Right to Dignity - a Consititutional Right of the Female Disabled Employee will Prevail over Employer's Right to Take Work, says Kerala HC [Judgement Included]

Dear Colleagues,

Here is a classic case where the Indian Railways has been wasting the exchequer's money in unnecessary legal battle against a female disabled employee who was seeking protection under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of  Rights & Full Participation) Act 1995 since the year 2002.

Brief history

 

While serving in the Railways, in the year 1998, Ms. Fancy Babu suffered transverse myelopathy (inflammation of spinal cord) at D4 level, which eventually resulted in complete paralysis confining her to bed. In 2002, she proposed to retire voluntarily and the Indian Railways accepted it. In 2009, having come to know of the beneficial provisions of benefit of Section 47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995, the employee approached the Central Administrative Tribunal, Ernakulam Branch seeking reinstatement and extension of benefits under the Act in OA/49/2009. The Tribunal, allowed the original application, setting aside the order or retirement and directed the employee’s reinstatement with effect from 15.02.2002. But Railways went against it before the High Court in  WP(C) No. 15871 of 2010 [click here to read the judgement dt 25 Aug 2014], wherein the said order was confirmed by the High Court by dismissing the appeal preferred by the Railways. 

Facts leading to instant case

 

However, in the year 2015, Ms. Fancy Babu had to again approach CAT  & file MA No. 180 of 2015 under Rule 24 of the CAT (Procedure) Rules 1987 complaining that the Tribunal’s order, as has been confirmed by this Court, has not been implemented by the Indian Railways.  Ms. Babu cited Kunal Singh v. Union of India (2003) 4 SCC 524 and Bhagwan Dass and another v. Punjab State Electricity Board (2008) 1 SCC 579 on protections available to employees under Section 47 of the Act.

The Tribunal, treating it as a special case, held that the employee need not report to office to receive her salary and it directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. 

The Indian Railways again preferred an appeal  OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu, before the Kerala High Court against this order of the Tribunal.  The contention put forth by the Indian Railways was that that since it is in trust of public money; it would be against the public interest to let a person draw salary without her discharging any function—without even attending the office. On the part of employee, it was urged that, where an employee has been totally incapacitated and has been rendered immobile, it is inequitable and unconscionable to compel the employee to attend office, much less discharge functions. 

Dismissing the challenge against the CAT order, the division bench comprising Justices PR Ramachandra Menon and Dama Seshadri Naidu, observed: “Given the modesty of women, the employer, still, expects a crippled woman employee to visit the work place, and, if necessary, discharge the functions to be assigned to her—all this with a urinary catheter permanently fixed and also with bowel incontinence: her modesty exposed and privacy invaded.” 

Strongly worded judgement authored by Justice Dama Seshadri Naidu discusses judicial recognition of human dignity in various countries. The bench also observed that employer’s insistence that she should physically mark her attendance daily in office violates her privacy. “The doctrine of dignity takes into its fold ‘privacy’, too, for it is a facet of a woman’s dignity,” the court held. “The employer seems to have understood that keeping an employee on the rolls, as if she had been in service, must mean that she should perform the ritual of attending office. We are afraid it is misplaced, if not perverse,” the bench said. 

 Dismissing the appeal and upholding the CAT order, the bench remarked: “Here is a conflict, as it seems, between the employee’s constitutional right—right to dignity and privacy—and the employer’s right—right to compel an employee to discharge the allotted functions. Need we say, it is the constitutional right that prevails? Nevertheless, we hasten to add, it may be a constitutional canon but needs the facts to justify it. Here, the facts, we think, justify this conclusion.”

Click here to read the judgement  dated 03 Oct 2016 in OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu passed by the Kerala High Court.

Forcefully retired while on leave, cancer patient granted pension

Dear colleagues,

We have seen in the past that several persons with disabilities have been removed from service by forcing them voluntary retirement on acquiring disabilities in contravention to Section 47 of the Persons with Disabilities Act.

The instant case is of an employee with State Bank of India (Chennai Circle) who was a cancer patient and was forcefully "voluntary retired" while she was on leave undergoing treatment for cancer some 12 year back. The irony is that she continued to fight till 2005 when her gratuity and PF were settled after prolonged representations. However, she was denied her pension and she had to approach the court.

Now after several years of protracted legal battle, the Madras High court has allowed her appeal granting her the pension. Though this is not directly related to a person with disability, however is a good case law in cases where employers take unilateral actions removing employees from service without even informing them. Here is the report.


For cancer patient, a protracted battle for pension is finally won;  Court says voluntary retirement had been forced on the petitioner.

A cancer patient who was ‘voluntarily’ retired by a nationalised bank has won a legal battle for pension with the Madras High Court declaring she is entitled to the benefit.

A Division Bench comprising Justices C. Nagappan and M. Sathyanarayanan granted a declaration on an appeal by Premila Kiruba Augustus. She had joined State Bank of India as a clerk-cum-typist at the Bangalore Main Branch and on her request was transferred to Chennai Circle in January 1981. She was posted as an electronic machine operator from May 1990. When she was on leave for personal reasons, the bank ‘voluntarily retired’ her from service on March 31, 1999. She challenged the order by raising an industrial dispute and after it failed, asked for a reference before the Labour Ministry. This was declined on grounds of a delay. She then made several requests for her pension to be settled. She had completed 25 years of pensionable service. Her gratuity and provident fund were settled in 2005. However, her request for pension was not considered.

Hence, she filed a writ petition. She was not guilty of delay because the bank failed to respond to her representations, it said. She could not pursue her pension claim as her husband underwent a bypass surgery and her father, who was living with her, also underwent a hip replacement surgery and later died. She was diagnosed with cancer and was undergoing treatment. She sought to declare the bank’s action in not sanctioning pension after retiring her, illegal.

The bank contended that the petitioner had voluntarily abandoned her service. Therefore, in terms of a bipartite settlement, she was voluntarily retired from service. Since, she did not make a request seeking voluntary retirement, she could not claim pension.

In June last year, a single Judge disposed of the writ petition with a direction to settle the pensionary benefits. The settlement was to be made depending upon the outcome of another case before the Supreme Court. This case arose out of a Punjab and Haryana High Court ruling that the settlement in question had undergone a change. Mrs. Augustus and the bank preferred appeals against the single Judge’s order.

The petitioner’s counsel, S. Vaidyanathan, said the case pending before the Supreme Court had nothing to do with the facts of the present case. Since the bank itself had voluntarily retired the petitioner from service, it amounted to deemed voluntary retirement. As a corollary, the petitioner was entitled to pension as she had put in the required number of years of pensionable service.

Writing the common judgment for the Bench, Justice M. Sathyanarayanan said considering the facts and circumstances and the Supreme Court’s decision in Syndicate Bank vs Satya Srinath, which was applicable to the present case, it was of the view that voluntary retirement had been forced on the petitioner. The bank’s contention that she had voluntarily abandoned the service could not be sustained.

There was no necessity to await the Supreme Court’s judgment. The Bench allowed her appeal and dismissed the bank’s appeal.

Woman had completed 25 years of bank service;  She had then been ‘voluntarily’ retired;  Court says voluntary retirement had been forced on the petitioner.

Source: The Hindu