Definition of the Term "During Service"

SK Maulana vs. APSRTC

Filed Under: Section 47 of Persons with Disabilities Act, 1995
Appellant: SK. Moulana
Respondent: Depot. Manager, APSRTC and Anr
Citation: 2004 (1) ALD 445
Court: The High Court of Andhra Pradesh at Hyderabad
Judges: opala Krishna Tamada

SK Moulana filed a writ petition against APSRTC as he had been forced to retire from service on grounds of disability.

Facts

SK Moulana was employed as a driver with the AP State Road Transport Corporation. One day, after finishing his work he left for another city. The bus in which he was traveling met with an accident and he was seriously injured. Subsequently, his right leg was amputated.

He was treated as an inpatient in Osmania General Hospital. After this he was referred to another Hospital by the APSRTC authorities. The Medical Officer at this Hospital issued a medical certificate opining that he was unfit for the post of a driver due to the amputation of his leg.

The Depot manager of APSRTC kept Moulana under forced leave until further orders and then retired him from service on medical grounds. Challenging this, Moulana filed this petition.

Arguments on behalf of Moulana

Moulana's lawyer contended that according to the provisions of Section 47 of the Persons with Disabilities Act the phrase "during his service" does not mean that the injury would have to take place while on duty only.

According to him, it was sufficient that he was working with the organization when he had the accident and hence the provisions of the Act would apply to him.

Arguments on behalf of APSRTC

The lawyer on behalf of APSRTC stated that the phrase "during his service" should be interpreted to mean that the employee has to be in service at the time of the accident and since Moulana was not on duty when he had the accident, the Depot manager of APSRTC was not under any obligation to provide him alternative employment.

Observations of the Court

The Court stated that the phrase "during his service" of section 47 of the Act should not be interpreted to mean that the individual needs to actually be on duty at the time the accident occurs. The Court opined that this phrase referred to the employment of the individual in an organization irrespective of whether the employee was on duty or not at the time of the accident.

In keeping with this view, the Court stated that the organization had the duty to create an alternate employment for Moulana as per the Act. The Court also made reference to previous relevant cases in order to elucidate this point.

Accordingly the writ petition filed by Moulana was allowed and the APSRTC was directed to provide alternate suitable employment to him and to strictly adhere to the stipulations of the Act. This direction was to be carried out by the APSRTC within a period of 2 months. It was also made clear that Moulana was entitled to all the consequential benefits as per the law.

Sections Referred:

Cases Referred:

  • Kunal Singh vs. Union of India, 2003 Lab. IC 1133; Md. Sukur Miya vs. Singareni Collieries Company Limited, Adilabad, 2003 (2) ALD 335 ORDER

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DTC vs. Rajbir Singh

Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellants: Delhi Transport Corporation
Respondent: Rajbir Singh
Citation: 100(2002) DELHI LAW TIMES111 (DB) :( 2003) I LLJ 865 Del
Court: Before the Division Bench of Delhi High Court
Judges: S B Sinha, C J& A K Sikri

This is an appeal by the Delhi Transport Corporation (DTC) against the order of the Single Judge Bench of the Delhi High Court allowing the re-instatement of an employee, Rajbir Singh. The employee was dismissed by the DTC on acquiring a disability.

Facts

Rajbir Singh was working with the Delhi Transport Corporation (DTC). While he was in service, he met with an accident as a consequence of which his left thigh-bone was fractured. He was under treatment for sometime and thereafter the doctors advised him to rest for a few months.

Later, he filed a fitness certificate issued by a private nursing home in Sonepat, Haryana. However, the DTC directed him to appear before its medical board, which declared him medically unfit. On that basis, the DTC passed an order of retiring him prematurely on medical grounds.

He appealed against this order, which was dismissed. Thereafter, he filed a writ petition before the Single Judge in the High Court asking that he be reinstated in service with full wages. Before the judge these questions were raised:

In a situation of this nature Rajbir could not have been terminated in view of the provisions of the Persons with Disabilities Act. As the accident took place prior to the Act being passed it would not be applicable. After hearing the submissions from both the parties, the Court held the termination was against the law and allowed Rajbir's appeal. Against this order the DTC filed this appeal.

Arguments on behalf of DTC

Firstly, as per the provisions of the Act, Rajbir's rights under a statute (Delhi Transport Corporation Act) or a statutory regulation could not be taken away; nor could the condition of the employment be interfered with.

The DTC's order were in accordance with the statute and hence they could not he meddled with. Secondly, the Act was only applicable for people who sustained injuries during the course of employment and this was not so in this case. .

Thirdly, the provisions of the Act must not be read literally since it would lead to absurdity and the employer would be burdened with unnecessary liabilities. It was argued that the Act would necessarily have to be read as a whole to understand its intent. Fourthly, the Act came into existence after the accident took place and therefore would not be applicable.

Arguments on behalf of Rajbir Singh

Firstly, the Act contains special provisions for the benefit of the people with disabilities and no other regulation could overrule it.

Secondly, Section 47 of the Act must be literally construed.

Observations made by the Court

The Court observed that the Act's provisions had been made to ensure the full participation of persons with disability in society and gradually in the workplace. As per section 47 of the Act, the employer too has certain liabilities towards disabled persons.

Furthermore, it does not contemplate that despite the acquired disability; the affected persons must be kept in the same post. It is clearly stated that once found unsuitable for the post held, a shift to some other post with pay and service benefits protected is mandatory.

The Act also provides for a social security for disabled persons. It was further observed that the DTC had misconstrued a part of the section 47, which said "when they acquire disability during the course of employment". What that means is that those who were already in employment should not be uprooted when they acquire a disability.

It would not mean that the disability must occur during the course of duty. The submission that the Act is not applicable, in this case since the accident took place before the Act came into existence was rejected.

Rajbir's services had not been terminated prior to the inception of the Act so the Court observed that the question of whether the Act was enforced and the issue of applicability does not arise. Section 47 is couched in negative language and it must be construed as mandatory. The Court held that for the above reasons there was no case and the appeal was dismissed.

Sections Referred:

Cases Referred:

  • Baljit Singh vs. DTC, 83 (2000) DLT 286
  • UP State Road Transport Corporation vs. Mohd.Ismail, AIR 1991 SC 1099
  • Nelson Motis vs. Union of India, AIR 1999 SC 1981
  • Anand Bihari & others vs. Rajasthan State Road Transport Corporation, Jaipur & another, AIR 1991 SC 1003
  • Pawan Kumar Sharma vs. Gurdial Singh, VII (1998) SLT 160: 1998 (7) SCC 24
  • Government of NCT vs. Bharat Lal Meena CWP 2461/2002
  • Social Jurist vs. Union of India, CWP 1283/2002
  • Jolly George Verghese vs. Bank of Cochin, 1980 SC 470
  • Visaka vs. State of Rajasthan, AIR 1997 SC3011
  • Apparel Export Promotion Council vs. AK Chopra, I (1999) SLR 212: AIR 1999 SC 625
  • Delhi Transport Corporation vs. DTC Mazdoor Congress, AIR 1991 SC 101
  • Apex Court in Civil Appeal No. 1864/2000, Kanwar Pal Singh vs. DTC
  • Shiv Nath Singh vs. DTC, CW 333/96
  • Nelson Motis vs. Union of India, AIR 1992 SC 1981
  • State of UP vs. Dr.Vijay Anand Maharaj, (1963) 1 SCR 1(AIR 1963 SC 946)
  • Ashoka Marketing & another vs. Punjab National Bank, (1990) (4) SCC 406
  • Rameshwar Dass vs. State of Haryana, 1995(3) SCC 285

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Union of India & Ors vs. Mohd Mobin Khan & Anr

Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellants: Union of India & Ors
Respondent: Mohd Mobin Khan & Anr
Citation: Civil Misc. Writ Petition No. 2229 of 2004 (Unreported)
Court: In the High Court of Allahabad
Judges: Dr. B.S. Chauhan, Dilip Gupta

Facts

Mohd. Mobin Khan was initially appointed as an ad hoc Helper in October, 1969 under the Central Gound Water Board Division-III Varanasi. He was subsequently regularized and was granted promotions from time to time.

While he was holding the post of DCM at Varanasi, he met with an accident, as a result of which he was hospitalized. His left leg was amputated and he also lost vision in the right eye.

He was ultimately discharged from the hospital with a fitness certificate for doing only light duty and sitting job. He was also referred to the Chief Medical Officer of the S.S.P.G. Hospital Varanasi by the employees for medical examination.

The Medical Board of the said Hospital issued a certificate that he was fit to perform duties like writing, maintenance and submission of report, maintenance of log books and store account books etc.

The Department considered his case and conditions. He joined as LDC but made a representation to the Authorities to protect his pay by retaining him in service as Store Superintendent/Store Forman on the ground that he was educationally and otherwise competent to hold that post.

However, he was informed that his pay could not be protected and if he did accept the terms indicated in the letter he would be retired on the ground of disability.

Mobin again made another request for pay protection but the Department issued the order by which he was retired from Central Ground Division-III Varanasi, under Rule 38 CCS (Pension) Rules as he failed to accent the post of LDC.

This order was challenged by him before the Tribunal with a prayer for a further direction for pay protection. The Tribunal passed an order directing to reinstate him as LDC in case he gives his willingness within a month of the communic ation of the order. Against this decision the Government filed the petition for quashing the orders of the Tribunal by which Mobin was to be given compulsory retirement.

Arguments made on behalf of Union of India

It was argued on behalf of Government that last Mobin’s pay could not be protected in view of the provisions of Rule 22 of the Fundamental Rules and, therefore, the direction issued by the Tribunal were bad in law.

It was further argued that the injury had not been caused to Mobin “during the course of employment” and, therefore, there was no obligation on their part to engage him or protect his pay and that the order of retirement was justified as he did not accept the terms that wererequired under the communication.

It was also argued that as Mobin had received compensation for the loss suffered on account of accident as per the order of the Compensation Commissioner, Varanasi, the order of the Tribunal was not justified.

Arguments made on behalf of Mobin Khan

It was argued on behalf of Mobin that there was no infirmity in the judgment of the Tribunal and the his pay was to be protected in view of the provisions of Section 47 of The Persons with Disabilities Act, 1995.

It was further argued that he had suffered injury during the course of employment and that Rule 22 of the Fundamental Rules or the receipt of any compensation under the Workmen Compensation Act could not bar him from claiming the relief under Section 47 of the Disabilities Act.

Observations of the Court

The Court held that a person who had acquired a disability during his service was sought to be specifically protected under Section 47 of the Persons with Disabilities Act, the language of which was clearly mandatory in nature.

It was a piece of social beneficial enactment giving the disabled persons equal opportunities, protection of rights and full participation. The Court therefore, was of the opinion that Section 47 of the Disabilities Act did not require that the person must suffer the disability and even if he “during the course of employment” suffered the disability during the period of service but outside the course of employment then too he was entitled to the protection.

It was further held that Mobin had been given the advance increments taking into consideration the number of years of service rendered on the post of DCM, and thus the protection of last pay could not be given and was had to be rejected. With these directions the Writ Petition was disposed off.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

Satyabir Singh vs. Delhi Transport Corporation & Anr

Filed Under: Section 47 of the Persons with Disabilities Act Article 226 of the Constitution of India
Appellants: Satyabir Singh
Respondent: Delhi Transport Corporation & Anr
Citation: 97 (2002) DLT 434
Court: In the High Court of Delhi
Judges: Vijender Jain

Note

The facts of this case were unclear, excepting that the Court reiterated the order given in Rajbir Singh v. DTC where the Court had ordered that the disabled employee who was prematurely dismissed by the Delhi Transport Corporation on acquiring disability was to be reinstated with back wages.

Arguments made on behalf of DTC

On behalf of DTC it was argued that the phrase, ‘during the service’ under the Persons with Disabilities Act had to be interpreted as ‘during the course of his employment’.

Observations of the Court

After examining Section 47 of the Act, the Court opined that the Legislature had consciously used the term “during service” and had not defined that, disability must be one, which should occur during the course of employment. It was also observed that no distinction had been laid down in Section 47 of the Act between a person suffering a disability during the course of the employment and a person suffering a disability outside the course of employment. What was required was that the disability should have been during the period of service.

With the above observations, the Court agreed with the judgment in Rajbir Singh’s case and quashed the order of compulsory retirement passed by DTC and the amount that DTC had paid Satyabir was directed to be adjusted against his dues.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act
  • Articles 226 of the Constitution of India

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