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Alternative Employment on Acquiring Disability

   

O.P. Sharma vs. Delhi Transport Corporation & Anr

Filed Under: Section 47 of the Persons with Disabilities Act, 1995 Articles 14 and 226 of the Constitution of India Regulation 10 of the DRTA Regulations, 1952
Appellant: OP Sharma
Respondent: Delhi Transport Corporation & Anr
Citation: 125 (2005) Delhi Law Times 742
Court: In the High Court of Delhi
Judge: S. Ravindra Bhat

Facts

Om Prakash Sharma joined the services of the DTC as a conductor in the year 1978. He was a qualified candidate who had completed his graduation. At the time he joined the DTC he was physically handicapped on account of deformity of his left leg.

While in service, he suffered a paralytic attack, which led to severe problem in movement of his left leg. He was ill for about five months. In the year 1987 he was subjected to a medical test and was subsequently examined by a Medical Board. The Board found him to be unfit and declared that he would not be able to perform the duties of a conductor smoothly.

Thereafter, Om sought assignment of other duties and was subsequently appointed as a Ticket Tally Clerk (TTC). The job of a TTC is to sort tickets of different denominations and issue them to the Conductors on the following day. It was claimed that even before his medical examination, Om was performing the duties of a TTC while being posted in the Paharganj Depot. It was alleged that he was then transferred to the Shadhra Depot and when he joined this post, he was deliberately obstructed in the discharge of his duties. Thereafter in the year 1990, the DTC issued an order of his discharge on the ground that he was unable to perform his duties smoothly.

Om’s main contention was that his disability did not come in the way of his work. In the petition, he also gave six instances of conductors who had been permitted to work as TTCs’ after they had been declared unfit to continue as conductors. He also made representations against the order of his discharge but no step was taken in this direction. He then filed a petition in the High Court.

In response to this, the DTC contended that it was empowered to retire an employee prematurely, on medical grounds. It was submitted that Om was unable to discharge his duties as a conductor and therefore his services were no longer required. According to the DTC, the order could not be termed illegal since it was in the interest of the Corporation.

A Single Judge in the High Court of Delhi heard the Writ Petition. At that stage, Om had relied on the provisions of the Persons with Disabilities Act, 1995 and had contended that the provisions of the Act could be pressed into service even in pending matters. On the other hand, the DTC had contended that he could not be appointed as Assistant Cashier or TTC since those positions were in a higher pay scale than that of a conductor. The Judge after hearing the arguments had declined to interfere under article 226 of the Constitution and left it open to Om to raise an industrial dispute. Om then preferred a review petition, which was allowed and the case came up for hearing.

Arguments made on behalf of Om Prakash

Om’s lawyer submitted that he had worked as a TTC for a period of four years and the DTC had not disputed this fact. According to the lawyer, apart from raising the objection that the post of a TTC was higher in status, the DTC had not made any attempt to offer him alternative employment. It was further contended that Om was a graduate and was physically handicapped even at the time of recruitment. The order of his retirement had been passed in 1990 and was based on a medical report that was issued in 1987.

The lawyer pointed out that the DTC had completely ignored the intervening period when Om had been assigned other duties after he was declared unfit to work as a conductor. The lawyer also contended that relief and complete consequential benefits should not be withheld in these proceedings merely because the Act came into existence after the disability was incurred.

Arguments made on behalf of DTC

The lawyer on behalf of the DTC argued that the provisions of the Act did not apply retrospectively. According to her at the time the DTC took the decision of retiring Om, the prevalent thinking was that if possible he should be rehabilitated and given some employment but the Court could not have forced the DTC to take such measures.She further submitted that Om could not claim the post of TTC or Assistant Cashier as a matter of right since these posts were higher/promotional posts. It was also contended that he had been offered employment in a lower category but he had refused.

Observations of the Court

The Court referred to several previous judgments and held that the provisions of the Act could be applied to pending procedures. According to the Court, the DTC, an instrument of the State was bound by Article 14 of the Constitution and was under an obligation to behave in a non-discriminatory and non-arbitrary manner. While the case was pending, the Act was brought to force so its application to this case would be construed as retrospective.

The Court further pointed out that Om had worked for about 4 years after incurring his disability and there was no reason why the DTC could not continue with this arrangement and give him assignments, which did not require him to move around. According to the Court, the DTC had not made any attempts to ensure alternative employment for him and had not taken the intervening 4 years into account before passing the order of termination. It had acted upon an old medical report, which stated that Om could not work as a conductor.

In the light of these circumstances, the Court held that DTC had denied alternative employment to Om for arbitrary reasons. The order of termination was accordingly quashed and DTC was directed to reinstate Om and assign him duties in accordance with Section 47 of the Persons with Disabilities Act. The Court further held that Om would be entitled to continuity of service for all purposes, including grant of annual increment, consideration for promotion etc. the Court added that back wages should also be paid to him. All this would be carried out within a period of 2 months.

The petition was allowed with costs quantified at Rs. 5000/- which would be payable within 4 weeks.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995
  • Article 14 and 226 of the Constitution of India

Cases Referred:

  • Vijender Singh vs. DTC; 105 (2003) DLT 261
  • DTC vs. Harpal Singh; 105 (003) DLT 133
  • Narendra Kumar Chandla vs. State of Haryana and Ors, (1994) 4 SCC 460
  • Krishna Chander vs. DTC, 115 (2004) DLT 558=2003 (71) DRJ 11
  • DTC vs. Rajbir Singh; 100 (2002) DLT 111
  • Chandra Narayan vs. State of Bihar, 1986 (Supp) SCC 576
  • BR Kapoor vs. Union of India; AIR 1990 SC 662
  • National Federation of Blind vs. Union Public Service Commission; 1993 (2) SCC 411
  • Ramji Purshottam vs. Laxmabhai D Kurlawala; IV (2004) SLT 734=AIR 2004 SC 4010
  • S Sai Reddy vs. S. Narayan Reddy, (1991) 3 SCC 647
  • Dilip vs. Mohd Azizul Haq; II (2000) SLT 720=(2000) 3 SCC 607

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Md. Sukur Miya and Anr. vs. Singareni Collieries Company Limited and Ors.

Filed Under: Section 2, 47, Persons with Disabilities Act, 1995
Appellant: Md. Sukur Miya and Anr.
Respondent: Singareni Collieries Company Limited and Ors.
Citation: 2003 (2) ALD 335, 2003 (3) ALT 765
Court: In the High Court of Andhra Pradesh at Hyderabad
Judge: S. Ananda Reddy

This Writ Petition is filed by two workers against the Singareni Collieries Company challenging the orders for termination of their services on medical grounds.

Facts

Md. Sukur Miya and another (name not mentioned) were employees of Singareni Collieries Company Ltd. While they were in service, they were injured in accidents and for which they were provided medical treatment in the Area Hospital of the Company. Later they were referred to the Medical Board to assess their medical fitness. Based on the findings of the Medical Board their services were terminated.

Aggrieved by the order of the termination of their services, they filed the current Writ Petition.

Arguments made on behalf of Sukur and Anr

It was contented on behalf of Sukur and another that when once they had been found to be medically unfit to continue their current jobs the Singareni Collieries Company, under the provisions of Section 47 of the Persons with Disabilities Act (PDA), was obligated to provide them with suitable alternative employment. The fact that the disability had been acquired during the course of employment was also pressed.

Arguments made on behalf of the Company

The lawyer of the Company raised two main points:

  • Firstly, he contended that since the Company was involved in the business of mining, Sukur and another were governed by the provisions of the Mining Act.
  • Secondly, it was argued that in order to get the benefit of the provisions of Section 47 of the PDA, they would have to prove that they fell within the purview of the provision of the said Act. According to the lawyer, Sukur and Another had not acquired the disability due to the accident that had occurred during the course of their employment. Hence, there was no question of applying the provisions of Section 47 of the Act to their case and they were not entitled to the relief they were seeking.

Observations of the Court

The Court observed that the Company was an ‘establishment’ to which the provisions of the PDA were clearly applicable. Also it was pointed out that the argument of the lawyer on behalf of the Company that the disability had not been acquired during service was devoid of merit. The Court further opined that it was clear from the provisions of Section 47 of the Act that no establishment shall dispense with or reduce in rank of an employee who acquires a disability during his service.

Reference was also made to an earlier judgment given by the Court. Accordingly, the orders of termination of services for Sukur and another were set aside and the Company was directed to provide alternative employment to them within a period of six weeks. They were also entitled to all consequential benefits.

Held: The Writ Petition was allowed.

Sections Referred:

  • Section 2, and 47, Persons with Disabilities Act, 1995

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P. Thangamarimuthu vs. Tamil Nadu State Transport Corporation, Madurai (Division-1) Ltd., through its Managing Director

Filed Under: Section 2, 47, 47 (1), 47 (2) & 72 of the Person with Disabilities Act
Article 21 of the Constitution of India
Appellant: P. Thangamarimuthu
Respondent: Tamil Nadu State Transport Corporation, Madurai (Division-1) Ltd., through its Managing Director
Citation: W.P (MD) No. 268 of 2005
Court: In the High Court of Madras (Madurai Bench)
Judge: D. Murugesan

Facts

P. Thangamarimuthu was appointed as a conductor in the Tamil Nadu State Transport Corporation at Madurai. While he was on duty, he met with an accident when his bus rammed into a stationary lorry. He was seriously injured in the accident and both his legs were crushed, and were amputated.

Subsequently he was sent for examination before a Medical Board, which certified him unfit for the job of a Conductor. Thereafter, a show cause notice was issued to him to submit an explanation as to why he should not be discharged from service on medical grounds. He submitted his explanation stating that he was medically unfit only to serve as a Conductor and therefore, he may be considered for alternate employment. He also relied upon the provisions of the Person with Disabilities Act. However, he was discharged from service. Challenging this, Thangamarimuthu filed this Writ Petition

Arguments made on behalf of Tangamarimuthu

It was argued on behalf of Thangamarimuthu that as he has suffered loss of both the legs, he was entitled to the alternate employment with continuity of service and other benefits under the provision of the Act. It was also argued that the right to alternate employment is a right conferred under the Central enactment, the Persons with Disabilities Act and such a right cannot be dispensed with in the manner as has been done in his case.

Arguments on behalf of T.N. State Transport Corporation

It was argued on behalf of the Corporation that since Thangamarimuthu had been declared medically unfit, he was not entitled to any alternate post. In support of this argument, the lawyer relied on the Government Order directing that the workers in the State Transport undertaking, who were declared unfit for the continuance in the same post, while in service because of the eye defect or any other ailments, be discharged on medical grounds and their service benefits settled.

The G.O also stated that they should be subsequently provided with alternative employment in the post of “Helpers” depending upon their suitability for the new post. It was also said that by virtue of Section 72 of the Act, the above G.O should prevail and no employee could claim alternative employment as a matter of right in terms of Section 47 of the Act. It was finally argued that Thangamarimuthu’s disability could not be brought under the definition of “locomotor disability”

Observations of the Court

After hearing the arguments of both the parties, the Court opined that the Persons with Disabilities Act, 1995 had been enacted to give effect to the Proclamation on the Full Participation and Equality of the people with Disabilities. It was provided under Section 47 of the Act that an employee, who acquired a disability during his service, was sought to be protected.

Such an employee, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. Thus, it was held that the very frame and contents of Section clearly indicated its mandatory nature. The Court further observed that the provisions of the Act contemplated that an employee who due to a disability acquired during service, was found unsuitable for the post he was holding, could be shifted to some other suitable post in the same pay scale and service benefits.

For these reasons, the Court quashed the order and directed the Corporation to employ Thangamarimuthu in any suitable post with continuity of service with all other monetary and service benefits.

The Writ Petition was therefore allowed.

Cases Referred:

  • Narendra Kumar Chandal vs. State of Haryana and Ors. 1994 (4) SCC 460
  • Kunal Sing vs. Union of India 2003 AIR SCW 1013;
  • Metropolitan Transport Corporation, rep. by its Managing Director, Division-1, Chennai vs. The Presiding Officer, Principal Labour Court, Chennai and Anr. 2004 WLR 398

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Zammel Ahmed vs. Regional Manager, U.P.S.R.T.C. and Ors

Filed Under: Regulation 17, 17 (2) and 17(3) of the Uttar Pradesh Road Transport Corporation (Employees other than Officers) Service Regulations
Article 14, 16 & 21 Constitution of India
Section 6 of the Industrial Disputes Act, 1947
Appellant: Zammel Ahmed
Respondent: Regional Manager, U.P.S.R.T.C. and Ors
Citation: 2005 (1) ESC 338, 2005 1UPLBEC22
Court: In the High Court of Uttar Pradesh at Allahabad
Judge: Sunil Ambwani

Facts

Zameel Ahmed was appointed as a Driver in U.P.S.R.T. Corporation in the year 1990. After having served a long tenure, he fell ill, and was thus granted medical leave. He was found to be suffering from ‘Carcinoma Urinary Bladder’, and could not attend duties for a long period of-time. The Medical Board Agra carried out a medical examination and certified that he was unfit to carry out the duties of a driver.

On request, the General Manager of the Corporation directed that Zameel be taken off duties as driver and that his services be utilized for another suitable post. Zameel was thus assigned duties at the enquiry counter. However, the Regional Manager of the corporation terminated his services. Aggrieved by the decision he filed a Writ Petition in which the Court directed the competent authority to consider and pass appropriate orders to allow him to continue in service on any alternative employment. But, his representation was rejected by the Corporation.

Arguments made on behalf of Zameel

It was argued on behalf of Zameel that the Regional Manager U.P.S.R.T.C. had rightly exercised their discretion and allowed him to be engaged as an Enquiry Clerk to perform duties for which he was physically suitable. It was argued that the Corporation had acted illegally and arbitrarily in terminating his services. In support of his argument, he relied on the provisions of the Act, which mandates that alternative employment should be given to an employee on acquiring disability.

Zameel’s lawyer further urged that the Public Sector Corporation as an employer in a Welfare State must act fairly and reasonably. The services of such a person cannot be terminated on the ground that he had not been able to perform the duties of the post for which he had been appointed. It was thus argued that the order terminating Zameel’s services was violative of articles 14, 16 and 21 of the Constitution of India.

Arguments made on behalf of Corporation

On behalf of the Corporation, it was argued that after Zameel’s illness the Medical Board declared him unfit for duties as driver. He was granted 283 days medical leave as against his entitlement of 120 days. He also availed 135 days earned leave. Taking into account the staff strength of the Etawah Region there was no alternative employment available for him and thus his services were terminated in accordance with Regulations 17(2) and (3) of the U.P. Road Transport Corporation Service Regulation after complying with the pre-conditions of provisions of the Industrial Disputes Act, 1947.

Observations of court

The court was of the view that the Corporation had acted illegally and arbitrarily in terminating Zameel’s services solely on the ground that his medical condition did not permit him to perform the services of a driver.

It was also stated that the reason given by the Corporation, for terminating Zameel’s services was not justified. The Corporation had reference to a circular dated 8.4.2002, which stated that the services of persons, who were earlier offered alternate employment on account of the medical conditions, were required to be dispensed with.

The Court observed that this circular was not applicable to the present case. Zameel was not a disabled person, as he has not acquired any physical disability as defined under the Act. He had cancer from which he had recovered after surgical treatment; however, his medical condition did not permit him to discharge duties as a driver. The court held that this condition by itself did not authorize the Corporation to terminate his services.

It was held that the Regional Manager of the Corporation had wrongly interpreted the circular and the provisions of the Act. Thus, the order terminating Zameel’s services and order rejecting his representation was set aside. The Court directed that Zameel be allowed to work as enquiry clerk. He was entitled to back wages and all consequential benefits in service and to the costs of the proceeding.

Held: The petition was allowed.

Sections Referred:

  • Article 14, 16 & 21 Constitution of India
  • Section 6 of the Industrial Disputes Act, 1947

Cases Referred:

  • Olga Tellis vs. Bombay Municipal Corporation, (1985) 3 SCC 545
  • Delhi Transport Corporation vs. D.T.C. Masdoor Congress, AIR 1991 SC 101
  • Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly, AIR 1986 SC 1571

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Rajinder Kumar Sharma vs. Union of India (UOI) and Ors

Filed Under: Section 47 & 47 (2) of the Persons with Disabilities Act Rule 38 of the Central Civil Service (Pension) Rules, 1972
Appellant: Rajinder Kumar Sharma
Respondent: Union of India (UOI) and Ors
Citation: 2005 (1) SLJ 230 (CAT)
Court: In the Central Administrative Tribunal Chandigarh
Judges: O.P. Garg and L.M. Mehta

This is a case in which Rajinder, an Assistant Audit Officer filed a Petition against the order of his premature retirement which was issued by the Union of India following an accident that rendered the right half of his body dysfunctional.

Facts

Sri Rajinder Kumar Sharma was an Assistant Audit Officer in the office of the Accountant General (Audit), Shimla. He met with an accident while riding his Scooter which collided with a Bus of Himachal Pradesh Roadways Transport Corporation. Rajinder was seriously injured as a result of this accident and was admitted in the Indira Gandhi Medical College Hospital, Shimla.

Thereafter a certificate was issued to him certifying that the right half of his body had suffered a permanent loss of functions and his disability was assessed at 64%, thereby categorizing him as a ‘handicapped person’. Following the accident Rajinder had remained intermittently on leave. Then by an order dated 21.7.1999, he was virtually forced to proceed on further leave and was not allowed to join work as the report of the medical board said that due to his acquired disability Rajinder was no longer fit for the job of an Assistant Audit Officer. Hence, an assessment of his condition was suggested after six months to ascertain whether there had been any improvement.

In accordance with the aforesaid report, he was again examined by the medical board at Shimla. Before the board gave its final opinion, it was considered appropriate to seek the opinion of a Neurologist and to also conduct a Psychometric evaluation at the Post Graduate Institute of Medical Education and Research, (PGI) Chandigarh. On the basis of these reports Rajinder was found unfit for his job as an Assistant Audit Officer.

From then on Rajinder made a number of representations seeking protection under the provisions of Section 47 of the Persons with Disabilities Act. However, the Assistant Comptroller and Auditor General of India, New Delhi examined the representations in reference to the various clauses of the Section and ultimately retired Rajinder prematurely. Aggrieved, by this decision Rajinder filed this petition.

Arguments made on behalf of Union of India

On behalf of Government it was argued that Rajinder has been retired prematurely in public interest as he was found to be medically unfit to perform his duties and in these circumstances the protection of Section 47 of the Disabilities Protection Act, was not available to him.

Observation of the court

The court observed that Rajinder who otherwise was an able bodied person had suffered permanent loss of functions in the right half of his body on account of an unfortunate accident in the year 1993. He had been subjected to various medical examinations and ultimately on the basis of the report of the medial board and the report of PGI, Chandigarh, he had been found unfit to remain in service.

Further the Court held that a close study of the various provisions of the Persons with Disabilities Act make it clear that it provides for social security to disabled persons and employees. By reason of Section 47 of the said Act which is beneficent in nature, the employer had been saddled with certain liabilities towards the disabled person. The Section contemplates that, despite disability, a person must be kept in the same post in which he had been working.

Once he is not found suitable for the post he had been holding he can be shifted to some other post but his pay and other service benefits need to be protected. The Act also provides for social security for the disabled persons and if for this purpose a statutory liability has been thrust upon the employer the same cannot be held to be arbitrary.

The gist of the provisions of Section 47 of the Act is that an employee cannot be prematurely retired on the ground of medical invalidation. The court personally examined Rajinder and was of the view that he is in a position to perform duties of an alternative post requiring light work. It was not a case were the provisions of Section 47 of the Person with Disabilities Act could have been cast aside by the authorities in a casual manner.

The Court thus held that Rajinder was undoubtedly entitled to the protection available to him under the Act. His premature retirement was illegal and unjustified. He should be treated to be in service throughout unmindful of the order of his premature retirement with all consequential benefits. Further it was directed that the Government should detail him on a post which may be commensurate to his health and physique. The arrears of pay and allowances were also to be paid to him within a period of four months from the date of production of a copy of this order before the Competent Authority.

Held: With these directions the petition was allowed.

Sections Referred:

  • Section 47 & 47 (2) of the Persons with Disabilities Act

Cases Referred:

  • Baljit vs. DTC, (2002) DLT 286
  • Transport Corporation vs. Rajbir Singh, DCLR 2002 (II) 746
  • Kunal Singh vs. Union of India and Anr, JT 2003 (2) SC 132

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Gujarat State Road Transport Corporation vs. Hanitsinh Thakubha Parmar

Filed Under: Letters Patent Appeal Act The Persons with Disabilities Act, 1995
Appellant: Gujarat State Road Transport Corporation
Respondent: Hanitsinh Thakubha Parmar
Citation: Letters Patent Appeal No. 501 of 2002 in Special Civil Application No. 6531 of 2002 and Civil Application No. 5100 of 2002
Court: In the High Court of Gujarat at Ahmedabad
Judges: J.N.Bhaat and Kundan Singh

Facts

Hanitsinh, was a driver at the Gujrat State Road Transport Corporation. He developed a physical ailment in the nature of back problems. This trouble caused problems for him in resuming his original work of a driver. Consequently, the Corporation terminated his services. Aggrieved Hanitsinh filed a Petition in the Labour Court, which after considering the facts of the case directed the Corporation to reinstate him in a job requiring lighter work.

The Corporation filed this appeal in the High Court challenging the judgment of the Labour Court.

Observations of the Court

The Court was of the view that in a welfare state an employer cannot be allowed to terminate the services of a worker who due to a bodily impairment has been rendered unserviceable for a particular type of service or job. It was held that the role of the employer in such a situation where the worker was not in a position to work on his original job was to provide him with another suitable job and lighter work that he could perform despite the handicap. It was thus concluded that the judgment of the Labour Court was justified.

The appeal was dismissed.

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E. Subramani vs. the General Manager, (Administration) Puratchi Thalaivar MGR Transport Corporation

Filed Under: Article 226 of the Constitution of India Section 47 of the Person with Disabilities Act, 1955
Appellant: E. Subramani
Respondent: The General Manager, (Administration) Puratchi Thalaivar MGR Transport Corporation
Citation: Writ Petition No. 19341 of 1996, Decided on 18.02.2004 (Unreported)
Court: In the High Court of Madras
Judge: K.P. Sivasubramaniam

Facts

E. Subramani joined the Pallavan Transport Corporation as a driver in the year 1976. In the course of time, he received a notice stating that during the training it was found that his vision was not clear and hence he would have to explain within seven days as to why he should not be removed from service. He submitted his representation requesting the authorities to give 10 days time for submitting the explanation.

Further, he claimed that he had been to an Eye Doctor and on testing his eyes the Doctor had given him a certificate stating that his vision was all right. Subramani was also provided with spectacles.

It was stated that his condition was normal and he could drive the vehicle. Another show-cause notice was served on him after he had provided the latter explanation.

Subramani’s complaint was that the decision of the authority to discharge him from service was opposed to the rules and principles of natural justice and that no opportunity has been given to him to prove that his vision was all right and that he was able to drive the vehicle.

Aggrieved, Subramani approached the High Court for quashing the show-cause notice.

Arguments made on behalf of Subramani

It was argued on behalf of Subramani that the accident had taken place in the year 1983 and he has been sent for testing after 12 years viz., during July 1995. He had also produced a proper certificate from a competent Ophthalmologist certifying that his eyesight was normal and he could continue to discharge his duties as a driver.

It was further contended that even otherwise he would be entitled to alternate appointment in a suitable post and that he could not be discharged on the ground that he had acquired a disability.

Arguments made on behalf of the Corporation

It was argued on behalf of the Transport Corporation that the drivers who were involved in an accident were given training in the Driving School and they were sent for testing of their vision. Subramani was involved in an accident and was sent for training and after completion of the training, his eyes were tested.

He was referred for complete vision test at the Government Opthalmic Hospital at Chennai and the Director gave his report stating that his eyes were unfit for driving the vehicle. As a result, he was unfit for the post of a driver.

It was also contended that Subramani’s statement that no opportunity was given to him to prove that his vision was all right was incorrect and false. It was further argued that the testing was carried out by competent experts and that it was not open for him to submit a certificate from a Doctor of his own choice.

The conclusion of the Medical Board/ Specialist who was requested to submit the report was binding on the employee and he cannot contend that the certificate of the Medical Board was not acceptable.

In the context of the entitlement for an alternate post, it was said that Subramani had to be first discharged from service and would then have to wait for reemployment.

Further, employment would be only in accordance with the priority and seniority considering many other disabled persons were waiting for alternate employment. Alternate employment was not automatic or immediate. Hence, it was concluded that Subramani could not avoid the order of discharge.

Observation of the Court

After hearing the arguments of both parties, the Court was of the view that the right of an employee to be appointed in an alternative post was mandatory not only in the context of G.O.Ms.No.746, but also under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

A perusal of the provisions Section 47 showed that it was mandatory on the part of the employer to give suitable appointment in the event of the employee being found unfit when he acquired a disability during his service.

In fact, the second proviso, envisages even creation of supernumerary post to accommodate the employee in alternate employment. Therefore, the Transport Corporation was directed to provide Subramani with alternative employment within a period of four weeks from the date receipt of copy of the order, with effect from 1.12.2004.

The writ petition was allowed.

Sections Referred:

  • Article 226 of the Constitution of India
  • Section 47 of the Person with Disabilities Act, 1955

Cases Referred:

  • Kunal Singh vs. Union of India and Anr., J.T.2003 (2) S.C. 132

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Shree Satish Prabhakar Padhye vs. Union of India (UOI) through the Secretary Ministry of Law Justice and Company Affairs (Legislative Department) and Ors

Filed Under: Section 2, 3PDA, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 47(2), 56, 66, and 67 of the Persons with Disabilities Act, 1995
Section 20 the Civil Procedure Code
Article 29 (2) of the Constitution of India
Appellants: Shree Satish Prabhakar Padhye
Respondent: Union of India (UOI) through the Secretary Ministry of Law Justice and Company Affairs (Legislative Department) and Ors
Citation: Writ Petition No. 1117 of 2002, Decided on 23.12.2005 (Unreported)
Court: In the High Court of Bombay
Judge: H.L. Gokhale and R. S. Dalvi

Facts

Satish Prabhakar was a trained Telephone Operator working with respondent No. 5 (name not mentioned) for 23 years and had acquired a hearing disability consequent upon and during his service. Respondent No. 5 was in the business of manufacturing industrial equipments.

Satish had not been provided with a soundproof cabin. He contended that working under extremely noisy surroundings his sense of hearing became gradually impaired and he had to undergo medical treatment, which showed that he suffered from around 85% deafness, ultimately leading to the termination of his services.

Satish relied upon the certificate of his physician showing that he suffered from bilateral sensory neural loss and was advised not to be exposed to noisy surroundings.

The certificate showed that it would be better for him to be occupied in work which entails not merely auditory, but visual and auditory requirements. Thereafter he wrote to Respondent No. 5 entreating them to transfer him to another section.

Instead, they terminated his services as he was unfit to perform his duties as Telephone Operator without any chance of recovery of the deformity.

The termination was notified to be with effect from 31st December 2000. Satish applied to the Disability Commissioner appointed under the Provisions of the Persons with Disabilities Act for being provided a suitable alternate posting as a handicapped person.

The Commissioner, by his order rejected his claim seeking such a transfer and to be given another posting on the ground that Respondent No. 5 was not covered under the Act.

A suggestion was however made to Respondent No. 5 to re-employ Satish on any other work in the Company, which he could discharge since he was handicapped only in relation to deafness but was in a position to do any other work.

The Commissioner observed that the Rehabilitation of Disabled was to be treated as a Social Responsibility and hence made that suggestion in his order. Respondent No. 5 paid no heed to the suggestion. The termination of his services had not been set aside.Therefore, Satish filed this petition.

Arguments made on behalf of Satish

It was argued on behalf of Satish that Respondent No. 5 was an “Establishment” covered under Section 2(k) of the Act and cons equently was in view of the protection of the Act and his services could not be dispensed with.

He further contended that he could not be reduced in rank since an employee who acquired the disability during his service was protected under Section 47 of the Act.

Thus, he could be shifted to some other post in the establishment of Respondent No. 5 or be kept on a supernumerary post until a suitable post became available or until he attained the age of superannuation as per the second proviso of Section 47.

Satish also claimed rights and remedies under the Socio Economic Legislation to which India was a signatory and consequent upon which the aforesaid Act came to be promulgated.

Arguments made on behalf of Union of India

It was argued on behalf of Respondent No. 5 that a Limited Company was not a “Corporation”. It was established under the Provisions of the Companies Act and it was registered there under.

It was further contended that an entity, which was incorporated under the provisions of a special Act would alone be a “Corporation” for example a University established under the Maharastra Universities Act etc. were Statutory “Corporations” which were established under such specific Statutes.

Companies Act, on the other hand was a general Statute which dealt with all kinds of business undertakings and which provided the requirement of their formation and incorporation.

Once incorporated, they were issued a Certificate of incorporation by the Registrar of Companies. That apart, it was further contended that a Company wad not directly established under the Companies Act and that its provisions were only enabling provisions.

Observations of the Court

After hearing the arguments of both the parties and considering the Acts referred, the Court held that though there was no mandate upon every establishment to employ disabled persons and the reservation of posts was only to be made by the Appropriate Government, every establishment was required to continue the service of its employees as per the provisions of the Disabilities Act.

Under Section 41 of the Act, the appropriate Governments and the Local Authorities were required to provide incentives to employees both in public and in private sectors to ensure that at least 5% of their workforce was composed of persons with disabilities.

Consequently, it was seen that the application of the Act extends to all Educational Institutions, all Establishments in the Transport Sector and all establishments, which had already employed persons who acquired disability during service. Some of these establishments could be exempted by the Government by issuing a special notification.

Besides incentives were to be given to employers in public as well as private sectors employing the disabled. It therefore, excludes only the smaller, which would be, at best, sole Proprietary Concerns and Partnership Firms which are not Corporations established under any Acts.

Only they cannot be burdened with the liability of providing alternate jobs to the disabled. It was further held that the Corporation such as Respondent No. 5 was therefore an establishment within Section 2(k) of the Act.

Though it was not enjoined to appoint a specified percentage of persons who were disabled under Section 33 of the Act, it was enjoined not to dispense with the services of a person who was already employed by that Corporation and who had acquired a disability during his service, under Section 47 of the Act.

Sa’stishcase therefore, went further on humanitarian grounds. Having been employed in the factory of Respondent No. 5 and having had to work without a noise-proof cabin, and to discharge his duties as a Telephone Operator only with Auditory Modality usage, which solely caused his disability, he deserved, even without the protection of the Act a shift in his posting after having been in about 23 years of service. It was stated by the Court that it was a matter of regret that Respondent No.5 thought otherwise.

It was held that Respondent No. 5 was bound to continue the services of Satish or shift him to some other post with the same pay scale and service benefits in their Establishment. Respondent No. 5 was also bound to disburse the back-wages to the Petitioner from 1st January 2001, the date from which his services were dispended with.

The petition was thus allowed.

Sections Referred:

  • Section 2, 3, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 47(2), 56, 66 and 67 of the Persons with Disabilities Act, 1995
  • Section 617 of the Central, Provincial or State Act
  • Section 20 of the Civil Procedure Code
  • Article 29 (2) of the Constitution of India

Cases Referred:

  • Hakam Singh vs. Gammon (India) Ltd., A.I.R. 1971 SC 740
  • Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, A.I.R. 1986 S.C. 458
  • Prem vs. Simmonds, 1971 (3) All ER 237
  • Surendra Kumar Verma vs. Central Govt. Industrial Tribunal-cum-Labour Court
  • S. Gopal Reddy vs. state of Andhra Pradesh, A.I.R. 1996 S. C. 2184
  • Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd., A.I.R.1987 Supreme Court 1023
  • Seaford Court Estates Ltd. vs. Aster, 1949 to All ER 155 (CA)
  • Regional Executive, Kerala Fishermen’s Welfare Fund Board vs. Fancy Food and another AIR 1995 Supreme Court 1620
  • The Chairman, Board of Mining Examination and Chief Inspector of Mines vs. Ramjee AIR 1977 Supreme Court 965
  • Emperor vs. Sadashiv Narayan Bhalerao, 1947 Privy Council 82
  • Nalinakhya Bysack vs. Shyam Sunder Haldar, A.I.R. 1953 Supreme Court, 148
  • State of Bombay vs. Bombay Education Society, A.I.R. 1954 Supreme Court 561

Vijender Singh vs. Delhi Transport Corporation

Filed Under: Persons with Disabilities Act
Appellant: Vijender Singh
Respondent: Delhi Transport Corporation
Citation: 2003 (69) DRJ 641
Court: In the High Court of Delhi
Judges: Vijender Jain

Facts

Vijender was appointed as conductor in the year 1984 with the Delhi Transport Corporation (DTC). In 1993, he met with an accident as result of which he lost his right hand and was retired prematurely on medical grounds.

Challenging the decision passed in contravention of a circular (without being given the option of re-designation on a subordinate or alternative post) of the DTC, he filed the present petition

Arguments made on behalf of Vijender Singh

It was argued onVijender’s behalf that in view of the previous decisions of the Delhi High Court and the Supreme Court, DTC was under an obligation to provide alternative suitable job to a person who incurred a disability during the course of employment.

Arguments made on behalf of DTC

On behalf of DTC, reference was made to one case where the question as to whether the provisions of the Act were applicable to decisions made prior to the passing of the Act, had been raised. Based on these cases, it was argued that since the order for Vijender’s retirement was made prior to the passing of the Act, his case did not hold ground.

Observations of the Court

The Court referred to other judgments, where it was held that the object of the Act and the circulars of DTC is to rehabilitate the physically disabled people. Hence, the Court decided that the DTC had the obligation to provide alternate jobs and directed it to provide Vijender with a suitable alternative job keeping in mind his disability. With the above directions the Court allowed Vijender’s petition.Sections Referred:

Cases Referred:

  • Baljeet Singh vs. Delhi Transport Corporation 83 (2003) DLT 286
  • Delhi Transport Corporation vs. Sadh Ram LPA 650/2002
  • State of Haryana vs. Narender Kumar Chawla 1994(4) SCC 460
  • Ved Prakash Singh vs. Delhi Transport Corporation SPL No. 1575/91
  • Mr. D. N Vohra, Advocate for the Petitioner And Mr. Vibhu Shanker, Advocate for the Respondent

L.Loganathan vs. the Managing Director, Tamil Nadu Express State Transport Corporation and the General Manager (Admn), Tamil Nadu Express State Transport Corpnr

Filed Under: Article 226 of the Constitution of India
Appellants: L.Loganathan
Respondent: The Managing Director, Tamil Nadu Express State Transport Corporation and the General Manager (Admn), Tamil Nadu Express State Transport Corpn
Citation: (2005) I LLJ 458
Court: In the High Court of Madras
Judge: V. Kanagaraj

Facts

L.Loganathan was appointed as a driver with the Tamil Nadu State Transport Corporation (the Corporation) in the year 1991. In the year 1997, he met with an accident and was seriously injured. The doctor who treated him certified that he was not fit to drive the public transport and recommended that Loganathan be considered for an alternative job. Though Loganathan made several requests, the Corporation did not take him back nor provide him an alternative job.

Sometime in 1999, the Corporation sent a notice stating that his services would be terminated. Although, Loganathan wrote a detailed explanation to this notice, the Corporation terminated his services. Even after that he made a representation to the Corporation requesting them to provide him with an alternative job but there was no reply. Hence, he filed the present petition.

It was argued on behalf of the Corporation that Loganathan would not get the benefit of Section 47 of the PWD Act since he did not fall under the definition of disability.

Observations of the Court

The Court referred to some of the previous judgments of the same Court and also the Supreme Court and also analyzed Section 47 of the PWD Act. The Court also took on board that Loganathan was being paid invalidity pension as per the Central Civil Services (Pension) Rules. The Court however, observed that the Act was a special legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It was also observed that it being a special legislation, the Act would apply in such cases.

Further, the Court stated that receiving invalidity pension would not be a ground to deny the protection, available under Section 47 of the Act. Once it was found that a person had acquired disability during his service and if he was found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits and if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation. It was noted that the Corporation had not taken any such step and proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of Section 47 of the Act.

For the above reasons, the appeal was allowed and the Corporation was directed to provide relief under Section 47 of the Act.

Sections Referred:

  • Article 226 of the Constitution of India

Cases Referred:

  • Kunal Singh vs. Union of India 2003 AIR SCW 1013
  • Anand Bihari vs. Rajasthan SRTC 1991 SCC (L&S) 393

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