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, 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, 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, July 29, 2009

Reflections on SC judgement on Efficiency a ground for denying promotion to PWD

Dear Friends,

After my last post on the subject, I studied the detailed judgement of the Hon'ble Supreme Court titled Union of India Versus Devendra Kumar Pant & Ors, Civil Appeal No. 4668 of 2007 and following are few reflections on the same:

  • The whole debate around Medical standards for Persons with disabilities is actually confusing to many disabled people including those with visual impairments that this judgement might affect them adversely. There is a general fear that on one hand the employers might use the clause of efficiency & medical standards against the persons with disabilities to deny them promotional avenues and on the other hand, people without a certain nature and extent of disabilities (read -disabilities not covered under PWD Act) might usurp the rights and facilities of those who are presently allowed the benefits under the Persons with Disabilities Act.
  • In this case, the Hon'ble Court failed to take in to cognizance that for a person with any disability to be eligible to a post for recruitment & reservation, there exist a List of Identified Jobs which can be held and performed by that category of persons with disability. The separate question of medical standards and disability will not arise here as the jobs have been identified taking in to account all such factors.
  • Although the identification list of no consequence in the present case as it relates to the right to promotion which can not be denied to the person on the grounds of Disability acquired. If the person is unable to do the job, reasonable accommodation must be tried and use of modern technology should be promoted to help him settle in new role. If even that fails, he can be shifted on equivalent posts within the same department.
  • The court has coined a new interpretation of Efficiency as a necessary condition besides minimum medical standards under Section 47 which is not in sync with the spirit of PWD Act. The purpose of Section 47 is not to recruit a person afresh but rehabilitating an employee who has acquired disability during his service, hence including clauses of medical standards and efficiency seem to be misplaced. Also Efficiency is subjective and when attached to disabilities can be misinterpreted and misused by bureaucrats, employers etc in their own way allowing grounds for discrimination rather than reducing and minimizing them.
  • Incidentally, none of the posts in question i.e. Junior Research Assistant, Senior RA and Chief RA, are identified for persons with Blindness or Low vision, therefore, it hardly affects the rights of visually challenged in the Country.
  • Though the respondent is not a person with disability in terms of the Medicalised definitions given in the Persons with Disabilities Act as neither the Colour blindness is defined as a type of disability nor the disability of the respondent has been assessed to be above 40%. However, Section 47 is a social security and human rights provision to ensure continuity of support from the Government in case an employee of the Government acquires disability during his service.
  • Thus, to me here, the degree and extent of disability is of no relevance for the purposes of Section 47 (1) as the said person should be allowed to save his job under this provision, even if his disability is less than 40% for the simple fact that he is not claiming the 3% reservations available for the three categories of disabilities.
  • If degree and percentage of disability is made relevant here to attract this section, then any employee acquiring less than 40% disability would be left without any rights and social security that this Section intends to guarantee.
  • However, in case his disability is more than 40 %, he would be surely authorized to claim other benefits available to Persons with disabilities under the PWD Act besides saving his job under Section 47 (1).
  • Therefore, if the Hon’ble Court had shown a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. On earlier occasions, Delhi High Court had considered a person with heart ailment as person with disability to save his job under section 47. This would have given a wider and appropriate interpretation to the Section 47.
  • However, in the instant case, the issue was of denial of promotion and not saving the job.
  • As claimed by the Respondent, the job of the all the three levels is same and earlier the post of Junior Research Assistant, Senior Research Assistant were suitable for Medical Category B3 and B2 respectively while the Chief Research Assistant was required to have B1 medical category (that requires person to be free from colourblindness). The same stood revised in 1990 as B1 for all three successive posts.
  • However, the old employees were allowed to continue on their existing posts even if they were below B-1 (post revision category). The respondent is Medical Category B-2 currently and holding the post of Senior Research Assistant for which currently B-1 is the requirement as per revised standards of 1990. If the job is almost similar, then the rule of medical standards seems highly misplaced. Also if the old employees with lower medical categories can continue to hold and work on the present posts (now requiring B-1) without being a risk to safety, security and efficiency, then the same employees could also be promoted using same logic.
  • However, looking at the judgement from a cross disability perspective, and from the perspective of UNCRPD, the Hon'ble Court has once again perpetrated the age old view of looking at impairments from the medical point of view i.e. the individual's condition and impairment in the body is seen as the problem and not the inaccessible social structures around. In fact the whole human rights agenda has been thrown to the back burners.
  • The UNCRPD doesn’t make mention of degree and extent of disability in terms of percentage and types the way PWD Act does hence perpetrates the medical model of disability. The domestic Act is desperately in need of amendments to be in sync with UNCRPD.
  • Also the employer, i.e. RDSO did not explore any possibilities of reasonable accommodation which could make possible conditions of work of higher post which amounts to discriminatory exclusion. Whether Chief Research Assistant work during night and whether the job could be done easily with special equipments/devices was never explored in this case. The whole attempt was to relegate him to be medically unfit for the promotion by blindly following the revised medical standards. Colour Blindness is not a disease but a condition, thus discrimination on this ground is surely against the tenets of UNCRPD, if not of PWD Act which is constrained by medicalised definitions of various disabilities.



The judgement has left a bitter taste in the mouth of activists in the field and the disappointment is because of the inability of the Apex Court to arrive at a reasonable conclusion after considering all issues involved in the case and the UNCRPD & human rights philosophy.

regards

SC Vashishth, Advocate



Wednesday, January 4, 2006

On acquiring disability, last drawn pay of the employee shall be protected- Allahabad HC

Judgement in Civil Misc. Writ Petition No. 2229 of 2004 titled Union of India & Ors vs. Mohd. Mobin Khan & Anr.


HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 34
Civil Misc. Writ Petition No. 2229 of 2004

Union of India & Ors,.
Vs.
Mohd. Mobin Khan & Anr.

Bench:
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.


This writ petition has been filed for quashing the order dated 30th April, 2003 passed by the Central Administrative Tribunal in Original Application No. 164 of 1999 filed by Mohd. Mobin Khan (hereinafter referred to as the ''Applicant'). The Original Application had been filed for quashing the order dated 1st February, 1999 by which the applicant was given compulsory retirement under Rule 38 of CCS (Pension) Rules on the ground of disability and a direction was also sought to appoint the applicant in the same pay-scale as Assistant Foreman or Store Superintendent.


The applicant was initially appointed as an ad hoc Helper in October, 1969 under the Central Ground Water Board Division-III Varanasi. He was subsequently regularized and was granted promotions from time to time. While he was holding the post of DCM at Varanasi, he met with an accident on 21st February, 1995 as a result of which he was hospitalized. His left leg was amputated and he also lost vision in the right eye. He was ultimately discharged from the hospital on 3rd August, 1996 with a fitness certificate for doing light duty and sitting job. He was also referred to the Chief Medical Officer of the S.S.P.G. Hospital Varanasi by the employees for medical examination. The Medical Board of the said Hospital issued a certificate dated 23rd October, 1997 that the applicant was fit to perform duties like writing, maintenance of submission of report, maintenance of log books and store account books etc. The Department considered the case of the applicant and retained him in service on clerical post in the grade of LDC only. The terms indicated in the letter dated 5.1.1998 are as follows:-


"Shri Mobin Khan, DCM of this Division has been declared unfit for technical work by the medical authority. However, his case has been considered sympathetically by the competent authority of the Board to be retained in service on Clerical post in the grade of L.D.C. only.


"Shri Khan is directed to submit his willingness for appointment to the post of L.D.C. subject to the following conditions:-

1. He will be treated as a fresh recruit.
2. He will be treated as a junior person in the grade of L.D.C.
3. His past services will be counted for pensionery and allied benefits.

His willingness for the post of LDC must reach the office of the undersigned within seven days from the receipt of this O.M.

Further, in the event of his unwillingness for the post of LDC, he can not be continued in the post of DCM and he will have to be retired from Govt. service on invalid pension."

The applicant joined as LDC but made a representation to the Authorities to protect his pay by retaining him in service as Store Superintendent/Store Foreman on the ground that he was educationally and otherwise competent to hold that post. However by the letter 21st July 1998, the applicant was informed that his pay cannot be protected and if he did not accept the terms indicated in the letter he would be retired on ground of disability. The applicant again made a request for pay protection so that he could support his family but the Department issued the order dated 1st February, 1999 by which applicant DCM was retired from Central Ground Board Division-III Varanasi, under Rule 38 CCS (Pension) Rules as he failed to accept the post of LDC.


It is this order that was challenged by the applicant before the Tribunal with a prayer for a further direction for pay protection. The Tribunal by means of the impugned judgment quashed the order dated 1st February, 1999 and issued the following directions:-


(i) The applicant will be reinstated as LDC in case he gives his willingness within a month of the communication of this order protecting his last pay drawn by grant of personal pay.
(ii) In case the applicant gives his willingness and joins as LDC the applicant shall be entitled for 50% of the wages for the period from 01.02.1999 to the date of reinstatement. Such pay shall be granted after deducting the pension and other allowances already drawn. The period referred to above shall be counted for pension purposes.
(iii) The post retiral benefits already granted to the applicant in the shape of D.C.R.G., leave encashment etc., shall be adjusted from the post retiral benefits which would accrue to the applicant at the time of his superannuation.

We have heard Sri Bhoopendra Nath Singh, learned counsel for the petitioners and Sri N.A. Khan, learned counsel appearing for the respondents.


Learned counsel for the petitioners submitted that last pay of the applicant cannot be protected in view of the provisions of Rule 22 of the Fundamental Rules and, therefore, the directions issued by the Tribunal were bad in law. He further submitted that the injury had not been caused to the applicant "during the course of employment" and, therefore, there was no obligation on the part of the petitioners to engage the applicant or protect his pay and that the order of retirement was justified as the applicant did not accept the terms as were required under the communication dated 21st July, 1998. Another submission was made that as the petitioner had received compensation for the loss suffered on account of accident as per the order of the Compensation Commissioner, Varanasi, the order of the Tribunal was not justified.


Learned counsel appearing for the applicant/respondent, however submitted that there was no infirmity in the judgment of the Tribunal and in any view of the matter the last pay paid to the petitioner had to be protected in view of the provisions of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the ''Disabilities Act'). He further submitted that the applicant had suffered injury during the course of employment and that Rule 22 of the Fundamental Rules or the receipt of any compensation under the Workmen Compensation Act cannot debar the applicant from claiming the relief under Section 47 of the Disabilities Act.


We have carefully considered the averments advanced by the learned counsel for the parties and have perused the materials available on record.


A perusal of the Original Application filed by the applicant before the Tribunal indicates that the work of the applicant related to field work and on 21st February, 1995 after completing the tubewell work, the applicant with his companion was returning back in a truck when unfortunately the accident took place and he was admitted in the Hospital. It was on 3rd of August, 1996 that he was discharged and a fitness certificate was given to him. The applicant was also ordered to be examined by the Chief Medical Officer who had also issued the certificate. It is on a consideration of these reports that the applicant was retained in service on the clerical post in the grade of LDC subject to certain conditions and when the applicant insisted that he should be retained as Store Superintendent/Store Foreman and his pay should be protected, he was retired from service w.e.f. 1st February, 1999.


It is true that persons with disability can now avail of the benefits provided under the Disabilities Act but even prior to its enforcement with effect from 1st January 1996, the Constitution provided remedy and relief to the persons with disability when their rights were violated or denied.


The fundamental right to equality under Article 14 of the Constitution of India which states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India", is important for this purpose. It implies that only equals must be treated as equals and unequals may not be treated as equals which makes it the constitutional responsibility of the State to ensure that the systemic and historical conditions of disadvantaged classes of persons are taken into account in providing equal status and equal opportunities. Simply put, this notion of equality means that the laws may not have universal application for all persons who are not by nature, attainment, historical reasons or any other circumstance, in the same position and hence, the varying needs of different classes of persons may require separate treatment - the only condition being that the classification for separate treatment should be rational and must further the objective of that law and be linked with it. The right of the persons with disabilities, against any discrimination, which is on the basis of disability of the person, is therefore, within this mandate of Right to Equality under Article 14 of the Constitution of India. It is under this constitutional mandate of equality that even before the Disability Statutes were passed, many persons with disabilities, their organizations or petitioners in public interest approached the Courts for their right to equality and right against arbitrary discrimination.
To illustrate, we may refer to the decision of Hon'ble Supreme Court in National Federation of Blind Vs. Union Public Service Commission, AIR 1993 SC 1916. The Writ Petition was filed against discrimination of visually impaired persons in competing for the coveted civil services of the country, and for the government to be directed to permit otherwise qualified blind candidates to appear in the selection examination. The Supreme Court not only allowed the petition, but also directed the government to allow them to write the examination in Braille or with the help of a scribe. The Supreme Court also responded to the Writ Petitions filed under Article 32 of the Constitution of India, against the treatment meted out to persons with mental disabilities in institutions for their care and treatment and laid down guidelines on their living conditions, education, training and rehabilitation facilities in such institutions. In this connection, reference may be made to the following decisions: Rakesh Chandra Narayan Vs. State of Bihar, AIR 1989 SC 348, B.R. Kapoor Vs. Union of India, AIR 190 SC 662; Veena Sethi Vs. State of Bihar & Ors,. (1982) 2 SCC 5833 and Sheela Barse Vs. Union of India (1993) 4 SCC 204.


Article 21 of the Constitution also protects the rights to livelihood as an integral facet of right to life and persons with disability were given protection under this Article of the Constitution. In this context reference may be made to the famous case of Narendra Kumar Chandla Vs. State of Haryana & Ors,. (1994) 4 SCC 460 which was decided by the Hon'ble Supreme Court prior to the enforcement of the Disabilities Act. This was a case of a Sub-Station Attendant of the Haryana State Electricity Board in the pay scale of Rs.1400-2300 who unfortunately had to be operated in Tata Memorial Hospital, Bombay and was thereafter discharged but his right arm was completely amputated. The Electricity Board absorbed him as Carrier Attendant in the lesser pay scale of Rs.825-1300. Feeling dissatisfied, he approached the High Court but his petition was dismissed. The Supreme Court while granting relief of protection of last pay scale observed :-


"Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as an LDC. Admittedly on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs. 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs. 1400-2300 and direct to pay all the arrears of salary." (emphasis supplied)

We must make reference to two other cases of the Hon'ble Supreme Court delivered prior to the enforcement of the Disabilities Act. In Anand Bihari & Ors. Vs. Rajasthan State Road Transport Corporation, Jaipur & Anr., AIR 1991 SC 1003, the Hon'ble Supreme Court examined the question whether a State Road Transport Corporation can retire the bus drivers on the ground of their defective or sub-normal eyesight developed during the course of the employment. The Court held that termination of service was unjustified, inequitable and discriminatory. It was impressed by the Supreme Court that service conditions of the bus drivers must provide adequate safeguards since such bus drivers developed defective eyesight or sub-normal eyesight because of the occupational hazards. A scheme was directed to be framed for providing alternative jobs along with the retirement benefits and for payment of additional compensation proportionate to the length of service rendered by them, in case of non-availability of jobs.


In the case of Rameshwar Dass & Anr. Vs. State of Haryana & Ors., (1995) 3 SC 285, the Supreme Court while considering the aforesaid judgment delivered in the case of Anand Bihari (supra) observed as follows :-


"It appears that some of the appellants suffered serious injuries during the course of their employment which incapacitated them from performing their duties. Initially, they were transferred to lighter duties, but while they were working on those posts, they were retired from service on the ground that they were medically unfit. From the written submission filed on behalf of the respondents before the High Court, it appears that the terminal benefits have been paid to them. If the judgment of this Court in Anand Bihar Vs. Rajasthan State Road Transport Corpn. (1991) 1 SCC 731, is read in its proper context and spirit, then it has to be held that this Court impressed on the State Road Transport Corporation to first provide for alternative jobs to such drivers who have become medically unfit for heavy vehicles. A direction for payment of additional compensation was given only when it is not possible at all in the existing circumstances to provide alternative jobs to such drivers. It need not be pointed out that the authorities of the Corporation should not take recourse only to the payment of the additional compensation without first examining whether such drivers could be put on alternative jobs.


Taking all facts and circumstances into consideration, we direct the respondents to apply their mind properly to the question whether the appellants who have suffered injuries and have become medically unfit can be put to some alternative jobs by way of rehabilitation. The question of payment for additional compensation will arise only when it is not possible to provide alternative jobs to them or some of them."

We may also mention that the First International Forum for Universal Declaration of Human Rights proclaimed by the United Nations General Assembly is a landmark, for Article 25 of the Declaration states that each person has, "the right to security in the event of unemployment, sickness, disability, widowhood, old age, and other lack of livelihood in the circumstances beyond his control. In the year 1971, the General Assembly stipulated that mentally retarded persons be accorded the same rights as other human beings, as well as special rights corresponding to their needs in the medical, educational and social fields; and in 1975 the General Assembly adopted the "Declaration on the Rights of Disabled Persons" which proclaimed equal civil and political rights of disabled persons, and the subsequent adoption of the standard Rules in the equalization of opportunities for Persons with Disabilities in 1993 served as an instrument for policy making and a basis for technical and economic cooperation. The evaluation of these international standards relating specifically to disability reflects on the move to place the rights of persons with disabilities within the category of Universal Human Rights.


It was also realised that the disabled need adequate protection through appropriate Legislation. A meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 was then convened by the Economic and Social Commission for Asian and Pacific Region. It was held at Beijing on 1st to 5th December, 1992 and it adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India was a signatory to this promulgation and accordingly the Bill was introduced for this purpose and ultimately the Disabilities Act was enacted.
The Statement of object and reasons to the Disabilities Act which was appended to the Bill reads as under:-


"The meeting to launch the Asian and Pacific Decade of the Disabled persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation 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-à-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 equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.

Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with Disabilities at the Central level and Commissioners for Persons with Disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged."

The Disabilities Act deals with prevention of early detection of disabilities, education, employment, affirmative action, non-discrimination, research and manpower development, recommendation of institutions for persons with disabilities, institutions for persons with severe disabilities, social security and other miscellaneous provisions
Section 47 of the Disabilities Act which is relevant for the purpose of deciding this petition is quoted below:-


" 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."

Section 2(k) defines the ''Establishment' to mean a Corporation established by or under a Central Provincial or State, or an authority, or a body owned or controlled or aided by the Government, or a local authority or as defined in Section 167 of the Companies Act, 1956 and it includes departments of a Government. Section 2(i) defines ''disability' to mean blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. "Person with disability" has also been defined to mean a person suffering not less than 40% of any disability as certified by a Medical Authority.
It has not been disputed by the learned counsel for the petitioners that the Central Ground Water Board Division is an ''establishment' and that the applicant had acquired disability. The provisions of Section 47 of the Disabilities Act are, therefore, clearly applicable. It provides that no establishment shall dispense with or reduce in rank an employee who acquires disability during his service, provided that, if an employee, after acquiring disability is not suitable for the post he was holding, then he can be shifted to some other post with the same pay scale and service benefits. The intention of Section 47 of the Disabilities Act is very loud and clear that the service of a person who acquires disability during service should not be dispensed with. The purpose is not far to seek as when the objective of the enactment is to provide proper and adequate opportunities to the disabled in the field of education, employment etc., it is obvious that those who are already in employment should not be uprooted merely because they have incurred disability during service. Their service has to be protected if they acquire disability.


Section 47 of the Disabilities Act was comprehensively analysed by the Hon'ble Supreme Court in Kunal Singh Vs. Union of India & Anr. AIR 2003 SC 1623 and it was observed 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 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. (emphasis supplied)

The same view was reiterated by the Supreme Court in Union of India Vs. Sanjay Kumar Jain 2004 AIR SCW 4577 wherein it was held as follows:-
"Sub-section (1) of Section 47 in clear terms provides that there cannot be any discrimination in Government employments and no establishment shall dispense with or reduce in rank an employee whatsoever during his service.

It is, therefore, clear that a person who has acquired disability during his service is sought to be specifically protected under Section 47 of the Disabilities Act, the language of which is clearly mandatory in nature. It is a piece of social beneficial enactment giving the disabled persons equal opportunities, protection of rights and full participation. It can be said that it provides succor to the needy.


We must also not forget that each year 3rd December is celebrated as International Day of Disabled Persons. On 3rd December, 1999, Ministry of Social Justice and Empowerment, Government of India, came out with its policy decisions and welfare measures taken to assuage the feelings of disabled persons. These messages reflect the commitment of Government to strive for the betterment of the disabled persons. It was widely accepted that disabled persons needed to be treated as valued member of the society who can contribute to the development and progress of the country and that they do not need our sympathy or pity but an opportunity to employment. In fact 2002 was declared as the year for the disabled.


It is in the light of the aforesaid observations that we have to examine the contentions advanced by the learned counsel for the parties.


Learned counsel for the petitioners contended that in view of the provisions of Rule 22 of the Fundamental Rules and also in view of the fact that the applicant had received compensation for the loss suffered, there was no occasion to protect his pay. In effect what is sought to be contended is that the applicant had been given advance increment for the number of years of service rendered on the post of DCM while fixing his pay in the grade of LDC as provided for in Fundamental Rule 22 and the said pay could not under any circumstances, exceed the maximum of the scale for the post of LDC. It was, therefore, not possible to place the applicant in the pay scale of DCM.


We shall first deal with the submission relating to payment of compensation. The Hon'ble Supreme Court in the case of Kunal Singh (supra) held that mere grant of invalidity pension cannot be made a ground to deny protection given under Section 47 of the Disabilities Act. It was observed as follows:-


"We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS (Pension) Rules. The Act is a special legislation dealing with persons with disabilities, 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, which ever 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 provision of Section 47 of the Act." (emphasis supplied).

The Hon'ble Supreme Court in Kunwar Pal Singh Vs. Delhi Transport Corporation & Ors. Civil Appeal No. 1864/2000 arising out of SLP (C) 7997/99 observed as follows:-
"Learned counsel for the appellant has brought to our attention Section 47 of the Persons with Disabilities (Equal Opportunities etc.) Act, 1995.


Having heard the learned counsel for the parties, we are of the opinion that it is the duty of respondent No.1 to employ the appellant in Class IV post. If no such post exists, then by virtue of Section 47 of the said Act, a supernumerary post shall be created within eight weeks from today and employment given to the appellant with such measures of relief as the appellant with such measures of relief as the appellant may be entitled to."

The Delhi High Court, in Writ Petition No. 5503 of 1999 decided on 13.8.2002 (Shri Dharambir Swaroop Vs. Delhi Transport Corporation), in view of the aforesaid decision of the Supreme Court, observed that it was no more open for the respondent to contend that as the workman had been paid compensation on medical ground and compensation on the ground of disablement, the petitioner was not entitled to reinstatement in view of the specific provision of Section 47 of the Disabilities Act and that even if the above amount was paid under the scheme, the petitioner would be entitled for reinstatement.


We, therefore, do not find any merit in the contentions advanced on behalf of the petitioners that as the applicant had received compensation under the Workmen Compensation Act, there was no occasion for the petitioners to protect his pay.
We are also of the opinion that the conditions stipulated in Rule 22 of the Fundamental Rules cannot deprive the petitioner of his legitimate claim for protection of the last pay drawn by him as DCM. The Hon'ble Supreme Court in the case of Kunal Singh (supra) after noticing the provisions of Section 72 of the Disabilities Act had clearly observed that the Disabilities Act was a special legislation dealing with the persons with disabilities, protection of rights and full participation to them. Thus, in our view the provisions of Section 47 will clearly override Rule 22 of the Fundamental Rules. In this view of the matter, the contention raised by the learned counsel for the petitioners that as the applicant had been given the advance increments taking into consideration the number of years of service rendered on the post of DCM, the protection of last pay cannot be given has to be rejected. This would not only be in conformity with the provisions of Section 47 of the Disabilities Act but would also be in accordance with the decisions of the Supreme Court, to which we have referred above, rendered prior to the enforcement of the Disabilities Act wherein such applicants were clearly entitled to protection of the last pay drawn.


There is, therefore, no infirmity in the order of the Tribunal granting protection of the last pay drawn by the appellant as DCM even though he was continued as LDC.
The learned counsel for the petitioners also very feebly submitted that the Tribunal was not justified in quashing the retirement order. In our considered opinion, this contention is dependent upon the fact whether the applicant was entitled to the protection of the last pay drawn by him as DCM as the applicant had been retired merely on the ground that he insisted upon protection of his last pay. The records clearly reveal that after receipt of the communication dated 5th January, 1998, the applicant joined as LDC but had made a detailed representation to the authorities to protect his pay by retaining him in service as Store Superintendent/Store Foreman and even when he was informed by the authorities by the letter dated 21st July, 1998 that his pay cannot be protected, the applicant again made a request for protection of pay so that he could support his family but the department issued the order dated 1st February, 1999 by which the applicant was retired. We have upheld the order of the Tribunal granting pay protection to the applicant and, therefore, this submission of the learned counsel for the petitioners cannot be accepted as the applicant had merely been insisting for grant of benefits due to him in law.


Learned counsel for the petitioners then contended that the applicant was not entitled to any relief as he had not suffered the injury ''during the course of employment'. This contention cannot be accepted. In the first instance such a plea was not raised before the Tribunal and nor has such a ground been taken in the petition and it is only during the course of the argument that such a plea has been taken. A perusal of the Original Application filed by the petitioners before the Tribunal, however, clearly shows that after completing the tubewell work, the petitioner met with the accident when he was returning back. Thus, it cannot be said that the injury was not caused ''during the course of employment'.


Even otherwise, we are unable to accept such a contention because if we agree to the submission of the learned counsel for the petitioners that ''during his service' has to be read or be substituted by ''during the course of his employment' then the Court will be substituting the words which the Legislature in its wisdom has not used in the section. The Legislature has consciously used the word ''disability during his service' in Section 47 of the Disabilities Act and has not defined that the disability must be one which should occur ''during the course of employment'. We are, therefore, of the considered opinion that Section 47 of the Disabilities Act does not require that the person must suffer the disability ''during the course of employment' and even if he suffers the disability during the period of service but outside the course of employment then too he is entitled to the protection. This view was also taken by the Delhi High Court in the case of Satya Bir Singh Vs. Delhi Transport Corporation & Anr. [(2005) 1 PDD (CC) 398 with which we entirely agree.


Before parting with this case we must not forget to refer to a recent decision of the Hon'ble Supreme Court in Indian Banks Association, Bombay & Ors. Vs. M/s. Devkala Consultancy Service & Ors. AIR 2004 SC 2491. In the said case vast sum of money had been collected by the Banks in rounding up of interest rates under the Interest Tax Act, 1974. This was declared to be illegal by the Supreme Court but it was observed that by directing the Union of India to refund the excess amount collected through the Banks and consequently ask the Banks to refund the same to the borrowers would take a long time and, therefore, it was thought proper to create a fund for the benefit of the disadvantaged people as it was found that despite the progressive stand of the Court and the initiatives taken by the Government, the implementation of the Disabilities Act was far from satisfactory and that the disabled were victims of discrimination in spite of beneficial provisions of the Act. The Supreme Court, therefore, in larger interest, created a fund for this purpose and the excess amount collected was directed to be deposited in the said fund. It also recommended to the Central Government, with a view to effectively implement the provisions of the Disabilities Act, to amend the same by providing for creation of such a fund.


We have referred to the aforesaid decision only to emphasise that time and again it has been pointed out by the Hon'ble Supreme Court that every endeavour must be made to ensure that the disabled are able to reap the benefit of the Disabilities Act.


We have not been able to find merit in any of the contentions advanced by the learned counsel for the petitioners. The Writ Petition is accordingly dismissed.

Dt.-4.1.2006
NSC/GS