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

Court:  Delhi High Court

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

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

Case Title: Hawa Singh vs Delhi Transport Corporation 

Date of Judgement:  03 February, 2012

Author: A.K.Sikri,J

THE HIGH COURT OF DELHI AT NEW DELHI

CORAM :-

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

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

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

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

"2 (i) "disability" means-

(i)blindness;

(ii)Low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability

(vi) mental retardation

(vii)mental illness;

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

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

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

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

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

8. There shall be no order as to costs.

ACTING CHIEF JUSTICE 

(RAJIV SAHAI ENDLAW)  JUDGE 
FEBRUARY 03, 2012 

Bombay Hight Courts directs Railways to be sensitive to disabled

Dear Friends,

Our disability law is almost 16 years old now. What it mandated to ensure accessibility for the disabled in public spaces including modes of transport such as road, Rail and airways, these modes continues to ignore the rights of the disabled people. There is some improvement in the road transport in few pockets such as a Metro Rail in Delhi or Low Floor buses with corresponding road infrastructure in BRT  dedicated corridors. However, largely, the railways has been most insensitive to the needs of the disabled. It impacts the persons with disabilities all the more aggressively since rail happens to be the most economic option for long distance travel in India. Knowing well their obligation under the disability law, the railways has taken resolutions/ passed memorandums and instructions. However, on ground there is hardly any change and the worst is the maintenance track record. One can find most unhygienic toilets on the Indian Railways - in both coaches and at platforms. This is just not managed professionally.  Here is some advice from the Mumbai High Court and I can tell you, there are several of such public interest litigation in various other High Courts in India with Railways only busy defending these cases in the Courts at the Exchequer expenses. Can  it deploy its resources to promote accessibility and good hygiene at Railway properties rather than paying hefty professional fee to Standing Counsels to defend the petitions against it? I am sure the former would be easier, cost effective and in the larger interest.

News coverage

(a) Times of India: HC flays Railways for ignoring the disabled

(b) DNA India: Bombay HC: Be sensitive to the differently-abled

Asking the Railways to be sensitive towards the needs of the differently-abled, the Bombay high court on Monday asked the body to address two primary issues immediately - disabled-friendly toilets and ticket windows of a lower level to make it accessible for a wheelchair-bound person.

The court was hearing a public interest litigation (PIL) filed by India Centre for Human Rights, an NGO, in 2007, seeking easy access for differently-abled persons to the railway platforms in the city.

A division bench of chief justices Mohit Shah and Roshan Dalvi has asked the court-appointed committee to devise a plan for implementing the 1998 government resolution which recommends establishing of disabled-friendly toilets and lower level ticket window at all city stations.

In October 2011, the HC had appointed a committee - one from the petitioner NGO, an officer from the accounts department, one engineer and three officers each from the Western and Central Railways - to come up with solutions for problems faced by the differently-abled.

“Without telling you (Railways), your officers should address the issues. You know your own recommendation since 1998. Why should someone else point it out to you?” asked chief justice.

The 1998 GR was pointed out by Kranti LC, advocate for the NGO, saying that the Railways have not been taking the initiative for making the platforms disabled-friendly.

Kranti pointed out that some of their NGO’s members had taken a survey of 104 stations. “Only 3% of toilets are accessible to the disabled,” he said. He further pointed out that in their July 2011 affidavit, they had suggested that slopes for access to platforms were too steep at several stations and this had not been rectified.

Beni Chatterji and Suresh Kumar - counsels for the Western railways - said that the NGO should point out the deficiencies to them and they would then take necessary actions. To this, chief justice frowned and said, “Why should anyone point out deficiencies? That’s why we have constituted the committee. What have you been doing?”

Chatterji assured the court that this time they would definitely look into their grievances. The chief justice suggested that Chatterji remain present in the next committee meeting.

Directing the railways to give priorities to the issues of toilets and lower ticket windows, the court has asked the railways to submit an Action Taken Report on the next date of hearing on March 1. 

Source: DNA  India

Adjustment of compassionate appointment against disability quota

Dear Colleagues,

I hope you have heard of this case being represented by my colleague Jayshree Satpute on behalf of the victim. For the information of those who are new to this case one Ms. Mahjabi, a journalism student from Dehradun, was in Delhi on vacation and was at the Rajiv Chowk Metro station with her mother. On the fateful day of March 26 last year, as a train was entering the overcrowded platform, Mehjabi was pushed on to the tracks as commuters jostled to get ahead. She was about to complete her journalism course and was close to landing a job with a news agency.

The court in the instant case has suggested that the  DMRC should also consider the feasibility of grant of preference to the disabled, who have suffered their disability either in the course of the construction work for Delhi Metro, or while using the services, within the three per cent reservation granted to the disabled persons.

I am in perfect agreement with the suggestion that the DMRC as a model employer should consider preference to such disabled persons who have acquired their disability either in the course of the construction work for Delhi Metro or while using its services as a commuter. However, it should be done under some separate scheme on Compassionate Grounds appointments. 

I am strongly against any move to adjust such seats in the three percent reservation quota available to persons with disabilities under the Persons with Disability Act 1995. Such a move would further shrink the number of jobs available in Delhi Metro to the persons with disabilities. Already, the tendency of the Government bodies/public authorities is to read the minimum 3% reservation as "Maximum 3% reservation" which is doing more harm than good to the job prospects of the potential employees with disabilities. The tendency is to adjust even those who get selected on their own merit without using any relaxed standards though is strictly against the settled norms and the policy!

Therefore, I reiterate that rather than adjusting persons acquiring a disability as a result of metro construction work or while using metro services, it would be worthwhile to consider them under a special scheme of "Compassionate Grounds appointments" and not under the regular reservation quota of minimum 3% reservation. For the mandate of the Disabilities Act is loud and clear that it is minimum 3% and not maximum and any disability which is acquired due to in-actions or actions of DMRC can not be adjusted in the present quota.  Similarly the protected disabled employees under Section 47 of the Disabilities Act can not be adjusted in to the 3% quota when they are retained after acquiring a disability. Though they may become a part of this 3% in future promotions or recruitment.

regards

Subhash Chandra Vashishth, 

Advocate- Disability Rights

Here is the news report from Indian Express:

Frame policy to employ Metro accident victims: HC to DMRC

New Delhi

The Delhi High Court has asked DMRC to consider framing a policy to ensure employment for commuters or employees who lose their limbs while using the facility or during work.

The court observation came during a hearing of a petition filed by 23-year-old journalism student, Mehjabi, who had lost both her legs in an accident at Rajiv Chowk Metro station last year. She has been fighting a case demanding compensation or a job with DMRC (Delhi Metro Rail Corporation).

Justice Vipin Sanghi has sought an affidavit from the DMRC after observing that the Metro, as a model employer and a service-provider, should look into the aspects of providing a job to accident victims.

The judge said any accident during construction work, or while using Metro train services, severely diminished the quality of life of an individual and hence, the DMRC should consider framing a preferential policy.

As the first affidavit submitted by the DMRC in response to Mehjabi’s petition did not specifically deal with the aspect of the reservation for the physically challenged, Justice Sanghi asked the Delhi Metro to file an additional affidavit, placing on record the policy for grant of reservation to the disabled.

“The DMRC should also consider the feasibility of grant of preference to the disabled, who have suffered their disability either in the course of the construction work for Delhi Metro, or while using the services, within the three per cent reservation granted to the disabled persons,” said the court.

During the hearing, Mehjabi’s counsel Jayshree Satpute told the court that her artificial limbs also required servicing, and hence, the Metro should be asked to bear the expenditure.

Acceding to the request, Justice Sanghi asked the DMRC, which had borne the expenses for procuring the artificial limbs for Mehjabi, to also meet the costs of the first servicing of the artificial limb.

Mehjabi was pursuing a journalism course in her hometown Dehradun, and was close to landing a job with a news agency when she met with the accident on March 26 last year. She was in Delhi on vacation and was at the Rajiv Chowk Metro station with her mother. As a train was entering the overcrowded platform, Mehjabi was pushed on to the tracks as commuters jostled to get ahead.

How to define Disability- dismissal from Medical College on grounds of learning disability upheld

How to define disability?

Appeals court rejects suit by ex-student against medical school | Inside Higher Ed

WASHINGTON -- A federal appeals court ruled Friday that George Washington University was within its rights in 2003 when its medical school kicked out Carolyn Singh, having determined that she was not meeting academic standards. Singh was diagnosed as having a learning disability shortly before she was dismissed, and she claimed that GW violated the Americans with Disabilities Act by not accepting her diagnosis and approving adjustments she requested.

The decision could be important not only for Singh and the medical school, but for others in higher education who are debating how to determine whether students have learning disabilities and, if so, what kinds of accommodations are appropriate for such students.

Several college associations filed a brief in the case arguing that colleges and courts need to have leeway to evaluate the validity of claims that students have learning disabilities. The brief argued that many such claims may not be accurate, and that colleges risk being unfair to other students if they accede to all of the requests for accommodations. Lawyers for Singh, however, argued that the college associations' brief was pushing for too much leeway for higher education, in ways that could limit the rights of students with disabilities.

Another issue in the Singh case was the applicability of revisions to the ADA made subsequent to her dismissal. The appeals court ruled that applying those provisions retroactively would be unfair to the university.

In terms of the applicability of this case beyond Singh's claims, the key part of the decision was on whether a district court had reasonably denied her attempts to link her academic performance to any disability she may have.

Singh was admitted to the medical school despite lower than standard scores on the Medical College Admission Test, and was allowed to enroll in a special program in which students spread out their initial courses over a longer time frame than normal. Despite a prior good academic record, she did poorly at GW and was regularly at risk of being asked to leave. The court record cites evidence that she was repeatedly advised to focus more on her academic work and to cut back on an active extracurricular life (taking a music class, serving on student government committees, and serving as the student government's social chair).

Only after a committee recommended her dismissal (but just before a decision was made by the medical school administration) did Singh seek an evaluation of a possible disability, and she was diagnosed with dyslexia and a "mild processing speed disorder." The university shortly after that dismissed Singh, and officials said that they did not consider the disability diagnosis in their decision.

In the appeal, lawyers for Singh (who could not be reached for comment) argued that the district court had been too quick to dismiss evidence of disability, and specifically to rely on Singh's past academic success as evidence of her ability to do well. The brief said that Singh had a particular problem with multiple-choice questions, and that she had managed to avoid being evaluated on their basis before med school. Singh "attained her achievements by avoiding the very activities in which she was limited," the brief said.

Further, the brief said that the university and the college associations were arguing for "broad deference" in ADA cases, which Singh's backers argued was inappropriate. "[D]eference is inappropriate because it would effectively immunize academic institutions from liability for their violations of the ADA by granting deference to the very decisions suspected of being discriminatory," the brief said.

Friday's ruling, however, said that the district court had ample evidence to reject Singh's claims. The ruling noted that the district court judge cited a range of possibilities -- including Singh's study habits, extracurricular activities, and statements that she had experienced stress after the 9/11 attacks -- to say that she had failed to demonstrate conclusively that her academic difficulties were related to a disability. For this reason, the appeals court said, the district court had made a reasonable decision.

A statement from GW said that the university "is pleased with the court's unanimous decision. The court's analysis provides important guidance not only for GW but also for other colleges and universities which may face similar situations."

Concerns About Learning Disability Claims

A brief filed by the American Council on Education, the Association of American Medical Colleges and the Graduate Management Admission Council (plus several colleges in the District of Columbia) said it was important for courts to consider flaws in diagnoses of learning disabilities. "In most cases, it is far more difficult to confirm the existence of mental impairments and to evaluate the resulting functional limitations than it is when dealing with physical impairments," the brief said.

While the brief stated that the groups do believe that some students have learning disabilities, it offered much skepticism about the growing number of such diagnoses made on behalf of students. The brief said that "there are no universally agreed-upon standards" for diagnosis, and studies showing that students diagnosed under some systems might not be deemed learning disabled under other models. Further, the brief said that "some individuals 'exaggerate' their symptoms" to be diagnosed and to receive accommodations.

These issues have "important implications," the brief argued. Request for accommodations on standardized tests "could alter ... procedures that produce reliable and comparable test scores," the brief said.

It also raised issues of fairness to all students. "[S]tudents have a legitimate interest in ensuring that supplemental academic services that are not available to all students are provided only when warranted," the brief said.

Read more: http://www.insidehighered.com/news/2011/12/12/appeals-court-rejects-suit-ex-student-against-medical-school#ixzz1gU1wVn7B
Inside Higher Ed

Deaf Man sues for being jailed without hearing him out through a sign language interpreter

Dear Friends,

After success at a PIL seeking interpreters for the deaf people  to make the public places accessible, the incidences like the one below in USA should become common in India too!

The present suit is a struggle of Siaki, a deaf person, against the establishment for denying him access to justice by not providing him a sign language interpreter during the arrest and booking process.

The suit indicates the urgent need of policies and procedures for dealing with deaf people keeping in mind their access needs and human rights. Its is wrong to assume that a deaf person understands what is being said to him.

Here is the struggle of  Siaki, a deaf person, against the establishment for denying him access to justice.

To read from Source click here : Mail Online

Deaf man suing after being jailed for 25 days 'without a sign language interpreter'

Authorities detained a deaf man for 25 days in jail without providing a sign-language interpreter, lawsuit has claimed. 

Domestic assault charges were eventually dropped against Timothy Siaki by Adams County officials.

A lawsuit filed Wednesday in U.S. District Court seeks unspecified damages and a finding that Adams County officials violated the Americans With Disabilities Act over his May 14, 2010, arrest and detention.

The Denver Post reports Siaki doesn’t read or write English or read lips, but he does communicate through American Sign Language. Deputies arrested Siaki after a noise complaint at a motel where Siaki and his fiancee were verbalizing sounds while arguing.

Deputies responding to the complaint knocked down the motel-room door and tackled Siaki after he failed to respond to their commands.

An Adams County sheriff’s spokesman says officials need to review the suit before commenting. Siaki’s fiancee, Kimberlee Moore, as well as Colorado Cross-Disability Coalition advocacy group are also plaintiffs in the suit.

Adams County Sheriff Doug Darr is named as the defendant.

'There were 25 days of his life that he had access to nothing — no information on why he was being held, no information about his case or what was going to happen to him,' said Kevin William, an attorney who filed the lawsuit.

According to the lawsuit, Moore tried to tell the deputies that Siaki didn’t hurt her but couldn’t because she was not provided an interpreter or any aids.

The suit claims Adams County is violating the ADA by failing to provide an interpreter or auxiliary aids for deaf suspects during their arrest and booking process.

'To this day,' he said, 'we don’t know why he was held for 25 days.'

Williams told the paper the coalition recently settled a similar case against the Lakewood Police Department and the Jefferson County Sheriff’s Office that call for very specific policies for compliance with the ADA.

'They need policies and procedures for folks who are deaf,' Williams said. 'People just assume that a deaf person understands what they are saying.