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.