Showing posts with label section 47 of PWD Act. Show all posts
Showing posts with label section 47 of PWD Act. 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:

Tuesday, August 2, 2022

Triputa HC: Employer's Failure To Meet Needs Of Disabled Persons Breaches Norms of "Reasonable Accommodation" [Judgement included]

Court: Tripura High Court, Agartala, India

Bench/Judge: Hon'ble Mr. Justice Arindam Lodh

Case Title:   WP(C) 694 of 2020 | Sri Bijoy Kumar Hrangkhawl v. Tripura State Electricity Corporation Limited (TSECL) and Ors.

Date of Judgement:  01 Aug 2022

Cases Referred/quoted : Vikash Kumar Vrs. Union Pulbic Service Commission & Ors., (2021) 5 SCC 370. 

The case in brief

The petitioner was an employee of Tripura State Electricity Corporation Limited. During the course of performing his duties, he met with an accident which rendered him disabled. He was not paid salary by the Corporation because he could not perform the duties he owed to the Corporation as their employee, though he was willing to join and perform duties which would be commensurate with his disability.

The Tripura High Court observed that employers must "reasonably accommodate" persons with disabiliteis into service and that failure to do so violates their rights under  The Rights of Persons with Disabilities Act, 2016.

The Court also refered to Secction 47 of the Persons with Disabilties  Act 1995 (now repealed) and a DoPT Memorandum dated 25 Feb 2015 on subject "Amendment to Central Civil Service (Leave) Rules, 1972 - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995)- regarding" and  expressed that the aforesaid memorandum dated 25th February, 2015 was further reviewed in the year 2016 where the rights of persons with disabilities were not in any way diluted rather expanded the rights of such persons. It mandates that the State-employer must create conditions in which the barriers posed by disability can be overcome.

It is pertinent to note that the protections available under Secction 47 of the PWD Act 1995 have been contined in Section 20(4) of the RPWD Act 2016 as below:

"20. Non-discrimination in employment. - (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

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, exempt any establishment from the provisions of this section.

(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

(3) No promotion shall be denied to a person merely on the ground of disability.

(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall 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.

(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities."


The single bench presided by Mr. Justice Arindam Lodh in his order remarked,  "The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve. Keeping in mind the objectives of Rights of Persons with Disabilities Act, 2016, the respondents should realize the challenge the petitioner has been facing and accommodate him with humane approach. Any failure to meet the needs of disabled person will definitely breach the norms of reasonable accommodation."

It is the case of the petitioner that while the petitioner was discharging his duties he suffered an accident and out of that accident, he became disabled. Due to such disability, he could not attend his duties. It is the contention of the respondents that the salary of the petitioner was duly paid upto 16.03.2020. Thereafter, no salary was paid to the petitioner though he was all along willing to join to perform his duties commensurate to his disability. From the report of the Standing Medical Board, it is clear that the petitioner was not in a position to perform his official and field level activities which may work out throughout the State. In spite of that report, the petitioner was not paid his due salary and other allowances treating his absence from duty as unauthorized.

Court noted that a plea has been taken that the respondents did not accept his joining report or leave application as he did not report to the joining authority in person. He expressed his willingness to join his duties by submitting an application to the authority concerned. But it was refused on the pretext that the petitioner was not physically appeared before the concerned authority which is not at all expected. The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve.

Keeping in view the above objective, the court directed the respondents to "reasonably accommodate" the petitioner and passed the folloiwng order:

"(i) the respondents are to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner under his service conditions within a period of three month from today;

(ii) the salary and allowances payable to the petitioner shall be released from this month and regularize his service conditions by way of recalling all the earlier orders passed by TSECL treating his absence from duty as unauthorized absence. Those unauthorized absence period, according to the TSECL, shall be regularized and that would not have any bearing to the service of the petitioner;
 
(iii) if it is found that the petitioner is eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned/adjusted with such suitable duties which he would be able to discharge;

(iv) if the petitioner is found incapable of performing any kind of duties, then, the respondents are under obligation and shall pay all service benefits including the promotion to the petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation;

(v) the respondents shall utilize capacity of the petitioner by providing and environment around him and ensure reasonable accommodation by way of making appropriate modifications and adjustments in the spirit of the discussions and observations made here-inabove;

(vi) the petitioner shall appear before the constituted Medical Board of the State Government within 7 (seven) days from today. The Medical Board shall examine and issue necessary certificate mentioning the extent of his disability in consonance with the RPwD Act; and

(vii) it is not advisable to send the petitioner to the Medical Board time and again."


What is missed in this judgement.

The judgement though extends relief to the petitioner, it  adopts some very poor legal reasoning for the relief provided.

Firstly, the judgement fails to appropriately explain the “reasonable accommodation” & its relation to the employment rules. In fact there was no reference needed to be made with reasonable accommodation since the law is clear on the protections available under the Act to a person acquirng disability while in service. It ensures that such a person will not be discriminated against merely because of the disabilty acquired and his job, post and related benefits would be protected even when the person is unable to perform any functions. 

Secondly, it presents that the barriers faced by disabled persons arise from their medical condition of disability, rather than the disabling environment around them which mmay be inform of inaccessible built environment, discriminatory employment policies and practices.

Thus the thought processs and the reasoning given in the judgemement doesn't gel with the overal scheme of the RPWD Act and jurisprudence developed through various case laws since 1996.

 
Read the judgement embedded below:


Thursday, February 23, 2017

Supreme Court | Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy | 23 Feb 2017 | Section 47 of PWD Act 1995

Court: Supreme Court of India

Bench: ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.

Case No.:   Civil Appeal No.3529 of 2017,Civil Appeal Nos.3428-3458 of 2017,Civil Appeal Nos.3464-3499 of 2017,Civil Appeal Nos.3501-3527 of 2017

Case Title: Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy

Date of Judgement:  23 February, 2017.

Cited as : 2017 ALL SCR 1413

Cases Cited:

  • Hawa Singh Vs. Delhi Transport Corporation, W.P. (C) No.7880/2011, Dt.3.2.2012 [Para 4,5]
  • Airport Authority of India Vs. Kumar Bharat Prasad Narain Singh, L.P.A. No.1601/2005, Dt.14.12.2005 [Para 4,5]
  • G. Muthu Vs. Management of Tamil Nadu State Transport Corporation (Madurai) Limited, (2006) 4 MLJ 1669 [Para 4]

Synopisis:  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (1995), Ss.47, 2(i) - Benefit of S.47 of Act - Prayer for - By employees of Andhra Pradesh and Telangana Transport Corporation - Benefit is available to only those persons who are covered under S.2(i) of Act and not to other persons - Schemes of Andhra Pradesh and Telangana Transport Corporation covers even those employees who are not covered by Section 2(i) of the Act - Thus, those who are disabled within meaning of S.2(i) are not without any benefit whatsoever - Employees of Andhra Pradesh and Telangana Transport Corporation are entitled to invoke such schemes but not benefit of Section 47. 2006 (4) MLJ 1669 Dissented from. (Paras, 4, 5, 6)

JUDGMENT

1. Delay condoned.

2. Leave granted.

3. We have heard learned counsel for the parties. The issue raised in this set of cases is whether benefit of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is available to those covered by Section 2(i) of the said Act alone or applies even to persons not covered thereby.

4. The employees in question suffered disability during employment and they sought benefit of Section 47 of the Act to the effect that their services could not be dispensed with on account of the said disability, nor their rank could be reduced and they could only be shifted to some other post, with same pay-scale and service benefits. The claim was contested by the appellants-Transport Corporations with the plea that the benefit of Section 47 of the Act was available only to those covered by Section 2(i) which defines "disability". The said stand was supported on the basis of judgments of the High Court of Delhi in the cases of Hawa Singh v. Delhi Transport Corporation dated 3.2.2012 in W.P. (C) No.7880 of 2011 & Airport Authority of India v. Kumar Bharat Prasad Narain Singh dated 14.12.2005 in L.P.A. NO.1601 of 2005. The High Court of Delhi dissented from the judgment of the Madras High Court in G. Muthu V. Management of Tamil Nadu State Transport Corporation (Madurai) Limited - (2006) 4 MLJ 1669 which lays down that the definition under Section 2(i) could not control the provision of Section 47 of the Act, as the context of Section 47 of the Act requires a different meaning to be given to the word "disability".

5. We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order and approve the view taken by the High Court of Delhi in Hawa Singh v. Delhi Transport Corporation & Airport Authority of India v. Kumar Bharat Prasad Narain Singh. We do not find any reason to hold that expression "disability" in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2(i) of the Act. We also note that even though Section 2(i) of the Act may not cover every disabled, scheme of the Andhra Pradesh and Telangana Transport Corporations covers even those employees who are not covered by Section 2(i) of the Act. Thus, those who are disabled within the meaning of Section 2(i) are not without any benefit whatsoever. They are, thus, entitled to invoke such schemes but not Section 47 of the Act.

6. In view of above, we allow these appeals in above terms and hold that the benefit of Section 47 of the Act will be available only to those who are covered by Section 2(i) of the Act. No costs.

7. It will be open for the appellants-Corporations to take decision on individual grievances of the employees and the employees are at liberty to take their remedies in terms of the above judgment.

8. Pending applications, if any, shall also stand disposed of.

Ordered accordingly.

Wednesday, November 16, 2016

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

Dear Colleagues,

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

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

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

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

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

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

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

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

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



Monday, August 19, 2013

SC directs the Govt. to give suitable jobs to employees with Mental Illness

Dear Colleagues,

In a path-breaking development, the Supreme Court while quoting Section 47 has set aside the Order of Compulsory retirement of the 1977 batch IAS officer and directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Though, the Supreme Court has done some justice with the case, but it is loo late and too less. The said has been suffering at the hands of whimsical department who not only suffered at the hands of inquiry committee instituted in 1993 that took 11 years to give its finding declaring him insane. The officer was compulsorily retired thereafter.

There are various candidates who, having lived with mental illness and rehabilitated after a regular course of medication are not given any benefit of reservation or of preference in appointment in the civil services or any other service under the government. The draft of new Act though includes mental illness as one of the condition eligible for reservation in jobs under the disability quota however, one never know how long will this process take for the law to take shape and extend benefits to those living with disabilities not included in the existing Act. The act itself is discriminatory towards many other conditions since it is based on a medical model and goes strictly by the medical conditions, hence in effect renders many others excluded though equally or more marginalized and disabled.

Here is the news coverage from Hindustan Times.

Bhadra Sinha, Hindustan Times  New Delhi, August 19, 2013

State administration cannot dispense with ore reduce rank of a government servant if he or she acquires disability including mental illness or retardation during service, the Supreme Court has ruled.

Quoting the provisions of The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 a bench of Justice GS Singhvi and Justice SJ Mukopadhyaya held that if a person is found unsuitable for the post he or she holds on account of acquired disability during service, he or she should be moved to another post suitable to his or her state.

The bench further held that under section 47 of the Act if it wasn't possible to adjust such a person against any post, the government authority ought to keep him or her on a supernumerary post until a suitable one is available until the employee attains the age of superannuation.

With these observations the court recently directed the Union Ministry of Department of Personnel and Training (DoPT) to pay consequential benefits to a 1977 batch IAS officer, Anil Kumar Mahajan, who was compulsorily retired from service on October 15 2007 after a disciplinary inquiry declared him insane. The inquiry report came 11 years after it was instituted in 1993 when he worked with the Bihar government.

At the time of inquiry the officer was placed under suspension twice. His representation for a voluntary retirement was turned down by the DoPT on the ground he hadn't completed the minimum service of 20 years. Later, however, the ministry compulsorily retired him.

Mahajan later challenged the findings of the disciplinary proceedings before the Central Administrative Tribunal, which turned down his plea.

However, on his appeal the SC set aside the order of compulsory retirement and said: "The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on October 15, 2007. It is not the case of the respondents (DoPT) that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977."

Observing "some problem was going on between the appellant and authorities of the state (Bihar)," the court said: "In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of  appellant or to compulsory retire him from service."

The court further said: "The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer."

Since in normal course Mahajan would have retired from service on July 31, 2012, the SC directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.




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.

Thursday, November 15, 2012

Non discrimination, UN CRPD and Disabled Soldiers in India

Dear Friends,

The two most enabling sections of the The Persons with Disabilities Act 1995 i.e. section 33 (Employment Chapter) and section 47 (Non Discrimination Chapter) have been made redundant by their disabling proviso which I call as Black proviso i.e.  "Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

This black provisio continues in the new draft Right of Persons with Disabilities Bill 2012  ready to be tabled in the parliament in different sections. The biggest victim of this proviso under Section 47,  have been those brave citizen of this vast nation who risked their lives to preserve the integrity of their motherland while being in defense forces, para-military forces & police departments and acquired disabilities - both minor or severe. The effect of this black proviso has been catastrophic on the morale of those who are out there on the borders to defend the nation or stationed in troubled areas to control the  law and order and save the democracies.

What will happen to me and my family if I become disabled during the course of duty or during my job? Am I being treated like my civilian counter parts when it comes to the social protection or non-discrimination? .... such questions plague the psyche of the ordinary officers of our forces - thanks to the black proviso and the subsequent notification by the Govt. of India under the said proviso declaring the defense forces to be kept out of the ambit of the protections available under this section.

Civilian Employees Versus Combatant Employees

Lets understand how the two employees - one civilian and one from the forces is treated under section 47 of the disabilities Act:

The section mandates as 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.  (most misused proviso)

Now if it was a civilian employee under the government, on acquiring a disability due to any reason, his pay scale and service benefits remain protected even if the disability sustained limits the functional capacities of the person to an extent that he/she can not be adjusted against any existing post. Such a person remains on a supernumerary post until a post is found out or till he attains age of superannuation.

On the contrary, an employee from the forces, on acquiring a disability - whether during the course of duty or during any mishap when not on duty is invariably  medically  boarded out with a paltry disability pension and left to fend for himself in the grim employment scenario. The family members and dependents suffer due to sudden calamity and the person becomes a liability for the family in absence of strong social security provisions. 

Why the talented youth is not attracted to Forces any more

Given an option, any talented young person would prefer a civil employment to an employment in the forces since the forces have not thought to respect for the sacrifices or say the human rights, social security and non-discrimination clauses of the central laws and international human right conventions. The youth of today knows there is no future in the forces. Worst - in case of a mishap - death or disability is inevitable. And both  will take away the bread winner of the family with no social protections.

Need to think out of box in light of UN CRPD

We as a nation has to think what we offer to our sons and daughters  who risk their lives for the country in comparison to a civilian on duty. Also we have to walk the talk since India is among first few handful countries  who signed the UN Convention on Rights of Persons with Disabilities on the very first day of its opening for signature and subsequently ratified the same. However, we continue to discriminate on the basis of disability when it comes to government employment in forces.

The UN Convention defines "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

Some possibilities worth considering

Not all jobs in the forces are of combatant nature and many involve desk jobs such administration, logistics, equipment, stores, purchase and several others. This means that the exemption given under the garb of black proviso, can be easily withdrawn and combatants acquiring disabilities can be adjusted in non-combatant jobs/branches. 

If the Government feels that it may compromise with the war preparedness of the forces, it may also consider keeping all such severely disabled combatant employees on supernumerary posts with full pay scale and other benefits. While those who are with disabilities that allow sufficient functional abilities to be gainfully occupied in the desk operations, should be accommodated in the base units/formations.

This can help fill up the huge shortfall in the forces by motivating the youth and assuring them that they would not be discriminated if they become disabled while in service- whether the injury was or not attributable to service.

This would ensure that our forces do not discriminate on the basis of disability and are in conformity with the UN Convention on the Rights of Persons with Disabilities. There have been several examples in the defence forces where combatants who acquired disability during action were retained and such a trend is very good, however, one should not be forced to go to Armed Forces Tribunal each time to obtain right to equality before the law and equal protection of the law (Art 14 of the Constitution) and Article 5 (equality and non-discrimination) of the UNCRPD.

We don't need to wait for the new draft law to come in to being to enforce this and it can be simply done by withdrawing the "Black Proviso" and the Notification of Exemption accordingly encapsulating the above.

Friday, February 3, 2012

Delhi HC | Hawa Singh Vs. Delhi Transport Corporation | 03 February 2012 | Section 47 of PWD Act 1995

Court:  Delhi High Court

Bench: Hon'ble  Mr. Justice Rajiv Sahai Endlaw,  Hon'ble Mr. Justice AK Sikri,  

Case No: W.P.(C) 7880 OF 2011

Case Title: Hawa Singh vs Delhi Transport Corporation 

Date of Judgement:  03 February, 2012

Author: A.K.Sikri,J


THE HIGH COURT OF DELHI AT NEW DELHI

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE

1. The petitioner herein joined the duties with Delhi Transport Corporation (DTC) as a Driver in the year 1980. He worked in that position till the end of 2006. However, in January, 2007, the petitioner developed serious heart ailment. He was treated in AIIMS. An Automatic Implantable Cardioverter Defibrillator (AICD) was implanted. The Doctor advised light duties to the petitioner. The petitioner‟s request for grant of light duty was declined by the respondent Corporation and its Medical Board and the petitioner was told that if he did not perform his duty as driver of passenger bus, he would be put on rest and thus would lose all his salary and allowances. The petitioner was put on rest instead of being granted light duty and the period of rest was repeatedly extended. The petitioner was not paid the salary etc. during the period for which he was put on rest.

2. This was done on the advice of Medical Board of the DTC. After examining the petitioner, the Medical Board refused to give him light duties finding that if he could not perform regular driving duties, he should be put „on rest‟. The petitioner kept on making representations for assignment of light duties to him. . When his request was not acceded to, he filed Writ Petition (C) 8129/2007 claiming full pay wages and compensation. In this writ petition, DTC appeared. On 15th September, 2008 statement was made by the DTC that it was willing to give light duty to the petitioner. Accordingly, the petitioner started getting light duties. The dispute therefore is from the date when he was put „on rest‟ till 15th September, 2008 when he was assigned the light duties. For the intervening period, he was not paid any salary. The writ petition was transferred to Central Administrative Tribunal (CAT) and the DTC was brought under the purview of CAT. The contention of the petitioner was that he was entitled to the benefit of Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 199 and as per Section 47 thereof, it was incumbent upon the DTC to give him other light duties or in any case release the salary to him. He relied upon the judgment of this Court in the matter of Kumar Bharat Prasad Narain Singh Vs. Airport Authority of India, 2005 (V) AD Delhi 513 wherein the learned Single has held that heart ailment or adverse condition is also covered by the provisions of the Disabilities Act. The CAT dismissed this petition on 17th July, 2009. Challenging that order, the petitioner filed writ petition in this Court in which orders dated 17th February, 2010 were passed granting liberty to the petitioner to file review petition. The said review petition was dismissed by the Tribunal holding that heart ailment resulting from a heart attack followed by implanting of an AICD does not find mention in the list of disabilities mentioned in the Act. The present writ petition is filed against the order dated 17th July, 2009 passed in passed in OA and order dated 24 th March, 2011 passed in the review petition.

3. At the outset we would mention that the words "disability" and "person with disability" is defined in Section 2 of the Act itself and is extracted below:-

"2 (i) "disability" means-

(i)blindness;

(ii)Low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability

(vi) mental retardation

(vii)mental illness;

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

4. It is clear from the above that, only a person with disability of the nature suffering mentioned in Section 2 (i) of the Act is entitled to the benefit of Section 47 of the Disabilities Act. No doubt, in Kumar Bharat Prasad Narain Singh (supra) the learned Single Judge of this Court had held that even when a person suffers heart ailment, be as a consequence of his working with the employer, he would be entitled to the benefit of the Act. However, this judgment of the learned Single Judge was over ruled by the Division Bench in LPA 1601/2005 decided on 14th December, 2005. The Division Bench held that the definition of Disability and Section 2(i) is an exhaustive one and not an inclusive one and since heart ailment is not mentioned therein, a person suffering such ailments would not be treated as disabled within the meaning of Disabilities Act. In view thereof, the judgment of the Tribunal cannot be faulted with. It is clear that the approach of the Tribunal in the impugned order is in tune with the law laid down by this Court and, therefore cannot be faulted with.

5. We may mention here that the learned counsel for the petitioner had referred to the judgment of the Madras High Court in the case of G. Muthu Vs. Management of Tamil Nadu State Transport Corporation (Madurai) Limited (2006) 4 MLJ 1669. In that case, the appellant was also working as a Driver in the State Transport Corporation. Since Medical Board reported that he was suffering from "colour blindness" and hence unfit to work as a driver, the appellant was discharged from service on medical grounds. In this context, the question arose about the applicability of Disability Act. Section 2 (i) of the Act does not cover "colour blindness". However, the Division Bench of the Madras High Court held that liberal interpretation is to be given to the provisions of Section 47 of the Act and the term "disability" used in Section 47 can draw support not only in respect of defined "disability" contained in Section 2 (i) of the Disability Act, but will also encompass such other disabilities which would disable a person from performing the work which he held immediately prior to acquisition of such "disability" and thereby entitled him to avail the benefits conferred under the said provisions for having acquired such a "disability". In fact, for this very reason, the learned Single Judge had decided the said issue which has been over ruled by the Division Bench of this Court.

6. Since we are bound by the judgment of the Division Bench of our Court, it is not possible to rely upon the judgment of Madras High Court in this behalf.

7. We would be failing in our duty if we do not refer to the judgment of Division of this Court to which one of us (A.K.Sikri,J) was a Member. In that case, entitled Union of India and Ors. Vs. Suresh Kumar,(W.P.(C) 9443/2007 dated 17.12.2007) the aforesaid extracts from G. Muthu (supra) was referred to and relied upon. However, that was not on the interpretation of Section 47 of the Act but on the interpretation of "blindness" which is one of the disabilities mentioned in Section 2 (i) of the Disabilities Act. The "blindness" was held to include "colour blindness" and in that context, the aforesaid judgment of the Madras High Court in G. Muthu (supra) was relied upon. Insofar as issue at hand is concerned, it is squarely covered by the Division Bench judgment of this Court in Airport Authority of India Vs. Kumar Bharat Prasad Narain Singh (LPA 1601/2005 decided on 14.12.2005) and since judgment of a Coordinate Bench is binding, we find no merit in this writ petition which is accordingly dismissed.

8. There shall be no order as to costs.

ACTING CHIEF JUSTICE 
(RAJIV SAHAI ENDLAW)  JUDGE 
FEBRUARY 03, 2012 

Friday, October 21, 2011

Bombay HC - Termination of Driver with Colour Blindness quashed, given protection of section 47; Disabilities Act 1995

Dear Colleagues,

In the instant matter, the division bench of Justice S A Bobde and Justice M N Gilani of Bombay High Court has agreed that the case of a civil mechanical transport driver employed by the Indian Air Force who was sacked from his job after he was found to be colour-blind is covered under Section 47 of the Persons with Disabilities Act 1995 and as a result quashed the termination order of Pramod Sadashiv Thakre.

Under the Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995 - a benevolent legislation- an employee who acquires a disability during his service cannot be thrown out of his job. In case, he is unable to do the present work for which he was employed, it is the employer's duty to transfer him to another post or give him a supernumerary post.

Thakre was appointed as a civil mechanical transport driver in 2003. According to Thakre, he was found fit for the appointment on the basis of a civil surgeon's medical certificate, which declared him normal. Two years later in August 2005, his services were terminated on the grounds that he had been found to "suffer from colour-blindness". The CAT set aside the termination order, but the Union Ministry of Defence and the Indian Air Force approached the Nagpur Bench of Bombay High Court against the order of the Central Administrative Tribunal, Bombay Bench, Camp at Nagpur.

The Union of India claimed that Thakre could not have acquired the colour-blindness during his employment as it was congenital. The High Court, however, did not buy the argument, "Firstly, no medical evidence was placed on record to establish that colour-blindness can only be congenital and cannot be acquired.  Moreover, there is no evidence on record that Thakre was colour-blind when he was employed. The petitioners accepted the respondent's fitness by relying on the certificate granted to him which sets him as normal," the judges said while upholding the CAT order. The court said that the IAF did not administer any test to check if he was colour blind.

Judgement Included

Click here for the Judgement dated 24 Feb 2011 by the Central Administrative Tribunal in OA No.   2117/2006 titled Pramod Sadashiv Thakre Vs. Union of India & Ors.

Click here for the Judgement dated 19 October 2011 of the Hon'ble Bombay High Court Writ Petition No. 3620/2011, titled Union Of India vs Pramod Sadashiv Thakre




Wednesday, December 29, 2010

Hi,


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


Here are the links to the case details:


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



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


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

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

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

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

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








Mental disability no ground to sack employees: HC


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

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.