included]

Dear Readers,

Finally the Judiciary has cracked the whip on the medical doctors who have been silently issuing Disability Certificates for a long time with a caveat added through a note - "This certificate is not valid for medico-legal purposes." Some have been writing on top or bottom of the Disability Certificate that "This certificate would not be valid for court cases or for claiming compensation."

The Himanchal Pradesh High Court has taken a serious note of this anomaly while hearing a case of a lecturer Ms. Kanchan from Sirmaur who had challenged her transfer. While the court found no merit in her petition, but during the course of the hearing, it was argued by the respondents that petitioner's  disability certificate issued by a chief medical officer, included a note which said the certificate would not be valid for court cases and for claiming compensations hence, it was not valid in the eyes of law.

The division bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua then directed medical officers in the state against issuing certificates which are not valid in a court of law, terming such certificates “nothing short of being false and fabricated”. The court observed that a number of medical officers issue certificates to patients or people with disabilities with a note that the certificate would not be valid for court cases or for claiming compensation.

“It is high time that there is an end to this practice. Or else, it would give impetus to medical officers whether they be government doctors or private practitioners to issue such certificates which have no judicial relevance and are inadmissible, and are, thus, nothing short of being false and fabricated certificates which can be grossly misused,”  the Bench observed.

“We are convinced that this note has been appended only with the intent that the officer issuing the certificate may not be hauled up before the court or tribunal, if eventually such a certificate is found to be false in whole or in part. The court cannot approve this,” the court noted.

The Bench directed the Additional Chief Secretary (Health) to look into the matter and issue instructions to end the practice within four weeks.

Download the Court Judgement:  Court website link | Google Drive link

Himachal HC | Kanchan Versus State of H.P. & Ors | CWP No. 1915 of 2020 | 15 Jul 2020




Sunday, July 12, 2020

Supreme Court confirms that people with disabilities are socially backward hence entittled to get relaxations available to SC/ST

Dear Colleagues & Readers,

Hon'ble Supreme Court of India, in a significant decision, has confirmed that persons with disabilities are also socially backward, hence, are  entitled to the same benefits of relaxation as Scheduled Caste/ Scheduled Tribe candidates in public employment and education.

The three-judge Bench led by Justice Rohinton Nariman was hearing an appeal filed by Aryan Raj, a person with disability, against the Government College of Arts, Chandigarh. The college had refused relaxation in minimum qualifying marks in the Painting and Applied Art course insisting that persons with disabilities too need to meet the general qualifying standard of 40% in the aptitude test, whereas SC/ST candidates were given a relaxation to 35%.

Setting aside the college decision, the Supreme Court declared that Scheduled Caste/Scheduled Tribe candidates require 35% to pass in the aptitude test, the same shall apply so far as the disabled are concerned in future.” The bench also allowed the petitioner Aryan Raj to apply afresh for the current year.

The SC Bench upheld a 2012 judgment of the Delhi High Court in Anamol Bhandari  v. Delhi Technological University case (Refer to my earlier post "Disabled Students must get same admission benefits as SC/ST, rules Delhi HC" discussing about the Judgement dated 12 Sep 2012 in the Writ Petition (C) No.4853 of 2012 Anamol Bhandari (minor) through his father/Natural Guardian Versus Delhi Technological University.)

The bench referring the 2012 judgeement said in its order, "…we follow the principle laid down in the Delhi High Court’s judgment in Anamol Bhandari (Minor) through his father/Natural Guardian v. Delhi Technological University 2012 (131) DRJ 583 in which the High Court has correctly held that people suffering from disabilities are also socially backward, and are therefore, at the very least, entitled to the same benefits as given to the Scheduled Castes/ Scheduled Tribes candidates."

The bench also highlighted the Delhi HC 2012 judgement ibid on the need to craft new academic courses to specifically cater to the needs of people with intellectual disabilities. The judgement quotes,  “We cannot lose sight of the fact that intellectually/mentally challenged persons have certain limitations, which are not there in physically challenged persons. The subject experts would thus be well advised to examine the feasibility of creating a course which caters to the specific needs of such persons. They may also examine increasing the number of seats in the discipline of Painting and Applied Art with a view to accommodating such students.”

Wide Ranging Implications for Persons with Disabilties: 

While age relaxations are currently given to persons with disabilities in admissions to educational courses and in employment, however, the relaxations will also now be extended in qualifying marks. This will also impact the coveted examls like Civil Services where the number of attempts to persons with disabilities are currently equated with those available to OBCs. This will open up relaxations to them as available to SC and ST. Thus this would be a more enabling provision for this segment who have often been faced with challenges of inaccessibility and attitudinal biases.  This also set to change all public sector employments and admissions to high education courses.

Download the judgement: 

Aryan Raj Vs. Chandigarh Administration & Ors. Civil Appeal No. 2718 of 2020 dated 08 July 2020

or read below: 

Saturday, July 11, 2020

National Consumer Court directs LIC Chief to inculcate systemic improvements in future for “apt logical decision-making" for claims of persons with disabilities

New Delhi 11 July 2020

Court: NCDRC Delhi, Case No. RP/1849/2019   

Parties: Life Insurance Corporation of INdia Versus Anil Laxman Matade

The National Consumer Dispute Redressal Commission (NCDRC), has imposed a cost of  Rs 2.5 lakh on Life Insurance Corporation of India (LIC), and has directed it to pay the amount over and above the insured sum of Rs 1 lakh with 9% annual interest to a father and his daughter with intellectual disabilities. The Commission has come down heavily on the LIC for its adamant “mechanical decision-making without application of mind” while refusing to pay the assured amount.

Showing a mirror to LIC, the order said, "the name of the policy is very attractive “Jeevan Adhaar” i.e. “Life Support”, but, at times, this policy makes the consumer, in certain cases, as in the instant case, helpless, i.e. “Niradhar”, “life without support”- “crippled”. Thus, the insured is thrown in vacua..! after 20 years payment of all premiums." 

Background of the case

Mr. Anil Laxman Matade of Sangli in Maharashtra had taken Jeevan Aadhaar policy of LIC for his daughter with Down syndrome. The LIC had refused to pay the assured amount to Matade even years after he made full payment of premiums while citing conditions, which specified that only 20% of the amount would be released after his death and the rest in installments in 15 years.

Both the district consumer forum and Maharashtra State Consumer Commission had ordered in favour of Mr. Matade, but the LIC challenged the order in the NCDRC. The age of Mr. Matade's daughter is 34 and she has 75% mental disability.

Court's Order

The order passed by NCDRC on 10 July 2020  while holding the public sector insurance company responsible for “intransigent mechanical decision-making” and for going for litigation as a matter of routine, a two-member bench comprising Dr S M Kantikar and Dinesh Singh advised its chief executive to inculcate systemic improvements in future for “apt logical decision-making” in such cases of congenital mental disabilities in which the dependent cannot think and act for herself or himself.

The bench observed it was not amending the general terms and conditions of the policy, which specified that the sum assured is to be paid to the handicapped dependents/ nominees on the death of the insured. “However, the policy and its terms and conditions cannot be implemented in an arbitrary and mechanical manner without application of mind and without having regard to the facts and specificities of a particular case,” the order said.

It said the plight of a child and of her father and mother, and especially in the case of a girl-child having Down’s Syndrome, had to be understood and kept in view by the LIC with the due application of mind at the competent level while deciding Matade’s request to release sum assured immediately so that he may make adequate arrangements for his daughter while he is still alive.

“The LIC failed to appreciate that the daughter, a person with Down’s Syndrome would be in no position to apply her brain and to act for herself so as to make appropriate arrangements for her well-being on her own, when her father is no more, and that she would be in no position to pursue her claim with the LIC, far less agitate it in the consumer protection fora/ civil courts,” the order said.

The Court further warned the LIC saying, “Needless to add, in case of failure or omission in timely compliance, the District Forum shall undertake execution, for ‘enforcement’ under section 25(3) and for ‘penalties’ under section 27 of the Consumer Protection Act 1986.”

It is pertinent to mention that in January 2009, Delhi State Consumer Dispute Redressal Commission had fined LIC for rejecting the claim of a Police Constable who suffered 69% disability due to amputation in hand on the ground that he was capable of earning wages, since he was allowed to continue working with Delhi Police for compassionate reasons under the Rights of Persons with Disabilities Act 2016.

Judgement dated 10 July 2020 

Download PDF Here or read below


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 1849 OF 2019

(Against the Order dated 03/04/2019 in Appeal No. 605/2018 of the State Commission Maharashtra)


LIFE INSURANCE CORPORATION OF INDIA
THROUGH ITS ADDITIONAL SECRETARY(LEGAL) 
CENTRAL OFFICE H-39, FIRST FLOOR, 
NEW ASIATIC BUILDING CONNAUGHT CIRCUS,
NEW DELHI-110001                                                                     ...........Petitioner(s)

Versus  

ANIL LAXMAN MATADE
R/O. RAHUL COMPLEX, FLAT NO. 2, GUEST HOUSE,
SANGLI-416416
MAHARASHTRA                                                                        ...........Respondent(s)

BEFORE:  
  HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER
  HON'BLE MR. DINESH SINGH,MEMBER

Dated : 10 Jul 2020

ORDER PRONOUNCED ON: 10th JULY 2020

ORDER PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1.      The present Revision Petition is against the Order dated 03.04.2019 of the State Consumer Disputes Redressal Commission, Maharashtra (hereinafter referred to as the “State Commission”) in First Appeal No. A/18/605.

2.       In the interest of justice, to provide fair opportunity to the Petitioner LIC, to decide the case on merit, the self-admitted delay of 15 days in filing the petition is condoned.

3.       Briefly, the case of the Complainant is that the Petitioner LIC issued a policy under its ‘Jeevan Adhaar Plan– without profits - with accident benefits’ to the Complainant Anil Laxman Matade w.e.f. 25.07.1996 for sum assured Rs. 1,00,000/-. The half yearly premium was Rs. 2,257/-. The Complainant’s wife was the nominee. The policy was for the benefit / welfare of the Complainant’s daughter who was mentally challenged with congenital Down’s Syndrome. The Complainant paid all premiums regularly till the maturity of the policy on 25.01.2015. After the policy matured, the Complainant claimed the sum assured from the Petitioner LIC, but the Petitioner LIC refused. Further, as averred by the Complainant, he was surprised and taken aback to be told that 20% of the sum assured would be paid to his dependent mentally challenged girl-child only after his death and the remaining 80% would be paid to her over a further period of 15 years thence.

4.       Being aggrieved by the refusal of the LIC to pay the sum assured, the Complainant filed a Complaint before the District Forum, Sangli alleging deficiency in service.  

5.       The LIC filed its written version and argued that the policy was for the benefit of only the dependant and would become effective only after the demise of the insured Complainant. The insured Complainant was not entitled for any payment during his lifetime. As per the terms and conditions of the policy only 20% of the sum assured was payable to the mentally challenged dependent daughter after the death of the insured Complainant and the remaining 80% was payable to her over the next 15 years.

6.       The District Forum allowed the Complaint and directed the LIC to pay the sum assured, Rs. 1,00,000/- along with interest @ 9% per annum with effect from 25.01.2016 to the insured Complainant and also awarded Rs. 20,000/- as compensation and Rs.5,000/- as litigation cost.

7.       The LIC preferred an Appeal before the State Commission. The Appeal was dismissed with cost of Rs. 5,000/-.

8.       Both the fora below, the District Forum and the State Commission, have returned concurrent findings in favour of the Complainant.

9.       We find the State Commission’s impugned Order to be well-appraised and well-reasoned. No jurisdictional error or legal principle ignored or miscarriage of justice is evident, as may require interference in the exercise of the revisional jurisdiction of this Commission.

10.     We may but add that, admittedly, the Complainant had paid all premiums for 20 years without any default, the last premium was paid on 25.01.2015, after the period of 20 years was over, he did not receive the sum assured from the LIC despite several requests, he waited for one year and thereafter served a legal notice on the LIC on 26.06.2016, the LIC has not shown any logical application of mind to the peculiarities of this case, but has intransigently adhered to a mechanical straightjacketed application of its terms and conditions by rote.

11.     From the record it is evident that the present age of the Complainant’s daughter is about 34 years, she is having 75% mental disability. No doubt the old parents have to struggle for the welfare and care of their Down’s - adult girl.  They are also concerned for her safety from unforeseen sexual exploitation. She needs to undergo hysterectomy. The Complainant has this only girl, he has no relatives who can look after his such handicapped daughter. 

12.     The LIC has brought this product to the consumers under the clothing of uberrima fide. The name of the policy is very attractive “Jeevan Adhaar” i.e. “Life Support”, but, at times, this policy makes the consumer, in certain cases, as in the instant case, helpless, i.e. “Niradhar”, “life without support”- “crippled”. Thus, the insured is thrown in vacua..! after 20 years payment of all premiums.  

13.     The Act, 1986 is a benevolent social legislation as has been held by the Hon’ble Apex Court in a catena of judgements from time to time, and is aimed at providing for better protection of the interests of the consumers. Given the facts in the present case at hand, the interests of the consumer can be protected only if he is provided a remedy from all angles for the care of his Down’s adult girl. It is a fight between two unequal. The intention of LIC is not to pay a single penny till the death of insured, which makes the father helpless (the whole matter cannot even be understood by the mentally – challenged dependent daughter for whose benefit the father took the policy and paid premiums for 20 years).  It is obvious that to secure the future of his daughter, the father, with good intention, took such policy, but he has been put to trouble and prejudice and made to struggle and face the intransigent arbitrariness of the LIC.  The approach of the LIC in the instant case is contrary to the principle of uberrima fide.

14.     To know about the agony & gravity of “Down’s syndrome and its social effects” we have gone through voluminous medical literature on the subject. Down’s syndrome is caused by triplicate chromosome 21 (Trisomy 21). The syndrome has a variable physical expression, sometimes it is associated with congenital cardiac defects, transient myelodysplasia (acute leukaemias) and duodenal atresia of the new-born. The care of the infant or young child with Down syndrome can be complicated and may involve a myriad of immediate and long-term medical problems, psychomotor and psychosexual development connected with mental retardation and endocrine disorders. Generalized tonic clonic seizures are the most common. IQs range from low normal to profoundly retarded.

15.     When the parents first learn that their baby has Down syndrome, they may feel disappointment, grief, anger, frustration, fear, and anxiety about her future.  The parents may react with shock, denial, anger, grief, fear, acceptance or any combination of these emotions. The Parents often have strong fears about the future of their child with Down’s disabilities. Dealing with the idea of someone else taking care of their child is never easy. As parents, their worry is that child will not be adequately prepared for the world. It is difficult for many to plan for such child. They face and realise their own mortality. There is a feeling always that no one will ever love, care for, and support their child. Thus the parents having Down’s daughter suffer agony and apathy throughout their life. Many parents think that if their child has money, he’ll be safe. Obviously, the financial resources, money, can help to make the child’s life more secure after the death of her parents.

16.     Privacy is important. The sexuality is an intrinsic aspect of human development. Individuals with Down’s syndrome need individualized instruction and education to develop appropriate socio-sexual behaviours. They still require routine and preventive reproductive health services including urological care for men and gynaecological care for women. They also need education and counselling to prevent unplanned pregnancy, abuse, and sexually transmitted disease. The mentally disabled individual is particularly vulnerable to sexual abuse and maltreatment for several reasons: isolation; communication deficits; etc. Other contributing factors include multiple living situations and transient caregivers, some of whom may be paedophiles. [Pedophilia (alternatively spelt paedophilia) is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children] 

17.     The essential crux of the matter is that the Complainant took LIC’s Jeevan Adhaar policy for his daughter, who is mentally challenged with Down’s Syndrome. That all premiums were paid and that the policy had matured is not disputed. The only dispute is that the LIC is intransigent that the benefit will accrue to the beneficiary i.e. the daughter of the Complainant only after his death, as per the terms and conditions of the policy. The Complainant on the other hand, pointing out that his daughter is mentally challenged, wishes to immediately obtain the sum assured and to make adequate arrangements for his daughter in his lifetime, for her future (when he is no longer alive and there is no one else to make the requisite arrangements for his daughter).

18.     We make it clear that we are not amending or adding to or subtracting from the general terms and conditions of the LIC’s subject Jeevan Adhaar policy. It is meant for the benefit of the handicapped dependents / nominees of the insured, the sum assured is to be paid to the handicapped dependents / nominees on the death of the insured. However, the policy and its terms and conditions cannot be implemented in an arbitrary and mechanical manner without application of mind and without having regard to the facts and specificities of a particular case. Making of adequate arrangements during his life time by the father of a mentally handicapped dependent (who would not be able to herself make arrangements or be able to agitate her case after the demise of her father) is nowhere precluded in the terms and conditions, that is to say, payment in such cases, in such facts and specificities, is nowhere precluded. The terms and conditions cannot be implemented in a straightjacketed mechanical arbitrary manner, with total disregard to the facts and specificities.

In this particular case, the handicapped dependent of the insured is an adult girl with Down’s Syndrome, she is not physically challenged, but is mentally challenged, and as such she cannot think and act for herself. The plight of a child and of her father and mother, and especially in the case of a girl-child having Down’s Syndrome, had to be understood and kept in view by the LIC with the due application of mind at the competent level (whichever it may be) while deciding the insured i.e. the girl-child’s father request that after the payment of all the premiums the sum assured may be immediately given so that he may make adequate arrangements for his mentally challenged daughter while he is still alive. The LIC failed to appreciate that a victim of Down’s Syndrome would be in no position to apply her brain and to act for herself so as to make appropriate arrangements for her well-being on her own, when her father is no more, and that she would be in no position to pursue her claim with the LIC, far less agitate it in the consumer protection fora / civil courts. The afore, which is the crux of the case, has been evaded and ignored by the LIC in its decision-making and in its litigation, both.

19.     The intransigent, arbitrary, mechanical decision-making and the intransigent, protracted litigation, in an issue in which straightjacketed mechanical adoption of the terms and conditions by rote was deemed to be inviolable, and understanding the nature of the handicap, that it is mental (repeat mental) challenge caused by Down’s Syndrome, was kept in opacity, overlooked and ignored, is well and truly evident.

20.     We have no hesitation in upholding the impugned Order dated 03.04.2019 of the State Commission and in affirming the award made therein. The award made by the State Commission shall, now, be complied with most immediately, without further delay. In addition, to compensate for the intransigent mechanical decision-making without application of mind and the intransigent protracted litigation by rote and the delay and trouble and prejudice caused to the Complainant and to his mentally challenged daughter, a cost of Rs. 2.50 lakh shall also be paid by the LIC to the Complainant, for the benefit / welfare of his mentally handicapped adult girl within four weeks of the pronouncement of this Order, without fail. The Chief Executive of the LIC shall ensure timely compliance.

Further, the Chief Executive of the LIC is advised to inculcate systemic improvements in future for apt logical decision-making in such cases of congenital mental (repeat mental) disabilities in which the dependent cannot think and act for herself / himself.

21.   Needless to add, in case of failure or omission in timely compliance, the District Forum shall undertake execution, for ‘enforcement’ under section 25(3) and for ‘penalties’ under section 27 of the Act 1986.

22.   A copy each of this Order be sent by the Registry to the Complainant, the Chief Executive of the LIC, the State Commission and the District Forum within three days of its pronouncement.

......................
DR. S.M. KANTIKAR
PRESIDING MEMBER
......................
DINESH SINGH
MEMBER

Thursday, June 11, 2020

Supreme Court says Reservation not a Fundamental Right on pleas for OBC Quota in TN Medical Colleges

Dear Colleagues,

Hon'ble Supreme Court bench headed by Justice L Nageshwara Rao today expressed that the reservation of seats to certain communities was not a Fundamental Right and refused to act on a petition filed by all political parties from Tamil Nadu seeking 50% OBC reservation in the all-India NEET seats surrendered by states.

It was argued that the Union Ministry for HRD and the Tamil Nadu State government were not following the state policy on reservations in filling up seats surrendered by states in NEET, including admissions for undergraduate, graduate, postgraduate, dental and diploma courses in medicine in private and government colleges.

Justice LN Rao lauded the sentiment behind the move, which had parties of all shades from the state on the same page, as “unusual” for Tamil Nadu  and said “We appreciate the concern of all political parties for the welfare of Backward Classes. But reservation is not a Fundamental Right.”

"Right to reservation is not a fundamental right. That's the law today," remarked Justice Rao, as the bench took up petitions claiming violation of fundamental rights by not keeping seats reserved in the medical colleges in Tamil Nadu for its OBC students.

Petitioners argued that  OBC reservations had been introduced after a long political fight but was being denied to the affected sections in the state and insisted that non-implementation of such reservations in the state amounted to violation of Fundamental Rights of its residents.

However the Hon'ble Supreme Court  remained unimpressed with such submissions, and questioned how a petition under Article 32 could be maintainable when there is no fundamental right to have reservation benefits.

"Whose fundamental rights are being violated? Article 32 is available only for violation of fundamental rights." expressed the Bench.

When argued that the premise of the cases are violation of the law on reservation by the Tamil Nadu government,  Hon'ble Court asked the petitioners to approach the Madras High Court saying “You should withdraw it and go to the high court. You are only interested in 50% reservation in Tamil Nadu.”

It is pertinent to mention that in February 2020, the apex court had held there is no fundamental right to claim reservation in public jobs and no court can order a state government to provide for reservation to SC/STs.

Saturday, June 6, 2020

Allahabad High Court issues notice to waive fees of students with disabilities as online classes not accessible


Parents of a child with autism have filed a petition before the Allahabad High Court against the school asking for fees in spite of the student not attending online classes during lockdown. The court issued a notice asking all CBSE affiliated schools to waive-off fee for children for benchmark disabilities in terms of  RPWD Act, 2016.

For many students with disabilities, the lockdown resulting from the COVID19 pandemic has definitely been difficult. Students with intellectual and developmental disabilities (IDD) are clueless on how to pursue their education through online classes which are not easy for many of them. 

In the instant case, the child with autism is studying in class third at Amit International School in Lucknow. He has been unable to attend online classes due to his developmental disability. He is also undergoing therapies for the same. He has not attended most of his ongoing online classes as he finds them difficult to follow. But since last March, his school authorities have been regularly sending messages to his parents asking them to deposit the school fee at the earliest.

As per the petition filed before the court, there are thousands of children with different disabilities across Lucknow. Many are unable to attend online classes due to their disabling conditions. Demanding fees from such children is an act that must be punishable. Moreover, this system does not provide inclusive education either for students with disabilities.

The matter was heard by the bench of Justice Pankaj Kumar Jaiswal & Justice Saurabh Lavania through video-conferencing. The bench was pleased to issue Notices to the school authorities through e-mail, WhatsApp and messages.

This notice from the high court comes as a big relief to the parents. The schools have not been providing inclusive education nor have sufficient trained teachers. Many parents have formed or joined many support groups for helping each other and sharing of information etc.

Sad reality
This is a sad reality for all stakeholders that despite the Rights of Persons with Disabilities Act 2016 and Right to Education Act (RTE) making provisions for free and compulsory education to students with disabilities from 6 to 18 years of age, most of these parents end up bearing so many expenses and receive no quality education for their children. They have to pay for the child’s therapies & related medical conditions. Apart from the exorbitant school fee being forced upon them, there are expenses of transporting children by school buses. On top of it, many schools insist the parents to hire shadow teachers at their own cost as a pre-condition to allow admission to a child with disability. This is double whammy for parents of intellectually and developmentally disabled (IDD) children. 

Way ahead
The education sector, particularly private schools need to wake up to make appropriate adaptations in the syllabus and teaching methodologies to be more sensitive and inclusive towards the needs of students with disabilities. The notice of the court is the first step is right direction. However, we hope that parents get relief even after the impact of COVID19 lockdown the something positive comes out of this litigation in larger interest of similarly placed parents & students with IDD.

Watch this space for more updates or follow the blog.

Saturday, May 23, 2020

Create separate fund to aid disabled persons: Telangana High Court

Hyderabad, 23 May 2020

The High Court Division bench heard a plea filed by Ganesh Karnati seeking a direction to the State government to alleviate the problems faced by the physically disabled during this lockdown period. 

It further sought a direction to the Telangana Police to issue passes to the caretakers of the disabled, specially challenged persons so as to enable them to get groceries, medicines and other help.

Expressing utter dismay and surprise over the insufficient allocation of Rs. 10,000 to each District Welfare Officer to enable him to take care of the physically disabled and physically challenged persons, the Division Bench asked the Advocate General, B.S. Prasad, the rationale behind such meagre allocation. 

For 40,000 Advocates, the State government has created a corpus of Rs. 25 crore, whereas for a population of more than 7,81,317 lakh physically disabled persons, an allocation of Rs one crore is a pittance and the State has literally let these poor, needy and the weakest section of the society to survive at the mercy of the donors, opined the bench. 

It is a sorry state of affairs, where the state is totally ignoring these physically disabled persons, their rights and interest cannot be ignored by the State Government, that too during the pandemic Covid-19 period.

About 21,565 physically disabled persons live in Warangal and 26,717 persons with disabilities  live in Warangal rural and going by the scanty allocation of Rs. 10,000 to each district, how do you think the concerned Welfare officer will provide them with essential commodities when most essential commodities prices have spiralled in the last couple of days, where dal is sold at Rs. 200 per kg and tamarind at Rs. 180 per kg.

Therefore, the State has to rush to their rescue by allocating sufficient funds for them immediately. They have the Right To Life enshrined in the Constitution and the State has to protect them in its capacity. "Ask the Government to immediately release more money to these persons with disabilities", the Bench added. 

Further, Chief Justice Chauhan asked Advocate General B.S.Prasad to find out the whereabouts of the letter addressed by the Director, Department of Disabled Welfare and Senior citizens to the Special Chief Secretary, Telangana Govt., requesting for creation of a separate fund with the department of disabled welfare and senior citizens so that such fund can be spent to extend various facilities to the disabled during this lockdown. 

It seems the Govt., has not given any response to such a letter, observed Chief Justice Chauhan.  Advocate General B.S. Prasad while putting a firm stand on behalf of the Government informed the Bench that the allocation of Rs. One crore is to ameliorate the distress conditions of the physically disabled persons in the State during this extreme period and is a specially allocated fund by the TS govt. 

Apart from this, the State Government is providing 12 Kg rice, Rs.1500 per family to 87.50 lakh white ration cardholders. Any complaint on non-receipt of ration or money, they can approach concerned District Welfare officers, who will attend to their needs, AG said. The matter was been adjourned to May 29.

Wednesday, April 22, 2020

Accident having occurred during leave and not attributable to government service - Claim for disability pension not sustainable (CCS(EOP) Rules, 1939)




HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved
In Chamber

Case :- SPECIAL APPEAL No. - 1178 of 2019

Appellants :- Union of India through the Secretary, Ministry of Home Affairs, Government of India, New Delhi and 3 others
Respondent :- Raj Bahadur Singh s/o Veer Singh, r/o Murauli, P.O. Durgaganj, District Rampur
Counsel for Appellants :- Ashok Singh
Counsel for Respondent :- Divakar Rai Sharma

Hon'ble Biswanath Somadder,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)

1. The present special appeal seeks to challenge the judgment and order dated 27.05.2019 passed in Writ-A No.53145 of 2004 (Raj Bahadur Singh Vs. Union of India and others) whereby the writ petition has been allowed and the orders passed by the respondent authorities in terms of which the claim of the petitioner for disability compensation under the Central Civil Services (Extraordinary Pension) Rules, 19391 stood rejected, have been set aside, and a direction has been issued to the respondents to compute the benefits payable to the petitioner under the CCS (EOP) Rules, 1939 and to pay the same within a stipulated time period as per terms of the order.

2. The Union of India through Secretary, Ministry of Home Affairs, Government of India, New Delhi, and the authorities of the Central Reserve Police Force, who were the respondents in the writ petition, are the appellants before us.

3. The principal grounds canvassed before us on behalf of the appellants is that the respondent-petitioner was not entitled to the benefit of disability compensation inasmuch as he was not 'homebound' when he met with the accident, as he had already reached home and the accident occurred when he was engaged in his personal work and as such there was no causal connection/ attributability between the disablement and government service, and the interpretation given by the learned Single Judge to Rule 3-A(1)(a) of the CCS (EOP) Rules, 1939, is erroneous and the judgment and order is legally unsustainable.

4. It has been pointed out that the respondent was sanctioned leave for 14th, 15th, and 16th December, 1998 with permission to avail 13th December, 1998, the same being a Sunday, and he had left the Unit, where he was posted, on 13th December, 1998 itself to reach his home town on the same day which is only at distance of 110 kilometers from the Unit he was posted, having a travelling time of about three hours, and in view of the same the accident having occurred on 14th December, 1998, the respondent petitioner could not in any manner be said to be 'homebound' at the relevant point of time.

5. Per contra, learned counsel appearing for the respondent-writ petitioner has supported the order passed by the learned Single Judge by submitting that the petitioner having met with an accident on 14th December, 1998 while he was on leave for a short period, the same would be considered to be on duty, and he would be entitled to get the disability benefit.

6. The facts of the case, which are reflected from the records before us, indicate that as per the case set up in the writ petition, the petitioner was on leave from 14th December, 1998 to 16th December, 1998, when he met with an accident, which occurred on 14th December, 1998 while he was going to his house by a scooter which was hit from the opposite side by a three-wheeler. The claim raised by him for disability pension under the CCS (EOP) Rules, 1939 was based on a contention that the leave being for very short period, he would be considered to be on duty and would be entitled for the disability pension.

7. The claim raised by the petitioner for disability pension under the CCS (EOP) Rules, 1939, was rejected by the Commandant of the Battalion by means of an order dated 6th April, 1999, the operative portion of which reads as follows :-
‘‘1. चॅूकि बल संख्या-911182766 सिपाही राज बहादुर सिंह का एक्सीडेंट दिनांक 14/12/98 को लगभग 17 बजे दिनांक 14/12/98 से 16/12/98 तक 3 दिन के अवकाश दिनांक 13/12/98 की अनुमति सहित, के दौरान अपना निजी कार्य संपन्न करते समय अपने पैतृक गॉव में हुआ है, अतः उक्त दुर्घटना के परिणाम स्वरूप हुए नुकसान अथवा भविष्य में होने वाली किसी भी असक्तता के लिए उक्त कार्मिक केरिपुबल विभाग से किसी प्रकार के दावे/प्रतिपूर्ति का हकदार नहीं होगा तथा उक्त दुर्घटना सरकारी ड्यूटी पर न मानी जा कर कार्मिक के द्वारा निजी कार्य संपन्न करते समय निजी कार्य हेतु मानी जाये।2. कार्मिक के ईलाज की अवधि का समय समय पर कार्मिक के अवकाश की हकदारी के अनुसार नियमित कर दिया जाये।’’
8. Thereafter, the respondent-petitioner submitted a representation before the Deputy Inspector General, CRPF, Rampur raising a plea that the accident having occurred during the period of casual leave the same would be considered to be as a period on duty as per the relevant rules and accordingly the accident would be deemed to be while on government duty and accordingly he was entitled to disability pension. The claim sought to be raised by the respondent-petitioner was rejected by the Deputy Inspector General, CRPF by means of an order dated 5th April, 2004 stating therein that there was no provision under the relevant rules that the period spent on casual leave would be treated to be as that on duty and therefore the accident having occurred when the respondent-petitioner was on casual leave the same could not have been treated to be an accident while on duty.

9. Aggrieved against the aforesaid two orders, the respondent-petitioner preferred another representation before the Director General of Police, CRPF, Lucknow, reiterating his contention that the accident having occurred during a period when he was on casual leave the same would be treated to be as a period spent on duty. The representation of the petitioner was turned down by the Director General, CRPF, by assigning the reason that there was no provision under the rules to treat the period of casual leave as that on duty and therefore the respondent petitioner could not claim entitlement to disability pension.

10. The stand taken by the respondents (appellants herein) with regard to the claim set up by the petitioner, as reflected from the averments made in the counter affidavit filed in the writ petition, is being extracted below :-


"3(a). That while the petitioner was working as Constable/General Duty at 62 Bn. C.R.P.F. C/o. 56 APO. He has sanctioned three days Casual Leave i.e. for 14th, 15th and 16th December, 1998 with the permission to avail 13th December, 1998, being Sunday.
3(b). That on 14th December, 1998 when he was on leave, he met under an accident with three wheeler at his home town at Hardoi while he was doing his own work and he sustained the fracture injury in his right leg due to said accident.x x x x x5. That in reply to the contents of paragraph no. 3 of the writ petition, it is submitted that on 14th December, 1998 at his home town while the petitioner was on sanctioned leave the accident took place in which he receive the injury in his right leg. However, on 6.4.1999 an order has been passed that as per Rule petitioner is not entitled for disability benefits."
11. In order to appreciate the rival contentions, the provisions with regard to disability pension under the CCS (EOP) Rules, 1939, may be adverted to.

12. The relevant extracts from the CCS (EOP) Rules, 1939, are as follows :-

"3. For the purpose of these rules unless there is anything repugnant in the subject or context,(1) 'accident' means,(i) a sudden and unavoidable mishap; or(ii) a mishap due to an act of devotion to duty in an emergency arising otherwise than by violence out of and in the course of service;(2) 'date of injury' means,(i) in the case of accident or violence, the actual date on which the injury is suffered or such date, not being later than the date of the report of the Medical Board, as the President may fix; and(ii) in the case of disease, the date on which the Medical Board reports or such earlier date as may be fixed by the President with due regard to the opinion of the Medical Board;3-A. Disablement/Death.--(1)(a) Disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease which,(i) is attributable to Government service, or(ii)existed before or arose during Government service and has been and remains aggravated thereby.(b) Death shall be accepted as due to Government service provided it is certified that it was due to or hastened by,(i) a wound, injury or disease which was attributable to Government service, or(ii) the aggravation by Government service of a wound, injury or disease which existed before or arose during Government service.(2) There shall be a causal connection between,(a) disablement and Government service; and(b)death and Government service, for attributability or aggravation to be conceded. Guidelines in this regard are given in the Appendix which shall be treated as part and parcel of these Rules."
13. We may also refer to the 'Guidelines for conceding attributability of disablement or death to government service', referable to Rule 3-A(2), appended to the CCS (EOP) Rules, 1939.

14. In particular, we may refer to clause 4(b) and 4(c) of the aforesaid guidelines, which are as follows :-

"4(b) A person subject to the disciplinary code of the Central Armed Police Battalions, is 'on duty',(i) When performing an official task or a task, failure to do which would constitute an offence, triable under the disciplinary code, applicable to him.(ii) When moving from one place of duty to another place of duty irrespective of the method of movement.(iii) During the period of participation in recreation, organized or permitted by service authorities, and during the period of travelling in a body or singly under organized arrangements.(iv) When proceeding from his duty station to his leave station on returning to duty from his leave station at public expenses, that is, on Railway warrant, on cash TA (irrespective of whether Railway warrant/cash TA is admitted for the whole journey or for a portion only), in Government transport or when road mileage is paid for the journey.(v) When journeying by a reasonable route from one's official residence to and back from the appointed place of duty irrespective of the mode of conveyance, whether private or provided by the Government.(c) An accident which occurs when a man is not strictly 'on duty' as defined above, may also be attributable to service, provided that it involved risk which was definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of his service and that the same was not a risk common to human existence in modern conditions in India. Thus, for example,where a person is killed or injured by someone by reason of his belonging to an Armed Police Battalion (and in the course of his duty in such service, he had incurred wrath of such person) he shall be deemed to be 'on duty' at the relevant time.This benefit will be given more liberally to the claimant in cases occurring on 'active service' as defined in the relevant Acts/Rules (e.g., those applicable to BSF/CRPF, etc., Personnel)."
15. It may be noted that the CCS (EOP) Rules, 1939, are applicable to all Central Government servants paid from Civil Estimates other than those to whom the Workmen's Compensation Act, 1923, applied, whether their appointments are permanent or temporary on a scale of pay or fixed pay or piece-work rate.

16. The CCS (EOP) Rules, 1939, provide for the grant of award in the form of monthly pension or lump sum compensation in certain circumstances, including a case, where a government servant is boarded out of government service on account of his disablement due to wound, injury or disease and the disablement is accepted as due to government service, the government servant would be granted disability pension. This disability pension would be in addition to invalid pension/gratuity, if admissible under CCS (Pension) Rules, 1972.

17. As we have already noticed the appellants/respondent have taken a specific stand that the respondent-petitioner had been sanctioned three days' casual leave for 14th, 15th, and 16th December, 1998 with a permission to avail 13th December, 1998 being a Sunday, and during the period when he was on leave on 14th December, 1998, he met with an accident at his home town while on his own work and there would be no entitlement to disability benefit to a person in a case where disability had occurred other than on government duty and accordingly orders were passed by the authorities rejecting his claim. It was also stated that there was no provision in terms of which a period of casual leave is to be treated as a period on duty, as claimed by the petitioner.

18. The stand taken by the respondents/appellants in their counter affidavit has been taken note of by the learned Single Judge in the judgment under appeal in the following manner :-
"A Counter Affidavit has been filed by respondents admitting that petitioner was working as Constable (General Duty) at 62 Battalion, CRPF, C/o 56 APO. He was sanctioned three days casual leave, i.e., 14th, 15th and 16th December, 1998 with the permission to avail 13th December 1998 being Sunday. On 14.12.1998 while riding a Scooter and going to his hometown at Hardoi, petitioner met an accident with a three-wheeler causing fracture in his right leg."

19. Similarly, the order dated 6th April, 1999 passed by the Commandant, CRPF, rejecting the claim of the respondent petitioner for disability pension has been taken note of in the judgment under appeal, as follows :-


"Whenever a person is granted leave, it cannot be said that as soon as he is relieved at the place of posting or moves towards his hometown, process of journey would not be attributable to Government service inasmuch this journey is also being undertaken by the employee concerned which is directly attributable to his service inasmuch as a part of service conditions, he was posted at a place other than his hometown. Therefore, till the incumbent reaches his hometown on official leave, in my view, the entire process of journey will be part of official duty being attributable to Government service and has casual connection to such service."

20. The judgment under appeal proceeds on the premise that the claim of the petitioner had been rejected for the reason that the petitioner had met with an accident while proceeding on leave and that the accident occurred on 14th December, 1998 while the petitioner was on his way to his home town. It is on the basis of this presumption that the learned Single Judge proceeded to formulate the issue in dispute and also to record his view in the following manner :-
"7. In the present case, petitioner met an accident when he was granted leave and going to his Hometown from the place of his posting. "Whether an employee when returns to Home from his Office or place of posting, if meets and accident, can it be said to have occurred during the course of employment and in the present case can it be said that it has connection with Government duty" is the moot question to be answered."8. In my view, it cannot be said that returning to Hometown from place of posting has no direct connection with the Government duty inasmuch, leave when granted to a Government servant is part of service condition and when Government servant is returning to his house from the place of posting, it is an incident of service having direct connection with the Government duty otherwise there would not have been any occasion for the Government Servant to undertake journey to return to his Hometown.9. When an Government Servant is granted leave and he proceeds from his place of Posting to his residence, can it be said that as soon as he leaves the place of postings, he ceased to be a Government Servant and there is no connection with Government duty at all is also an issue which has to be examined in the light of spirit of Rules with which Rules, 1939 have been framed.
10. The aforesaid Rules are for the welfare of employees who sustain injuries, disease etc. during course of duty or when they are doing something which has any connection with the Government Duty."

21. On a plain reading of the pleadings in the writ petition, as are evident from the records, it is seen that the issue which was formulated by the writ court did not at all arise in the facts of the case.

22. In the counter affidavit filed in the writ petition, the appellants/respondents nowhere took a stand that the accident occurred on 14th December, 1998 while the petitioner was going to his home town and that his claim for disability pension was turned down for that reason. The order dated 6th April, 1999 passed by the Commandant, CRPF, rejecting the claim of the petitioner for disability pension, is also not for the reason that the accident occurred when the petitioner was proceeding on leave as has been noted in the judgment under appeal.

23. It is also not the stand of the writ petitioner in the writ petition, or at any stage when he raised his claim for disability pension before the authorities, that the accident occurred on 14th December, 1998 while he was proceeding on leave or was on way to his home town. On the contrary, the admitted case of the petitioner was that the accident occurred while he was on leave and the basis of the claim set up by him was that the leave being for a very short period he would be considered to be on duty and would be entitled for disability pension on the basis thereof.

24. It thus emerges from the admitted stand of the parties that the petitioner had been sanctioned three days' casual leave for 14th, 15th and 16th December, 1998 with permission to avail 13th December, 1998, being a Sunday, and it was on 14th December, 1998 during the period when the petitioner was on leave that the accident occurred. The claim set up by the petitioner was based on the ground that the leave being for a short period, the petitioner ought to have been considered to be on duty when the accident occurred.

25. The precedents which have been referred to in the judgment under appeal, are mostly in respect of matters relating to the Workmen Compensation Act, 1923, and the interpretation of the expression 'in the course of employment' which term as per the settled legal position has been held to connote not only actual work but also any other engagement, natural and incidental thereto.

26. There can be no quarrel with the aforesaid proposition of law and in particular that the expression 'in the course of employment' would stand reasonably extended both as regards work-hours and work-place by applying the doctrine of notional extension as to time and place. The narrow interpretation that an accident would be said to have arisen 'out of and in the course of employment' only if the workman sustained injuries at the place of his employment, would be totally out of sync with the present times where modern management methods and developments have made it wholly unnecessary to consider a workman on duty only when he reaches his place of work or starts working and the principle of notional extension of the employers' premises has been adopted in the context of claims relating to workmen compensation. It is in this context of notional extension of the employers' premises that in a case where an employee dies while going to join his duty or while coming back from duty, would be deemed to be 'in the course of his employment'.

27. As we have already noticed, in the facts of the present case, the accident having admittedly occurred while the petitioner was already availing leave and was neither in the process of undertaking a journey home from duty or going back to duty the issue with regard to notional extension of the employers' premises would not arise in the present case.

28. The question which was therefore posed by the learned Single Judge while deciding the writ petition does not arise in the facts of the case at hand since it was not the case of the petitioner that the accident occurred while he was undertaking a journey back home from his place of work and for the said reason the accident could not be said to have occurred 'in the course of employment'.

29. The law with regard to applicability of the doctrine of precedents is well settled. It has been consistently held that a judgment is only an authority for what it actually decides and not what logically follows from the various observations made in the judgment. In order to fully understand and appreciate the binding force of a decision, it is always necessary to see what were the facts of the case in which the decision was given and what was the point decided.

30. In the case of The State of Orissa Vs. Sudhansu Sekhar Misra and Ors.2 referring to the observations made by Earl of Halsbury LC in Quinn Vs. Leathem3, it was stated thus :-

"12. ...A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury L.C. said in Quinn v. Leathem, 1901 AC 495."Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
31. A similar view was taken in Union of India Vs. Amrit Lal Manchandra and others4, and after referring to the decisions in London Graving Dock Co. Ltd. Vs. Horton5, Home Office Vs. Dorcet Yacht Co.6 and Herrington Vs. British Railways Board7, it was stated that observations of Court must be read in the context in which they appear and that one additional or different fact may make a world of difference :-

"15. ...Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. 
Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Pock Co. Ltd. v. Horton (1951 AC 737 at p. 761), Lord Mac Dermot observed: 
"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judges." 
16. In Home Office v. Dorset Yacht Co.(1970 (2) All ER 294), Lord Reid said, "Lord Atkin's speech....is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed. 
"One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." 
17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 
18. The following words of Lord Denning in the matter of applying precedents have become locus classicus:"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."x x x"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

32. The precedents which have been referred to in the judgment under appeal being on a point of law which does not arise in the facts and situation of the present case reliance placed on the said decisions to arrive at a conclusion on a question which was not at issue is therefore misplaced and the judgment of the writ court cannot be sustained for the said reason.

33. We may now refer to the provisions of the CCS (EOP) Rules, 1939 to advert to the question as to whether the petitioner would be entitled to the benefit of disability pension in terms of the provisions contained therein.

34. The grant of disability pension under the CCS (EOP) Rules, 1939 is admissible in a case where government servant is boarded out of government service on account of his disablement due to wound, injury or disease. In terms of Rule 3-A(1)(a), disablement shall be accepted as due to government service, provided it is certified that it was due to wound, injury or disease which is attributable to government service, or existed before or arose during government service and has been and remains aggravated thereby. Further, sub-rule (2) of Rule 3-A provides that there has to be a causal connection between disablement and Government service for attributability to be conceded.


35. The guidelines for conceding attributability of disablement of government service, in the context of persons subject to the disciplinary code of the Central Armed Police Battalions (CAPB), have included the case of an accident which occurs while proceeding from duty station to leave station and on returning to duty from leave station at public expense. An accident which occurs when a person is not strictly 'on duty' as defined under clause 4(b), may also be attributable to service, provided it involved risk which was definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of his service and that the same was not a risk common to human existence in modern conditions.

36. In the case at hand, the accident having occurred on a day when the petitioner was availing leave, howsoever liberally we may attempt to construe the provisions under the CCS (EOP) Rules, 1939, the petitioner would not by any stretch be held to be 'on duty' leading to a causal connection between disablement and government service for attributability to be conceded in any manner.

37. As per the petitioner's case also there is no assertion that the accident occurred while he was on his journey back home from his duty station, and the sole basis of the claim being founded on the stand that the leave being for a short period the petitioner may be considered 'on duty', the accident can in no manner be held to be attributable to Government service as per the provisions of the CCS (EOP) Rules, 1939, so as to sustain a claim for disability pension in terms thereof.

38. The judgment under appeal whereby directions have been issued to compute benefits payable to the petitioner in terms of the CCS (EOP) Rules, 1939, and to make payment of the same, therefore, cannot be sustained. The judgment of the learned Single Judge is liable to be set aside and is accordingly set aside.

39. The special appeal is allowed.

40. The writ petition stands dismissed.

Order Date :- 22.04.2020
Pratima


(Biswanath Somadder,J.)

(Dr.Y.K.Srivastava,J.)