Showing posts with label Employees with disabilities. Show all posts
Showing posts with label Employees with disabilities. Show all posts

Monday, August 12, 2013

Punjab & Haryana HC reinstates employee with Cerebral Palsy

Dear Colleagues,

Punjab and Haryana High Court has quashed the sacking order issued by the District Judge Karnal against a Clerk with disability (Locomotor disability due to Cerebral Palsy).

Brief Facts

Is this matter, the petitioner - an educated and brilliant young man with disability had on his own merit cleared the recruitment test to the post of Clerk in the District & Sessions Court, Karnal, Haryana, India. The petitioner cleared written test,  general  knowledge  and  the proficiency  test  in  operation  of computers   and also the computer  practical  test  and personal interview.  The competent medical authority had also declared  the  petitioner  as  a case  of cerebral palsy (100% handicapped) and fit for office work under the handicapped category before joinning the government service. Thus out  of  the  71  advertised posts,  only 63 candidates were selected and the petitioner, as per his merit, was placed at Sr.No. 26. and accordingly appointed to the post of Clerk on 23.10.2010.

However, within two months of joining the District & Sessions Judge,  Karnal, vide an order dated 5.2.2011 terminated the services of the petitioner stating therein that  his services are no longer  required.   The stand taken by the respondent was that  the  services  of  the petitioner  have  been terminated as per the terms of his appointment  letter,  according to which the petitioner  was appointed purely on temporary basis and was kept on probation for a period of two years. As per Clause 4 of the  appointment  letter,  the  services of the petitioner  could  be terminated at any time without assigning any reason and without prior notice.  As the petitioner  was unable to perform any kind of  office work with his own hands and of  his own,  he being suffering from cerebral  palsy,  he could not  be continued in service.  As  per  the respondents,  petitioner  is unable  to  perform  any  work  on  the computer and, therefore, faced with this situation, the services of the petitioner  have  been dispensed  with  as  per  the  terms  of  his appointment  without  casting any stigma on him. The respondent also submitted that  the officials in the office of  District  and Sessions Judge have been helping the petitioner at  every step and at  every moment still he was unable to do any office work and, thus, respondent was left  with no option but  to take a decision to dispense with the services of the petitioner in the interest of office administration.

The Judgement

While referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy". The Hon'ble SC in the above case had laid down that the beneficial piece of social  legislation is to enable persons with certain forms of disability to live a life of purpose and human dignity.  Such type of cases have to be handled with sensitivity and not with bureaucratic apathy and when person has been found to be fit and suitable for a post, which  has  been  identified  and  reserved  for  a  particular category, the employee cannot be terminated and efforts be made to provide a congenial  atmosphere to the said employee keeping in view his disability and mechanical orders should not be passed in a routine manner. 

The court concluded that the "petitioner may be slow in handling the computer but  could perform the duties on a computer and can be assigned such a task, which can be handed over to him in the office primarily relating to computer.  The detail  of  the Sections  where the work  is  done on computers,  has been given in the replication,  which indicates that there are  plenty  of  places  where  the  petitioner  can  easily  be accommodated where he can perform his duties as a Clerk in the light of his qualifications while keeping in view his capacity, capability and  competence.  With  same  support, encouragement  and cooperation, this Court is quite sure that the petitioner would be able to perform his duties and the object  of  the Disability Act  would be given effect to in true spirit." 

Click here for full Judgement: : CWP No. 3087 OF 2011 (Ritesh Sinha  VERSUS State of Haryana and others)    

Learnings from the judgement:

This case indicates the mindset of the authorities who attach incapacity to the disabilities. The residual abilities are not looked at. What is focussed on is what is lacking in the individual.  Despite a favourable order reinstating the petitioner, I as a disability rights activist find two major issues with the judgement:

(a) It is silent on the issue that despite clearing the test on his own merit and standing 26th in the order of merit out of 63 selected candidates, why was the petitioner adjusted against the disability quota. By adjusting him so, the respondents have taken away the employement opportunity from one prospective person with disability. And the worst.. it went without check! The Employer is happy having appointed one in the disability quota and the employee is least bothered against what quota he is getting in since his purpose is served. There is no accountability and checks to stop this menace! 

(b) The High Court did a blunder by calling the petitioner to be examined again with regard to his feasibility of  performing appropriate office job in the High Court itself and then assigning the Registrar (Administration) to check the performance & ascertain as to whether the petitioner was in a position to operate the computer, give appropriate commands etc. and submit a report. The court in this case couldn't have taken over the duties of the selelection committee who had already found him fit for being appointed on the said post of clerk.

The acknowledgements

Congratulations to my colleague Adv Veena Kumari of HRLN Chandigarh who took up this case and ensured that it reached its logical conclusion.  

Media Coverage by the Tribune


Saurabh Malik
Tribune News Service

Chandigarh, August 6
In a first, the Punjab and Haryana High Court took upon itself the task of testing the abilities of a candidate suffering from spastic cerebral palsy. It has also called upon the employers to shed the “mechanical approach” and appreciate the situation of a “disabled person” from the human rights perspective.

The call by Justice Augustine George Masih came on a petition filed by Ritesh Sinha against Haryana and other respondents. Suffering from spastic cerebral palsy, he had challenged the order passed by Karnal District and Sessions Judge on February 5, 2011, terminating his services as a clerk.

Challenging the orders, counsel for the petitioner Veena Kumari submitted that the respondents “were insensitive to the difficulties a disabled person is faced with”.

During the course of hearing, the Karnal District and Sessions Judge submitted a report stating that the petitioner could not even start a computer. He could not even move a paper from one place to another. After the petitioner’s counsel disputed the report, the High Court, vide a September 28, 2012, order directed that “it would be appropriate and also in the interest of the petitioner himself to be examined with regard to his feasibility of performing an appropriate office job in the High Court itself”.

In his report, Harnam Singh Thakur, High Court Registrar (Administration), made it clear that the petitioner could do some work on the computer, though slowly.

Referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy….

Quashing the order, Justice Masih added: “With support, encouragement and cooperation, this court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit”.

Wednesday, October 12, 2011

We need sensitized and qualified Disability Commissioners in States

Dear colleagues,

The recent case of Ms. Nilima Surve (a visually impaired employee) is an example of how departments can label an employee with disability as "incompetent" and remove him/her from job on such grounds for no fault of his/her. The actual reason being the refusal of employer to provide reasonable accommodation to the employee with disabilities and refusal to accept the technological advances in the work environment. 

Ms. Surve was appointed as a Junior Clerk-cum-typist in Chetana's Hazarimal Somani College of Commerce at Bandra (E), Maharastra in November 2006, and was dismissed from service in March 2007 on the grounds that her work was unsatisfactory and there were typing errors in her work. The employee asked for screen reading software in the computer so that she could do the job effectively. The college, however, not only refused to provide the software but even refused to allow her to organize one on her own! 

The matter was taken up with the Court of Commissioner -Disabilities who mentioned the need of software and technology to avoid typing errors in future but did not bind the employer to provide one for the employee and remarked, "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software." while upholding the  termination of the employee vide its order dated 30 October 2010 ! 

Left with no option after such an insensitive order from the Commissioner disabilities, Ms. Surve then approached Mumbai High Court through a writ petition challenging the impugned order.  The bench on 10th October 2011 giving relief to Ms. Surve directed the State Government to make an exception and provide her with the devices, including gadgets and software to enhance her performance.

The root cause of the problem

(A) Incompetent and Unqualified Persons appointed as Commissioners-Disabilities

This is important to stress here that the Commissioner for Persons with Disabilities are appointed under sub-section (1) of section 60the Persons with Disabilities Act 1995; which is reproduced below for the benefit of readers:

Extract from the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 -

"60. Appointment of Commissioners for persons with disabilities.- (1) Every State Government may, by notification appoint a Commissioner for persons with disabilities for the purpose of this Act.
(2) A person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.
(3) The salary and allowances payable to and other terms and conditions of service (including pension,
gratuity and other retirement benefits) of the Commissioner shall be such as may be prescribed by the
State Government.
(4) The State Government shall determine the nature and categories of officers and other employees required to assist the Commissioner in the discharge of his functions and provide the Commissioner with such officers and other employees as it thinks fit.
(5) The officers and employees provided to the Commissioner shall discharge their functions under the general superintendence of the Commissioner.
(6) The salaries and allowances and other conditions of service of officers and employees provided to the Commissioner shall be such as may be prescribed by the State Government.

61.Powers of the Commissioner.- The Commissioner within the State shall-
(a) coordinate with the departments of the State Government for the programmes and schemes for the
benefit of persons with disabilities;
(b) monitor the utilisation of funds disbursed by the State Government;
(c) take steps to safeguard the rights and facilities made available to persons with disabilities;
(d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner."

However, the State Governments rarely bother to implement section 60 (2) in right spirit which mandates that  a person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.  Mostly the civil servants of the state are appointed or given extra charge of Commissioner- Disabilities. These officers are expected to be custodians of the legal duty to safeguard the rights and interests of the persons with disabilities. Since they have no special knowledge or interest in respect of matters related to the rehabilitation of persons with disabilities, they are bound to commit such blunders and display such apathy and negative attitudes. 

As legal practitioner, I have often seen that the work of the State Commissioner Disabilities is delegated to District Magistrates/District Commissioners in the districts as an additional charge. Therefore, there is no check whether the appointed officer is aware about disability rehabilitation issues. The whole system gets apathetic because often they have no time, knowledge, sensitization or interest to do justice to the additional duty!


(B) Lack of clearly written instructions for employers

Second lesson is lack of information and instructions to the recruiting/employing departments about the rights of the employees with disabilities at workplace. They don't seem to be aware that providing software, barrier free environment, assistive aids and devices that provide a level playing field are to be provided at the cost of the Government! 

Section 42 of The persons with Disabilities Act 1995 clearly provides as below: 

"42. Aids and appliances to persons with disabilities.- The appropriate Governments shall by notification make schemes to provide aids and appliances to persons with disabilities."

Similarly Section 48 of the Act provides that the appropriate government and local authorities shall promote and sponsor research, inter alia, in the following areas:

(a) prevention of disability;
(b) rehabilitation including community based rehabilitation;
(c) development of assistive devices including their psycho-social aspects;
(d) job identification;
(e) on site modifications in offices and factories


The UN Convention on the Rights of Persons with Disabilities that India is signatory to has defined "Reasonable accommodation" as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

Article 27, UNCRPD -"Work and Employment" mandates the states to ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

And making provisions for a level playing field would be covered within the meaning of Reasonable Accommodation.

The general trend

The right to technology and assistive aids and devices for a level playing field, in other words "reasonable accommodation" at work places is increasingly gaining center-stage with a humongous number of persons with disabilities claiming their right to employment.   There is a 3% minimum reservation for the persons with disabilities in India in the government sector and as per law, those selected on their own merit by contesting against the general list can not be adjusted against the reserved quota of jobs. This means a large number might find a good career in the Govt. jobs.

However, the employers - both in government and private  sector are not aware and sometimes even when aware are reluctant to provide the necessary level playing field (read reasonable accommodation) to the workers with disabilities. I know of several blind employees in the banks who were employed as Clerks, Stenos etc however, continue to sit idle since the banks have moved to computerization and there is hardly any job assigned to them. The banks have not updated themselves with the required technology to put the services of the visually impaired employees to use. The employees feel redundant and the department feels the employee is good for nothing! Since these banks are run by government they can not turn them away, but such situation is neither in the interest of employees nor the bank. This also sets a wrong precedent in the eyes of the senior management in banks about the utility of  new employees with disabilities who might fill the reserved vacancies in future.

The road ahead



The lessons from these cases only give us strong reminders that the State implement the Disabilities Act properly and stop the lip service. It is an ideal opportunity that instead of civil servants and government officers, the states recruit qualified persons with knowledge and experience of disability rehabilitation for the posts of Commissioner or District Commissioner/Additional Commissioner under the Disabilities Act and immediately put a stop to the current practice of appointing unqualified officers.

Secondly it is high time that the Government issues clear, unambiguous instructions /notification highlighting the equipment /softwares / devices etc required for each disability for each post besides a barrier free environment based on Universal design in each office/workplace.

Similar notifications must be issued/adopted by States to ensure that the Persons with Disabilities do not face such hostile environment and get a level playing field/reasonable accommodation so as to contribute to their maximum for the growth of their career and the development of nation.

Here are few links to the news coverage of Ms. Surve's case.

regards
Subhash Chandra Vashishth






MUMBAI: In a victory for visually impaired Nilima Surve who was fired by a college trust for typing errors, the Bombay high court on Monday directed the state government to make an exception and provide her with devices, including gadgets and software, to enhance her performance.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi also directed the college trust to permit Surve to resume work.The judges were hearing a petition filed by Surve challenging an order dated October 30, 2010, by the commissioner for disabilities upholding her termination.

Surve was appointed as a junior clerk-cum-typist at Chetana's Hazarimal Somani College of Commerce at Bandra (E) in November 2006 and dismissed in March 2007 on the grounds that her "work was not satisfactory and there were typing errors".

Her advocate Chetan Agrawal said the commissioner, in his order, acknowledged the use of software to avoid mistakes in future but the college refused to provide or allow installation of the software provided by her.

The judges, in December 2010, had observed that the "disabled need support, not sympathy".On January 15, the court isued a general order directing the state government to provide special gadgets and software to its employees, including those in public sector undertakings, universities and colleges.

On Monday, the judges observed that the state will take time to implement their directive. Justice Shah said, "There is no reason why as a special case such devices for the petitioner should not be provided in the meantime.'' 

The judges have asked Surve to send a requisition to the government for the devices and the software required by her and directed the state to make them available to her three weeks thereafter. "In short, the government will immediately make payment to the supplier for such gadgets or devices and software which the petitioner requires for enhancing her performance in typing and other desk work."

Friday, March 25, 2011

Deaf seek level field on disability


Dear Friends,
Issues of bias within disabilities is becoming a regular discussion point. Though the disability groups try to avoid such a conflicting situation among disabilities and pose a unified front to advocate for their rights, however these issues are now open secrets. The bureaucracy and employers are taking advantage of this and openly discriminating in favour of one disability and against the other while filling up the disability quota provided by the law.
We have seen in the past that the person with less disability is preferred to fill up the vacant job quota. Often those with less than 40% disability (as required by law)  with fictitious certificates claiming to be 40% disability get in to the quota leaving the actual needy stakeholders in lurch. The employers raise no voice because the get (at least that is what the employers think) a more able?? and efficient??? employee in the disabled category which they have to adhere to in terms of The Persons with Disabilities Act. This is one side of the issue.
The other side of the issue is that there is open discrimination within disabilities that currently are eligible to be considered against disability quota in the Government jobs. Those who minor physically disabilities are preferred to those with more severe physical disabilities (such as a crutch user is preferred to a wheel chair user or those with Post Polio Residual Paralysis are preferred to those with Cerebral Palsy, a partial hearing impaired with speech is preferred to deaf, low vision is preferred to blind and likewise..). 
However,  in employment, it is the deaf who get left out. The results of past five years of UPSC exams conducted for Civil Services indicates this bias very categorically. There has to be a mechanism to address such discrepancies which only leads to rivalry among the disability groups. The currently disability law in India only provides for reservation in employment @ 1% each for the Hearing impaired, Low Vision & Blind and Orthopedic impaired. And now we are already witnessing many other groups who have been left out for various reasons from this ambit, raising their concerns vociferously in the consultations being organised for finalizing a new disability law for India in tune with new UN Convention on Rights of Persons with Disabilities.
The Government should evolve a clear cut mechanism to check discrepancies and subjective biases so that transparency is maintained and justice is done to the stakeholders.  The issue brought out before the court by Deaf Employees Association is an indicator that all is not well and soon you may find courts flooding with similar petitions from other groups. 
regards
SC Vashishth, Advocate
Here is the news item:

Mar 19, 2011, 03.52am IST


NEW DELHI: The hearing impaired on Friday moved the Supreme Court seeking parity with the blind and other physically challenged people in government service in promotions and allowance entitlements.
A bench comprising Chief Justice S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar wanted petitioners — "Deaf Employees Welfare Association" and " Railway Employees Association of Deaf and Dumb" — to make a representation to the ministry of social justice and empowerment about their grievance.

However, solicitor general Gopal Subramaniam, taking note of the complaint of discrimination by the hearing impaired government employees, agreed to entrust the concerned department to examine the issues raised by the petitioner through advocate Kamal Kumar Pandey.
The bench asked the two associations to give the SG a copy of their petition and wanted the ministry concerned to report back to the court with its stand in four weeks.
Quoting Article 41 of the Constitution obliging governments to provide effective mechanism and public assistance to disabled people, the petitioners said prior to 1995, there was no specific legislation to address the rights and needs of the disabled people.
The governments confined their efforts to providing medical rehabilitation and removal of the stigma limited to visible disabilities like blindness, orthopaedically handicapped and leprosy, they said.
However, the concept of disability and the social attitude towards it has undergone a radical change since India signed the "Proclamation for Disabled, Full Participation and Equality for Asia and Pacific Region" in 1992. The Centre framed a national policy for disabled in 1993, which was revised in 2005, and provided 3% reservation to blind, hearing impaired and locomotory disabled people in government jobs.
However, the approach of the central and state governments underwent very little change and they have been discriminating against the the deaf employees by not providing them travelling allowance, on-job training and promotions on a par with the blind and orthopaedically handicapped.

Wednesday, December 29, 2010

Hi,


First of its kind judgement from a High Court in recent times where the provisions of Section 47 of the Persons with Disabilities Act 1995 have benefited an employee acquiring a mental illness, while in service!  Congratulations to High Court of Madras (read Justice K Chandru) on this progressive judgement, Mr. Narayanan the employee, the disability sector and not to forget the advocate who presented the case!


Here are the links to the case details:


Mental illness can be included under ‘disability'
B. Kolappan



Court directs State department to pay full salary to employee who was relieved from service


Says termination of his services clearly in contravention of Section 47 of the PWD Act

CHENNAI: Mental illness or retardation can be brought within the term ‘disability' under sections of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PWD Act), the Madras High Court has said.
Directing a State government department to pay full salary, including annual increment and other monetary and service benefits, to an employee who was relieved from service on the ground of mental disability, Justice K. Chandru said the benefits should be given from the date of disability till the date of his retirement.
Allowing a petition filed by C. Narayanan, who worked as Assistant in the government Industrial Training Institute (ITI), Justice Chandru also said that the order of the Director of Employment and Training terminating Mr. Narayanan's services was “clearly in contravention” of Section 47 of the PWD Act. Section 47 clearly indicates “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service.”

“It is ironical that the respondents belonged to the Department of Employment and Training. They are expected to advise other departments about the rights of employees in such departments. If the Department of Employment itself is not aware of the provisions of the Act, that really is a sorry state of affairs,” the Judge said.

The authorities' action had betrayed their ignorance of the PWD Act, he said and directed them to pay case cost of Rs.5,000 to Mr. Narayanan for having made him run from court to court against the dismissal.

Mental illness can be included under ‘disability'  
Read more at :  








Mental disability no ground to sack employees: HC


Read more: Mental disability no ground to sack employees: HC - The Times of India http://timesofindia.indiatimes.com/india/Mental-disability-no-ground-to-sack-employees-HC/articleshow/7175522.cms#ixzz19V1cigTe

Monday, December 27, 2010

Disabled employees suffering as employers not aware of disability provisions


"Visually impaired and disabled persons don't require your sympathy, they need a little support," observed the Bombay High Court on Thursday.

While hearing a plea filed by Nilima Surve, who is visually impaired, the high court was surprised that the commissioner of disability had upheld her termination, instead of supporting her.

In November 2006, Chetna College at Bandra had appointed Surve as a junior clerk. But she was dismissed from service four months later. The college had cited "mistakes in her typing" as the reason behind the termination.

The division bench, comprising chief justice Mohit Shah and justice SJ Kathawala, was irked to find that Surve wanted a particular software to be installed to improve her work, instead she was sacked citing "unsatisfactory work".

Surve had approached the commissioner for disability challenging her dismissal stating she had merely sought installation of the software, Jaws, but the college chose to dismiss her in March 2007.

The judges got further annoyed when Surve's counsel Chetan Agrawal pointed out that the commissioner had passed some critical remarks in the order upholding her termination.

One such remark read: "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software."

Additional government pleader agreed that the order was contrary to the legislative intent, after the judges expressed anguish about the observations.

"The order is clearly arbitrary and contrary to the provisions of the [Persons with Disability] Act," Nitin Deshpande said. The high court also called for a meeting of all stakeholders — government officers, NGOs, representatives of visually impaired and handicapped persons — on January 15.

Measures to resolve the problems faced by the disabled will be discussed at the meeting to be held in the conference hall of the high court building in presence of the judges.

Thursday, May 27, 2010

Avoid frivolous lawsuits, ministries advised | iGovernment.in

Dear Friends,

Many ministries are notorious for filing lawsuits, Review Petitions and Appeals despite the Courts ordering as per the provisions of extant legislations, rules and bye-laws. I have pretty curious experience with one Union Ministry of Railways which defies all rules, laws and policies of the Government of India on employing persons with disabilities! They still consider the persons with disabilities as threat and employing them may lead to security issues. And they claim that being a railway responsible for the safety of passengers, they can not risk the life of passengers by employing persons with disabilities! Though there are no studies or scientific evidence to attribute any of the accidents in the Railways till date to the cause of Disability.

I call it a mind set. And we have seen it for over few years now that Railways has been at loggerheads with the Ministry of Social Justice literally pressuring the MSJE with reminder after reminder to consider their request for exempting all posts of railways from the purview of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 which is due for a sea-change in light of the new committee set up to suggest a New Legislation which is more right based.  The ministry of Social Justice has categorically refused for any such exemption however, that doesn't deter the Ministry of Railways.

I am wondering what would the Railways do when they would be confronted with the new disability law, which most of disability rights activists and supporters believe will usher a new era of rights based regime and ensure true inclusion of every personal experiencing disabilities of any kind.

I have few cases which I wanted to discuss, but for the lack of time, like that of one All India Confederation of the Blind is contesting against Railways seeking filling up of backlog of reserved vacanices in all cadres A,B,C and D and the one matter of Mr. Jayanta Khamari - a physically disabled civil engineer who has been serving in CPWD for past decade without any question on his ability, not finding welcome in Railway despite clearing the Engineering Services Exam on his own merit! The matter is still being contested by the Railways through a SLP before the Supreme Court of India despite loosing the matter in the court of Chief Commissioner of Persons with Disabilities & before the Double Bench of Orissa High Court. Even their review petition was dismissed by the Ld High Court, Orissa as being devoid of any merit.

But the Ministry has the audacity to waste public money in frivolous litigation with impunity. Is Govt. of India monitoring how much their ministries wasting by just fighting against each other in the court of laws?

Any RTI will reveal, as to how many cases, writ petitions, PILs are being contested by Railways in different high courts in India merely on implementation of the Persons with Disabilities Act!

I do hope that this is an early reminder and Ministries do take note of these issues of alarming proportions.

regards
SC Vashishth
Advocate-Disability Rights

Avoid frivolous lawsuits, ministries advised iGovernment.in

Thursday, April 1, 2010

Private Organisations not bound by Disability Act: Says Supreme Court

Dear Friends,
This post is with respect to a recent judgement by Hon'ble Supreme Court in  Civil Appeal No. 1886/2007 titled Dalco Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye and Ors with another Civil Appeal No. 1858/2007 titled Fancy Rehabilitation Trust and Anr. Vs. Union of India and Ors.


The employee Mr. Padhye acquired hearing impairment during the period of service and was terminated by the employer. Employee got a favourable suggestion from Disability Commissioner Pune for his re-instatement under Section 47 of Disabilty Act which says:

“47. Non-discrimination in Government employment.—(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.


(2) No promotion shall be denied to a person merely on the ground of his disability:


Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

 
The word "Establishment" has been defined by Section 2( k)( i) of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 defines the word "Establishment as :-

"Establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of 'the Companies Act, 1956 and includes Departments of a Government;


On a simple reading of the definition of the word "establishment", it is clear that any organisation established under a central, provincial or state act will be an establishment. Thus any organisation registered and established under the provisions of the Societies Registration Act or the Indian Trust Act or The Companies Act should ordinarily get covered under this.

However over insistence here on the Government share/ownership or control indicates that the intention of creators of this statute was to only include organisations which are largely government or local authorities created under central or state statutes or has a government stake of 51% (read section 617 of Companies Act which has been specifically referred to indicate that this has to be read in exclusion of the Companies Act). Also the heading of Section 47 of Disability Act is "Non-discrimination in Government Employment" which clarifies the intention of the legislature that it did not wanted to include private companies under the word "establishment".

The Hon'ble Supreme Court has indicated that similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant "government companies".  The reason put forward by the Court is "A ‘company’ is not ‘established’ under the Companies Act. An incorporated company does not ‘owe’ its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a ‘company’ is incorporated and registered under the Companies Act and not established under the Companies Act.


It further clarifies that inclusion of only a specific category of companies incorporated under the Companies Act, 1956 (Govt. Companies registered under Section  617) within the definition of ‘establishment’ necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of ‘establishment’.


A counter argument to this would be that while IPC and Prevention of Corruption Act are punitive in nature and should be interpreted in restrictive and strict sense, the Disability Act is a benevolent, socio-economic and empowering legislation and must be interpreted in a way which favours the marginalized section of the society.

However, now a decision of the learned judges of the Supreme Court is out here clarifying the meaning of word establishment, removing the clouds of doubt on the existing legislation and leaving no room for its benevolent interpretation in future. Therefore, it would be worthwhile now that the disability activists address this issue in the New Law that is being suggested and be categorical that the provisions of the disability act would apply to all establishment including those private initiatives which are registered under any of the Central or State statutes like companies, trusts, societies and cooperatives etc.

This has larger force of argument because when a labour legislation related to PF, Minimum Wage etc. is applicable to private employers with a certain number of employees then why can't disability legislation be applicable - for the objective of both legislations is to empower the weak, vulnerable and marginalized members of our society?

On second thought, it comes to my mind as to why the exploitation of an employee with disability by an employer could not be taken up through labour legislations read in conjunction with disability Act and why alone under Section 47 of the Disability Act? The last line of the judgement - "This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law." -  gives a hint that it could have perhaps been better fought under labour legislations. 


Here is the news report on the issue from the Mail Today.



regards



SC Vashishth
Advocate-Disability Rights
09811125521


SC says disability Act not binding on private firms

Mail Today, 01st April 2010


THE SUPREME Court on Wednesday held that a law enacted in 1995, to prevent exploitation of the disabled by their employers, could not be enforced on the private sector.

A three- judge bench, comprising justices R. V. Raveendran, R. M. Lodha and C. K. Prasad, said the Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, did not cast any obligation on private companies and schools.

The bench rejected a contention that the Act covered all companies incorporated under the Companies Act.

A private company had approached the apex court, against a high court order holding that the disabilities commissioner had jurisdiction over any company incorporated under the Companies Act. The high court had said it could direct the company to reinstate an employee who was dismissed on account of disability.

The second appeal was filed by a trust — on behalf of the employee — which had approached the apex court after the high court refused to pass any such direction to the company and admitted that the first judgment was incorrect.

Opposing the company’s appeal, the dismissed employee pointed out that section 2( k)( i) of the disability Act brought “ a corporation established by or under a central, provincial, or state Act” within its ambit.


But the apex court said a similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant government companies.

Thursday, March 11, 2010

Discharged on request with undertaking- will not seek pension- illegal, arbitrary & bad in law

 Dear friends,

Here is a fit case that has come to light which reinforces that the principals of natural justice can't be overruled with illegal undertakings got signed from the outgoing employees. Disregarding the earlier rejection of the petition by lower court and also refusal from Punjab and Haryana High court, the Chandigarh bench of the Armed Forces Tribunal (AFT) decided the disability pension case in favour of the retired subedar, a day before i.e. on 09th March 2010.

The Subedar was discharged on his own request and the employer got an undertaking signed from him that he would not claim any pension. The court held it absoutely illegal, arbitrary and bad in law. Though the matter took a long time but finally some justice seems to be coming through.

This matter also indicates that specific courts can do much better job in rendering justice than a regular or general court. The same holds true for matters relating to disability- where our experience confirms that the Court of Chief Commissioner-Disabilities constituted under the Persons with Disabilities Act 1995 has done far better job while CAT and High Court went on against the petitioners in similar matters.

regards
SC Vashishth, Advocate-Disability Rights

To read from source click here:  VRS no ground for rejecting pension, says defence tribunal

The Chandigarh bench of the Armed Forces Tribunal (AFT) decided a disability pension case in favour of a retired subedar on Tuesday. The case had earlier been rejected by a lower court and the Punjab and Haryana High Court on the grounds that the army personnel had given an undertaking at the time of voluntary retirement stating he would not claim disability pension.

Citing the decision of the Division Bench of the Delhi High Court in the case of Mahavir Singh Narwal versus Union of India of 2005 in support of this case, the Chandigarh bench of AFT, comprising Justice Ghanshyam Prasad and Lieutenant General (retired) Justice N S Brar, decided that the lower court was neither legal nor justified and had wrongly rejected the suit of the petitioner.

The bench decided that the petitioner, former subedar Rohtash Singh, resident of Umrawal village, district Bhiwani, was entitled to get disability pension from the date of his discharge plus the arrears of three years prior to filing of the suit with eight per cent annual interest. It was stated that the rejection of Singh’s claim for grant of disability pension on the grounds that he was discharged from service at his own request and gave an undertaking that he would not claim any pension was absolutely illegal, arbitrary and bad in law.

Rohtash Singh joined the Regiment of Artillery on May 25, 1967. He had a head injury after he met with a serious accident on September 26, 1989.

The medical board proceedings conducted by the Military Hospital in Ambala Cantonment awarded him 30 per cent disability and he was discharged on September 1, 1992.

He approached the appropriate authority for the grant of disability pension, which was rejected by the Artillery Record, Nasik, on January 12, 1994, on the plea that he was discharged at his own request and hence not entitled for disability pension. He also filed an appeal against the rejection of his appeal which was also rejected by the competent authority on July 22, 1994.

The Punjab and Haryana High Court relegated the matter to the civil court on August 12, 2005. The civil court also rejected Singh’s appeal on the grounds that he was discharged from service at his own request on extreme compassionate grounds as per the Army Headquarters and he has approached the court after the lapse of nine years of rejection of his appeal.