PWD Act Applicable Retrospectively

DTC vs. Harpal Singh

Filed Under: Section 47 of Persons with Disabilities Act, 1995
Petitioner: Delhi Transport Corporation
Respondents: Harpal Singh, Ex Security Guard & Anr.
Citation: 105 (2003) DLT 113
Court: In the High Court of Delhi
Judge: Mukul Mudgal

This is a petition challenging the order of the Labour Court directing the Delhi Transport Corporation (DTC) to reinstate Harpal Singh, who was working as a Security Guard with the Corporation.

Facts

Harpal Singh was appointed as a Security Guard by the DTC. He met with an accident while in service and became disabled. He was retired from service prematurely due to the disability so he appealed to the Labour Court. The Labour Court reinstated him under the provisions of Section 47 of the Persons with Disabilities Act.

Arguments on behalf of Delhi Transport Corporation

On behalf of DTC it was argued that, since the Act came into force after he was retired, it could not be applied.

Observations made by the Court

After examining the Statement, Objects and Reasons of the Act, the Court observed that the Act was enacted to create a barrier-free environment for people with disabilities and to remove any discrimination against them in sharing of development benefits. It was also stated that the Act sought to make special provisions for the integration of persons with disabilities into the social mainstream.

Thus, it is clear that the Act is a welfare measure and with a view to benefit disabled people. DTC, being an authority of the State automatically comes under this Act and therefore there was no question of it not being applicable to Harpal Singh.

The Court reminded the parties that the advantage of any statutory enactment incorporating a welfare measure particularly for the weaker sections of society has to be given.

Held: The writ petition was dismissed.

Sections Referred:

  • Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995

Cases Referred:

  • Baljeet Singh vs. DTC, 83 (2000) DLT 286

Top

Rajbir Singh vs. Delhi Transport Corporation

Filed Under: Section 47 Persons with Disabilities Act, 1995
Appellant: Rajbir Singh
Respondent: Delhi Transport Corporation
Citation: 97 (2002) DLT 19
Court: In the High Court of Delhi
Judge: Sanjay Kishan Kaul

Rajbir Singh was prematurely retired from service on grounds of physical disability, which h had acquired during the course of his employment.

Facts

Rajbir Singh was appointed as a driver with the DTC. He met with an accident and consequently, his thighbone was fractured. He was advised rest for a period of three months. Thereafter he was issued a fitness certificate by a nursing home.

When he rejoined service, he was required to appear before the Medical Board of the DTC, which declared him unfit. This led to an order retiring him prematurely from service in view of the report passed by the Medical Board. Rajbir filed a petition against this order, which was rejected. He then filed the present appeal.

Arguments made on behalf of Rajbir

Rajbir's lawyer contended that he was entitled to protection under the Persons with Disabilities Act. He also cited relevant previous judgments to support his contention.

Arguments made on behalf of DTC

DTC's lawyer on the other hand made two main arguments. Firstly, he contended that Rajbir had not met with the accident during the course of his duties, and therefore his accident could not be covered under the provisions of the Act.

Secondly, he argued that since the date of the accident had not been clearly specified by Rajbir, it was quite probable that the accident took place prior to the time when the Act came to force.

Observations of the Court

The Court analyzed the arguments given by both the parties and opined that with regard to the first point made by the lawyer on behalf of DTC, the argument had no merit. The Court cited a previous relevant case in order to elucidate this point.

As far as the second point was concerned, the Court held that there was nothing on record to show that Rajbir had met with the accident on a date other than the one stated. Furthermore, the date stated occurred after the Act came into force. The Court further stated that the Act could be applied retrospectively if the employee was at that time employed with the organization.

In view of these arguments, the Court allowed the writ petition and the order of termination was quashed. The DTC was directed to take Rajbir Singh back into service. The Court also ordered that the salary due to Rajbir from the date of termination till the date the judgement was passed, be paid to him.

The DTC was directed to treat Rajbir as if he was continuously in employment without any break in his service. It was also mentioned that in case Rajbir was unable to perform the duties of his job effectively and in the manner prior to his accident, then the DTC would have to deal with him in accordance with Section 47 of the Act. The court also held that Rajbir was entitled to a cost of Rs. 3000/-

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Ashok Kumar vs. DTC dated 10.5.2000
  • Baljeet Singh vs. DTC 83 (2000) DLT 286
  • Kunwar Pal Singh vs. DTC and anr C A no. 1864/2000

Top

S. Mohan vs. The Presiding Officer, Labour Court and the Management, Thanthi Periyar Transport Corporation

Filed Under: Article 226 of the Constitution of India
Appellant: S. Mohan
Respondent: The Presiding Officer, Labour Court and the Management, Thanthi Periyar Transport Corporation
Citation: (2004) IILLJ 923 Mad
Court: In the High Court of Madras
Judge: K.P. Sivasubramaniam

Facts

S. Mohan joined service in Thanthi Periyar Transport Corporation as a driver on daily wages @ Rs.40/-. Subsequently, a new order of appointment was issued to him and he was posted to the Pondicherry Branch. He had completed all the requirements of making the caution deposit, contribution of Medical College and Engineering College and the other deposits as required under the order of appointment.

One day, while he was the driving bus towards Madras, one lorry dashed against the bus and he suffered injuries in his right eye. The injury resulted in complete loss of vision in his right eye. He was sent for a medical examination and the Medical Board certified that the condition of his eye had rendered him unfit for as a driver, though otherwise his physical condition was normal.

A show cause notice was then issued to him, asking him to explain why he should not be discharged from service. He sent a reply to the management, which included a request for an alternate job after explaining his family situation. According to him, the management passed an order on 5.3.1993 discharging him from service on medical grounds. Mohan then raised an Industrial Dispute.

The Labour Court on an analysis of the mutual contentions held that Mohan was not entitled for reinstatement. In terms of G.O.Ms.No.746, directing the Transport Corporation to provide alternate employment for persons certified as medically unfit, it was held that the said G.O. could be applied only for employees who had put in more than six years of service.

As he did not satisfy the said requirement, the Labour Court held that he was not entitled for reinstatement in service. Aggrieved, Mohan filed a Writ Petition in the High Court of Madras.

Arguments made on behalf of S. Mohan

It was argued on behalf of Mohan that the obligation of the employer to provide an alternate job was applicable to all the employees’ irrespective of the period of service. In his case, the disability suffered was not due to any personal or individual reason, but only due to and while discharging his services in the course of employment and hence the Corporation could not seek to apply G.O.Ms.No.746 and the modified G.O.Ms.No.1387, which required a minimum period of six years of service.

He also relied on the provisions of the Persons with Disabilities Act, 1995 and particularly on Section 47. In terms of Section 47, it was contended by him that if an employee after acquiring disability is found unsuitable for the post, he was holding, he should be shifted to some other post with the same pay scale and service benefits. In support of his contentions, various decisions of Supreme Court were cited.

Arguments made on behalf of Transport Corporation

It was argued on behalf of the Transport Corporation that the said Act was applicable only prospectively and it came into force with effect from 17.2.1996, whereas Mohan had incurred the disability in the year 1993 itself. Therefore, the provisions of the Act as well as the Judgments relied on by him, which were based on the provisions of the said Act, could not be applied to the facts of the present case.

The lawyer also referred to the appointment order dated 5.10.1991 and contended that he was engaged only as a casual worker and therefore was not entitled for the benefits to which only the permanent employees were eligible. Therefore, it was contended that the employment being purely casual and temporary, Thanthi was not entitled to any relief.

Observations made by the Court

The Court held that it was true that the provisions of the Act came into force only on 17.2.1996 but also pointed out that the provisions of the Act were related to welfare measures to provide relief to the employees who had suffered disability in the course of performing their duty. Therefore, the duty of the employer to provide alternate employment was obligatory and the employer had to do so even in the absence of the Act.

Further, it was held that it was not as though such a right of the employee was envisaged by the Courts only in the context of the provisions of the Act. Even prior to the passing of the Act such directions had been issued by the Supreme Court and many High Courts in order to improve the living conditions of the employees.

It was felt improper for the management to terminate the services of their employees, who had worked for the establishment and to leave them without any job or livelihood only on the ground that the employee and suffered a disability, ignoring that the disability had been incurred only while performing his duties for the employer.

Moreover, the Court stated that the employment was always initially on temporary basis and it could not be denied that after the completion of the probation period, the employees services were entitled to be made permanent. Thus, such an employee could not be treated as a casual employee.

Otherwise, there would be no justification for receiving various deposits from him, which included not only caution deposit but also contribution for the Medical College and Engineering College, which were run by the Corporation.

Therefore, the mere fact that Thanthi had incurred the disability before he could be made permanent could not result in depriving his right to be made permanent and the rights of a permanent employee. Thus, the Court directed the Transport Corporation to reinstate Mohan on a suitable employment.  

The writ petition was allowed

Sections Referred:

  • Article 226 of the Constitution of India

Cases Referred:

  • Narendra Kumar Chandla vs. State of Haryana and Ors., JT 1994 (2) S.C. 95;
  • S. Gopalan vs. The General manager Thiruvallur Transport Corporation, Pallavan Aalai, Madras-2 and Ors.;
  • Allimuthu vs. State of Tamil Nadu rep. by its Secretary Transport Department, Secretariat, Chennai;
  • M. Venugopal vs. L.I.C. Of India, 1994 (1) L.L.J. 597

Top

Delhi Transport Corporation vs. Presiding Officer, Labour Court IV and Anr

Filed Under: Persons with Disabilities Act, 1995 Article 21 of the Constitution of India
Appellants: Delhi Transport Corporation
Respondent: Presiding Officer, Labour Court IV and Anr
Citation: 2003IVAD (Delhi) 421, 105(2003) DLT208, 2003(71) DRJ172, 2004(1) SLJ77 (Delhi)
Court: In the High Court of Delhi
Judge: Mukul Mudgal

Facts

Ram Kumar, while on duty as driver (class III Post) sustained an injury in his left eye and the management upon medical examination concluded that he was visually unfit for appointment as a Driver. He was offered the job of a Peon/Store Assistant, admittedly a lower post in Class IV than that he had been holding. Upon declining the said offers for appointment on the alternate post of Peon, he was prematurely retired which was challenged by seeking a reference leading to the award dated 1st March, 1999 impugned in the present Writ Petition.

The Labour Court came to a conclusion that there was a deficiency in the vehicle as adequate protection by way of glass was not provided in the window and it also found that the injury was sustained while he was driving the vehicle of D.T.C. The Labour Court also found that he had declined the offer for the post of Peon and found such rejection of lower post to be justified. Denial of the same post was found unjustified and discriminatory and accordingly action of D.T.C in prematurely retiring Ram Kumar was set aside by the impugned award.

Arguments made on Behalf of D.T.C

It was argued on behalf of D.T.C that they could not offer the workman the post of Vehicle Inspector sought by him as not being a senior most driver, he did not qualify for it. It was also argued that the impugned action was taken in 1985, well before the Act came into force. Accordingly, the provisions of the Act could not be applied in the present case.

Arguments made on behalf of Presiding Officer Labour Court

It was argued on behalf of Ram Kumar that under the Persons with Disability Act, 1995 the benefits should be given to him.

Observation of the Court

The Court speculated whether the aforesaid Act could be applied retrospectively an can apply to the facts of the present case, relied on the judgment of Supreme Court in Ved Prakash and Baljeet Singh’s case which set down the parameter applicable to the present case. It was held that the measures needed to rehabilitate handicapped persons have assumed greater force after coming into force of the said Act in 1996. Accordingly, Ram Kumar ought to have been absorbed in a post which offered emoluments equivalent to the post of Driver on which he was employed prior to his premature retirements but it would not be appropriate to offer all the back wages to him as he had declined the offer of the lower post.

The Court further held that in the interest of justice, 25% back wages payable to the class IV employee be paid to Ram on or before 1st July, 2003 and he shall also be reinstated on or before 1st July, 2003

The Writ Petition was dismissed.

Cases Referred:

  • Rohtash Kumar vs. DTC in CWP No. 2689/1996
  • Baljeet Singh vs. Delhi Transport Corporation, MANU/DE/1031/2000
  • In Special Leave Petition (Civil) No. 1575 of 1991 Shri Vedi Prakash Singh, Conductor vs. DTC

Top