Showing posts with label Protections under Section 47(1) on acquiring a disability. Show all posts
Showing posts with label Protections under Section 47(1) on acquiring a disability. Show all posts

Wednesday, September 14, 2022

Andhra Pradesh HC- Disability acquired during employment makes employee entitled to continued alternate employment; Also entitled to backwages & arrears for interregnum period as Corportation failed to dischare its statutory duty

Court: Andhra Pradesh High Court, India

Bench: Hon'ble Sri Justice Ravi Nath Tilhari

Case Number: Writ Petition No. 5486 of 2011

Case TitleSri Ch.S. Rajeswara Rao Vs. Govt., of A.P. rep. by Principal Secretary, Transports Department and others.

Date of Judgement: 14 September 2022

Judgements cited/reffered: 

(a) Bhagwan Dass and another vs. Punjab State Electricity Board [2008(1) SCC (L&S) 242]

(b) K. Moses vs. A.P.S.R.T.C [W.P.No.3031 of 2008 decided on 01.11.2010]

(c) Laxmi Kant Sharma vs. State of U.P and 5 others.  [2018 LawSuit (All) 1355]

(d) Andhra Pradesh State Road Transport Corporation rep., by its Managing Director and others vs. B.S. Reddy

(e) Kunal Singh Vs. Union of India (SC judgement 13 Feb 2003 in Appeal (civil) 1789 of 2000)

Brief

The petitioner was working as a Conductor in the Corporation. He was appointed as a casual labour in April, 1984 and his services were regularized in the year 1987. While he was on duty, he met in an accident and undergone a surgery of spinal cord in which his two discs were removed. On the ground of medical unfitness he was retired from the service on 21.07.2001. 

Challenging the order dated 21.07.2001 the petitioner filed Case No.165 of 2005 before the State Commmissioner for Persons with Disabilities. The Commissioner vide order dated 25.09.2006 allowed the said case, setting aside the impugned proceedings dated 21.07.2001 and directed the Corporation to consider the petitioner’s claim de-novo in the light of Section 47 of the Act, 1995. The petitioner was, therefore continued as conductor and his services were utilized at Bus Pass Station, Governorpet-I Depot vide orders dated 15.02.2007 and 21.02.2007. 

The present dispute is for payment of salary from 21.07.2001 upto 21.02.2007 during which period the petitioner remained out of service on account of his retirement imposed by the Corporation on the ground of medical unfitness. 

The petitioner submitted that in view of the statutory provisions of Section 47 of the Act, 1995, the petitioner ought to have been offered alternative employment to some other post with the same pay scale and service benefits. The petitioner is entitled to receive the salary for the interregnum period.

The Bench highlighting the benevolent provisons of section 47 said, "Section 47(1) is clear in terms that "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The proviso to Section 47(1) in fact confers a right on an employee, who acquired disability and was declared unsuitable for the post he was holding, for being shifted to some other post with the same pay scale and service benefits. By that proviso, not only the alternate employment but also the pay scale and the service benefits are also protected."

The bench further said, "so far as the payment of arrears of salary for the period in question is concerned, the petitioner was not at fault for not discharging the duties during the interregnum period for which the corporation was responsible as it failed to discharge its statutory duty. The petitioner cannot be deprived of the salary for the period claimed and cannot be made to suffer for the fault of the corporation. Under the Act, it was the statutory duty of the Corporation not to throw the petitioner out of service but to provide the alternative employment to some other post with the same pay scale and service benefits and if there was no such post available the supernumerary posts should have been created.

Citing the case of State of U.P Vs. Dayand Chakravary and others [(2013) 7 SCC 595], the Hon’ble Apex Court held that the principle of ‘no work no pay’ shall not be applicable to such employee who is prevented by the employer from performing his duties as the employee cannot be blamed for having not worked.

Allowing the writ petition, the bench directed the respondent Corporation to pay full salary to the petitioner for the period w.e.f  21.01.2001 upto 21.02.2007 after calculating the same as per the pay scale applicable to the post of Conductor for the relevant period. It further directed that the arrears shall be paid within a period of two months from the date of production of copy of this judgment before the respondent-Corporation along with simple interest thereon @ 6% p.a w.e.f 21.02.2007 upto the date of payment. If consequent upon the addition of the increments as aforesaid for the aforesaid period, some more arrears of salary become due to the petitioner for subsequent period also i.e after 21.02.2007, the same shall also be paid to the petitioner after adjusting the amount of salary paid to the petitioner, within the same period as aforesaid.

Read the judgement embedded below:

Wednesday, March 31, 2010

Supreme Court | Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors | 31 March 2010

Court: Supreme Court of India

Bench: R.V. Raveendran, R.M. Lodha, C.K. Prasad

Case No. : Civil Appeal No. 1886 OF 2007

Case Title: Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors

Date of Judgement: 31 March, 2010

Author: R V Raveendran

Acts Involved: The Persons with Disabilities Act 1995;  


---------------

                                                                         Reportable

                 IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO.1886 OF 2007

Dalco Engineering Private Ltd.                        ... Appellant

        Vs.

Shree Satish Prabhakar Padhye & Ors.                  ... Respondents


                                    WITH


                   CIVIL APPEAL NO. 1858 OF 2007

Fancy Rehabilitation Trust & Anr.                     ... Appellant

Vs.

Union of India & Ors.                                 ... Respondents

                             JUDGMENT

R. V. RAVEENDRAN, J.

Facts in CA No.1886/2007 :

The appellant is a private limited company incorporated under the provisions of the Companies Act, 1956. The respondent - S.P. Padhye - (also referred to as `the employee') was employed as a Telephone Operator by the appellant for more than two decades. The respondent's service was terminated by the appellant with effect from 31.12.2000 on the ground that he had become deaf (85% reduction in ability to hear). The respondent complained to the Disability Commissioner, Pune, in regard to such termination, alleging that he was fit, able and normal when he joined service of the appellant and as he acquired the hearing impairment during the period of service, he should have been continued in employment in some suitable post. The Disability Commissioner made an order dated 12.10.2001 suggesting to the employer to undertake a social responsibility, by re- employing the respondent to discharge any other work. The suggestion was not accepted by the employer.

2. According to the respondent, the Commissioner, instead of making a mere suggestion, ought to have issued a direction to the employer, in exercise of jurisdiction under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`the Act', for short). He therefore filed a writ petition seeking the following reliefs (i) quashing of the order dated 12.10.2001; and (ii) a direction to implement the provisions of the Disabilities Act by directing the employer to reinstate him in service in a suitable post, with retrospective effect from 1.1.2001, in the same pay-scale and service benefits. The High Court allowed the said writ petition by judgment dated 23.12.2005, and directed the employer to reinstate the respondent and shift him to a suitable post with the same pay-scale and service benefits and with full back-wages. The High Court held that the appellant, though a private limited company, was an "establishment" as defined under section 2(k) of the Act and consequently section 47 of the Act enjoined it not to dispense with the services of its employee who acquired a disability.

Facts in CA No.1858/2007 :

3. The first Appellant is a Public Trust (for short the `Trust') working for the benefit of the physically and mentally challenged persons, took up a house-keeping contract from the third respondent Company on 24.7.2000. The appellant employed several physically handicapped persons for executing the said contract. The third respondent terminated the appellant's contract on 18.7.2006. Feeling aggrieved, the appellant filed a complaint dated 22.7.2006 with the Disability Commissioner, Pune followed by a writ petition in the High Court for quashing the notice terminating the contract. The appellant also sought a direction for rehabilitation of the persons with disabilities who were employed by it for executing the said house-keeping contract, under the provisions of the Act. A Division Bench of the Bombay High Court by judgment dated 19.9.2006 dismissed the writ petition holding that the third respondent was not an "establishment" within the meaning of section 2(k) of the Act and, consequently, the provisions of the Act did not apply and that the Disability Commissioner had no jurisdiction to issue any direction to the third respondent. It also held that the earlier decision in S.P. Padhye (which is the subject matter of the first case) was per incuriam as it ignored two binding decisions of this court - the Constitution Bench decision in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [1975 (1) SCC 421] and the decision in S.S. Dhanoa v. Municipal Corporation, Delhi [1981 (3) SCC 431]. Feeling aggrieved, the appellants have filed this appeal. Questions for decision

4) The employee relies on section 47 which provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. Section 47 of the Act is extracted below :-

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

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

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

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

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

The term "establishment" employed in section 47 is defined in section 2(k) of the Act as follows :

"2. Definitions.--In this Act, unless the context otherwise requires, --

xxxxx

(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;"

5. The question is, having regard to the definition of the word `establishment' of section 2(k) of the Act, whether the requirement relating to non-discrimination of employees acquiring a disability during the course of service, embodied in Section 47, is to be complied with only by authorities falling within the definition of State (as defined in Article 12 of the Constitution), or even by private employers. This leads us to the following two questions:-

(i) Whether a company incorporated under the Companies Act (other than a Government company as defined in section 617 of the Companies Act, 1956) is an "establishment" as defined in section 2(k) of the Act ?

(ii) Whether the respondent in the first case and the appellant in the second case are entitled to claim any relief with reference to section 47 of the Act ?


Re: Question (i)

6. Let us examine the meaning of the crucial word `establishment' used in sub-section (1) of section 47 of the Act. The definition of the word `establishment' in section 2(k), when analyzed, shows that it is an exhaustive definition, and covers the following categories of employers:

(i) a corporation established by or under a Central, Provincial, or State Act;

(ii) an authority or a body owned or controlled or aided by the Government;

(iii) a local authority;

(iv) a Government company as defined in Section 617 of the Companies Act, 1956; and

(v)  Departments of a Government.

It is not in dispute that the employers in these two cases are companies incorporated under the Companies Act, 1956 which do not fall under categories (ii) to (v) specified in Section 2(k) of the Act.

7. The employee contends that a company incorporated under the Companies Act is a Corporation falling under the first category enumerated in section 2(k), that is `Corporation established by or under a Central, Provincial or State Act', on the following reasoning : that a corporation refers to a company; that Companies Act is a Central Act; and that therefore a company incorporated and registered under the Companies Act is a Corporation established under a Central Act. He contends that the use of the words "by or under" is crucial. According to him, `a corporation established by an Act' would refer to a corporation brought into existence by an Act; and a `corporation established under an Act' would refer to a company incorporated under the Companies Act. On the other hand, the employer contends that the term `Corporation established by or under a Central, Provincial or State Act' refers to a statutory Corporation which is brought into existence by a statute, or under a statute and does not include a company which is registered under the Companies Act. It is submitted that Companies Act merely facilitates and lays down the procedure for incorporation of a company which, when incorporated, will be governed by the provisions of the said Act and therefore, a company registered under the Companies Act, is not a corporation established under an Act.

8. The words "a Corporation established by or under a Central, Provincial or State Act" is a standard term used in several enactments to denote a statutory corporation established or brought into existence by or under statute. For example, it is used in sub-clause (b) of Clause Twelfth of Section 21 of the Indian Penal Code (`IPC' for short) and Section 2(c)(iii) of the Prevention of Corruption Act, 1988 (`PC Act' for short). Both these statutes provide that a person in the service of a `Corporation established by or under a Central, Provincial or State Act' is a public servant. The Prevention of Damage to Public Property Act, 1984 defines `public property' as meaning any property owned by, or in the possession of, or under the control of (i) the Central Government (ii) any state government; or (iii) any local authority; or (iv) any corporation established by, or under, a Central, Provincial or State Act; or (v) any company as defined in Section 617 of the Companies Act, 1956; or (vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in that behalf provided that the Central Government shall not specify any institution, concern or undertaking under that sub- clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly by one or more State Governments. Thus the term is always used to denote certain categories of authorities which are `State' as contrasted from non-statutory companies which do not fall under the ambit of `State'.

9. The meaning of the term came up for consideration in S. S. Dhanoa vs. Municipal Corporation, Delhi and Ors. - 1981 (3) SCC 431 with reference to section 21 of IPC. This Court held:

"Clause Twelfth does not use the words "body corporate", and the question is whether the expression "corporation" contained therein, taken in collocation of the words "established by or under a Central, Provincial or State Act" would bring within its sweep a cooperative society. Indubitably, the Cooperative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word 'under' occurring in Clause Twelfth of Section 21 of the Indian Penal Code makes a difference. Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of Clause Twelfth of Section 21. In our opinion, the expression 'corporation' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.

A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership. ........ The term 'corporation' is, therefore, wide enough to include private corporations. But, in the context of Clause Twelfth of Section 21 of the Indian Penal Code, the expression 'corporation' must be given a narrow legal connotation.

Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a Company under the Companies Act or a Society under the Societies Registration Act owes its existence not to the Act of Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature.

There is a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought out by this Court in Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi & Ors - (1975) 1 SCC 421. It was observed :

A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act.

There is thus a well-marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute."

(emphasis supplied) In Executive Committee of Vaish Degree College v. Lakshmi Narain - 1976 (2) SCC 58, this Court explained the position further:

"In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such case to be asked is, if there is no statute, would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body."

[emphasis supplied]

10. A `company' is not `established' under the Companies Act. An incorporated company does not `owe' its existence to the Companies Act.

An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a `company' is incorporated and registered under the Companies Act and not established under the Companies Act. Per contra, the Companies Act itself establishes the National Company Law Tribunal and National Company Law Appellate Tribunal, and those two statutory authorities owe their existence to the Companies Act.

11. Where the definition of `establishment' uses the term `a corporation established by or under an Act', the emphasis should be on the word `established' in addition to the words `by or under'. The word `established' refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between `established by a central Act' and `established under a central Act'? The difference is best explained by some illustrations. A corporation is established by an Act, where the Act itself establishes the corporation. For example, Section 3 of State Bank of India Act, 1955 provides that a Bank to be called the State Bank of India shall be constituted to carry on the business of banking. Section 3 of Life Insurance Corporation Act, 1956 provides that with effect from such date as the Central Government may by notification in the Official Gazette appoint, there shall be established a corporation called the Life Insurance Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act". We may next refer to the State Financial Corporation Act, 1951 which provides for establishment of various Financial Corporations under that Act. Section 3 of that Act relates to establishment of State Financial Corporations and provides that the State Government may, by notification in the Official Gazette establish a Financial Corporation for the State under such name as may be specified in the notification and such Financial Corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from a non-statutory corporation incorporated or registered under the Companies Act.

12. There is indication in the definition of `establishment' itself, which clearly establishes that all companies incorporated under the Companies Act are not establishments. The enumeration of establishments in the definition of `establishment' specifically includes "a Government Company as defined in Section 617 of the Companies Act, 1956". This shows that the legislature, took pains to include in the definition of `establishment' only one category of companies incorporated under the Companies Act, that is the `Government Companies' as defined in Section 617 of the Companies Act. If, as contended by the employee, all Companies incorporated under the Companies Act are to be considered as `establishments' for the purposes of Section 2(k), the definition would have simply and clearly stated that `a company incorporated or registered under the Companies Act, 1956' which would have included a Government company defined under Section 617 of the Companies Act, 1956. The inclusion of only a specific category of companies incorporated under the Companies Act, 1956 within the definition of `establishment' necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of `establishment'. It is clear that the legislative intent was to apply section 47 of the Act only to such establishments as were specifically defined as `establishment' under section 2(k) of the Act and not to other establishments. The legislative intent was to define `establishment' so as to be synonymous with the definition of `State' under Article 12 of the Constitution of India. Private employers, whether individuals, partnerships, proprietary concerns or companies (other than Government companies) are clearly excluded from the `establishments' to which section 47 of the Act will apply.

13. There is yet another indication in section 47, that private employers are excluded. The caption/ marginal note of section 47 describes the purport of the section as non-discrimination in Government employment. The word `government' is used in the caption, broadly to refer to `State' as defined in Article 12 of the Constitution. If the intention of the legislature was to prevent discrimination of persons with disabilities in any kind of employment, the marginal note would have simply described the provision as `non-discrimination in employment' and sub-section (1) of section 47 would have simply used the word `any employer' instead of using the word `establishment' and then taking care to define the word `establishment'. The non-use of the words `any employer', and `any employment' and specific use of the words `Government employment' and `establishment' (as defined), demonstrates the clear legislative intent to apply the provisions of Section 47 only to employment under the State and not to employment under others. While the marginal note may not control the meaning of the body of the section, it usually gives a safe indication of the purport of the section to the extent possible. Be that as it may.

14. The learned counsel for the employee submitted that the decision in Dhanoa was rendered with reference to a penal statute; and that words or terms in such statutes are used in a restrictive and strict sense. He contended that definition of words and terms in a penal statute will not provide a safe guide to interpret the same words employed in socio-economic legislations. He further contended that the terms used in a socio-economic statute like Disabilities Act, providing for full participation and equality, for people with disabilities and to remove any discrimination against them vis-`-vis non- disabled persons, should be interpreted liberally. He submitted that any interpretation of the term `a corporation established by or under a central, provincial or state Act' with reference to the Penal Code should not therefore be imported for understanding the meaning of that term when used in the Act. He referred to and relied upon the Statement of Objects and Reasons of the Act which states that India as a signatory to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, enacted the Statute to provide for the following :

(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-`-vis non-disabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and

(vi) to make special provision of the integration of persons with disabilities into the social mainstream."

He submitted that keeping the said objects in view, the term `establishment' should be extended to all corporations incorporated under the Companies Act 1956, irrespective of whether they are in the public sector or private sector.

14.1) He also relied upon the following principle of contextual interpretation enunciated by this Court in Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd., - 1987 (1) SCC 424:

"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say is the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. The interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."

14.2) He next relied upon the principle that words in a social welfare legislation should receive liberal and broad interpretation, stated by this Court in Workman of American Express International Banking Corporation v. Management of American Express International Banking Corporation - 1985 (4) SCC 71 :

"The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the `colour', the `content' and the `context' of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds - 1971 (3) All ER 237). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court (1981) 1 SCR 789, we had occasion to say, Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."

14.3) He next relied upon the following observations in Kunal Singh v. Union of India - 2003 (4) SCC 524, where this Court, referring to the very section under consideration, observed thus :

"Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."

15. We agree that the socio-economic legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpreting socio-economic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of `state' under Article 12). Express limitations placed by the socio-economic statute can not be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any other socio-economic legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted from non-statutory companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the Constitution between statutory corporations which are `state' and non-statutory bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in all non-statutory companies and private sector companies being included in the definition of `State' thereby requiring them to comply with the requirements of non- discrimination, equality in employment, reservations etc.

16. The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to contend that obligations/duties/ responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under section 2(k) of the Act. It was submitted that section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons with disabilities. In fact, it is not so. Though, the marginal note of section 29 uses the words `all educational institutions' with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons with disabilities. It is well recognized that an aided private school would be included within the definition of `State' in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions. Further, section 39 of the Act, does not use the word `establishment'. Reference is next made to the section 44 which requires non-discrimination in transport. This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons with disabilities. The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of section 2(k) of the Act or non- statuary corporations, or even individuals operating in the transport sector should comply with section 44 of the Act. We do not propose to consider whether Section 44 applies to non-statutory corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it may.

Re : Question (ii)

17. As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act, section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability. Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under section 47 of the Act.

18. Therefore CA No. 1886 of 2007 is allowed and CA No. 1858 of 2007 is dismissed resulting in the dismissal of the respective writ petitions. This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law.


_____________________J.    (R.V. RAVEENDRAN)

 _____________________J.   (R. M. LODHA)

  _____________________J.  (C. K. PRASAD)

                                                         

New Delhi.                                     

March 31, 2010.                                         

Friday, January 4, 2008

Supreme Court | Bhagwan Dass & Anr Vs. Punjab State Electricity Board | 04 Jan 2008 | Section 47 of PWD Act 1995

Court:  Supreme Court of India

Bench: Hon'ble G.P.Mathur, Hon'ble Aftab Alam, Justices

Case No.: Appeal (Civil)  8 of 2008   [Arising out of SLP) No.26357/2005] 

Case Title: Bhagwan Dass & Anr vs Punjab State Electricity Board 

Date of Judgement: 4 January, 2008

Author: A Alam, J.


JUDGMENT:

Leave granted.

This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of appellant No.1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous.

The facts of the case are brief and are all taken from the (Reply) Affidavit filed on behalf of the Punjab State Electricity Board and its officers (the respondents in the appeal). Appellant No.1 joined the respondent Board on July 19, 1977, on ad-hoc/work-charged basis. His services were regularized as an Assistant Lineman on June 16, 1981. While in service he became totally blind on January 17, 1994 and a certificate to that effect was issued by the civil surgeon, Faridkot.

Here, it may be noted that the rights of an employee who acquires a disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 reads as follows : 

"47. Non-discrimination in Government employments.  (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.  

It may further be noted that the import of Section 47 of the Act was considered by this court in Kunal Singh vs. Union of India & Anr. [2003 (4) SCC 524] and in paragraph 9 of the decision it was observed and held as follows :

"Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employee shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." (Emphasis added) 

After the Act came into force with effect from December 7, 1996 (vide S.O.107(E) dated 7th February, 1996), the Government of Punjab, Department of Personnel and Administrative Reforms, issued a letter dated September 24, 1996 directing all the heads of departments to comply with Section 47 of the Act. The Punjab State Electricity Board too adopted the Government letter under its Circular No.6/97, dated February 17, 1997.

In view of Section 47 of the Act and the Circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the appellant the Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the appellant was declared completely blind on January 17, 1994 he was not covered by the provisions of the Act that come into force on February 7, 1996. Such plea can not be raised because on February 7, 1996 when the Act came into force the appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act.

Coming now to the reason assigned by the Board to deny him the protection of Section 47 of the Act, it is stated on behalf of the respondents that he remained absent from duty without any sanctioned leave from January 18, 1994 to March 21, 1997. He was directed by the Executive Engineer to resume duties vide Memo No.412, dated March 16, 1994 and Memo No.6411, dated August 4, 1994. He, however, failed to report for duty and on September 13, 1994, a charge sheet was issued initiating disciplinary proceedings against him for gross misconduct under regulation 8 of the Punjab State Electricity Board Employees Punishment & Appeal Regulation 1971. The matter appears to have lain dormant for sometime and then it is stated that the appellant by his letter dated July 17, 1996 requested the Board to retire him from service. As a matter of fact by this letter the appellant sought to explain his absence from duty and requested that his wife might be employed in his place. But it was made the basis for denying the appellant his lawful dues. Since the whole case of the respondents is based on this letter it would be appropriate to reproduce it in full :

"Sir, I explain as under the subject cited unnatural happening which I met, When I was returning home after performing my duty on 17-1-94 then vision of my eyes lessened suddenly. I got treatment from far and near for eye-sight/lessening of vision of my eyes. But I became completely blind. Now I cannot perform my hard work duty. I want to retire from service. I may be retired and my wife may be provided with suitable job against me. Yourself will be genesis to me." (Emphasis added) 

At this stage some internal correspondences took place between the officers of the Board over the question how to deal with the appellant. On July 10, 1997, the Senior Executive Engineer (OP) Division, Malout wrote to the Deputy Chief Engineer, Operation Circle, Muktsar, asking for instructions in the matter. Paragraphs 2, 3 and 4 of the letter are relevant and are reproduced below :

"2) As per report of Medical Board the official is unfit for duty, he cannot perform any duty.

3) But as per instructions contained in Punjab Government Memo No.17/16/94-5 PP-1/6546 adopted by PSEB vide its Circular No.6/97 the official/officer it (sic is) not to be retired from service who become disable during service.

4) The official has represented that he may be retired from duty and his wife be provided with suitable job."

The Senior Executive Engineer received the reply from the Secretary of the Board vide letter dated February 17, 1998 in which he was advised as follows :

"It is advisable to retire the official as per rules and regulations of the Board if the employee is not otherwise interested in taking the benefit of Board's Circular No.6/97.

For the purpose of clarification as to whether employee is entitled to the benefits, otherwise admissible under rules/regulations of the Board in preference to Benefits admissible under Circular No.6/97, if he so desires, can be obtained from the Office concerned which issued said circular." 

Later on, the charge-sheet issued against the appellant was withdrawn by the Senior Executive Engineer vide Office Order No.14, dated January 13, 1999 and the appellant was asked to submit leave application for the period of absence.

Next in series is a letter, dated November 15, 1999, from the Director/IR, PSEB, Patiala to the Senior Executive Engineer, (OP) Division, Malout. In this letter it was stated as follows :

"As per cited subject it is made clear that employee who is blind shall not be retired as per instructions of the Board. But is (sic. if) such employee himself make request for retirement then he can be given retirement on medical ground." 

Finally, the Senior Executive Engineer, issued Office Order No.559, dated December 14, 1999, by which the appellant was relieved from service with effect from March 21, 1997 (the date of issuance of Medical Certificate) as per Rule 5.11 of Civil Services Rules-Vol.II.

It appears that the appellant protested against the action of the Board in relieving him from service and made representations. The representations, it seems, were forwarded to the superior authorities and the Board's decision was communicated to the Senior Executive Engineer vide letter dated February 18, 2000 from the Director/IR, PSEB, Patiala. The contents of the letter are as follows : 

"With regard to cited subject it is made clear that there are instructions of the Board on which blind employee is not liable to be retired. But in the case of Shri Bhagwan Dass ALM advice of retirement was given as he himself made request for his retirement on Medical Ground. So the case of this employee is not likely considered for his rejoining of duty."

The appellant then filed an affidavit before the concerned officers. A copy of the affidavit is at Annexure R-12 to the respondents' affidavit. In the affidavit he pathetically pleaded that he had no knowledge about the Rules of the Electricity Board and represented for retirement unknowingly. He further stated that when he came to know that there was no need for retirement for those who were disabled during service he again represented that he might not be retired and might be retained in service as per the instructions of the department. The affidavit did not evoke any response but the severance was completed by making payment of his terminal dues.

The disabled employee then approached the Punjab & Haryana High Court in Civil Writ Petition No.12534 of 2004 seeking relief in terms of section 47 of the Act and the Circulars issued by the State Government and the Board in its furtherance. In the writ petition he was joined by his son, appellant No.2, and an alternative relief was sought for employment of his son in his place. Unfortunately, before the High Court it was the second relief that came into focus and the High Court dismissed the writ petition by a brief order referring to the decision of this Court in Umesh Nagpal vs. State of Haryana [1994 (3) SCT 174]. 

In the High Court order there is no mention of Section 47 of the Act and the disabled employees' claim/right on that basis. Against that order this appeal is preferred in which the disabled employee agitates his rights on the basis of Section 47 of the Act. From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable. 

We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.

In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.

In the result the appeal is allowed with costs quantified at Rs.5,000/-.


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Thursday, February 13, 2003

Supreme Court Judgement : Kunal Singh Vs. Union of India & Anr | 13 Feb 2003 | Section 47 of PWD Act 1995

Court: Supreme Court of India

Bench: Hon'ble Justice Shivaraj V. Patil, and Hon'ble Justice H.K. Sema

Case No.: Appeal (civil)  1789 of 2000

Caste Title:   Kunal Singh  Vs. Union of India & Anr.

Date of Judgement:  13 February 2003

Act/Law: Section 47 of The Persons with Disabilities Act 1995

JUDGMENT:

By Shivaraj V. Patil, J.

The appellant was recruited as a Constable in the Special Service Bureau (for short 'the SSB'). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20.11.1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in the SSB. Hence, this appeal is filed assailing the impugned order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act'). However, a specific ground is raised in this appeal based on Section 47 of the Act. Since it is a pure question of law, we have heard learned counsel for the parties on the contentions including the one based on Section 47 of the Act.

2.    The learned counsel for the appellant, pointing to few relevant definitions contained in Section 2 and Section 47 of the Act, urged that on the facts and circumstances of the case, keeping in view the object and purpose of the Act, relief ought to have been granted as sought in the writ petition.

3.    In opposition, the learned Senior Counsel for the respondents made submissions in support and justification of the impugned order. He also drew our attention to Rule 38 of the Central Civil Services Pension Rules, 1972 under which the appellant is granted invalidity pension which he is drawing. According to him, in view of the relevant definitions contained in Section 2 of the Act, the appellant is not a person with disability as he is permanently incapacitated. He also drew our attention in support of his argument to Section 2(o) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 to make a distinction.

For proper appreciation of the rival submissions of the learned counsel for the parties, it is useful and necessary to notice few definitions as contained in Section 2 and Section 47 of the Act.

"2. Definitions In this Act, unless the context otherwise requires, -

(a) to (d)..............................

(e) "Cerebral palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development;

(f) to (h).............................

(i) "disability" means-

(i) to (iv).......................

(v) locomotor disability;

(vi) to (vii).....................

(j) ..................................

(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;

(l) to (n).............................

(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."

(p) to (s)..............................

(t) "persons with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;

(u) to (v)..............................

(w) "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;
 
"47. Non-discrimination in Government employments - (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."

According to the learned counsel for the appellant, his disability falls under Section 2(i)(v), namely locomotor disability. What is meant by locomotor disability is stated in Section 2(o). There is no dispute that the Act applies to the establishment of the respondents and this establishment is not exempted under any notification issued under Section 47 of the Act. "Persons with disability" means a person suffering from not less than 40% of any disability as certified by a medical authority as per the definition given under Section 2(t).

Short question that arises for consideration in this appeal is whether the appellant is entitled for the benefit of Section 47 of the Act.

From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service.

The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 

Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. 

An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability.

We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads: - "72. Act to be in addition to and not in derogation of any other law. - The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities."

Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.

For the reasons stated and discussions made above, the appeal deserves to be accepted. Hence the impugned order affirming the order of termination of services of the appellant is set aside and the appeal is allowed. We direct the respondents to give relief in terms of Section 47 of the Act.

There shall be no order as to costs.

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