Provisions in PWD Act Overrides

Union of India vs. Hasan Khan

Filed Under: Sections 2(i) (t), 47 and 72 of the Persons with Disabilities Act, 1995 Industrial Disputes Act, 1947
Petitioner: Union of India
Respondent: Hasan Khan
Citation: 2003-II-LLJ 779
Court: In the High Court of Rajasthan
Judges: Anil Dev Singh & M. R. Calla

Facts

Hasan Khan was appointed as a Statistical Assistant on ad hoc basis. Eleven years later his services were regularized. In 1996, a medical board was constituted for his medical examination. After taking the opinion of the Medical Board, his services were terminated as he was found to be unfit for government service on account of medical disability.

He was granted a disability pension starting from that day. Hasan Khan aggrieved by his termination, filed an application before the Central Administrative Tribunal, Jaipur Bench. The Tribunal allowed his application and ordered that he should be reinstated with all benefits.

Arguments on behalf of the Union of India

On behalf of the Union of India it was argued that the Tribunal had erred in its directions. According to the lawyer, Hasan Khan had acquired a mental disability that had reduced his mental faculty to the level of a ten-year-old child and was unable to perform his duties.

It was also contended that the provisions of the Act were in conflict with the Central Services (pension) Rules and the Industrial Disputes Act and this being so; the later Acts must be given priority over the former Act.

Observations of the Court

The Court observed that the argument made on behalf of the Union of India was weak. Examining the relevant provisions, it held that mental retardation was one of the type of disabilities recognised under the Act.

Further, after examining the Section 72 of the Act, the Court noted that the petitioners were suffering from a misconception that the provisions of the Act were in contradiction to the provisions of the Central Civil Rules. Further, holding that the provision under Section 47 was mandatory and hence could be ignored and directed that the Court order be implemented within three weeks.

Sections Referred:

  • Section 2 (t), 47 and 72 of the Persons with Disabilities (Equal opportunities, Protection of Rights & Full Participation) Act, 1995
  • Industrial Disputes Act, 1947
  • Central Services (pension) Rules, 1972

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Om Prakash Singh vs. Union of India and Others

Filed under:Section 18 of the Central Reserve Police Force Act Section 47 of the Persons with Disabilities Act, 1995
Appellant:Om Prakash Singh
Respondent:Union of India and Others
Citation:2005 All. L.J. 2419
Court:In the High Court of Allahabad
Judges:Sabhajeet Yadav

Facts

Om Prakash Singh was recruited as a constable in the Central Reserve Police Force (CRPF). While he was undergoing the Counter-insurgency Anti-Terrorists Course, he met with an accident because of which he fractured his knee and backbone. He was thus, admitted at the CRPF Base Hospital for treatment. He remained under treatment at this hospital for a period of about of 3 months after which he was referred to AIIMS.

Under the treatment provided to him, he could not recover entirely. On account of these serious injuries and also because of the prolonged treatment given to him, the Head of the Department thought it proper to post him for official work and he was thus posted at the office of Central Group Center, CRPF, Allahabad.

Om Prakash stated that while he was posted at Allahabad he was again treated in a hospital and was referred to a Neuro Surgeon at a Hospital in Allahabad where a doctor operated on him. He further submitted that till date he was under close observation of the Neuro surgeon as per the prescription. However, despite his injuries and the treatment that he was getting, Om Prakash was transferred to 72 Battalion CRPF in Assam. According to Om Prakash this battalion was posted in mountainous areas and since he was still under medical treatment he could not execute such active service.

Thereafter, Om Prakash made a detailed representation challenging the validity of his transfer order. He then filed a writ petition in the High Court. This petition was disposed off with a direction given to the CRPF to consider his representation and for a period of two months, the order of transfer was directed to be kept on hold.

It was also argued that during the course of his tenure at Allahabad, the Director General of CRPF had issued a circular, which contained a policy for rehabilitation of CRPF employees who had lost any part of their body or had suffered from a disease during the course of service. In keeping with this circular, Om Prakash moved an application for his rehabilitation. He was required to beexamined by the Board of Medical Officers. In the meanwhile, however, the representation made by him regarding his transfer to Assam was rejected and he was directed to report to duty to Commandment, 72 Battalion, CRPF at Assam.

It was also mentioned that the issue of his rehabilitation would be dealt with and another letter would be issued. Challenging the validity of this order, Om Prakash filed another Writ Petition. While this petition was pending in the Court, Om Prakash received a show cause notice wherein it was stated that on the basis of the opinion of the Medical Board, Om Prakash was required to explain why he should not be invalidated out of service. Om Prakash replied to this show cause notice but the CRPF did not consider his reply and invalidated him out of service. Feeling aggrieved, he filed this writ petition challenging the order of his discharge.

The CRPF filed a counter-affidavit and stated that Om Prakash had been transferred to the Group center, Allahabad not because of medical reasons but his transfer was a general case and was done on rotation basis to give equal chance for static posting to persons who had already completed tenure of their duties in the field. It was also submitted that Om Prakash had completed three years at Allahabad. It was further submitted that Om Prakash had been examined by the Medical Board and after the examination the Board had held that he had been completely and permanently incapacitated for further service and because of this reason he had been invalidated from service

Observations of the Court

The Court examined the facts and circumstances of the case and held that there was nothing on record to show that Om Prakash had not been able to discharge his duties properly when he was posted at Allahabad. According to the Court the CRPF had taken two conflicting and contradictory stands regarding his case. On the one hand they had invalidated him out of service because he was found to be incapacitated but on the other hand they had not considered his case for rehabilitation.

The Court held that Om Prakash had sustained injuries while he was on active duty and on account of such injuries he had acquired a disability. If he was not found suitable for the post he was holding, he should have been accommodated to another suitable post in accordance with the provisions of the Persons with Disabilities Act, 1995 and the provisions of the Standing Order. Instead of doing so, the CRPF had wrongly invalidated him out of service and in doing so had ignored the provisions of the law. According to the Court, this order was not sustainable under law and was accordingly quashed.

The CRPF was directed to consider Om Prakash’s case in accordance with Section 47 of the Act and the provisions of the Standing Order. It was also pointed out that while doing so the CRPF should keep in mind that in case there was any discrepancy between the Act and the Standing Order, then the Act would have an overriding effect upon the provisions of the Standing Order. The writ petition was accordingly allowed.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Kunal Singh vs. Union of India, AIR 2003 SC 1623: 2003 Lab IC 1133: 2003 AIR SCW 1013: 2003 (2) JT (SC) 132

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A. Seshaiah vs Commandant, Central Industrial Security Force Unit

Filed Under: Section 33 & 47 Persons with Disabilities Act, 1995
Appellant: A Seshaiah
Respondent: Commandant, Central Industrial Security Force Unit
Citation: 2005(3) ALD766, 2005(3) ALT 268
Court: In the High Court of Andhra Pardesh at Hyderabad
Judges: T. Meena Kuamri and L. Narasimha Reddy

The petition was filed by A.Seshaiah against the order of the C.I.S.F terminating his services, which was issued consequent to his acquiring a permanent disability.

Facts

A Seshaiah was appointed as Constable in the Central Industrial Security Force (C.I.S.F). After completing his training period, he joined regular duties at Bhilai. One day he is said to have physically collapsed while on duty following which he was treated at several hospitals, and was transferred to the Third Reserve Battalion, N.F.C, at Hyderabad. On account of the ailment suffered by him he was assigned ministerial duties in the dispatch section. Simultaneously, he was being treated at the Nizam’s Institute of Medical Sciences, Hyderabad.

With a view to assess his fitness so that he could resume his duties as a constable, he was made to appear before the Medical Board, of Gandhi Hospital. After examination, the Board certified that, he is ‘completely and permanently incapacitated for further service in the C.I.S.F’ due to ‘limb-girdle muscular dystrophy’. Based on this report, the Commandant, C.I.S.F, issued a memo proposing to retire from service on grounds of invalidation. Seshaiah challenged the same by filing the Writ Petition on the basis of the provisions of the Persons with Disabilities Act 1995.

Arguments made on behalf of Seshaiah

It was argued on behalf of Seshaiah that his health suffered while in service and that he had been assigned ministerial duties by C.I.S.F itself, since 1997. There had been no complaints since then against him and thus, their action in retiring him from service was not justified. It was also argued that even if the provisions of the Act did not apply to C.I.S.F, the Commandant ought to have considered the feasibility of continuing him in ministerial duties.

Arguments made on behalf of the Commandant

It was argued on behalf of the Commandant that because of the permanent disability suffered by Seshaiah, he had been rendered unfit to perform any duty in C.I.S.F. It was also stated that he had been selected as a Constable to perform combatant duties, and that it was not possible to assign any other kind of work to him. It was further pleaded that the provisions of the Act do not apply to the C.I.S.F, in view of the notification issued by the Government that exempted C.I.S.F from certain provisions of Act.

Observation of the court

The court held that exemption, the Commandant was referring to, at the most relieves the Central Government from its obligation to reserve posts in favor of physically disabled persons, while undertaking recruitment of ‘combatant personnel’ and not of non-combatant personnel. The notification in reference was issued under proviso to Section 33 of the Act, and not under Section 47. Thus, it emerged that Section 47 of the Act continued to apply to C.I.S.F and other paramilitary organizations. In view of this fact, it was concluded, that the Commandant could not deny the benefit of Section 47, to Seshaiah.

The importance of the protection accorded by the Parliament, under Section 47 of the Act, to the persons who acquire disability, while in service was emphasized. It was observed that a statutory duty is cast upon, an employer under Section 47, and where two interpretations are possible, the one, which advances the objective of the Act, shall be preferred. For these reasons, the Writ appeal was allowed and it was ordered that Seshaiah should be taken back into service.

Sections Referred:

  • Section 33 & 47 Persons with Disabilities Act, 1995

Cases Referred:

  • Kunal Singh vs. Union of India, 2003 Lab. IC 1133

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Smt. Nilam vs. Union of India represented by General Manager, Western Railway

Filed Under: Persons with Disabilities Act, 1995
Appellant: Smt. Nilam
Respondent: Union of India represented by General Manager, Western Railway
Citation: (2005) IPDD (CC) 204
Court: In the Central Administrative Tribunal, Jabalpur Bench
Judges: R.K. Upadhaya and A.K. Bhatnagar

Facts

Nilam was a hearing-impaired person. The Divisional Railway Manager, Ratlam had issued a notification inviting applications from handicapped candidates through Employment Exchange for Group C and Group D Category posts. The applications were to be accompanied by a certificate from the District Medical Officer/Civil Surgeon. According to Nilam, she submitted all the relevant educational as well as Medical certificates along with the application. As per the application, she suffered from about 70% hearing impairment.

Nilam was selected in a Group-C post against the handicapped quota, after which she was sent for a medical fitness examination and a medical certificate was issued to her wherein she was found ‘fit BI in the physically handicapped quota of hearing loss of about 70%’. Thereafter, she was issued an appointment letter and she joined the services.

However, the Divisional Railway Manager again sent a letter asking for her special medical examination and all the relevant papers were re-examined under the Indian Railway Medical Manual. The Railway authorities then sent her to Mumbai for an audiogram where her loss of hearing capacity was found to be 90.11% and 65.8%.

Following this the authorities issued her a show cause notice stating that it had been found that her hearing loss in the better ear was 65db to 75 db while it was required to be more than 90db and that she has misrepresented her deafness to the Railway administration and got an appointment. Against this notice, Nilam filed an application in Administrative Tribunal.

Arguments made on behalf of Nilam

It was argued on behalf of Nilam that she had duly complied with the requirements of the Railway but they were bent upon getting rid of her. She relied upon the provisions of the Disabilities Act where it was provided, that persons having a minimum of 40% disability were eligible for appointment. Moreover, it was argued the advertisement did not prescribe any percentage of disability and now their insistence on disability of not more than 90db as per the provisions of IRMM was not justified. Therefore, the show cause notice should be quashed and the railway should be restrained from terminating her services.

Arguments made on behalf of Railway

It was argued on behalf of Railways that Nilam was selected and recruited for 3 years training during which complaints were received about her actual disability. Thus, she was re-examined and it was found that her appointment was against the handicapped quota. It was further argued that even though the advertisement did not strictly specify the extent of disability of a deaf candidate, it should have been interpreted as per the provisions of IRMM which prescribes disability of 90db and above in the better ear. It was thus argued that Nilam did not have the required degree of disability; therefore, her requirement was irregular as she was ineligible for appointment in the category of a disabled candidate.

Observations of the court

It was held by the Court that if IRMM were to be followed by the member of the staff dealing with medical and health subjects, the medical certificate issued by the Chief Medical Attendant should not have been issued, as Nilam did not have a disability of more than 90db in her better ear. It was further held that her case was governed by the Persons with Disabilities Act and she had the required level of disability prescribed in the Act. Therefore, her services could not be terminated on the ground of ineligibility.

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