Deaf seek level field on disability

Dear Friends,

Issues of bias within disabilities is becoming a regular discussion point. Though the disability groups try to avoid such a conflicting situation among disabilities and pose a unified front to advocate for their rights, however these issues are now open secrets. The bureaucracy and employers are taking advantage of this and openly discriminating in favour of one disability and against the other while filling up the disability quota provided by the law.

We have seen in the past that the person with less disability is preferred to fill up the vacant job quota. Often those with less than 40% disability (as required by law)  with fictitious certificates claiming to be 40% disability get in to the quota leaving the actual needy stakeholders in lurch. The employers raise no voice because the get (at least that is what the employers think) a more able?? and efficient??? employee in the disabled category which they have to adhere to in terms of The Persons with Disabilities Act. This is one side of the issue.

The other side of the issue is that there is open discrimination within disabilities that currently are eligible to be considered against disability quota in the Government jobs. Those who minor physically disabilities are preferred to those with more severe physical disabilities (such as a crutch user is preferred to a wheel chair user or those with Post Polio Residual Paralysis are preferred to those with Cerebral Palsy, a partial hearing impaired with speech is preferred to deaf, low vision is preferred to blind and likewise..). 

However,  in employment, it is the deaf who get left out. The results of past five years of UPSC exams conducted for Civil Services indicates this bias very categorically. There has to be a mechanism to address such discrepancies which only leads to rivalry among the disability groups. The currently disability law in India only provides for reservation in employment @ 1% each for the Hearing impaired, Low Vision & Blind and Orthopedic impaired. And now we are already witnessing many other groups who have been left out for various reasons from this ambit, raising their concerns vociferously in the consultations being organised for finalizing a new disability law for India in tune with new UN Convention on Rights of Persons with Disabilities.

The Government should evolve a clear cut mechanism to check discrepancies and subjective biases so that transparency is maintained and justice is done to the stakeholders.  The issue brought out before the court by Deaf Employees Association is an indicator that all is not well and soon you may find courts flooding with similar petitions from other groups. 

regards

SC Vashishth, Advocate

Here is the news item:

Deaf seek level field on disability

Mar 19, 2011, 03.52am IST

NEW DELHI: The hearing impaired on Friday moved the Supreme Court seeking parity with the blind and other physically challenged people in government service in promotions and allowance entitlements.

A bench comprising Chief Justice S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar wanted petitioners — "Deaf Employees Welfare Association" and " Railway Employees Association of Deaf and Dumb" — to make a representation to the ministry of social justice and empowerment about their grievance.

However, solicitor general Gopal Subramaniam, taking note of the complaint of discrimination by the hearing impaired government employees, agreed to entrust the concerned department to examine the issues raised by the petitioner through advocate Kamal Kumar Pandey.

The bench asked the two associations to give the SG a copy of their petition and wanted the ministry concerned to report back to the court with its stand in four weeks.

Quoting Article 41 of the Constitution obliging governments to provide effective mechanism and public assistance to disabled people, the petitioners said prior to 1995, there was no specific legislation to address the rights and needs of the disabled people.

The governments confined their efforts to providing medical rehabilitation and removal of the stigma limited to visible disabilities like blindness, orthopaedically handicapped and leprosy, they said.

However, the concept of disability and the social attitude towards it has undergone a radical change since India signed the "Proclamation for Disabled, Full Participation and Equality for Asia and Pacific Region" in 1992. The Centre framed a national policy for disabled in 1993, which was revised in 2005, and provided 3% reservation to blind, hearing impaired and locomotory disabled people in government jobs.

However, the approach of the central and state governments underwent very little change and they have been discriminating against the the deaf employees by not providing them travelling allowance, on-job training and promotions on a par with the blind and orthopaedically handicapped.

Deaf Can Now Legally Drive in India [Judgement included]

Court:              Delhi High Court

Bench:             Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna

Case No.:        W.P.(C) 10849/2009

Case Title:      The National Association of the Deaf & Anr Vs. Union of India

Date of Order: 14 Feb 2011

Case Brief:

Dear Friends,

While the activists and disability rights workers are actively engaged in writing, commenting, criticizing and suggesting on the New Disability Act, this success for the deaf people of India has silently knocked their doors. I have been closely following this case filed by Human Rights Law Network since September 2009 when it was admitted (click here to read my first post in Sep, 09) after an aborted attempt on an earlier date.  

I am so delighted to share with you all that after a wait of several months, (click here to read Nov 2009 post)  finally yesterday i.e. on 14th February 2011, in a landmark judgment benefiting 50 million people in the country, the double bench of  Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna, of Delhi High Court delivered their judgement  saying people with hearing impairment can also drive. "If they meet the necessary criteria and pass the test, they will be given driving licences and allowed to drive", the high court said. Hitherto, deaf were barred from appearing in driving tests as the archaic Motor Vehicles Act considered them a source of danger to the public.

A bench headed by chief justice Dipak Misra said, “Even if an applicant is totally deaf, he has to be called for a test. Even if he applies for a learner’s licence without a medical certificate and clears the test, he should be granted a learner’s licence." 

You will notice that the judgement doesn't speak a single word against the Union of India nor against the existing system of issuing licences, yet beautifully carves out a way that deaf people in India can not be discriminated against merely on the basis of their disability!

The Question in Form 1-A [which deals with medical certificate and relates to Rules 5(1), 5(3), 7, 10(a), 14(d) and 18(d)] of MV Act 1988  that was filled up by the doctor,] i.e. "In your opinion, does the applicant suffer from a degree of deafness which would prevent his hearing the ordinary sound signals? " has become irrelevant in light of this judgement! 

The Hon'ble Judges have, without making any comment on the  stand /defence of the Government of India in the case, simply reproduced the same to amuse the readers. I am reproducing  the  major defences of the Government of India for your amusement. For your information these defences are  based on a conclusion of a meeting of all relevant officials from various ministries including Road Transport, Health etc:

(i) Indian roads have far more hazards than in those countries which have been referred to in the petition.  This is evident from the fact that there is highest number of road facilities worldwide occurring due to road crash in India.  Indian roads have dense vehicle population.  The pattern of driving is also mix.  Besides, there is also lack of traffic discipline.  While using the roads, it is predominantly required to give audio signal to the vehicles around to caution other drivers or for giving way.  Such situations are not seen in developed countries.
(ii) Use of rear view mirror may not be a full proof solution because vehicles often are not fitted with such mirrors on both sides. Even if they are fitted on the vehicle, the users often fold them back.
(iii) In case of hilly roads, it is mandatory to blow horn on the sharp as well as blind corners.  The driver would be in a dangerous position if he is unable to hear the audio signal.
(iv) While driving the vehicle, inside noise, such as running of engine, tyre noise etc. is an indicator for the health and safety of the vehicle.  The deaf person will be in an unsafe situation because he will not be able to gather these signals.
(v) Luxury vehicles are often fitted with audio systems.  Loud music inside the vehicle may pose unsafe situation but purely by the choice of the driver and hence, cannot be made a ground for allowing deaf persons to drive.
(vi) The UN Convention on Rights of Persons with Disabilities does not qualify the extent of deafness.
(vii) In developed countries, there is a system for imparting training to deaf people in order to obtain driving licence.  There is no such system prevalent in the country.
(viii) International Driving Permit is valid for one year only and thereafter even a foreign national is required to obtain the driving licence afresh as per the existing rules and regulations in the country.  Thus, analogy given in this regard between the foreign national and Indian national is not correct.
(ix) Every year a large number of accidents took place in the country involving motor vehicles on roads.  Many of them prove to be fatal.  During the year 2007 alone, there were around 4.8 lakhs road accidents which killed around 1.15 lakh people and injured more than 5 lakhs person in India.  While the Government has been making all efforts to bring down the rate of accidents substantially, it cannot afford to take the risk of endangering the lives of deaf drivers as well as other road users.

And finally this Committee opined:  "Hearing levels up to 60 db with use of hearing aid in better ear may be permitted for issue of driving licence for private vehicle and hearing level up to 40 db with hearing aid in better ear may be permitted for issue of driving licence for commercial vehicle.  Persons suffering with severe and persistent vertigo should not be issued a driving licence."

This was like only reiterating what existed earlier!

The Judges in the operative para of the judgement categorically stated the statutory requirement,  "However, we are obliged to certify that if an applicant is totally deaf, he has to be called for the test if he applies for a learner‘s licence without the medical certificate and if he passes the test as required under Rule 11, he  shall be granted the learner‘s licence as that is the statutory requirement.   Similarly, if a person belonging to the said category satisfies the necessary  criteria, he shall be allowed to obtain the licence."

The judges refrained from making any comment on the important issues raised in the writ petition or criticizing the government action. Also they refused to take liberty to enter the domain of legislature on the prayer of changing the policy on the subject and said insegregable facet of the basic structure of the Constitution of India. 

This gives sufficient indication to the Government of India to appropriately change their discriminatory and restrictive practices against persons with hearing impairment. We hope the Government will take appropriate steps to set the malady right.

At my personal level, being a lawyer, I was looking for some strong words from the Hon'ble Court on the conduct of the so called committee of technical people who opined that the deaf can be danger to public without even appreciating the documents on record! However, the court did not comment on any issue that could have directly targeted any government official.

So, silently the purpose has been achieved. I hope the systemic changes will also take place and Deaf people will not be harassed while seeking valid licences.  

Now a passing remark from a stakeholder, "At least now deaf people would be able to drive legally with valid driving licence. Who bothers about going and taking a driving test, when driving licences can be bought through middlemen without even going to RTO in other states, if not in Delhi!"

The jobs doesn't end here. After this judgement, the major work is to spread the word around about this judgement and get the relevant rules changed in all states and union territories across the length and breadth of India. The DPOs and activists have this major role to perform. I want to congratulate my senior colleague Shri Collin Gonsalves, Senior Advocate, Mr. Pankaj Sinha, Advocate and their team for so successfully taking up this case which is almost like re-writing the rules of equality - at least for deaf people of this country. I am sure, my friend Arun Rao and friends from National Association of the Deaf would agree to this. Congratulations to one and all!

regards

SC Vashishth

Advocate, Disability Rights

Click here to read the judgement dated 14 Feb 2011 or read the embedded judgement below:

Madras High Court- An employee acquiring a mental disability can not be terminated

Introduction:

In a groundbreaking judgment, the Madras High Court, presided over by Justice K. Chandru, has set a significant precedent by ruling in favor of an employee who was terminated due to mental illness. This case marks a first of its kind where the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), have been effectively utilized to protect an employee acquiring a mental illness while in service.

Case Overview

C. Narayanan, an office assistant at the Government Industrial Technical Institute, was terminated from his position in January 2001 on the grounds of "mental disability." The Director of Employment and Training, responsible for the termination, claimed that Narayanan was suffering from "dementia with mood disorder depression," as diagnosed by the Institute of Mental Health. Despite issuing a legal notice and later applying for pension and accepting terminal benefits, Narayanan contested the decision, leading to a legal battle that reached the Madras High Court.

The Court's Ruling

Justice K. Chandru, in his judgment, unequivocally stated that the termination of Narayanan's services was in direct contravention of Section 47 of the PWD Act. This section prohibits any establishment from dispensing with or reducing in rank an employee who acquires a disability during his service. The court highlighted the irony that the respondents, who belonged to the Department of Employment and Training, were expected to be knowledgeable about the rights of employees, yet failed to adhere to the provisions of the PWD Act.

Key Highlights of the Judgment

1. Reinstatement and Compensation: The court directed the State government department to pay Narayanan his full salary, including annual increments and other monetary and service benefits, from the date of his disability till the date of his retirement. This decision ensures that Narayanan receives fair compensation for the period he was unjustly deprived of his employment.

2. Legal Costs: The Director of Employment and Training was ordered to pay Rs. 5,000 as legal costs to Narayanan for the hardship caused by the dismissal and subsequent legal proceedings.

3. Recognition of Mental Illness as Disability: The judgment explicitly recognized mental illness as a form of disability under the PWD Act. This is a progressive step in ensuring that mental health conditions are given due consideration in employment and disability rights.

Implications of the Judgment

This judgment is a significant victory for the disability sector, as it reinforces the rights of employees with disabilities and sets a strong precedent for future cases. It sends a clear message to all employers, particularly government departments, about the importance of adhering to the provisions of the PWD Act. The case also underscores the necessity for greater awareness and understanding of disability rights among employers and government officials.

Conclusion

The Madras High Court's decision in favor of C. Narayanan is a landmark judgment that will have far-reaching implications for disability rights in India. It highlights the importance of protecting the rights of employees with disabilities and ensuring that they are not unfairly discriminated against due to their condition. Congratulations are in order for Justice K. Chandru, Narayanan, the disability sector, and the advocates who fought for this progressive and just outcome.

Media report in TOI: 
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

Disabled employees suffering as employers not aware of disability provisions

Disabled need support, not your sympathy: High Court

"Visually impaired and disabled persons don't require your sympathy, they need a little support," observed the Bombay High Court on Thursday.

While hearing a plea filed by Nilima Surve, who is visually impaired, the high court was surprised that the commissioner of disability had upheld her termination, instead of supporting her.

In November 2006, Chetna College at Bandra had appointed Surve as a junior clerk. But she was dismissed from service four months later. The college had cited "mistakes in her typing" as the reason behind the termination.

The division bench, comprising chief justice Mohit Shah and justice SJ Kathawala, was irked to find that Surve wanted a particular software to be installed to improve her work, instead she was sacked citing "unsatisfactory work".

Surve had approached the commissioner for disability challenging her dismissal stating she had merely sought installation of the software, Jaws, but the college chose to dismiss her in March 2007.

The judges got further annoyed when Surve's counsel Chetan Agrawal pointed out that the commissioner had passed some critical remarks in the order upholding her termination.

One such remark read: "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software."

Additional government pleader agreed that the order was contrary to the legislative intent, after the judges expressed anguish about the observations.

"The order is clearly arbitrary and contrary to the provisions of the [Persons with Disability] Act," Nitin Deshpande said. The high court also called for a meeting of all stakeholders — government officers, NGOs, representatives of visually impaired and handicapped persons — on January 15.

Measures to resolve the problems faced by the disabled will be discussed at the meeting to be held in the conference hall of the high court building in presence of the judges.

http://www.hindustantimes.com/StoryPage/Print/636604.aspx

© Copyright 2010 Hindustan Times

Disability Pension if Army Personal injured while on leave

Dear Friends,

This judgement comes in contrast to other judgement especially of the Delhi High Court which highlighted that the disability should be attributable to military service. From that angle, I feel the Punjab and Haryana High Court has given its judgements taking the holistic view of social justice provisions to those who are in the service of protecting the nation while disagreeing totally with Delhi High Court judgement.

I am hopeful that this trend will boost the morale of the combatant members of the  Armed Forces and Hon'ble Supreme Court will also take an appropriate view in the matter giving benefit to the soldiers when this matter reaches them in appeal. 

For the update on this matter in the Supreme Court, please refer to my post dated 18 July 2011. whereby the SC did not agree with granting disabilty pension if the injury is not attributable to military service.

regards

SC Vashishth

Here is the current coverage of the case:

HC allows disability pension for Army personnel on leave (Indian Express) 

The Punjab and Haryana High Court has ruled that Army personnel will be entitled to disability pension if injured in an accident while on annual/casual leave. As of now, Army personnel who suffer injury during annual leave are denied disability pension.

The order of the Full Bench of the High Court comprising Justices A K Goel, Alok Singh and K Kannan is significant as it disagrees with a judgment given by Full Bench of the Delhi HC on the same issue. With two Full Benches having divergent judgments on the issue, the question of law is all set to be decided by the Supreme Court.

In its 25-page judgment, the Full Bench made it clear that an Army personnel who suffers an injury or meets with an accident during leave will be entitled to disability pension only if the activity, during which he suffers the injury, is compatible with a military activity. For instance, if an Army personnel meets with an accident on leave, he is entitled to disability pension. But he will not be entitled to disability pension if he is injured while engaged in an activity which is not compatible with military service, or gets drunk and enters into a brawl.

The order came on two set of petitions filed by the Union of India against two Army personnel namely former sepoy Sumanjit Singh and former naib subedar Khusbash Singh.

Army men to be treated on duty even if on leave (The Tribune)

Tribune News Service, Chandigarh, April 5

Army personnel on casual or annual leave shall be considered on duty in case of any mishap, a three-Judge Bench of the Punjab and Haryana High Court today ruled.

The Bench made it clear that to decide their disability pension entitlement, it was to be seen whether the disability was attributable to or aggravated by military service.

With this, the Bench of Justice Adarsh Kumar Goel, Justice K Kannan and Justice Alok Singh has put to rest the controversy on disability pension entitlement of Army personnel suffering disability in accidents while on leave. So far, more often than not they were denied disability pension on the ground of not being on duty, while on leave.

The assertion comes with a rider. The Bench has clarified the only exception is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”.

The ruling came on a bunch of two petitions by the Union of India against two Army personnel. “In both cases, the disability had arisen through accidents during leave.”

Speaking for the Bench, Justice Kannan asserted: “If the Army personnel were on duty and they suffer disability due to natural causes, the issue whether it was attributable to or aggravated by military service will be examined by taking the case of Army personnel as they were and examining whether it was intervention of the Army service that caused the disability….

“In cases where the injury that resulted in the disability was due to an accident, which was not due to natural, pathological, physiological or psychological cause, the question that has to be answered is whether the activity or conduct that led to the accident was the result of any activity that is even remotely connected to military service.

“An activity of an independent business, or avocation or calling that would be inconsistent to military service, and an accident occurring during such activity, cannot be attributable to military service,” the Bench concluded.

Disability Pension

However, to decide their disability pension entitlement in case of any mishap, it is to be seen whether the disability is attributable to or aggravated by military service

Rider in the ruling is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”

Earlier Delhi High Court Order 

HC negates disability pension for Army man hurt doing personal work

The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

New Delhi, Aug 24 : The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

A Special Bench comprising Justices Vikramjit Sen, Sanjeev Khanna and S L Bhayana passed the verdict following a difference of opinion between the judges in a Division Bench.

While referring to a Supreme Court ruling the Special Bench observed, "Injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension."

"This is so regardless of whether the injury or death has occurred at the place of posting or during the working hours," the Bench added.

The Court dismissed a plea of ex Naik Dilbagh for disability pension in addition to family pension. Dilbagh, in a petition, claimed for the disability pension after he had received a head injury in a road accident on Delhi-Panipat road while going to a school for the admission of his child on December 25, 1993.

Dilbagh was on a casual leave from December 12 to 29, 1993 at the time of the accident.