Friday, July 1, 2011

Madras HC | C. Paulraj Vs. The Secretary | 01 July 2011

Court: Madras High Court (Madurai Bench)

Bench: MR.JUSTICE D.HARIPARANTHAMAN

Case No(s). W.P.(MD) No. 9795 of 2008 and  W.P.(MD) No. 11415 of 2008

Title C. Paulraj vs The Secretary 

Date of Common Judgement : 01 July 2011 

 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/07/2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD) NO.9795 of 2008
AND
W.P.(MD) NO.11415 of 2008
 

C.Paulraj                                                                   ...              Petitioner in both WPs'
   
 Vs.

W.P.(MD) NO.9795 OF 2008

1.The Secretary
   Ministry of Transport
   Chennai.
 
2.The Transport Commissioner
   Chennai - 600 005.
 
3.Regional Transport Officer
   Tirunelveli - 627 007.
 
4.Assistant Registering Authority
   Transport Department
   Valliyoor, Tirunelveli District - 627 117.             ...               Respondents

W.P.(MD) NO.11415 OF 2008

1.The Union of India
   by its Secretary
   Ministry of Transport, New Delhi.
 
2.The State of Tamil Nadu
   by its Secretary
   Department of Transport
   Fort St. George, Chennai - 600 009.
 
3.The Central Co-ordination Committee
   [Constituted under Persons with
    Disabilities (Equal Opportunities,
    Protection of Rights and Full
    Participation) Act, 1995]
    Office of Minister of Welfare, New Delhi.
 
4.The State Co-ordination Committee
   [Constituted under Persons with
    Disabilities (Equal Opportunities,
    Protection of Rights and Full
    Participation) Act, 1995]
    Office of Minister of Welfare
    Fort St.George, Chennai -  600 009.            ...               Respondents
 

 Prayer IN W.P.(MD) NO.9795 OF 2008

 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, to direct  the 1st and 2nd respondents to allow the 3rd and 4th respondents to treat the vehicle as an invalid carriage and to issue the permanent registration of the four wheeler bearing Chasis No.2721645 and Engine No.3967599 in favour of the petitioner.

 Prayer IN W.P.(MD) NO.11415 OF 2008

 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, to direct the respondents 3 and 4 to advise the respondent No.1 to appropriately enable the physically challenged person to alter the vehicles to suit the requirement of physically challenged person and register the same under the Motor Vehicles Act.

For Petitioner                 

in W.P.No.9795/  2008  ...            Mr.T.Lajapathi  Roy
in W.P.No.11415 / 2008 ...           Mr.T.Lajapathi  Roy
                                                     for Mr.Ramesh Gopinathan
 
For Respondents 1 - 4
in W.P.No.9795 / 2008
For Respondents 2 & 4
in W.P.No.11415 / 2008 ...           Mr.D.Muruganandam, Additional Govt. Pleader
 
For Respondents 1&3
in W.P.No.11415 / 2008 ...           Mr.P.Krishnasamy 
                                                     Senior Panel Counsel for Government of India
 

COMMON ORDER

The petitioner is a Farmer. He is a B.Com., graduate. While he was working on the installation of a motor pump-set in a well, he fell down and injured severely at the spinal cord resulting in paralytic condition of the lower half of his body from the hips downwards. He obtained driving licence for driving invalid carriages on 13.01.2000.

2. The petitioner purchased an auto-rickshaw with registration no.TN74-C-0630. He modified the same, so as to make it an invalid carriage that could be operated by him. That is, he fitted hand break instead of foot break, by using the services of a mechanic. The said modification was approved by the Assistant Registering Authority, Transport Department, Valliyoor, Tirunelveli District, the fourth respondent in W.P.(MD)No.9795 of 2008, on 06.12.1999 and  the same was recorded in the R.C. book. He was also exempted from payment of tax, as per G.O.Ms.No.3352, Home (Transport) Department, dated 29.12.1976, so long as the vehicle exclusively is used by him as a physically challenged person.

3. The petitioner sold the said auto-rickshaw and purchased a second hand Maruthi-800 CC Car with registration no.TN04-B-7688. He made alterations in the said Car so as to make it as an invalid carriage. That is, the clutch, break and accelerator were brought to hand operation instead of leg operation. The said modifications were also approved and recorded by the fourth respondent in W.P.(MD)No.9795 of 2008 in the R.C. book on 03.06.2002.

4. Thereafter, the petitioner purchased a new Marthi-800 CC Car on 25.06.2008, with Chassis No.2721645 and Engine No.3967599, and similar modifications were done in the new Car as was done in the earlier Car bearing registration no.TN04-B-7688, so as to make it as an invalid carriage. Thereafter, when he approached the third respondent in W.P.(MD) No.9795 of 2008 seeking permission for conversion of Motor Car into invalid carriage and to register the same under the description "invalid carriage", the third respondent issued a communication dated 16.07.2008 refusing to entertain his application on the ground that the Car that was sought to be registered as invalid carriage, is not an invalid carriage as defined under Section 2(18) of the Motor Vehicles Act, 1988. Further it was stated that the Motor Vehicles Act does not permit the conversion of a Car into an invalid carriage.

5. In these circumstances, the petitioner has filed the writ petition in W.P.(MD) No.9795 of 2008 seeking a direction to the respondents 1 and 2 to allow the third and fourth respondents to treat his vehicle viz., Maruthi-800 CC, bearing Chasis No.2721645 and Engine No.3967599 as "invalid carriage" and to issue permanent registration of the said vehicle in his favour.

6. The petitioner filed another writ petition in W.P.(MD) No.11415 of 2008 seeking a direction to the Central Co-ordination Committee and the State Co-ordination Committee, constituted under the  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full     Participation) Act, 1995, to advise the Secretary, Ministry of Transport, Government of India to appropriately enable the physically challenged persons to alter the vehicles to suit their requirement and register the same under the Motor Vehicles Act, 1988.

7. In both the writ petitions, the respondents have not filed counter affidavit.

8. While the relief claimed in W.P.(MD) No.9795 of 2008 is relating to the petitioner, the relief claimed in W.P.(MD) No.11415 of 2008 is to benefit all the physically challenged persons, as they are facing difficulties in registering the vehicles as invalid carriage, on making modifications, so as to drive those vehicles.

9. The grievance of the petitioner is that the manufacturers have now stopped manufacturing the vehicles specially designed for disabled persons, due to economic considerations, which forced the  disabled persons to make alterations with the help of mechanics in the workshops to convert the vehicle as invalid carriage and the physically challenged persons are facing difficulties in registering those vehicles as invalid carriage. Without registering the vehicles as invalid carriage, they could not take those vehicles to ply on the roads and the mobility of the physically challenged persons would be severely affected. Further, the Government of India remedied the situation in so far as the two wheelers are concerned, by issuing a notification in No.RT- 11012/12/01/MVL, dated 23.07.2008, under Section 52 of the Act, for conversion of two wheelers as invalid carriage. According to him, the respondents 3 and 4 in W.P.(MD) No.11415 of 2008 shall take the issue in respect of the four wheelers also, with the first respondent Government of India, for the benefit of the disabled persons.

10. Heard the submissions made on either side.

11. The petitioner approached the third respondent in W.P.(MD) No.9795 of 2008 with representation dated 14.07.2008, to register his vehicle viz., Maruthi-800CC Car, bearing Chassis No.2721645 and Engine No.3967599, as "invalid carriage", with some modifications, but without changing the basic feature. The modifications were limited to the extent of bringing hand operation of clutch, break and accelerator instead of leg operation. The said modifications were done by a local mechanic in the workshop.

12. But the third respondent Regional Transport Officer, Tirunelveli, by a letter dated 16.07.2008 refused to register the same as invalid carriage, as it is not an invalid carriage as per Section 2(18) of the Motor Vehicles Act. The contents of the said letter dated 16.07.2008 of the third respondent Regional Transport Officer, Tirunelveli, is extracted hereunder:

"I invite your attention to your representation in the reference first cited.   

As per section 2(18) of the Central Motor Vehicle Act 1988 "invalid carriage" means a motor vehicle specially designed and constructed, and not merely adapted, for the use of person suffering some physical defect or disability, and used solely by or for such person.

In your representation you have sought permission to convert your Motor  Car into an invalid carriage. The alteration of car into invalid carriage is not allowed as per the amended MV Act. In view of the above provision of the act the request for alteration of motor car into invalid carriage cannot be allowed."

13. According to the third respondent, the Motor Vehicles Act does not permit conversion of Car into invalid carriage and as per Section 2(18) of the Motor Vehicles Act, 1988 "invalid carriage" means a motor vehicle specially designed and constructed, and not merely adapted, for the use of person suffering some physical defect or disability, and used solely by or for such person.

14. The petitioner has stated that he had no other option except to avail the service of a mechanic to make alterations in the Car to convert it into an invalid carriage, since the Maruthi company, which was manufacturing the special vehicles for disabled persons in the last decades, have now stopped the manufacture of such vehicles. It is also categorically averred by the petitioner that no company is manufacturing the specially designed vehicles for the disabled, both in two-wheeler and four wheeler sectors, for the past five years. The said fact is not disputed by the learned counsels appearing for the respondents.

15.At this juncture, it is relevant to note that Section 2(18) of the Motor Vehicles Act, 1988 was considered by a learned Judge of this Court in W.P.(MD) No.4482 of 2008  (decided on 16.05.2008) (R.RAMASAMY VS. THE SECRETARY, MINISTRY OF TRANSPORT, CHENNAI AND OTHERS) wherein the learned Judge has held that conversion made by a private mechanic, without changing the basic feature of the motor vehicle, can be registered as invalid carriage, by the registering authorities. The word "adapted" in Section 2(18) of the Motor Vehicles Act, 1988 was interpreted by this Court and is held that it means only "suitable" and it should not be understood that only a vehicle specially manufactured by the manufacturer could alone be registered as invalid carriage. At this juncture, it is relevant to extract paras 18.3  to 18.10 of the said judgment, which reads as under:

"18.3.As per Section 2(18) the expression "invalid carriage" means a motor vehicle specially designed and constructed, and not merely adapted, for the use of a person suffering some physical defect or disability, and used solely by or for such person. The expression "adapted" has not been defined in the statute. As per Concise Oxford Dictionary 10th Edition, the word "adapt" is a verb, which means "make suitable for a new use of purpose".

18.4.The expression "adapted" has been used in various definition clauses such as in Sections 2(14), 2(18), 2(22), 2(25), 2(26), 2(28), 2(29), 2(33), 2(35), 2(40) and 2(43). Meaning has to be ascribed to such expression keeping in view the context in which it has been used. Though ordinarily the word "adapted" can be considered as past tense of the verb "adapt", at times such expression "adapted" can be considered as adjectival. Understood in such a sense, the expression can mean "suitable".

18.5. In the context in which it has been used in Section 2(18) the word "adapted" means suitable. It becomes more clear when the preceding expression refers to "a motor vehicle specially designed and constructed, and not merely adapted".

18.6. In several decisions, such expression "adapted" has been understood to mean "suitable" or "suited".

18.7. In  AIR 1975 SC 17 (BOLANI ORES LTD. V. STATE OF ORISSA), it was observed:-

"19. While dealing with the English cases it must not be forgotten that the definition of "motor vehicle" in the Road Traffic Act imports the element of intention into the definition for ascertaining whether a vehicle is a motor vehicle. In Maddox v. Storer8 Lord Parker, C.J. was construing the word "adapted" when used disjunctively with "constructed." He observed:

"One can get illustration after illustration, on looking at the Act itself, where 'adapted', when used disjunctively with 'constructed' must mean a physical alteration, and, as it seems to me, other cases where the word 'adapted' alone is used and where it must be given the adjectival meaning of being fit and apt for the purpose."

But where the word "adapted" alone has been used such as in sub-paragraph (2) of paragraph 1 of the First Schedule to the Road Traffic Act, 1960, he was of the view that it was wholly inapt to mean "altered so as to make fit". He asked "How do you alter a motor-car so as to make it fit to carry not more than seven passengers"? It is clearly there standing on its own, susceptible only of meaning "fit and apt for the purpose."

                           ....                      

22. As usual references have been made to the Dictionaries but quite often it is not possible to hold a dictionary in one hand and the statute to be interpreted in the other for ascertaining the import and intent of the word or expression used by Legislature. The shade of meaning of a word, its different connotations and collocations which one finds in a dictionary does not relieve us of the responsibility of having to make the ultimate choice of selecting the right meaning. We choose that meaning which is most apt in the context, colour and diction in which the word is used. The use of a dictionary ad lib without an analysis of the entire Act, its purpose and its intent, for ascertaining the meaning in which the Legislature could have used the word or expression may not lead us to the right conclusion. With this caution before us for avoiding any of the aforesaid methods which might lead to a possible incongruity, we will examine the different facets to which our attention has been drawn.

23. The meaning of the word "adapted" in Section 2(18) of the Act is itself indicated in Entry 57 of List II of the Seventh Schedule to the Constitution, which confers a power on the State to tax vehicles whether propelled mechanically or not and uses the word "suitable" in relation to its use on the roads. The words "adapted for use" must therefore be construed as "suitable for use". At any rate, words "adapted for use" cannot be larger in their import by including vehicles which are not "suitable for use" on roads. In this sense, the words "is adapted" for use have the same connotation as "is suitable" or "is fit" for use on the roads. (emphasis added).

18.8. Similar meaning was attributed by the Supreme Court in AIR 1992 SC 1371 (M/S.CENTRAL COAL FIELDS LTD. V. STATE OF ORISSA AND OTHERS).

18.9. In (2004) 6 SCC 210 (GOVERNMENT OF A.P. AND ANOTHER V. ROAD ROLLERS OWNERS WELFARE ASSOCIATION AND OTHERS), the Supreme Court, while considering the question as to whether a road roller is a motor vehicle within the meaning of Section 2(28) of the Motor Vehicles Act, observed:

 "5.........Undoubtedly, a roadroller is meant for repairing roads. This itself shows that it is adapted for use on roads. A roadroller is not capable of being used off the road. Merely because its purpose is to repair roads does not mean that it is not suitable or not adapted for use on roads. We fail to understand from where the High Court concludes that the connotation of vehicle must mean a conveyance for carrying people or goods. The definition of motor vehicle does not so provide. Merely because a vehicle does not carry passengers or goods does not mean that it ceases to be a motor vehicle. So long as it is a vehicle, which is mechanically propelled, and is adapted for use on roads, it is a motor vehicle within the meaning of the Motor Vehicles Act, 1988."

 18.10. From the aforesaid decisions, it is apparent that the expression "adapted" has been used in different provisions of the Motor Vehicles Act which carries the meaning of "suitable" or "capable of being used" on the road. It is used as an "adjectival" expression rather than a verb."

16. In the said judgment, the learned Judge went into detail on the issue and held that after the Motor Vehicles Act, 1988 was amended by Act 27 of 2000, there is no prohibition for any person including physically challenged persons to convert the motor vehicles as invalid carriage, so long as the alterations made does not change the basic feature of the vehicle. The learned Judge also held that the change of system from leg operation to hand operation, in so far as the clutch, break and accelerator in Cars are concerned, the same would not cause a change in the basic feature of the vehicle. The said judgment attained finality, as no appeal was preferred against the same, and the same was also not disputed by the learned counsels appearing for the respondents. In this regard, I feel it appropriate to extract para 10 of the said judgment, as under:

"10.The provisions contained in Section 52, as they stand now, do not contemplate any specific prior permission for making any alteration, save and except what is contemplated in the present Section 52(2). Moreover, Section 52(1) as it stands now contemplates that the owner of a motor vehicle should not alter the vehicle in such a manner that the particulars of the alteration would be at variance with the particulars originally specified by the Manufacturer. Where the change in the structure of the vehicle does not have the effect of changing the basic features of the vehicle, it does not come within the prohibition contemplated in Section 52(1). The above becomes clear if reference is made to the Explanation, which lays down that for the purpose of Section 52 "alteration" means a change in the structure of a vehicle which results in a change in its basic feature."

17.In view of the categorical pronouncement of this Court in the aforesaid judgment, in my view, the prayer as sought for in the writ petition in W.P.(MD) No.9795 of 2008 has to be allowed.

18.In so far as the writ petition in W.P.(MD) No.11415 of 2008 is concerned, though the prayer is for alteration of vehicles to suit the requirement of physically challenged persons seeking statutory recognition of alteration of vehicles for registering the same as "invalid carriages", it is submitted that so far as two - wheelers are concerned, the Government of India has already issued a notification in No.RT-11012/12/01/MVL, dated 23.07.2008 under Section 52 of the Motor Vehicles Act, taking into account the non- availability of invalid carriages in the market.

19.The petitioner has categorically pleaded that now both the three wheelers and four wheelers are not available in the market, as it is not economically viable for the manufacturers to manufacture and market them for the physically challenged persons.

20.The object of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is to give effect to the proclamation on the full participation and equality of people with disabilities in the Asian and Pacific Region. If the mobility of the physically challenged persons are curtailed, that would result in perpetuating the inequality and the object of the Act could be defeated. One of the objects of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is 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. That is, the State should make available the invalid carriages in the market. Till such time, the State should permit the physically disabled persons to convert their vehicles into invalid carriage, as otherwise, the rehabilitation of the persons with disabilities could never happen.

21.Likewise, the other objects of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 are to create barrier free environment; to remove any discrimination in the sharing of development benefits; to counteract any situation of the abuse and the exploitation; to lay down strategies for comprehensive development of programmes and services and equalisation of opportunities and to make special provision for the integration of persons with disabilities into the social main stream.

22.In my view, until the manufacturers are manufacturing the specially designed vehicles for the physically disabled persons, it is difficult to achieve the aforesaid objects of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Atleast, the physically challenged persons shall be permitted to convert the vehicle as "invalid carriage" as that could enable them to drive those vehicles, without changing the basic feature and the same is permissible under Section 52 of the Motor Vehicles Act and has been approved by this Court in the judgment dated 16.05.2005 passed in W.P.(MD) No.4482 of 2008, referred to above.

23.Furthermore, the respondents 3 and 4 in W.P.(MD) No.11415 of 2008 are statutory bodies constituted under Sections 3 and 13 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Sections 8 and 18 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 deals with the functions of the Central Co-ordination Committee and State Co-ordination Committee, which reads as follows:

"8.Functions of the Central Co-ordination Committee. -(1) Subject to the provisions of this Act, the function of the Central Coordination Committee shall be to serve as the national focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities.

(2) In particular and without prejudice to the generality of the foregoing, the Central Coordination Committee may perform all or any of the following functions, namely:-

(a) review and coordinate the activities of all the Departments of Government and other Governmental and non-Governmental Organizations which are dealing with matters relating to persons with disabilities;

(b) develop a national policy to address issues faced by, persons with disabilities;

(c) advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to disability;

(d) take up the cause of persons with disabilities with the concerned authorities and the international organizations with a view, to provide for schemes and projects for the disabled in the national plans and other programmes and policies evolved by the international agencies;

(e) review in consultation with the donor agencies their funding policies from the perspective of their impact on persons with disabilities;

(f) take such other steps to ensure barrier-free environment in public places, work-places, public utilities, schools and other institutions;

(g) monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities;

(h) to perform such other functions as may be prescribed by the Central Government.

18.Functions of the State Co-ordination Committee. - (1) Subject to the provisions of this Act, the function of the State Co-ordination Committee shall be to serve as the state focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities.

(2) In particular and without prejudice to the generality of the foregoing function the State Coordination Committee may, within the State perform all or any of the following functions, namely:-

(a) review and coordinate the activities of all the Departments of Government and other Governmental and Non-Governmental Organizations which are dealing with matters relating to persons with disabilities.,

(b) develop a State policy to address issues faced by persons with disabilities;

(c) advise the State Government on the formulation of policies, Programmes, legislation and projects with respect to disability;

(d) review, in consultation with the donor agencies, their funding from the perspective of their impact on persons with disabilities;

(e) take such other steps to ensure barrier-free environment in public places, work places, public utilities, schools and other institutions;

(f) monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities;

(g) to perform such other functions as may be prescribed by the State Government.

 24.In the result,

 (i) the third respondent in W.P.(MD) No.9795 of 2008 is directed to treat the petitioner's vehicle Maruthi-800 CC Car bearing Chassis No.2721645 and Engine No.3967599 as an invalid carriage and issue permanent registration in favour of the petitioner, in the light of the judgment of this Court dated 16.05.2008 in W.P.(MD) No.4482 of 2008, within a period of four weeks from the date of receipt of a copy of this order; and

(ii) in accordance with Sections 8 and 18 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the respondents 3 and 4 in W.P.(MD) No.11415 of 2008 are directed to consider the issue relating to conversion of vehicles into invalid carriage and advise suitably the first respondent - Government of India, to appropriately enable the physically challenged persons to alter the three wheeler and four wheeler vehicles also to suit their requirements and register the same under the Motor Vehicles Act, as expeditiously as possible.

 25.Both the writ petitions are disposed of with the aforesaid observations and directions. No costs.

 

To,

1.The Secretary Ministry of Transport Chennai.

2.The Transport Commissioner Chennai - 600 005.

3.Regional Transport Officer Tirunelveli - 627 007.

4.Assistant Registering Authority Transport Department Valliyoor, Tirunelveli District - 627 117.

5.The Secretary to Government Ministry of Transport Government of India New Delhi

6.The Secretary to Government Government of Tamil Nadu Department of Transport Fort St. George, Chennai - 600 009

7.The Central Co-ordination Committee [Constituted under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995] Office of Minister of Welfare New Delhi.

8.The State Co-ordination Committee [Constituted under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995] Office of Minister of Welfare Fort St.George, Chennai - 600 009.

 

 

 

 

 


Sunday, April 3, 2011

Delhi High Court questions discrimination in Online Reservation in Railways



HC backs e-ticketing for disabled

Read the news directly from source:
Supporting the idea of e-ticketing facility for the physically challenged, the Delhi High Court on Wednesday issued notices to the Railways and the central government on a PIL demanding web reservation for them at concessional rates.

A Bench headed by Chief Justice Dipak Misra said the authorities must first display the sensitivity and that the technical requirements could be taken care of subsequently.

Admitting a PIL filed by advocate Pankaj Sinha, a visually challenged lawyer, the Bench directed the counsel for the Railways and Additional Solicitor General A S Chandhiok, appearing for the central government, to explain why facility was denied to physically challenged people.

The Bench dismissed the argument of the Railways counsel that the physically challenged were not given the facility of e-ticketing because of concessions they availed and that their documents regarding the disability were to be verified first.

“How can you place it as a justification? They can always be asked to show documents before they start or during travel,” the Bench observed.

The court will now hear the matter on May 18.

Friday, March 25, 2011

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:

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.

Tuesday, February 15, 2011

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:


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

Monday, December 27, 2010

Disabled employees suffering as employers not aware of disability provisions


"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.

Thursday, October 28, 2010

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:


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.



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 


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.