AI Structured Summary
Not yet generated for this judgment
Judgment
Honourable Mr. Justice P. Jyothimani
The issue involved in this case is covered by series of judgment of Hon''ble Supreme Court commencing from Kunal Singh Vs. Union of India
(UOI) and Another, , the latest judgment on the topic being as reported in Bhagwan Dass and Another Vs. Punjab State Electricity Board, . The
issue relates to the right of a government employee as guaranteed u/s 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights,
Participation) Act 1995 (hereinafter called as the Act) which was enacted by the Parliament in accordance with the provisions of the Constitution
of India to attain the constitutional goal.
Section 47 of the Act is as follows:
Non-discrimination in government employment:(1) No establishment shall dispense with, or reduce in rank, an employee who
acquiresadisabilityduring his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the
same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitablepostis
available or he attains the age of superannuation, whichever is earlier.
(2)No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to
such conditions,if any,as may be specified in such notification, exempt any establishment from the provisions of this section.
The establishment has no right to dispense with the service of any employee on the ground that the employee has acquired disability during his
service. In such event, he can be provided with alternative employment with a light job. But still his scale of pay and other service conditions are
protected. Under third category, even in cases where an employee cannot be given an alternative employment with a light job, his pay scale and
service benefits protected by directing the employer to keep him under the supernumerary post either until the job arises for him to be
accommodated or till he attains the age of superannuation. Therefore, the Section which is a self contained code makes abundantly clear that it is
the duty of the employer to protect the pay scale and service conditions of an employee who during the course of his employment acquires
disability.
The term ''disability'' is defined u/s 2(i) of the Act which is as follows:
2(i) ""disability"" means:
(i) blindness
(ii) low vision;
(iii) leprosy cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation
(vii) mental illness
In the present case, the disability suffered by the Petitioner who was admittedly in the employment of the Respondent corporation was a
permanent neurological deficit. As certified by the medical authority, he is unfit to be a driver or to work in any other capacity. Based on the said
certificate issued by the medical authority, the Petitioner has made a representation to the Respondent stating that as per the certificate, he is unfit
to hold any post and however, requested at least his wife''s name to be considered for the purpose of employment. It is taking advantage of the
said letter written by the Petitioner on the basis that the Petitioner himself has admitted that he is unfit to do any work the Respondent has passed
the impugned order discharging him from his service and it is this impugned order of the Respondent which has been challenged by the Petitioner
mainly on the ground that he has protection of pay scale as well as the service conditions as per Section 47 of the Act.
It is not in dispute that the Act is applicable to the Petitioner. It is further not in dispute that during the course of employment, the Petitioner has
acquired the disability. As per the definition u/s 2(i) of the Act, the Petitioner is certainly disabled as per the said provision. Even otherwise, the
disability during the course of employment cannot be restricted to the definition of the word ''disability'' for the mere purpose of denying the
statutory rights conferred u/s 47 of the Act. Further, it is also to be relevant to point out that simply because the Petitioner has admitted that he is
disabled that itself cannot be a ground for discharging an employee. It is only to prevent such acts of the employers, the Act contemplated the job
security with protection of salary and service conditions as per Section 47 of the Act.
The Hon''ble Supreme Court in Bhagwan Dass and Another Vs. Punjab State Electricity Board, has dealt with a case of totally blind person to
whom such disability has acquired during the course of his employment and held that u/s 47 of the Act, even though he cannot be fit in any other
category of job, he will be entitled to be treated as an employee under the supernumerary category with all benefits by quoting with approval of
passage from the decision of the Hon''ble Supreme Court in Kunal Singh Vs. Union of India (UOI) and Another, wherein it was held as follows:
Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in
Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2
of the Act has given distinct and different definitions of ""disability"" and ""person with disability"". It is well settled that in the same enactment if two
distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that
a person does not acquire or suffer disability by choice. An employee, whoacquires disability during his service, is soughtto be protected u/s 47 of
the Actspecifically. Such employee, acquiringdisability, if not protected, would not onlysuffer himself, but possibly all those who dependon him
would also suffer. The very frame andcontents of Section 47 clearly indicate itsmandatory nature. The very opening part of thesection reads ""no
establishment shall dispensewith, or reduce in rank, an employee who acquiresa disability during his service"". The sectionfurther provides that if an
employee afteracquiring disability is not suitable for the posthe was holding, could be shifted to some otherpost with the same pay scale and
servicebenefits; if it is not possible to adjust theemployee against any post he will be kept on asupernumerary post until a suitable post isavailable or
he attains the age ofsuperannuation, whichever is earlier. Added tothis no promotion shall be denied to a personmerely on the ground of his
disability as isevident from Sub-section (2) of Section 47. Section 47 contains a clear directive that theemployer shall not dispense with or reduce
inrank an employee who acquires a disability duringthe service. In construing a provision of asocial beneficial enactment that too dealing with
disabled persons intended to give them equalopportunities, protection of rights and fullparticipation, the view that advances the objectof the Act
and serves its purpose must bepreferred to the one which obstructs the objectand paralyses the purpose of the Act. Language ofSection 47 is plain
and certain casting statutoryobligation on the employer to protect an employeeacquiring disability during service.
In fact, the Hon''ble Supreme Court has held as to how the statutory rights are being misused and lawful rights are denied even in the Bhagwan
Dass''s case stated supra as follows:
This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate
fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were
quite aware of the statutory rights of Appellant 1 and their corresponding obligation yet they denied him his lawful dues by means that can only be
called disingenuous.
It has been followed through out by all the judicial forums inasmuch as the statutory right has been conferred on the employee who acquired
disability during his service. Applying the said judgments of the Hon''ble Supreme Court, I have no hesitation to hold that the impugned order
discharging the Petitioner cannot stand to the test of law.
Accordingly, the impugned order stands set aside. The second Respondent is directed to treat the Petitioner under the supernumerary category
from the date of his disability and pay all the salary and other monetary benefits due to him including service benefits either till a suitable job arises
for him to be accommodated or till the date of his retirement. The arrears due to the Petitioner accordingly shall be paid within a period of 12
weeks from the date of receipt of a copy of this order.
The terms. No costs.