Entitlement to Earned Leave on Acquiring Disability during Service

Devki Nandan (Dr.) vs. Union of India (UOI) and Ors

Filed Under: Section 47 of the Persons with Disabilities Act, Rule 20 (2) of the Central Civil Services Rules
Appellant: Devki Nandan (Dr.)
Respondent:Union of India (UOI) and Ors.
Citation: 2005 (3) ESC 1974, (2005) II LLJ 51Bom, 2005(1) MhLJ382
Court: In the High Court of Bombay
Judges: F.I. Rebello and S.R. Sathe

Facts

Devki Nandan was employed with the Union of India as a Medical Officer since 26-8-1974. In the course of his employment he had served at various places and his last posting was at Mumbai as a Port Health Officer. Devki had been suffering from Rheumatoid Arthritis for 20 years and due to which he had to undergo five major joint replacement surgeries. Then in February, 2002, he underwent a By-pass Surgery and was under medical treatment for two months.

In July, 2002 Devki fractured his right hip joint and was hospitalized for the same for four days. In addition, in March, 2003 he started developing a pain in his neck and thereafter he started experiencing paraplegia in his hands.

Consequently he had gradually become completely bed-ridden since May, 2003. Therefore, Devki applied for leave from 14th May, 2003 and was trying to find a treatment for his medical condition for which he consulted various doctors and medical experts. It was finally concluded by all doctors that no line of treatment could be effectively meted out to him. Devki was thus medically incapacitated for carrying out any work.

Thereafter he made several representations to the Government for extension of his earned leave to facilitate payment of his salary. Subsequently, he was called upon by Government to approach the All India Institute of Physical Medicines and Rehabilitation, Mumbai to enable the medical board to examine the extent of his disability. Devki had to travel for the examination in an ambulance since no other means of transport could be used for him.

The Medical Board examined him and sent their report to the Government. Devki’s grievance was that due to the fact that his leave was not sanctioned on time and thus he had not been paid his salary from December, 2003 despite the fact that he was fully entitled to it.

He further stated that his condition had worsened both physically and financially. He had also been compelled to surrender the accommodation given to him with his services. Aggrieved by the circumstances as they stood then, he filed this petition.

Arguments made on behalf of the Union of India

The lawyer on behalf of the Union of India relied on the rules framed by the government, to support his arguments. The rules relied in were as follows:

1. If he is on duty, shall not be invalidated from service during his service period
2. If he was already on leave, the period of leave or an extension thereafter to the extent permissible under sub-rule (1) of this rule and even beyond that may be granted as per relevant rule(s)

It was therefore, argued that at the most, Devki’s leave could be extended as permissible under sub-rule(1) and that he could be granted leave even after that, as per relevant provisions. Therefore it was also argued that it was not mandatory for the Government to grant further leave and it was advised that Devki could claim invalid pension.

On the basis of a previous judgment in a similar case, it was also contended that Devki’s case would be covered by the provisions of the Administrative Tribunals Act, 1985 and therefore he should have first approached the Tribunal before approaching the High Court of Bombay.

Observation of the court

The Court was of the view that Devki has not approached the Court on the ground that his condition of service had been violated. In fact he was before this Court contending that the Government has failed to comply with the mandatory requirements of Section 47 of the Disabilities Act. Therefore there was no question of Devki being asked to move the Central Administrative Tribunal. He was claiming a right conferred on a Disabled Person while in service under the provisions of the Persons with Disabilities Act, 1995.

The Court further held that a person did not acquire a disability by choice and an employee who had acquired a disability during service, was sought to be protected under Section 47 of the Act. It was further opined that such an employee, if not protected, would not only suffer himself, but possibly all those who depended on him would also suffer.

In view of these observations, the Court stated that the very frame and contents of Section 47 clearly indicated its mandatory nature and its language was plain and certain, casting a statutory obligation on the employer to protect an employee acquiring disability during service.

It was observed by the Court that Devki was asked to forgo his earned leave when he was physically incapacitated. Thus, he had to use his earned leave during the period of his disability, which otherwise he would have been entitled to avail on his retirement or otherwise.

The court held that even though he had availed the earned leave, it had been due to circumstances that were beyond his control, and on that ground the Government cannot deny him his earned leave. Thus the Court concluded that Devki was entitled to the benefit earned leave.

Held:The writ petition was allowed.

Sections Referred:

• Section 47 of the Persons with Disabilities Act,

Cases Referred:

• Delhi Transport Corporation vs. Rajbir Singh, 100 (2002) Delhi Law Times 111
• Kendriya Vidyalaya Sanghatan vs. Subhash Sharma, (2002) 4 SCC 145
• Public Services Tribunal Bar Association vs. State of U.P. and Anr., AIR 2003 SC 1115
• Kunal Singh vs. Union of India, AIR 2003 SC 1623