Showing posts with label Madras High Court. Show all posts
Showing posts with label Madras High Court. Show all posts

Friday, August 26, 2022

Madras HC dismissed the plea of TN Govt. seeking clarification of the order that directed them to purchase only accessible low floor buses.

Court:             Madras High Court, India

Case Title:     The Metropolitan Transport Corporation (Chennai) Ltd. Vs. Vaishnavi Jayakumar & Ors.

Case No. :      WMP/83132/2022 in WP/5957/2021

Filed on :        03-08-2022  

Reiterating its earlier order, the Madras High Court refused to alter or clarify its earlier order dated 05 Jul 2022 on allowing only low floor disabled friendly buses in the state.  The earlier order had directed the state transport corporations to procure 2,213 buses in strict compliance with the rules and regulations of Rights of Persons with Disabilities (PWD) Act and that cannot be altered, said the  the first bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala.

“The order was passed as per the directions of the Supreme Court. If you (the corporation) want to alter it you have to approach the Supreme Court,”

While passing the last order, the the bench had lifted the ban on procuring new public transport buses on condition that the corporation shall comply with the rules and regulations of the RPWD Act. Subsequently, alleging that the condition to comply with the rules caused an impediment, the corporation moved a memo to clarify the order.

The corporation sought to submit that operating the low-floor disabled-friendly buses was difficult, as it caused damage to buses. But the court refused to accept the contention, and thus the plea was permitted to be withdrwan and thus the Court dismissed the same as withdrawn. 

The attempt of the corporation only shows that instead of addressing the accessibility of roads and buses, it sought to find ways not to implemnet the law of the land citing frivolous excuses for a long time. In earlier matters filed before the Madras HC, the court had clearly said that while it accepted that it may be difficult and costly to make the existing buses accessible, henceeforth all new buses purchased to replenish the public trdansport fleet must be accessible complying with the law and the State happily agreed to it. However, it started putting forth flimsy excuses and did not take any action on improving the road infrastructure, bus boarding platforms and road conditions etc.

Here is the copy of the Affidavit on behalf of Metropolitan Transport Corporation (Chennai) Ltd. embedded below:

Monday, August 8, 2022

Madras HC | WP No. 23154 of 2015 | D Ramkumar Vs. Pondicherry Society for Higher Education and Others | 08 Aug 2022

 Court: High Court of Madras

Bench: MR. JUSTICE M.S. RAMESH

Case No. & Title: W.P.No.23154 of 2015, D Ramkumar Vs. Pondicherry Society for Higher Education and Others.

Date of Judgement: 08 Aug 2022

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Brief Facts:

The petitioner, a 100% blind Associate Professor/HOD of English was transferred to another college citing that it was women college and all male teachers need to be shifted to other colleges, while many male teacherss continued to work and only the petitioner was transferred with malafile objectives. This was challenged by the petititioner. Single bench rejected his case but the in the appeal before the  Division Bench of this Court, the bench clearly held that the order of transfer was discriminatory and arbitrary, which has to be regarded as illegal. And thus the petitioner returned to his colleges. The college however, refused to pay salary and other monetary benefits for the period and rejected on the ground of "no work no pay" and that the Bench had specifically not directed to pay the wages.

The petitioner again had to take up the matter. The bench held, the claim for the monetary benefits including the salary after the transfer order, cannot be rejected on the ground of 'no work, no pay.  The court further held that  when the order of transfer of the petitioner was set aside by this Court, the consequential service and monetary benefits arising therefrom between 26.11.2013 and 29.06.2014 would automatically become a part of such an order and no specific directions need be given for payment of such benefits. If that be so, the petitioner herein need not specifically plead for the relief of consequential service and monetary benefits, in the earlier round of litigations. Incidentally, since the Hon'ble Division Bench had not denied these benefits to the petitioner, it ought to be held that he would be entitled for all these benefits. 

The court passed direction to the first respondent to forthwith regularise the period between 25.11.2013 and 29.06.2014, as duty period for all purposes and extend all the service and monetary benefits arising thereto, within a period of four (4) weeks from the date of receipt of a copy of this order.

Read the judgement embeddded below:

Madras HC | PIL titled Rajiv Rajan Vs. The MTC(C)L & Ors on implementation of PWD Act 1995

Bench:  M.M.SUNDRESH, J. and R.HEMALATHA,J.

Case No. WP No. 38224 of 2005

Case Title: Rajiv Rajan  Vs Chairman and Managing Director, Metropolitan Transport Corpn (Chennai) Ltd. and 3 others.

Sub: PIL for Accessible and Disabled friendly  Public Infratructure, Railways Stations, Buses, Bus Shelters, Publlic Toilets, Metro Rail etc.  

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Rajiv Rajan                                                         .. Petitioner 

vs 

1.The Chairman and Managing Director Metropolitan Transport Corporation (Chennai) Ltd., An Undertaking of the Government of Tamil Nadu Pallavan House, Anna Salai, Chennai 600 002 

2.The Commissioner Corporation of Chennai, Ripon Building, Chennai 600 003 

3.The State Co-ordination Committee, Rep. By Chairperson Secretary, Department of Social Welfare Government of Tamil Nadu Fort St. George, Chennai 600 009 

4.The Commissioner for Persons with Disabilities, 15/1, Model School Road Thousand Lights, Chennai 600 006                                                 .. Respondents


Brief:

This Writ petition was filed by our colleague Mr. Rajiv Rajan, under Article 226 of the Constitution of India praying for issuance of a writ of mandamus directing the respondents more particularly respondents 1 and 2 to implement “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” in its spirit by providing user friendly transport, access and barrier free environment in the public places giving access to the usage of transport system.

The court passed comprehensive order on 02.03.2006 and thereafter the matter has been kept live for follow ups. 

On 10-9-2014, the bench of  Mr. Sanjay Kishan Kaul, The Chief Justice and Mr. Justie M. Sathyanarayanan disposed off the matter in terms of order already passed on 2.3.2006. However, the bench directed the Governemnt to file compliance report every month setting out what action they have taken under Sections 44 to 46 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, separately in that 3 month to comply with the directions. The matter was thus to be listed every month for compliance.

On 06.04 2016 the Learned Amicus suggested that for the time being, the issue which we are required to address is the lack of improvement by Metro Transport Corporation (MTC) and State Express Transport Corporation (SETC) in introducing buses which are disabled friendly. On the other hand, learned counsel appearing for the MTC and SETC submited that though initially there was some restraint in respect of procuring buses, it had been observed that there may be some buses procured dedicated for the use of persons with special needs, but the passengers found travelling in such buses were few. 

The bench however was of the view that any steps to be taken for the benefit of the persons with special needs has to be inclusive in character. The idea cannot be to have separate buses, but buses which are used daily by passengers meeting the requirement of Persons with special needs. It is not possible to predetermine the route to be travelled, the destination to be reached etc., by introducing buses only for certain routes which are disabled friendly. The objective has to be, over a period of time, to make sure all the buses in use meet the requirement of people with special needs. This can only happen if procurement of such buses which are meant to cater to the people with special needs, as otherwise what has happened would continue to happen – introducing of new buses in the fleets which still do not meet the requirement of the people with special needs. 

The court thus directed that any new buses to be introduced in the fleets must meet the requirement of the people with special needs and as per the norms in consultation with the Commissioner for Persons with Disabilities. In determining whether a bus is disabled friendly, inter alia, it has to be ensured that there is easy access for boarding and alighting.

On 28.06.2016, The court expressed, "the necessity of new buses meeting the requirement of persons with special needs as per norm and consultation with the Commission for Persons with Disabilities cannot be doubted. However, what is sought to be projected is that in some of the routes, a bus shelter may not be conducive to the ingress and egress for such buses. If that be the position, the first respondent, can always address the Commissioner, Municipal Corporation of Chennai/2nd respondent which would be mandated to make the necessary adjustments. It has also been stated that a policy decision would have to be taken by the Government, as the first respondent has no funds even to buy buses. In this behalf, all that we can say is that at some stage, the State Government would have to take a call as to how the first respondent is to be managed financially, if it wants the Corporation to continue. There can be buses already on the way out as per norms and we are conscious of the fact that it may be difficult to convert the existing buses and therefore our direction is for buses procured in future to comply with the requirements, so that over a period of time, all buses will become compliant.

on 05.07.2022, the bench directed that a copy of the compliance reports filed in W.P.No. 923 of 2007 shall be kept in this writ petition for reference. And on next date of hearing i.e. 02.08.2022, the Bench of Chief Justice and Justice N. Mala, ordered the matter to be closed based on compliance reports being filed by the Govt. 




Tuesday, July 26, 2022

Madrash HC: Chennai Metro Stations do not meet accessibility mandate of Harmonized Guidelines - argues Disability Activist

Court:         Madrash High Court

Bench:        Admitted by Bench of M.M.SUNDRESH, J. and R.HEMALATHA, J.

Case No.     W.P. No. 11041 of 2020

Case Title:  Vaishnavi Jayakumar  Vs. State Commissioner for Persons with Disabilities & CMRL

Case admitted on : 21.08.2020

Next Date: 27.07.2022

Case Brief

This Writ Petition has been filed by our colleague Ms. Vashnavi Jayakumar of Disabilty Rights Alliance, under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus Directing the 2nd respondent i.e. Chennai Metrol Rail Ltd.  to forthwith retrofit its existing metro stations to comply with the Harmonised Guidelines and space standards for Barrier Free BuiltEnvironment for persons with Disabilities and Elderly Persons issued by the Ministry of Urban Development in 2016 and to strictly comply with section 41 of the Rights of persons with Disabilities Act 2016 read with Rule 15 of Rights of persons with Disabilities Rules 2017 in the design and Construction of metro Stations under Construction, including stations planned in the future.

The petitioner informed the court that the metro stations constructed by the respondent CMRL were in violation of the law and were not universally accessible. As per the petitioner, the following features needed to be included in the stations:

i. Anti-reflective flooring which contrasts with walls in colour and is non-slip in dry or wet conditions (resistance of 40-70)
ii. Wheelchair accessible ticket counter with audio induction loop for hearing aid users
iii. Accessible kiosks for blind passengers and wheelchair users.
iv. High contrast signage, displays, information tools and controls with multimodal communication
v. Sliding doors for accessible toilets
vi. Universally designed safety and evacuation equipment
vii. Tactile, high contrast way-finding
viii. Accessible parking

Through various interim orders, all the 32 Metro stations of the CMRL were access audited to see if they meet the requirements of the Harmonised Guidelines and Space Standards 2016 and the respondent has been implementing the same to comply with law.

On 11 Sep 2020, the bench of Mr. Justice MM Sundresh and MRs. Justice R. Hemalatha  directed the first respondent to depute his officials to undertake inspection exercise after making inspection to the existing Metro Rail Stations and file a report on the sufficiency of the infrastructure facilities qua disabled persons. A report in this regard will have to be filed on or before 06.10.2020.

On 11 Dec 2020, the learned counsel for the petitioner had drawn the attention of the Court to Rule 15 of the Right of Persons with Disabilities Rules 2017, as well as the order of ad-interim direction dated 28.06.2016 made in WP.No. 38224/2005 titled Rajiv Rajan Vs. CMD, Metropolitan Transport Corporn (Chennai) Ltd.  and submitted that in the light of the mandate cast upon the relevant statutory provisions, it is obligatory rather mandatory upon the 2nd respondent to strictly comply with the said provisions so as to make the Metro Rail Stations as well as travel disabled friendly and prays for appropraite directions.

On 15 June 2022 the counsel for the second respondent/CMRL submitted that the matter may be taken up after six weeks so that they can take further action to comply with the Harmonised Guidelines and space standards for Barrier Free Built Environment for persons with Disabilities and Elderly Persons. It is, however, submitted that except this, necessary action has already been taken, leaving few, which would also be taken up within the period of six weeks.  

In view of the submissions made by CMRL, the respondents have been given time to take necessary action. The matter has been posted to July 27 for further hearing

Watch out this space for the developments.



Tuesday, July 5, 2022

Madras HC | TN Govt. GO to the extent it offends RPWD Act or Provisions of Harmonised Guidelines & SC Judgement in Rajive Raturi case.

Court:          Madras High Court

Bench:         Mr. Munishwar Nath Bhandari, Chief Justice and Mrs. Justice N. Mala. 

Case No.      W.P.No. 5957 of 2021

Case Title:     Vaishnavi Jayakumar Vs. State of Tamil Nadu & two Others

Date of Judgement: 05 July 2022

The writ petition challenges a G.O.  on the ground of violation of Section 41 of the Rights of Persons with Disabilities Act, 2016. It is also on the ground that when no direction has been given by the Apex Court to have only 10% of the government buses disabled friendly, G.O. indicates only 10% of the total number of Government buses to be low floor buses. 

Further to our previous post dated 22 July 2021 titled Madras HC to Tamil Nadu Govt. - No purchasing buses for public transport, unless they are disabled friendly.

On 26.08,2021, it was again submitted on behalf of the State that even though the legal requirement may not have been complied with, certain other factors need also to be taken into consideration, particularly in the wake of the pandemic and the economic loss suffered by all States, including this State. It is further submitted that though it is imperative that all buses become disabled friendly, but the disabled friendly buses cost much more than ordinary buses and require much better road conditions, particularly within the city limits, than may now be available. 

The bench however, said, "Appropriate measures should have been taken much earlier so that things would not come to such a pass. Though it can be appreciated that the pandemic has caused a severe loss and city roads may still not be viable to receive low platform heavy duty vehicles, there has to be much more acquisition of disabled friendly buses and investment in appropriate roads since the law has been in place for a considerable period of time. At the same time, some latitude may be offered so that the larger public interest is served and the blanket embargo on acquisition of buses does not completely disable the public transport system."

Matter was finally heard and disposed off on 05 July 2022, in following terms:

"the writ petition is disposed of causing interference with G.O.Ms.No.31 dated 24.02.2021 only to the extent that it offends any of the provisions of the Act or Rules or the Harmonised Guidelines issued by the Government of India and directing the respondents to ply all the Government buses, in conformity with the provisions of the Act and Rules and the Harmonised Guidelines quoted above and in the light of the judgment of the Apex Court in the case of Rajive Raturi supra. There will be no order as to costs

 Read the Judgement dated 05 July 2022  embedded herein below:

Madrash HC: M. Gnanasambandam Vs. Govt. of India | WP No. 923 of 2007 | 05 July 2022

Court:                     Madras High Court

Bench:                    Mr.Munishwar Nath Bhandari, Chief Justice and Mrs. Justice N. Mala. 

Case No.                WP No. 923 of 2007

Case Title:             M. Gnanasambandam  Vs. Union of India 

Date of Order:       05 July 2022

This Petition was filed under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents to take the following measures to facilitate the effective implementation of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995: 

I. To frame and notify comprehensive Rules immediately for according recognition to various types of Schemes (Educational Institutions for the Disabled) as provided under Chapter V Education under the PWD Act. 

II. To distribute scholarships to all school going children with disabilities in time. 

III. To direct the Central and State Governments to issue notifications to make schemes to provide Aids and Appliances to persons with Disabilities. 

IV. To direct the respondents to enquire into in detail from the year 2002 onwards about the alleged violations in the distributions of Aids and Appliances under ADIP Scheme as well as Inclusive Education Programme under Sarva Shiksha Abiyan and submit a Report before this Hon'ble Court. 

V. To direct the respondents to initiate necessary punitive action against those responsible for such kinds of nefarious acts and take suitable measures to prevent such malpractices in future. 

VI. To direct the respondents to make schemes providing for medical benefits, expenses and treatment for persons with Disabilities.

VII. To direct the respondents to make provisions for terminally ill and chronically sick children with disabilities as well as adult and aged persons with disabilities for providing life ling care, protection and medical treatment free of cost, irrespective of the type of disability. 

VIII. To direct the respondents to provide with appropriate social security to the destitute and abandoned children as well as adult and aged persons with disabilities, till their death, irrespective of the type of disability. 

IX. To direct the respondents to streamline the admission of persons afflicted with mental illness in appropriate Pshychiatric Rehabilitation Centres. 

X. To direct the respondents to form a Monitoring Authority or Enforcement Mechanism at the State as well as District levels which can be empowered to supervise and report to the Chief Commissioner for Persons with Disabilities and the State Commissioner for the Disabled about the proper implementation of the provisions of the Act in the respective States.

XI. To direct the respondents to entrust the State and District Legal Services Authority with the task of protecting the rights of persons with Disabilities. 

XII. To direct the respondents to bring all the social legislations viz., 

i. The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. 

ii. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999; and

iii. The Juvenile Justice (Care and Protection of Children) Act 2000 under one umbrella; and 

XIII. To direct the respondents to empower the State and District Legal Service Authorities to supervise the smooth functioning of the above Acts at all levels. 

The writ petition was registered as Public Interest Litigation, pursuant to the letter written by the petitioner.  Taking note of the issues raised in the petition, directions were issued by this Court while taking cognizance of the matter and sought for compliance. 

The compliance report has been submitted from time to time. Below the interim order passed on 10 December 2020. 

   

 After the registration of the petition, there are changes not only in terms of the position of law, but even in reference to the administrative instructions, such as Guidelines for the Government/Public transport. Rules of 2017 was introduced and Rule 15 of the Rules 2017 was applicable. The Harmonised Guidelines was also issued and thereby, there is a sea change subsequent to the registration of the case on all the issues.

In view of the above, it would be appropriate to close the writ petition with liberty to the writ petitioner to come up with a fresh writ petition if any issue remains unaddressed. There will be no order as to costs.

Read the final dated order dated 05 July 2022 embedded below: 

Monday, December 20, 2021

Madras HC | M. Sameeha Barvin Vs. Govt. of India (Min. of Youth and Sports)

Court:         Madras High Court

Bench:         Justice R Mahadevan

Case Title:  M. Sameeha Barvin Vs.  Govt. of India (Min. of Youth and Sports) and Four Others

Case No.      Writ Petition No. 16953 of 2021

Date of Judgement : 20 December  2021

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Brief Case

“Disabled women struggle with both the oppression of being women in male dominated societies and the oppression of being disabled in societies dominated by the able-bodied”  - Susan Wendell

This explains the tribulations faced by the petitioner, who finds it impossible to speak or listen, but able to achieve gold and silver medals in long jump and high jump at the State and National levels, having been denied the opportunity of participation in the Fourth World Deaf Athletics Championship, 2021, held at Lublin, Poland and being able to participate in the same only on the strength of the interim order dated 13.08.2021, on knocking the doors of this Court.

The 18-year-old M. Sameeha Barvin had moved the court alleging gender discrimination after AISCD refused to select her despite a good performance in the trials. In her petition, Sameeha said that of the 12 athletes who had participated, 10 were men and two women and she had finished first in the latter category. On seeking to know why she wasn’t selected, it was disclosed that the selection authorities were against sending a lone female member to the event. The athlete, who has 90 per cent hearing impairment, said this amounts to gender discrimination.

Justice R Mahadevan who investigated the issue said Sameeha’s effort can’t be ignored. “Even going by the past records of the petitioner, she had won 11 gold medals, one silver and one bronze in various state and national events. This achievement of the petitioner cannot be simply brushed aside,” he said. Furthermore, he stated that no female athletes were selected, and Barwin deserves to take part in the championship. 

“Admittedly, out of the five selected athletes, none of the female athlete were selected. In the female category, it was the petitioner who stood first and therefore, in all fairness, the petitioner ought to have been selected by the respondents so that she could bring laurels to the country by participating in the 4th World Deaf Athletics Championship,” the court said.

Interim order: 

The Madras High Court single bench had earlier issued an interim order directing the All India Sports Council of the Deaf (AISCD) to permit 18-year-old athlete Sameeha Barwin to participate in the World Deaf Athletics Championship to be held at Lublin, Poland from August 23-28,2021. The representative of the Ministry of Youth and Sports had said the ministry will abide by the court’s decision. 

The Final Order:

After the detailed analysis and findings, the Court  reached the conclusion that this was a case of discrimination based on the gender as well as the disability, due to which, the petitioner  faced several difficulties and barriers to participate in the international event. The State and Central Governments, being the competent authorities to provide and ensure support and safety to the sports women with disabilities, so as to inspire their confidence freely and take part actively in the events at all levels, have failed to do the same in an appropriate manner. 

Therefore, in exercise of the power  conferred under Article 226 of the Constitution of India, to render substantial justice, this court issues the following directions to the respondent authorities for the purpose of streamlining the policy qua woman athletes with disabilities, in consultation with experts, so as to enable them to participate in all the events at State, National and International levels, with equality and dignity:

(i)    to prevent or prohibit unfair discrimination against the women athletes with disabilities, on one or more grounds including race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(ii)    to provide adequate financial assistance and all other requisites to the women athletes with disabilities, so as to participate in all the events.

(iii)    to follow proper selection process, so as to enable the meritorious candidates to participate in the events.

(iv)    To provide necessary training and free medical facilities to all the women athletes with disabilities, who achieve meritorious level in the respective sports for participation in all the international games.

(v)    to provide all possible means to entertain women athletes with disabilities to utilise their fullest potentials and capabilities so as to achieve success in all the events.

(vi)    to provide all the disabled friendly materials, clothes, prosthetics and other accessories that may be required by the women athletes with disabilities in day today affairs, with incentives so as to encourage and nurture their excellence in the respective sports and to participate in the events at all levels.

(vii)    to extend the financial assistance to one of the family members, who accompany the disabled female athletes to participate in the international games. 

(viii)    To give effect to the principle of reasonable accommodation by providing all assistance that are required / requested by the females athletes with disabilities so as to enable them to participate in the international games, on par with males.

(ix)    to ensure safety and security of the female athletes with disabilities during their travel, irrespective of number of participants, so as to inspire their confidence freely and take part actively in the events at all levels.

(x )    to sensitize the male counter parts and inculcate the sense of equality in their mind, so as to maintain safe environment for women athletes at all levels.

(xi)    to reward all the disabled women participants in the international games, irrespective of their achievements or otherwise.

(xii)    Must ensure that all the women athletes whether with or without disabilities, be given equal treatment on par with males, so as to enjoy full and equal rights and freedoms and to maintain their dignity.

Read the Court Order embedded below:

Thursday, July 22, 2021

Madras HC to Tamil Nadu Govt. - No purchasing buses for public transport, unless they are disabled friendly

Court: Madrash High Court, India

Bench: Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy 

Case No(s): W.P. No. 5957 of 2021(Lead Case) along with WP 38224 of 2005 and WP 923 of 2007

Case Title:     Vaishnavi Jayakumar Vs. State of Tamil Nadu & two Others (Lead Case)

Date of Hearing: 22 July 2021

Case Brief 

In a push for the rights and independence of people with disabilities in their commute, the Madras high court on Thursday restrained Tamil Nadu from purchasing any new bus to its fleet in the public transport system unless such buses were disabled-friendly as prescribed by law.

The first bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy passed the interim injunction on a batch of pleas that have been pending before the court for years including from as far back as 2005, seeking universal use of disabled-friendly buses in public tranport fleet. 

One of the writ petitions in the batch i.e. W.P. No. 5957 of 2021 had been filed by cross disability rights advocate, Vaishnavi Jayakumar. She had challenged a Government Order (GO) issued on February 24 this year, for introduction of only 10% of low floor buses and 25% of buses fitted with lift mechanism or any other suitable mode, to provide easy access to wheelchair bound passengers, out of the total buses to be procured for Metropolitan Transport Corporation (Chennai) Limited.

The petitioner had contended that the GO violates Section 41 of the Rights of Persons with Disabilities Act of 2016. The legislation requires the State government to take suitable measures to provide facilities for persons with disabilities at bus stops, railway stations and airports and also access to all modes of transport by even retrofitting old modes of transport wherever it was technically feasible.

She said the GO for introducing only 10% of low floor buses and those with lift mechanism was also in violation of Articles 14 (equality before law) and 21 (right to life) of the Constitution. “The GO is an arbitrary exercise of power by the State. It is not only in complete violation of the rights of persons with disabilities but also contumacious, since it violates several judicial orders,” she said.

The petitioner had sought to restrain the state from acquiring any further bus unless it conforms to the requirements of the Rights of Persons with Disabilities Act, 2016 and the Rights of Persons with Disabilities Rules, 2017 and under the latter, Rule 15 in particular. Rule 15 mandates that every establishment complies with the specified standard as indicated in a notification issued by the Government of India on September 20, 2016.

Advocate General R Shunmugasundaram said the government was purchasing disabled-friendly buses in phases because the roads were in bad shape and they would damage the low-floored buses.

Advocate Rita Chandrasekar, representing Metropolitan Transport Corporation, said the low floor buses cost ₹58 lakh each as against ₹26 lakh for regular buses and hence there was a delay in purchasing such buses.

The state's submission that low-floor buses were expensive and would be damaged by bad roads was rejected. The state has been submitting excuses of certain practical difficulties, particularly in finding resources not only to acquire the more expensive buses but also to create the road infrastructure required for such sophisticated buses. It sought more time to indicate a roadmap.

Rejecting their submissions, the bench in its order said, "In view of the mandate of the statute, read with the Rules framed thereunder and the notification published in accordance therewith, there may be no room to manoeuvre and little scope for the court to delay the implementation of the policy as reflected in the statute and the laws made thereunder.

The court further said in its order, "the State seeks time to indicate a road-map. However, it is necessary that the State be restrained from acquiring any further bus for the public transport system which does not conform to the specifications indicated in the notification of September 20, 2016 referred to above. In other words, the State will not acquire any new bus for use thereof as part of the public transport system unless such bus meets the standards indicated in the notification of September 20, 2016".

Read the interim order dated 22 Jul 2021, embedded below:





Tuesday, July 13, 2021

Madras HC rejects the argument that victim’s evidence could not be relied upon since she was blind

Madras High Court, rejecting the argument of the petitioner that victim’s evidence could not be relied upon since she was blind, said, “The victim as a blind lacks vision, but her version had vision and hence, this court holds that the evidence of the victim is admissible in evidence.”

According to the prosecution, auto driver Anbu Selvan was hired to transport the victim to her music class. However, he kidnapped her to a secluded location and sexually harassed her besides trying to kill her if she did not cooperate.

Challenging a trial court order awarding a seven-year jail term to him, Anbu Selvan moved the high court. Justice R M T Teekka Raman, however, termed Anbu Selvan as a ‘heartless person’ who had capitalised on the helpless situation of the visually challenged person and sexually assaulted her.

He is not entitled to reduction of sentence, not even for a single day, the judge asserted. Citing circumstantial and other evidence, the judge said, “Merely because of the disability, evidence of disabled persons cannot be treated as inferior in nature.”

Anbu Selvan had also argued, “The identity of the accused was not proved in the manner known to law and since the witness (victim) is a blind, her evidence cannot be termed as eye witness if at all, can be termed only as a hearsay witness which is inadmissible in evidence.”

The trial court convicted him for offences under sections 366 (kidnapping a woman), 354 (Assault or criminal force to woman with intent to outrage her modesty), 506 (ii) (Criminal intimidation) of the IPC and Section 4 (harassment of woman) of the Tamil Nadu Prohibition of Woman Harassment Act primarily based on the evidence of the victim woman.

Merely because a victim of sexual harassment had visual disability, her evidence against the culprit cannot become inadmissible, said the court, awarding seven-year imprisonment to an autorickshaw driver who assaulted the woman. The court then recommended the Tamil Nadu State Legal Services Authority to grant Rs 1 lakh as compensation to the victim under the Tamil Nadu Victim Compensation Scheme.


Monday, May 4, 2015

Madras HC asks for all GOs by Tamil Nadu on disability reservation for judicial scrutiny

Govt orders on disabled quota under HC scrutiny
TNN | May 3, 2015, 12.42AM IST

CHENNAI: All government orders in Tamil Nadu allowing or disallowing disabled persons from applying for certain posts in government services have come under judicial scrutiny, with the Madras high court making it clear that it would go through all such orders and circulars to ascertain possible anomalies and discriminations.

A directive to this effect was issued on Friday by the first bench comprising Chief Justice Sanjay Kishan Kaul and Justice T S Sivagnanam while dealing with a PIL challenging exclusion of all disabled persons, except those with orthopaedic disability, from the post of village administrative officer (VAO).

The matter relates to Tamil Nadu Public Service Commission (TNPSC) notification to recruit VAOs. Since there was no mention about the quota for visually impaired persons, a federation for visually disabled persons challenged the legality of the employment notification. After being directed by the court to spell out its stand, the government filed a report agreeing that there should not be any blanket ban on visual or hearing impaired persons from applying for the jobs.

"In view of the question posed by this court, the report, in fact, agrees that there should not be a blanket exemption of persons with blindness and low vision or hearing impairment from reservation to the post of VAO or for that matter any post without considering the percentage of disability and level of functionality," the bench said.

The bench then felt there is a need to reconsider the notification, and added: "A person with disability has potential to enhance his skill either by using technology or training through rehabilitation process. It is stated that in respect of VAO a person with 40% visual impairment can discharge the functions after acquiring certain skills."

It then asked the government to take corrective action by issuing fresh GOs in supersession of the earlier orders, and suggested that it hand over a compilation of all the past and existing GOs in for judicial scrutiny. The matter was then adjourned to June 3 for further hearing.

Source: Times of India 

Thursday, December 26, 2013

Loss in earning capacity and not degree of disability is considered in deciding compensation: Madras HC

Madras High Court has while hearing an appeal against a poor disability compensation in a motor accident claim case recently held that while computing compensation in motor accident cases, the loss of earning capacity of the victim should outweigh the extent of disability.

Enhancing the compensation by 2 lakh to the injured driver, Justice R Mahadevan said,  “In cases of compensation, it is not the disability, which could be partial or total, alone that matters. It is the loss in earning capacity as a result of the accident that is to be considered.”
 
In the instant case R Murali, driver of a concrete mixing vehicle, met with an accident in January 2009 and suffered injuries in hip, right leg and ankle. He claimed to have suffered 100% loss in his earning capacity and sought appropriate compensation along with 12% interest.  However, as the disability certificate issued by a doctor pegged the percentage of his disability at 60%, the Deputy Commissioner of Labour awarded only Rs 3.12 lakh as compensation, by fixing his monthly income at Rs 4,000.

The driver, aggrieved by the poor compensation package, approached the high court.  Opposing enhancement of compensation, counsel for the insurance company said Murali could walk and his disability was only 60%. Even though he is incapable of driving, he can go for some other job, the insurance firm argued and sought dismissal of the appeal.

Justice Mahadevan, disagreeing with the findings of the Deputy Commissioner of Labour as well as the submissions of the insurance company’s counsel, said they had failed to discuss the applicability of “total disablement”.

The judge while distinguishing “disability” in medical parlance and “disability” vis-a-vis earning capacity, said, “Considering the injury on the hip, right leg and ankle, Murali can no longer drive a vehicle as he cannot exercise absolute control over it.”

Source: Times of India

Friday, November 29, 2013

Madras High Courts allows Transgender to write PSC Exams after PIL filed

Delighted on this news wherein the first bench of the Madras High Court upheld the right of Equality of the Transgender Community in the matters of employment under the State !


Congratulations to Swapna and yes the First Bench of the Hon'ble TN High  Court!



Here is the news from Times of India !


TN allows transgender to write PSC exam

A Subramani | TNN 


Chennai: It was a tiny relief for Swapna, but a giant leap for the entire transgender community. 

Thanks to the Madras high court, Swapna became the first person in the country to choose her own sex, and get a legal stamp for it, too. Her school and college certificates show her sex as ‘male’, but Swapna has now chosen to be socially recognised as a transgender and be officially treated as a ‘woman’. After she moved the court, state public service commission has now allowed her to write its recruitment test as a ‘woman’ candidate, which will make her eligible for posts such as deputy commercial tax officer and sub-registrar. 

She, along with four other members of the transgender community, filed a PIL in the high court with a twin prayer – one, to direct the Tamil Nadu government to reserve 3% of seats in education and employment for transgenders; two, to direct the Tamil Nadu Public Service Commission (TNPSC) to permit Swapna to sit for examination by treating her as a ‘woman’. 

On Wednesday, the TNPSC’s standing counsel handed over a hall ticket to Swapna, permitting her to write examination for Group-II posts to be held on December 1 as a ‘woman’ candidate. The venue where she received the hall ticket was no less significant – it was the first bench of the high court.

Source: Times of India 28 November 2013

Monday, September 2, 2013

Madras HC seeks report on prisoners with mental disabilities


Express News Service - MADURAI  31st August 2013 

Admitting a public interest litigation seeking treatment for mentally affected prisoners, the Madras High Court (Madurai Bench) has sought a report from the Superintendent of Prisons in Tamil Nadu about the conditions of the convicts and trial prisoners suffering from mental disorders.

The Principal Bench comprising of Acting Chief Justice R K Agrawal and Justice N Paul Vasantha Kumar has given two weeks time to the prison authorities to submit the report.

In his petition, N Muthukumar, deputy general secretary of Tamil Puligal, said he was arrested and confined a cell in Block No 1 in the Madurai Central Prison for participating in an agitation on June 13. During his stay in the jail, he noticed that prisoners lodged in Block 2 displayed some abnormalities. On enquiring with long-time inmates, he learnt that Block 2, was dubbed as ‘Maiyam’ (Centre) where prisoners of unsound mind were lodged.

There are 22 prisoners suffering from various psychological disorders and 13 convicts, who are insane, presently in the said block. Every day, prison authorities provide tablets to these inmates but no proper mental health treatment was given citing lack of infrastructure.

Only prisoners who were in advanced stage of mental illness were referred for treatment outside. Sometimes neurologists and psychiatrists visited them in their cells.

Petitioner’s counsel Alagumani contended that the Tamil Nadu Prison Rules, the Prisoner Act 1900 and the Mental Health Act 1987 clearly spell out how such prisoners must be treated. But this was violated grossly by the Madurai Prison authorities. In other prisons too similar conditions prevailed.

Hence he prayed for proper treatment for the mentally ill inmates.


Wednesday, January 23, 2013

Madras High Court reinstates conductor citing section 47 of Disabilities Act

Dear Colleagues,

It is little surprising that the corporations, government departments continue to disregard Section 47 of Indian Persons with Disabilities Act  1995 that provides as under:


"47. (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. "

Despite the clear cut provisions in the Act, Ravichandran, a conductor with the Tamil Nadu State Express Transport Corporation was declared medically unfit to continue in service by a medical board in 2004 and removed from service, though with an assurance of an alternate employment which was refused later.

The Court reinstated the conductor with back wages from the date of his termination citing Section 47 ibid.

Here is the news coverage.



Conductor sacked over disability, gets back job
TNN | Jan 23, 2013, 06.24 AM IST

CHENNAI: About nine years after a government bus conductor was removed from service on the ground of an unidentified 'disability', the Madras HC has ordered his immediate reinstatement with all salary arrears and service seniority.

Justice D Hariparanthaman, ruling on a petition filed by T M Ravichandran, said: "Any employee who acquires disability during his service is given protection under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. There is a mandate under the Act that no establishment shall dispense with a staff who acquires a disability during service."

Ravichandran, a conductor with the Tamil Nadu State Express Transport Corporation, was found 'medically unfit' to continue in service by a medical board of the Government General Hospital in Chennai on February 2, 2004. He was removed from service on August 16, 2004, with an assurance that he would be given an alternate employment based on the seniority list. On December 26, 2011, however, the corporation rejected his request for reinstatement, stating that no other suitable post was available.

Rejecting the transport authorities' stand, Justice Hariparanthaman said Section 47 contemplated that if there is no suitable post is available, the person should be kept on a supernumerary post till a vacancy arises or till his superannuation. "There cannot be any gap between the disqualification of an employee due to acquiring disability and adjustment in a suitable post," he said, setting aside the dismissal order. The judge then asked the authorities to reinstate Ravichandran in service within two weeks along with back wages from the date of his termination.

Friday, November 16, 2012

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

Wednesday, May 16, 2012

Madrash High Court questions Commissioner Disability on unfilled backlogs and shoddy implementation of PWD Act

Dear Colleagues,

I am very pleased to inform you that Hon'ble Justice S. Manikumar of  Madras High Court has taken the State Government and even the Commissioner Disabilities to task for not implementing reservations in employment and not clearing the backlog in employment of Persons with Disabilities. Hon'ble Justice has further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

One wonderful intitiative on the part of the Hon'ble Justice! And mind you, almost all dailies today are singing about what Ms. Jaylalita's Government has done for the disabled, to name a few:

(a) 20 early intervention centres for Visually Impaired childrein in age group of 0-6 years in 20 districts at 2 crores rupees cost
(b) Age limit of 45 reduced to 18 years to avail pension.
(c) Free vocational training in all 32 districts benefiting 2400 disabled
(d) Cash awad to pursue high education to Hearing impaired students
(e) Monthly maintennace allowance from Rs. 500 to 1000 to severally disabled

 You will appreciate there is nothing about employment for the disabled and filling up the backlog vacancies reserved for them under the Persons with Disabilities Act 1995. The Government seems only wanted to keep the disabled alive on some paltry sum of pensions an some vocational training. The education grants of no use if the Government is not serious in including them in the employment which is evident from the records.

I welcome this step and congratulate the residents with disabilities of Tamilnadu to have such a progressive Justice in the High Court of Madras.

Here is the media coverage from the Hindu:


Court takes on the role of messiah

MOHAMED IMRANULLAH S

Thousands of physically challenged people awaiting government jobs could heave a sigh of relief now as the Madras High Court has taken upon itself the task of making every State Government department, undertaking, university and other such organisations follow the statutory reservation of 3 per cent in letter and spirit.

Passing interim orders in a batch of writ petitions, Justice S. Manikumar has directed the Commissioner for Differently Abled to submit in court by June 9 an exhaustive list of details including the backlog vacancies that need to be filled up in every government institution ever since the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force in February 1996.

The judge also wanted the Commissioner to explain why the reservations for the physically challenged had not been implemented uniformly across all government controlled institutions even after 16 years since the Central enactment was passed.

He further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

Expressing deep concern over this attitude of the government officials, the judge said: “If some vacancies meant for Scheduled Castes or Scheduled Tribes or Most Backward Classes are left unfilled, many organisations, associations and even political parties would raise their voice, protest and agitate. But it is not so in the case of the differently abled. May be because, they do not command such a position in politics.”

He pointed out that as of March 31, 2011, a whopping number of 98,295 physically challenged people were in the ‘live register' of Employment Exchanges awaiting their chance for a government job. But unfortunately, they have been denied of their statutory right despite many court orders including the one passed by the First Bench of the High Court in a public interest litigation petition on February 17, 2011.

Mr. Justice Manikumar pointed out that the State Government had taken 10 years, since the legislation was enacted, even to begin identifying the posts meant for the physically challenged in Group A and B categories in the State Civil Services. The work began only in 2005 though it should have been kick started in 1996 itself and reviewed at periodic intervals not exceeding three years.

Thereafter, a series of meetings were held by the Union Ministry of Social Welfare and details were called from heads of various departments and boards, corporations and companies owned and controlled by the government. But many of them evaded from submitting the details.

It was also found that certain universities and educational institutions, in particular, had not followed the reservation policy.

“Right to live with dignity is a human right. Many of the disabled in India live in poverty and without employment, though educationally qualified. Delayed implementation of the statute is a deprivation of their statutory and Constitutional rights… Let us not forget that even a differently abled person would earnestly believe and expect that the words spoken and written be honoured,” the judge said.

He concluded by quoting Hellen Keller who said: “Science may have found a cure for most evils; but it has found no remedy for the worst of them all — the apathy of human beings.”

Though the present batch of writ petitions related to approval of three teachers appointed in C.S.I. High School for the Deaf at Kottaram in Kanyakumari district, the judge went beyond the scope of the case in order to ensure strict implementation of the 1996 Act.

Source: The Hindu

Thursday, April 5, 2012

Motor Vehicle Act 1988 doesn't prohibit PH to convert motor vehicles as invalid carriages

Dear Colleagues,

I had written in detailed earlier in my post titled  "Disabled and Driving - Can both exist together or at the cost of each other? about this issue and host of other issues troubling the disabled persons in India.

An adapted /altered Scooters or an adapted Car with suitable modification like hand brakes and gears provides an easy mobility to a user with orthopedic disabilities.

People with orthopedic disabilities (especially those with Post Polio Residual Paralysis and those with spinal injuries) often prefer a scooter with side-wheels which is an economic mode of transport. Since almost no major company produces such scooters (called an invalid carriage!!!) in India, people with disabilities have to get the fabrication done through local mechanics and fabricators etc.

Registration of modified car/scooter as "invalid carriage" is most difficult
Registering such vehicles and driving license to drive such (invalid carriage) is an uphill task as the rules and law do not specifically provide for this and leaves room for subjectivity and corrupt practices and it leads to exploitation of a user with disabilities at the hands of middlemen and RTOs.

Such an adapted vehicle is registered as ‘Invalid Carriage’ at the whims and fancies of the RTO. To harass the disabled applicants, the RTO often ask the user to produce a sale letter (form 21) of the Invalid Carriage. Now, since no automobile manufacturer in India supply company-fitted scooter with side wheels or produces an invalid carriage, such a sale letter can not be produced. Here starts the harassment to the user and malpractices in absence of laws due to subjectivity available with the RTOs.

Even when the carriage is registered, the user is given a driving license denoting the vehicle number on the license meaning that the user can not drive any other similar vehicle in case the vehicle goes out of order. This necessitates seeking a new driving license each time with a new vehicle (even if the vehicle is similar),

As per the Rule 126 made under Section 52 of the Motor Vehicles Act, 1988 (as amended in 2002) the prototypes of all vehicles including the one for the disabled should be approved by the Pune-based Automobile Research Association of India, otherwise no modifications on any vehicle can be permitted and one has to use a vehicle in the same shape and design as supplied by the manufacturing company. This puts an undue restriction on the persons with disabilities and takes away from them their right to free mobility.

Similar is the case for adapted Cars. Previously, Maruti Udyog Ltd. used to manufacture special type vehicles for handicapped persons with suitable modifications/ attachments. As the requirement of different persons with different disability varies, the modifications/attachments also have to be different. Since the prototype of each model has to undergo the test, under Rule 126 of CMV Rules, the manufacturer has stopped production of such vehicles. Hence it is desirable to allow modifications/alterations of vehicles enabling the handicapped to drive their own vehicles.

In such situations, several of our physically disabled friends who have been using their adapted / modified vehicles for their mobility and living a very active life despite their disability have faced harrassment from the RTOs.

Madras High Court provides a Ray of Hope
However, in the instant case, one C. Paulraj, a disabled farmer who modified a Maruti 800 to suit his needs was refused the registration of the vehicle as "invalid carriage" by the Local RTO. Paulraj had converted leg operated brake, clutch etc to hand operated ones since he can't use his legs for the purpose due to polio.

Justice D Hariparanthaman of Madras High Court has ordered that Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

The Honb'ble Justice clarified that changing the leg operated brake, clutch and accelerator into one of hand operation, would not cause a change in the basic feature of the vehicle and asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.

This is a welcome judgement from the High Court and I am sure this would give much needed relief who suffer in silence due to car makers not providing these options in their designs and they are forced to go to local fabricators to get the modifications done.

Here is the news report:

HC raps transport dept for not certifying disabled man’s car

CHENNAI: It is the state's responsibility to make available 'invalid carriages' for the benefit of the disabled, the Madras high court has said, adding that curtailing the mobility of a disabled would amount to perpetuating inequality.

While directing the authorities to issue registration certificate to C Paulraj, a disabled farmer who modified his Maruti 800 to suit his needs, Justice D Hariparanthaman said, "If the mobility of physically-challenged persons is curtailed, it would result in perpetuating inequality and the object of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 would be defeated."

The matter relates to the rejection of Paulraj's request to the regional transport officer of Tirunelveli seeking registration certificate for his new car. Paulrak is paralysed below his hip. He had earlier an autorickshaw modified and duly certified. He then purchased a car, which was also modified and duly certified. The problem arose when the RTO refused to certify his new car, on the grounds that only company-manufactured vehicles, and not modified versions, could be certified.

Justice Hariparanthaman, rejecting the submission, said that the Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

Pointing out that Paulraj had changed the leg operated brake, clutch and accelerator into one of hand operation, the judge said such changes would not cause a change in the basic feature of the vehicle. He then asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.

Saturday, July 5, 2008

Madras HC | WP No. 23379 of 2007 | LK Venkat & Anr. Vs. Min. of Civil Aviation & Others | 30 June 2008

Dear Friends, 

We often see the impact of Cases indirectly. Of late we have been seeing some enormous amount of activity in the DGCA and Ministry of Civil Aviation and their engaging very constructively with the Disability Sector in bringing about a Civil Aviation Requirement on carriage of People with Disability. 

In this regard, I refer to a case filed by Mr. L.K. Venkat & Rajiv Rajan against the Ministry of Civil Aviation, Air Sahara and Jet Airways etc. on the issue of lack of provisions for dignified flying for the disabled. The ministry drew flake for some time but this case surely was one of the factor in pushing the CAR guidelines more quickly from the tables of Ministry of Civil Aviation.   Finaly the HC hs delivered its judgement on Rajiv Rajan's Case against Min. of Civil Aviation. 

I am appending the judgement (courtesy Disability Legislation Unit-South) for your information and comments. 


In the High Court of Judicature at Madras 
Dated: 30-06-08 
Bench/ Coram: Mr. Justice P.K.MISRA And  Mr. Justice M.SATHYANARAYANAN 
 
Writ Petition No. 23379 of 2007 

IN RE:

 1.    Mr. L.K.Venkat 
 2.    Rajiv Rajan                                             ..Petitioners 
  
Versus 

  1. The Ministry of Civil Aviation Chennai Airport, Mennambakkam, Chennai. 
  2. The Secretary to Government Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 
  3. Air Sahara Airlines, Kamarajar Domestic Terminal, No.1, Link Building, Trisulam, Meenambakkam, Chennai-600 022 
  4. Chief Executive Air Sahara (now known as Jet Lite) S.M.Centre, Andheri Koria Road Andheri (East), Mumbai-400 059 
  5. Chief Executive Officer, Jet Airways (India) Ltd, S.M.Centrem Andheri Koria Road Andheri (East), Mumbai-400 059* 
  6. Director General of Civil Aviation Opposite to safdurjung Airport New Delhi 
  7. Chief Commissioner for Disablilities, Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi-110 001 

(Cause title amended as per order dt.13.2.2008 in M.P.No.1 of 2007 in w.p.23379 of 2007) 

                                                                            …Respondents 

Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus as stated therein. 

For Petitioners ….. Mr. P.B.Suresh Babu for Petitioners. 
For Respondents …. Mr. P.Wilson, Asst. Solicitor General for R1, R2,R6 & R7. 
M/S Guptha & Ravi for R3 to R5. 

 (Order of the Court was made by M.SATHYANARAYANAN, J) 

 The writ petition is filed in public interest for the issuance of writ of mandamus directing the respondents 1 to 3 to strictly implement the provisions of the persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (in short “the Act”).  Thereafter M.P.No1 of 2007 was filed to implead the second petitioner and respondents 4 to 7, it was ordered on 13.2.2008 and accordingly, second petitioner and respondents 4 to 7 came to be impleaded as parties to this writ petition. 

 2. The first petitioner is a physically challenged person and he is a Postgraduate degree holder in Master of Arts and also did graduation in Law. The petitioner is doing social services in the name of Makkal Thalaivar Iyya Moopanar Peravai by conducting Blood Donation Camps, Eye Camps, Aids Awareness Programmes and other social services especially in rural areas of all over Tamil Nadu. 

 3. The first petitioner through newspaper reports came to know that the third respondent refused to board to board the second petitioner who is similarly affected buy a Polio Syndrome like the petitioner, on account of the fact that he is a physically challenged person. The second petitioner approached the third respondent to find out the reason why he was not allowed to board the aircraft and he was informed that unless he obtained fitness certificate from a doctor and accompanied by a healthy person to assist him during air travel, he will not be allowed to board aircraft. 

 4. According to the petitioner, the attitude of the third respondent is in violation of Article 14 of the Constitution of India and also clear contravention to the above said Act. The petitioner also sent a notice through his lawyer on 23.06.2007 calling upon the respondents to implement the provisions of the above said Act and he was not favoured with any response. Therefore, the petitioner has filed this writ petition. 

 5. Mr. P.B.Suresh Babu, learned counsel appearing for the petitioners had made his submissions based on the averments made in the affidavit filed in support of the writ petition. The learned counsel for the petitioners also filed a memorandum in reply to the counter affidavit filed by the respondents 1 to 4. It is submitted by the learned counsel appearing for the petitioners that there were similar incidents pertaining to aircraft Sahara and Jet Airways and complaints have been lodged with Chief Commissioner, Disabilities and the said complaints are pending adjudication. It is further submitted by the learned counsel for the petitioner that persons with disabilities are facing discrimination and degrading treatment wherever they go., The rights of the disabled persons was first declared in U.N. Declaration on the rights of persons with disabilities in the plenary meeting held on 19.12.1975 and the said declaration is yet to be given full effect. 

 6. It is also submitted by the learned counsel appearing for the petitioner that the provisions of the Aircraft Act 1934 and the Indian Aircraft Rules 1937 have to be reviewed in the light of the Constitution of India and the various commitments with the Government of India as made in the International Forums. In spite of the existing law, the facts would now disclose that the degrading treatment shown by the airliners are give recurrent and had been in different forms. Therefore, the writ petitioner has prayed for a declaration that the persons with disabilities constitute a separate class by themselves distinct from the medical ill or temporarily disabled persons and for a direction to review the Legislation and Rules relating to Civil Aviation and the lines of this understandings and also for the other consequential reliefs. 

 7. The respondents 1 and 2 had filed counter affidavit. It is stated in the counter that as per Rule 24 A of Aircraft Rules 1937, the persons suffering from any mental disorder are prevented to be carried on board of the aircraft and it is subject to the provision which is as follows:- “(a) has not taken or used any alcoholic drink or preparation within 12 hours of the commencement of the flight; (b) is kept under proper sedative; if in a state of excitement, during the flight and stops enroute; and (c) is accompanied by an attendant, provided that in case he has been in a state of excitement requiring sedation within the 2 weeks preceding the date of commencement of the flight, he shall be accompanied by a registered medical practitioner and adequate escort who shall individually and collectively be responsible for ensuring that no alcoholic drink or preparation is taken by the person in their charge and that such person is kept suitable sedated during the flight and shops en-route.” It is further state in the counter that the said rule which allows disabled person to travel in an aircraft and the disabilities Act 1995, is already implemented in the Civil Aviation Sector and no discrimination is made against any disabled person. The Airport and aircraft have suitably been designed to have easy access to Airport and aircraft for the benefit of physically challenged persons. The Civil Aviation Requirement is being suitable amended in consonance with the Persons with Disabilities (Equal Opportunities Act) and necessary directions are contemplated to be issued to all the Airliners to facilitate the carriage of physically challenged passenger by air by virtue of the powers conferred under Rule 133-A of the Aircraft Rules, 1937. 

 8. During the course of arguments Mr. P.Wilson, learned Assistant Solicitor General has produced a circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation, New Delhi, wherein the Civil Aviation requirements in respect of carriage by Air to persons with disability and or persons with reduced mobility came to be issued. The salient features of the said circular are as follows:-

 “4.2 The airlines shall formulate a detailed procedure for carriage of disable persons or persons with reduced mobility and publish the same on their website.  
4.6 Many persons with disabilities do not require constant assistance for their activities. Therefore, if the passenger declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of a n escort. 
4.9. Persons with disabilities not holding any certificate shall also be provided necessary assistance as well as the aids such as wheel chairs, ambulifts etc. In such cases during ticketing / check-in the individuals’ degree of disability and his need for assistance may be confirmed. Airlines shall not refuse carriage in such cases. However, cost of such facilities may be borne by passengers requiring them. 
Medical Clearance:- 
 5.1: No Medical clearance or special forms shall be insisted from persons with disabilities or persons with reduced mobility who only require special assistance at the airport for assistance in embarking /disembarking and a reasonable accommodation in flight, who otherwise do not require any additional assistance. 
5.2: A medical clearance by the airline may be required only when the airline has received information that the passenger a) suffers from any disease, which is believed to be actively contagious and communicable: b) who, because of certain disease, or incapacitation may have or develop and adverse physical condition which could have an adverse effect during flight and on safety and emergency evacuation procedures: c) would require medical attention and / or special equipment to maintain their health during the flights; d) there exists a possibility of medical condition aggravated during or because of the flight; Note: Persons with specific disabilities should plan to have all required forms for assistance ready in advance, to avoid flight delays. Forms and information will be made available on each airline’s website. 
5.3: Any passenger having any of the conditions mentioned in 5.2(a) through 5.2(d) be subjected to prior clearance for air travel by the medial departments /advisors of the carrying airlines. In case the passenger has a connecting flight with another airline, this medical clearance should be accepted at the first point of check-in and the information transmitted by the first Airlines to the connecting airlines so that the passenger is not required to furnish the same again and again. 
5.4: Before refusing carriage of any such passengers, the airlines shall refer to their medical departments /advisors for advise/clarification in accordance with a procedure, which shall be documented by the airlines. For such clearance the airline may seek the necessary medical information from the passenger(s) concerned or their representatives. Any forms for such information to be provided to the passengers by the airline staff will be made available on the airline’s website. 
5.5: The airline shall enter for each person with disabilities or person with reduced mobility or incapacitated passenger the information sheet requiring special assistance. Notes:1 – The airline shall establish a procedure for expeditious clearance by their medical departments, where required, to avoid delays causing inconvenience to passengers. Airlines shall provide necessary forms and procedures on their web-sites and through their call-centers/ agencies to make the process simple. The passengers should pre=clear themselves with the airline in advance. Notes:2 - The airline shall ensure that at time of check in airline staff is alerted and shall verify that all needs required by such passenger in advance in the relevant forms have been made available. 
Notes:3 – The procedures involving medical clearance shall be documented and published in each airline’s web-sites.  
Boarding, Seating and Briefing:- 
7.1: Boarding:-
a) The presence of all categories of incapacitated passengers and persons with disabilities or reduced mobility with their escorts and any special arrangements made for them while on board, shall always be referred to the captain/senior cabin crew member.
b) Incapacitated passengers and persons with disabilities or reduced mobility and their escorts shall be offered pre-boarding facilities.
c) If passengers for any reason have to be offloaded, the highest possible priority for transportation shall be given to persons with disability or persons with reduced mobility, and to their escorts. 

9. The said circular also provides for complaint procedure. As per the said procedure, a disabled person or person with reduced mobility who considers that this regulation has been infringed may bring to the attention of the managing body of airlines, airport or other concerned authorities, as the case may be and on receipt of such a complaint, shall ensure speedy and proper redressal of these complaints. 

10. Mr. P.Wilson, learned Assistant Solicitor General of India has submitted that in view of the said circular which came to be issued with affect from 1.5.2008, the grievance expressed by the petitioners and persons similarly placed have been taken into account and appropriate remedial measures have been provided and hence nothing survives in the writ petition. 

11. Mr. Ravi, learned counsel appearing for the respondents 3 to 5 has drawn the attention of this court to the averments made in the counter affidavit filed by the third respondent. According to the learned counsel, when the second petitioner was brought to check-in counter the shift in-charge of the third respondent attended him and found that the passenger was not fit to travel by air and that nobody had accompanied him and that he was asked for a fitness certificate. However, he gave irrelevant answers and also later started shouting at the staff in an abnormal way. It is further submitted by the learned counsel appearing for the respondents 3 to 5 that the respondents 3 to 5 had fully complied with the provisions of Indian Aircraft Rules 1937 as well as IATA medical manual. It is further submitted by the learned counsel that the second petitioner had invoked the jurisdiction of the State Consumer Redressal Forum by filing C.C.NO.37 of 2007 claiming compensation and the same was dismissed for default. As respondents 3 to 5 had complied with the laws applicable to them, the learned counsel for the respondents 3 to 5 submits that the present writ petition lacks merits and is liable to the dismissed. 

12. We have considered the submissions made by the respective counsel appearing for the parties and also perused the affidavit filed in support of the writ petition, counter affidavits, reply to the counter affidavit filed by the parties and also the circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation. 

13. A perusal of the circular dated 2.5.2008 issued by the Director General of Civil Aviation would reveal that positive steps have been taken to alleviate the grievances of physically challenged persons in right earnest by the Director General of Civil Aviation and we hope and trust that further progress will definitely be made by the concerned authorities to redress the day to day problems faced by the physically challenged persons while they travel by air. 

14. The second petitioner herein has filed a complaint before the State Consumer Disputes Redressal Forum, Chennai in C.C.No. 37 of 2007, which came to be dismissed for default after the filing of this writ petition. The second petitioner was under the bona fide belief that he can get all reliefs in this writ petition and hence, allowed the said complaint to be dismissed for default. The alleged agony undergone by the second petitioner on 18.06.2007 was seriously disputed by the third respondent in its counter affidavit and aggrieved by the same, originally the second petitioner had filed the above said complaint before the State Consumer Disputed Redressal Form, which came to be dismissed for default as the second petitioner felt that in view of his impleadment in the writ petition, he cannot prosecute the said complaint. 

15. The question as to whether such person would be entitled to receive compensation obviously depends upon many factual findings based on evidence and the High Court is ill-equipped to deal with those aspects. However, we feel that the second petitioner should not suffer on that account and in the interest of justice, we feel; that without any application, the complaint in C.C.No. 37 of 2007 which was dismissed for default, can be restored to file and decided on its own merits. 

 16. We heard the learned counsel appearing for the respondents 3 to 5, who very fairly submitted that such an order of restoration can be passed in this writ petition itself. Accordingly, C.C.No.37 of 2007 filed by the second petitioner before the State Consumer Disputes Redressal Forum, Chennai, which was dismissed for default, stands restored to its file and it can be disposed of on its own merits. 

17. The circular dated 2.5.2008, issued by the Director General of Civil Aviation is an effective step in a right earnest. We feel that more effective steps have to be taken to alleviate the grievance of persons who are physically challenged and we hop and trust that such steps will definitely be on the cards. The writ petition is disposed of on the above terms. In the circumstances, there will be no order s to costs.

 Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar Gr. 

 To 
1. The Ministry of Civil Aviation, Chennai Airport, Meenambakkam, Chennai. 
2. The Secretary to Government, Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 
 3. Air Sahara Airlines, Kamarajar Domestic Terminal. No.1, Link Building, Trisulam, Meenambakkam,Chennai-600 022 
 4. Chief Executive, Air Sahara (now known as Jet Lite). S.M.Centre, Anhjeri Koria Road, Andheri (East), Mumbai – 400 059. 
 5. Chief Executive Officer, Jet Airways (India) Ltd., S.M.CentreAndheri Koria Road, Andheri (East), Mumbai-400 059. 
 6. Director General of Civil Aviation opposite to Safdurjung Airport, New Delhi. 
 7. Chief Commissioner for Disabilities , Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi – 110 001. 

 1 cc To Mr. P.Wilson, Advacate, SR.33533. 
1 cc To Mr. Gupta & Ravi, Advocate, SR.33150 
1 cc To Mr. P.B.Suresh Babu, Advocate, SR. 33188. w.p.no.23379 of 2007 nsm(co) 
RVL 11.07.2008