Reinstatement when Disability is Acquired during Service

Md Jani Miya vs. APSRTC

Filed under: Section 47 of the Persons with Disabilities Act, 1995 Regulation 6(A) of the APSRTC Employees Services Regulations, 1964
Appellant: Md. Jani Miya
Respondent: APSRTC and another
Citation: 2000(5) ALD 166.
Court: In the High Court of Andhra Pradesh at Hyderabad
Judge: A. Gopal Reddy

Facts

Md. Jani Miya was a conductor employed by the Andhra Pradesh State Road Transport Corporation (APSRTC). A departmental enquiry was held against him and he was removed from his job as a disciplinary measure. He appealed to the Appellate Authority against this order.

They reduced the punishment and he was re-employed in the same post with a penalty that his annual increment would be postponed for a year. When he reported back to his job he was subjected to medical tests to check his suitability for the job.

The medical examiner found a defect in his left eye and declared him to be unfit to hold the post of a conductor. On his request he was re-examined by the executive director of the Medical Board of the Corporation. He also confirmed the same result.

Hence, Md. Jani was retired as per the terms of the APSRTC Employees Service Regulations. Jani then filed a Writ Petition against this order. The court dismissed the petition and stated that he was entitled to seek appointment to another post and was directed to apply before the concerned authorities and the authorities were directed to consider his application.

The APSRTC still rejected Md. Jani's plea for alternative employment. They claimed that the law only required them to revert a medically unfit conductor to his former post and not to provide him with alternative employment and since Md. Jani was appointed directly to the post of a conductor so he could not be reverted to a previous designation. Md. Jani had appealed to the court to be re-employed in some other capacity.

Arguments on behalf of Md. Jani

Mohd. Jani's lawyer contended that the decision of the APSRTC with reference to the previous Writ was illegal as per the Persons with Disabilities Act the Corporation had to provide alternative employment to a medically unfit person and if there was no suitable post available then they would have to create a supernumerary post till a suitable post was made available or the employee reached the age of retirement.

Arguments on behalf of APSRTC

In response to this the lawyer of the Corporation said that they were only obliged to revert the employee to his previous post and since he did not hold any post prior to this they did not have any obligations.

They also said that the Act applied only to those people who had disabilities more than 40% as certified by the Medical Authority; which was not the case here.

The Court's response

After examining Section 47 of the Act, the Court allowed the petition and rejected the arguments of the Corporation. The Court also referred to a previous case of a similar nature before giving this decision.

Held: The appeal was allowed with no costs.

Sections Referred:

Cases referred:

  • Syed Sha Musebulla Alvi vs. Secretary, General Administrative Department, Secretariat, Hyderabad, 1999 (1) ALD 632

Top

KV Ranga Reddy vs. DIG Border Security Force

Filed under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: K.V. Ranga Reddy
Respondent: DIG BSF
Citation: MANU/GJ/0579/2004; Decided on 29.09.2004
Court: In the High Court of Gujarat at Ahmedabad
Judge: Bhani Singh, C.J. and H.K. Rathod This is a petition filed by KV Ranga Reddy challenging the order of the Medical Board of the Border Security Force declaring him unfit for any service.

Facts

KV Ranga Reddy was deployed for anti-naxalite duty in Balasour (Orissa). The Border Security Force (BSF) vehicle in which he was traveling met with an accident; he sustained multiple injuries on his face and right foot. He was treated and underwent several operations following which he resumed duty.

The Medical Board however declared him unfit which was contrary to his Health Card and medical examination done earlier. Ranga Reddy was then issued notice as an invalid person as per the report of the Medical Board. Ranga Reddy then challenged the action and sought a stay against it.

By that order, BSF was restrained from relieving Ranga Reddy from service and hence was allowed to continue in service. They were also directed to pay all past and future salaries to him.

Arguments of the parties

The argument put forward by the BSF was that since he had been declared to be suffering from 35% disability by the Medical Board, he was unfit for service within the BSF but fit for civil employment.

Observations of the Court

The Court observed that the issue here was to determine what relief Ranga Reddy was entitled to. They concluded that he is entitled to full pension on completion of 33 years of service.

The Court pointed out that if he had been found fit for civil employment in other departments there could be no reason to find him unfit for employment in the offices of the BSF. The Court therefore directed that he should be provided with an alternative employment in the offices of the BSF under Section 47 of the Act. Held: The petition was allowed.

Sections Referred:

Top

Dharambir vs. DTC

Filed under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: Shri Dharambir S/O Shri Ram Swaroop
Respondent: Delhi Transport Corporation
Citation: MANU/DE/1102/2002; Decided on 13.8.2002
Court: In the High Court of Delhi
Judge: Vijender Jain

Facts

Dharambir was injured during his employment in the DTC and was declared medically unfit to continue work. He was paid compensation since he could not work anymore but he petitioned to be re-employed.

He was given premature retirement on medical grounds, with a compensation of Rs. 72,252 on medical grounds and Rs. 25,000 on the grounds of disablement. The DTC claimed that they were not obliged to re-employ Dharambir under Section 47 of the Persons with Disabilities Act, 1996.

Arguments put forth by Mr. Dharambir's lawyer

Dharambir's lawyer claimed that the DTC were obligated to employ Dharambir in view of Section 47 of the Act and a judgment of the Supreme Court in a previous similar case where the Court had ruled that they would have to re-employ the person in a Class IV post and if such a post did not exist then they were required to create one in 8 weeks.

It was claimed that even if section 47 of the Act did not compel the DTC to re-employ him, the Supreme Court's judgment did.

The Court's Response

The Court agreed that even if the Section 47 of the Act did not compel the DTC to re-employ Dharambir, the Supreme Court's order in a previous such case, did. The Court thus ordered the D.T.C re-hire him in a Class IV post and in case such a post did not exist, to create one within a period of 8 weeks.

Sections Referred:

Cases Referred:

  • Anand Bihari and Ors. vs. Rajasthan State Road Transport Corporation and Anr, AIR 1991 SC 1003
  • Kunwar Pal Singh vs. Delhi Transport Corporation and Ors, Civil Appeal No. 1864/2000

Top

Ramphal vs. DTC

Filed Under: Sections 45 & 47, Persons with Disabilities Act, 1995
Appellant: Shri Ram Phal
Respondent: Delhi Transport Corporation and another
Citation: C.W. No. 6606/1999, Decided On: 19.04.2001
Court: The High Court of Delhi
Judges: Dr. Mukundakam Sharm

Ram Phal filed a writ petition seeking the creation of a supernumerary post as per the clauses laid down by the Persons with Disabilities Act, 1995.

Facts

Ram Phal was appointed as a driver by the DTC. However, he was prematurely retired as he was declared medically unfit to perform his duties. He had earlier filed a petition challenging this order.

While disposing the writ petition, the Judge considered the policy of the DTC of offering an equivalent or a lower post to those individuals who were found to be medically unfit to perform their duties.

The Judge found this policy to be applicable for Ram Phal and accordingly ordered the DTC to offer an equivalent or a lower post to Ram Phal within a period of 4 weeks. Further, it was opined by the Court that back wages would be paid to Ram Phal only on the condition that he rejoined service with the DTC.

Accordingly an offer was made to Ram Phal by the DTC for the post of a peon. He accepted the post and joined on a pay scale of Rs. 775-1025. However, he filed the present petition seeking that a direction be issued to the DTC to create a supernumerary post for him.

He further demanded that the DTC pay him salary and allowances in the same scale as of a driver from the date of his premature retirement along with the allowances due and payable to him with interest.

Arguments on behalf of Ram Phal

Ram Phal's lawyer contended that at the time when the order of premature retirement was passed, Ram Phal had been drawing a basic pay of Rs. 1300/- in the scale of Rs. 975-1450.

Therefore, the DTC had acted illegally in not protecting his pay and in not making the payment to him at the minimum of his pay scale. It was also argued that in view of the Act he should be given a post equivalent to that of a driver and if such a post was not available then a supernumerary post should be created for him.

Arguments on behalf of DTC

The lawyer on behalf of DTC claimed that the demands made by Ram Phal were not tenable in view of the earlier judgment passed by a Judge of this Court. He further asserted that in the order issued by the Judge it had been clearly mentioned that he should be given an offer for an alternative post of a peon.

And if he had accepted this post he would be entitled to the pay of a peon/store attendant from the date of his premature retirement till the date the offer was made, provided he accepted the offer. And since Ram Phal had accepted the post of a peon he was not entitled to the claims made by him in the present petition.

Observations of the Court

The Court considered the arguments made by both the parties and stated that the order passed by the Judge in the earlier petition was binding and final on both the parties.

The Court further observed that in accordance with the previous order, Ram Phal had been offered the post of a peon, which he had accepted without protest. He had also been given the pay scale of a peon from the date of his retirement to the date of his joining, as per the terms of the earlier order.

The Court stated that the present plea made by Ram Phal was therefore unjustified. The Court argued that the plea for protection of the pay Ram Phal was receiving as a driver was not acceptable. It was also held that he was entitled only to claim and receive the pay of a peon.

Accordingly, the Court concluded that Ram Phal would continue to earn increments in the pay of a peon for all the subsequent years in accordance with the existing rules and law.

Sections Referred:

  • Section 45 and 47 of the Persons with Disabilities Act, 1995

Top

KJ Dhulia vs. State of Gujarat

Filed under: Persons with Disabilities Act, 1995
Appellant: K. J. Dhulia
Respondent: State of Gujarat
Citation: (2004) 2 GLR 1821
Court: In the High court of Gujarat
Judge: Akshay H. Mehta

This is a petition filed by KJ Dhulia against the order of the Government of Gujarat terminating him from service on account of acquiring permanent visual disability.

Facts

K J Dhulia joined the service of the State of Gujarat as a class-II employee. After about 18 years of service he became permanently visually disabled. Therefore, he was unable to perform his routine duties as a medical officer. He was asked to appear before the Board of Referees.

The Board opined that though he was unfit for routine duty; he could be considered for a teaching post in medicine. However, according to the State of Gujarat no such post was available.

Subsequently, Dhulia was given a notice on the ground that he had failed to appear before the Medical Committee as per the earlier intimation. He filed his reply and was then examined by the Medical Board. In the opinion of the Board, he was found to be incapable of performing his regular duties as a Medical Officer.

The records of the petition showed that several attempts were made to find suitable jobs for Dhulia. Ultimately, he was retired from the service on the ground that he was permanently incapacitated to perform his duties.

Arguments made on behalf of the parties

On behalf of Dhulia, it was argued that the decision taken against Dhulia by the State of Gujarat was absolutely erroneous and against the provisions of Section 47 of the Persons with Disabilities Act. He further argued that they could take such a decision only if Dhulia was found incapable of performing any duty, which was not the case here.

The counsel representing the State however argued that in the petition itself, Dhulia had stated that he is prepared to accept an invalidity pension and when that statement is made on oath, he could turn around.

Observations of the Court

The Court observed that the various provisions of the Act make it very clear that a person with disability should not be thrown out of employment, only because of their disability.

Thus, the State was required to find and make available to him a suitable post with the same pay scale. The affidavit-in-reply filed by the State showed that they had tried to find a suitable alternative post for him with an equal pay scale in the medical college but since he was not acquainted with Braille; it was not possible to give him a job in the teaching institutions also.

The Court directed the State to create a supernumerary post for Dhulia, stating that if he was not protected then not only would he but also his dependents would also suffer.

Sections Referred:

Cases Referred:

  • Kunal Singh vs. Union of India, AIR 2003 SCW p 1013
  • Delhi Transport Corporation vs. Rajbir Singh, 100 (2002) DLT 111 DB
  • Gujarat State Road Transport Corporation vs. Gopal M Patel, (2003) 2 GLR 428

Top

Baljeet Singh vs. Delhi Transport Corporation

Filed under: Section 47 of the Persons with Disabilities Act, 1995, Article 226 of the Constitution, 1950
Petitioner: Baljeet Singh
Respondent: Delhi Transport Corporation
Citation: 83(2000) Delhi Law Times 286
Court: In the High Court of Delhi
Judge: A.K.Sikri

This is a case where seven employees of the DTC were terminated from service on acquiring disability while in service and their services were terminated.

Facts

All these employees of the DTC were suffering from one or other form of disability at the time of filing the petition but were not disabled at birth or when they entered service. They had been medically fit, and were appointed to different posts in the Corporation after undergoing proper selection and were/are working as regular employees.

In the course of their service, they acquired some form of disability. On the ground of their disability, they were retired prematurely thus rendering them unemployed. They filed Writ Petitions before the High Court challenging their premature retirement and all the petitions were heard together and disposed off by this common order.

Arguments made on behalf of the parties

It was argued on behalf of DTC that Section 59 of the Persons with Disabilities Act provided for an alternative remedy for filing a complaint before the Commissioner Disabilities and that the petitioners should plead their case with the Chief Commissioner, for persons with disabilities in view of this provision.

Observations of the Court

The Court examined the provisions of Section 59 of the Act and observed that the Chief Commissioner for persons with disabilities could look into the complaint and take it up with the appropriate authorities; however, it was noted that the Chief Commissioner had no powers to -

  • Terminate or dispense with the service of an employee
  • Reduce the rank of a disabled person
  • Pass or enforce an order of a prohibitive nature
  • Compel an organization to reinstate an employee whose services had been terminated in contradiction to the provisions of Section 47 of the Act.

The Court directed the DTC to implement the following directions:

  1. To take the petitioners back into service and reimburse all salary due, and to treat them as if they were in continuing in employment without any break.
  2. To terminate the service of the petitioners and to re-absorb them against alternate equivalent posts according to their suitability.
  3. To compensate the petitioners for the cost of the petition at a rate of Rs 3000/- for each petition.

Sections Referred:

  • Section 47 and Section 59 of the Persons with Disabilities (Equal opportunities, Protection of Rights & Full Participation) Act, 1995
  • Article Section 226 of the constitution, 1950

Cases Referred:

  • Shri Vedi Prakash Singh, conductor vs. DTC and Others, Special Level Petition (Civil) No. 1575 of 19991. 1994 (4) SCC 460.
  • Phool Chand vs. DTC, in Civil Writ Petition No.4100 of 1995.
  • Inder Das vs. DTC, in Civil Writ Petition No. 3700 of 1997- Decided on 31st July 1998.

Top

DTC vs. Balram Sharma

Filed under: Section 2 (i), (u), 47 of the Persons with Disabilities Act, 1995
Appellant: DTC
Respondent: Balram Sharma
Citation: 101 (2002) DLT 499
Court: In the High Court of Delhi
Judges: Anil Dev Singh & R.S. Sodhi

This is an appeal against the order of the Single Judge, prohibiting the Delhi Transport Corporation from terminating Balram Sharma's services after he had acquired a disability during service.

Facts

Balram Sharma was working as a conductor with the (DTC). On the 3rd of February 1985 he suffered an injury during the course of employment, as a result of which he lost an eye. On the 24th of March 2000, DTC prematurely retired him on grounds of his acquired disability.

Questioning that order, he filed a writ petition in the High Court. The writ petition was allowed on the ground that DTC was barred from terminating his services according to the provisions of the Person with Disabilities Act, as he had suffered an injury during the course of employment. DTC filed this appeal against the order.

Arguments made on behalf of DTC

It was argued on behalf of DTC that the injury sustained by Balram did not fall within the definition of disability as provided by Sections 2 (i) and (u) of the Act.

Observations of the Court

The Court referred to the provisions of the Act and observed that Balram had acquired low vision because of the injury. It was held that low vision is covered under the definition of disability.

The Court found that due to his disability he was not in a position to execute the task assigned to him even with assistive devices but despite this he could not be terminated prematurely since he was covered by the provisions of Section 47 of the Act. The Court upheld the Judgement of the Single judge and dismissed the Appeal by the DTC

Held:The appeal was dismissed.

Sections Referred:

  • Section 2 (i), (u) and 47 of the Persons with Disabilities (Equal opportunities, Protection of Rights & Full Participation) Act, 1995

Cases Referred:

  • (1970) 40 Company Cases 458.
  • (1977) 47 Company Cases 689.
  • (1977) 47 Company Cases 802.
  • (2001) 103 Company Cases 463.

Top

Sulochana vs, APSRTC, Hyd and Another

Filed Under: Persons with Disabilities Act, 1995, Regulation 7 of the Andhra Pradesh State Road and Transport Corporation Employees (Recruitment) Regulations, 1966, Section 45 and 46 of Indian Evidence Act, 1872
Petitioner: Sulochana
Respondent: APSRTC, Hyd. and another
Citation: 2000(4) ALD 278
Court: In the High Court of Andhra Pradesh
Judge: V. V. S. Rao

Facts

Sulochana was appointed as a conductor with the Andhra Pradesh State Road Transport Corporation (APSRTC). As a pre-appointment condition, she underwent a medical examination and was found medically fit. She worked for about a year when she was terminated while she was working under the control of the depot Manager of Barkatpura.

She filed an appeal before the Board who by an order set aside the order of removal and ordered her reinstatement as a Grade III Conductor on daily wages.

Following these orders, Sulochana was sent for another medical examination. After the medical examination, she was declared unfit on the ground that she was suffering from diabetes.

Sulochana alleged that she had been examined by two different doctors at the Government Gandhi Hospital, Secunderabad and Osmania General Hospital, Hyderabad and Dr A Sudhakar Rao of Gandhi Hospital gave her a certificate stating that as per clinical and bio clinical evaluation, she was not suffering from Diabetes.

She therefore made a representation to the Board. The Board had already declared her unfit for the post of a conductor due to Diabetes Mellitus. Thereafter, she also was examined by Dr P Sayamshundar of Osmania General Hospital who opined that she was not diabetic and was fit to be appointed.

Then she made another representation to the Board but the matter was not disposed of. She approached the Court with the present petition asking for a declaration that the termination of her service was against the law.

The Court admitted the case and issued an interim direction to the APSRTC and the Board to permit Sulochana to discharge her duties as a conductor. The Transport Corporation asked the Court to vacate the order and to dispose of the matter finally.

Arguments made on behalf of the APSRTC

In the affidavit filed by the Legal Officer of the APSRTC it was stated that Sulochana was removed by an order as a result of a disciplinary enquiry and on appeal she was posted as a casual conductor on a condition that she should go through a medical examination.

When she went through the test the levels of glucose blood sugar indicated diabetes according to the doctor. Since a medical condition of diabetes was a disqualification for all posts in the APSRTC, Sulochana was declared unfit.

Arguments made on behalf of Sulochana

It was argued that as per the medical certificate issued by both diabetes specialists she was not diabetic. Therefore, the order passed by the Board was grossly arbitrary and illegal. Further, as per the APSRTC Employees' (Recruitment) Regulations as well as the guidelines for the medical examination Diabetes Mellitus was not a disqualification for holding a category A2 job in the corporation.

When Sulochana was pregnant the sugar level was marginally higher, which was common in all pregnant women and that it could not be conclusive to say that she was diabetic.

Observations of the Court

The Court referred to the conflicting medical opinions and the APSRTC recruitment regulations. The Court held that she was not diabetic at the time of recruitment and that she only suffered from gestational diabetes during the time of pregnancy.

In the given circumstances, the Court opined that even the medical standards prescribed do not bar a person who became diabetic after joining the service from continuing in service. Further, it observed that as per the provisions of the Persons with Disabilities Act, which is applicable to the APSRTC, a person who becomes disabled during service could not be terminated. For these reasons, the Court allowed the appeal.

Sections Referred:

  • Section 45 and 46 of India an Evidence Act, 1572

Top

Delhi Transport Corporation vs. Rajbir Singh and Sadh Ram

Filed Under: Sections 33, 36, 38, 39, 41 and 47 Persons with Disabilities Act, 1995, Section 2, Industrial Disputes Act, Workmen Compensation Act, Rehabilitation Council of India Act, 1992
Appellant: Delhi Transport Corporation
Respondent: Rajbir Singh and Sadh Ram
Citation: (2003) I LLJ 865 Del
Court: In the High Court of Delhi
Judges: S.B. Sinha and A.K. Sikri

Facts

This case involves two appeals that deal with a common issue. Rajbir Singh and Sadh Ram were employed by the DTC. Rajbir met with an accident and as a consequence his left thigh bone was fractured. He remained under treatment for about 6 months, after which he was advised rest by the doctors.

After this period, Rajbir submitted a fitness certificate issued by a private hospital but he was directed to appear before a medical board. The medical board declared him medically unfit and he was retired prematurely by the DTC on grounds of his disability. In response to this, he filed an appeal but the appeal was dismissed by the DTC.

Rajbir Singh then filed a Writ Petition in the High Court against the order of the DTC. The Single Judge examined the arguments extended by both the parties and held that the order of termination was against the law. In response to this order, the DTC filed this appeal.

Sadh Ram had also filed a similar case in the High Court challenging the order of DTC in retiring him prematurely from service. The High Court ordered the DTC to provide alternate employment to Sadh Ram. This order was also challenged by the DTC in this appeal.

Arguments made on behalf of DTC

DTC's lawyers contended that the regulations framed by them were mandatory and the services of Rajbir and Sadh Ram had been terminated in accordance with these. It was further stated that the provisions of the Persons with Disabilities Act could not interfere with these regulations. As a consequence, the DTC was not under any obligation to provide alternative employment to Rajbir and Sadh Ram.

It was also contended that the Act had come into force after the accident had taken place and therefore was not applicable to these cases. Furthermore, the lawyer argued that the accident had not taken place during the course of employment and therefore the provisions of the Act were not applicable.

Arguments made on behalf of Rajbir and Sadh Ram

Rajbir and Sadh Ram's lawyer contended that the provisions of the Act were applicable and the DTC should therefore give alternative employment to them. The lawyer also contended that the phrase "during the course of employment" should be construed liberally and should not be taken in a literal manner.

Observations of the Court

The Court examined the relevant provisions of the Act and held that the arguments made by the DTC did not have any merit. According to the Court, the DTC should not have passed the orders of termination of service. The Court further mentioned that the provisions of the Act should be taken in accordance with the whole context and should not be interpreted in isolation.

The Court referred to several previous cases in order to substantiate these points. Regarding the contention of DTC that the Act had come into existence after the accident, the Court held that since the order of termination of service had been passed after the Act came into force; the Act was applicable for the case.

Based on these reasons, the Court dismissed the appeal and upheld the decision of the Single Judge.

Sections Referred:

  • Sections 33, 36, 38, 39, 41 and 47 Persons with Disabilities Act, 1995
  • Section 2, Industrial Disputes Act

Cases Referred:

  • Baljeet 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 and Ors. vs. Rajasthan State Road Transport Corporation Jaipur and Anr, AIR 1991 SC 1003, (1991) 1 SCC 731
  • Pawan Kumar Sharma vs. Gurdial Singh, 1998(7) SCC 24
  • Goverment 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 SC 3011
  • Apparel Export Promotion Council vs. AK Chopra, AIR 1999 SC 625
  • DTC vs. DTC Mazdoor Congress, AIR 1991 SC 101
  • UP State vs. Mohd. Ismail, AIR 1991 SCC 1099
  • Kanwar Pal Singh vs. DTC, Civil Appeal No. 1864/2000
  • Shiv Nath Singh vs. DTC, CW 333/96
  • State of UP vs. Dr. Vijay Anand Maharaj, (1963) 1 SCR 1, AIR 1963 CS 946
  • Ashoka Marketing and Anr. vs. Punjab National Bank, (1990) (4) SCC 406
  • Rameshwar Dass vs. State of Haryana, 1995 (3) SCC 285

Top

Syed Sha Musebulla Alvi vs. Secretary, General Administrative Department, Secretariat, Hyderabad and others

Filed under: Sections 2 and 47 of the Persons with Disabilities Act, 1995
Petitioner: Syed Sha Musebulla Alvi
Respondent: Secretary, General Administrative Department, Secretariat, Hyderabad and others
Citation: 1991 (1) ALD 632
Court: In the High Court of Andhra Pradesh
Judge: S. R. Nayak

Facts

Syed Sha Musebulla joined the services of the Corporation as a conductor. While he was in service, he lost vision in both his eyes. Thereafter, he was not in a position to perform the duties of a conductor. He requested the management to provide him with alternate employment. As no positive response came forth, he filed a writ petition.

The Court held that he was entitled to a review of his case. The reviewing authority (Vice Chairman and Managing Director of the corporation) considered his claim and then rejected it. Syed, then, filed another writ petition with the contention that his case was not considered in the light of the provisions of the Persons with Disabilities Act.

The Court held that the provisions of the Act were applicable to the Corporation, which the Vice-Chairman and Managing Director had failed to consider. The Court directed them to consider the case under those circumstances and communicate the decision to Syed within a period of two months from the date of receipt of the copy of the order.

Sections Referred:

  • Section 2 and 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Top

APSRTC vs. M V Ramana Rao

Filed under: Section 2(i) and 47 of the Persons with Disabilities Act, 1995
Appellants: A.P State Road Transport Corporation, Hyderabad and Others
Respondent: M.V. Ramana
Citation: 2003 (6) ALD 322, (2004) ILLJ 361 AP
Court: In the High Court of Andhra Pradesh
Judges: Mr. Devinder Gupta and Mr. C.V. Ramulu

This is an appeal by the A P State Road Transport Corporation, Hyderabad against the judgment of the Single Judge holding that M.V. Ramana, an employee was entitled to suitable alternative employment.

Facts

M.V. Ramana had been appointed by the A.P State Road Transport Corporation, Hyderabad and had been working in their Podili Depot. He began to suffer from a hearing defect - 'tinnitus' and was advised by the doctor to refrain from driving, as it would aggravate the problem. He was referred to Tarnaka Hospital where the Senior Medical Officer certified that he was unfit for his job as a driver because of his hearing problem.

The APSRTC indicated that it was not possible to provide him alternate employment other than that of a cleaner and that too on the basis of availability of vacancy and order of seniority. When the conditions did not meet, Ramana was placed under forced leave. He then filed a writ petition requesting the APSRTC to provide him with a suitable job considering his qualifications.

The Court directed that since Ramana had suffered disability during his service he was entitled to be accommodated against any post with the same pay scale and benefits and until that post is available, he has to bekept on a supernumerary post.

Thus, the petition was disposed off directing Ramana to give his option of the post within a period of three weeks. His claim was however turned down by the Regional Manager. APSRTC then filed this Appeal.

Their contention was that 'tinnitus', the hearing disorder that Ramana was suffering from does not come under the meaning of disability enumerated in Section 2 of Persons with Disability Act. The Court however turned down this argument.

Arguments made on behalf APSRTC

It was argued on behalf of APSRTC that since Ramana had sought benefits of the provisions of Section 47, he was required to obtain an appropriate medical certificate from a medical board constituted by the State Government. They referred to the Andhra Pradesh Persons with Disabilities Rules to elaborate on this point.

Observations of the Court

The Court examined the relevant clauses of Section 2 to ascertain as to what constitutes disability to benefit from the provision of Section 47 of the Act. The Court observed the disability status of Ramana was not raised in the petition, the only challenge being that he had not produced the appropriate certificate.

It was also pointed that such contention had not been made in the earlier petition and was mentioned only in the present appeal for the first time. The Court found the very basis of this challenge erroneous in the face of the fact that the APSRTC had placed Ramana on forced leave based on a medical examination and the requisite certificate can only be obtained from a competent medical board.

The Court thus held that APSRTC could not be permitted to rely on a medical certificate for one purpose and deny the same for another (refer to Quotes from the Judgment). The appeal was therefore dismissed.

Sections Referred:

  • Sections 2(i) and 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Quotes from the Judgment:

"Having considered the submissions made at the Bar, we are of the view that the very basis of the challenge now being made is erroneous inasmuch as in case appellant has taken a decision to dispense with the services of the respondent asking him to go on forced leave on the basis of medical examination of respondent, it was incumbent on the part of the appellant to have obtained the requisite certificate from the same medical authority since it is only the Medical Board which can issue such a certificate of permanent disability or partial disability. Appellant cannot be permitted to blow hot and cold by relying on the same medical certificate for one purpose and denying the said certificate for some other purpose."

Top

Metropolitan Transport Corporation vs. the Presiding officer, Principal Labour Court

Filed under: Sections 44 to 47 of the Companies Act, Persons with Disabilities Act, 1995, Article 12 & 14 of the Constitution of India
Appellant: Metropolitan Transport Corporation rep by Managing Director, Division I
Respondent: The Presiding Officer, Principal Labour Court ad S. Ashok Kumar
Citation: MANU/TN/0505/2004, Decided on 15.03.2004 (Unreported)
Court: In the High Court of Madras
Judges: R.Jayasimha Babu & M. Karpagavinayagam

Facts

Ashok Kumar worked for a long time as a conductor with a government Transport Corporation registered under the Companies Act. He met with an accident while in service as a result of which he was not able to stand for a long time. He was therefore given the post of a helper and was later terminated from his job.

He filed a case in the Labour Court challenging the order of termination. The Labour Court rejected his application. Against this order, he appealed to the High Court. The High Court allowed his Appeal and ordered the Corporation to reinstate him and give him an alternate job suitable to his health condition. Further, the Corporation was directed to pay half of the arrears due to him from the date of termination until the date of reinstatement within three months. The Corporation appealed against this order.

Arguments on behalf of the Corporation

On behalf of the Corporation, the lawyer referred to a Government Order of the year 1981, in terms of which persons who were found medically unfit to continue to work because of disability acquired during the course of employment were to be treated as fresh recruits.

Observations of the Court

On the point that Ashok should be treated as fresh recruit in view of the 1981 government order, the Court held that the argument did not hold good in view of the Persons with Disabilities Act.

Another contention that had been raised by the Corporation was that the term government employment mentioned in the Act did not include an employment in a Government Company. The Court also referred to the relevant sections and elaborated on "what constitutes a government company".

On this point, the Court held that any Company that did business, which was earlier done by the Government and in which the Government held 100% of the capital would be a Government Company. Noting that the Corporation is merely a legal entity through which the government operates; the Court held that the Corporation would come within the scope of Section 47(1) of the Act.

Further, the Court held the Government Order of 1981 to be inconsistent with the Act. Also referring to an earlier decision of the Supreme Court, the Court held that it did not see any illegality in the previous order and dismissed the appeal.

Sections Referred:

  • Sections 44, 45, 46, 47 of the Companies Act
  • Article 12 & 14 of the Constitution of India

Cases Referred:

  • Mysore paper mills Ltd. vs. Mysore paper mills officers Association, (2002)
  • 2 SCC 167; Praga Tools vs. C.A. Immanuel, (1969) 1 SCC 585;
  • Steel Authority of India vs. National Union Water Front Workers, (2001) 7 SCC 1
  • Kunal Singh vs. Union of India, (1003) 4 SCC-524

Top

Ravichandran vs. Metropolitan Transport Corporation Ltd

Filed Under: Article 226 of the Constitution of India, Sections 47 and 72 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
Petitioner: Ravichandran K
Respondent: Metropolitan Transport Corporation Ltd
Citation: (2004) III LLJ 152 Mad
Court: In the High Court of Madras
Judge: P D Dinakaran

This is a Writ Petition challenging the order passed by the Metropolitan Transport Corporation, terminating the services of its employee Ravichandran, on the ground that he had become medically unfit to work as a Heavy Passenger Vehicle driver.

Facts

Ravichandran was an employee of the Metropolitan Transport Corporation and had been working as a Heavy Passenger Vehicle Driver. While still in service, he developed a medical condition known as "Disc Prolapse" as a result of which he was found medically unfit for service and his services were terminated on 4.12.2000.

Ravichandran claimed a suitable alternate job and benefits under Section 47 of the Persons with Disabilities Act. He filed this petition, in the year 2003, challenging his dismissal from service and also sought reinstatement in service with back wages and continuity in service.

The Corporation contested Ravichandran's claim on the ground that his medical condition, was not caused by his working as a heavy passenger vehicle driver and therefore he could not claim benefit under Section 47 of the Act.

Observations made by the Court

On the point whether Section 47 was applicable to Ravichandran's case, the High Court held that as long as he acquired the disability while he was still in service, it was immaterial whether the disability was caused due to the service or during the course of service (Refer to quotes).

Since he had acquired the disability while working with the Corporation, the High Court held that as per the terms of section 47 of the Persons with Disabilities Act, the Corporation could not terminate his services.

The High Court accordingly directed the Corporation to reinstate Ravichandran in a suitable alternate post having the same pay scale and service benefits as the post earlier held by him with continuity of service.

Since the High Court felt that Ravichandran had not been able to give a convincing explanation for the delay of about two and a half years in filing the petition, it only awarded him 25% of the back wages from the date the petition was admitted, until the date of reinstatement.

Held:Writ petition substantially allowed.

Sections Referred:

  • Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act 1995
  • Rule 38 of the CCS (Pension) Rules

Cases Referred:

  • Kunal Singh vs. Union Of India, AIR 2003 SC 1623, 2003-II-LLJ-735
  • Narendra Kumar Chandla vs. State of Haryana, AIR 1995 SC 519, 1994 (4) SCC 460
  • W.P. 13408 of 1999 (Madras High Court, Unreported)
  • W.P. 40270 of 2002
  • W.P. 8214 of 1999

Quotes from the Judgement:

"The intention of the maker is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules construction to read words into an Act unless it is absolutely necessary to do so. Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning. Courts are not entitled to read words into an Act of parliament unless clear reason for it is to be found within the four corners of the Act itself. Hence, it is immaterial whether the employee acquires the disability either 'due to the employment' or 'during the course of employment', but suffice it that the employee acquires disability during his service, for claiming the benefit under Section 47 of the Act."

Top

University of Rajasthan vs. Surendra Kumar Goel

Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: University of Rajasthan
Respondent: Surendra Kumar Goel
Citation: 2003-III-LLJ-475
Court: In the High Court of Rajasthan
Judges: Anil Dev Singh C.J. &K.S. Rathore

The University of Rajasthan retired Surendra Kumar Goel on medical grounds. Surendra appealed against this and won the case. The university filed this appeal challenging the order.

Facts

The University of Rajasthan appointed Surendra Kumar Goel as the Aquatic Coach. While he was in service, he was commissioned in the Territorial Army. In the course of time, he was promoted as Major in the Territorial Army. On June 30, 1990, the Territorial Army requisitioned his services for 'Operation Rakshak'. The University relieved him on June 21 but his services were not severed so he continued to be in the service of the University as well. During 'Operation Rakshak', he sustained spinal injury.

He was hospitalized and advised to assume deskbound duties. On October 27 he was relieved from the territorial service. Thereafter he rejoined his duties as the aquatic coach in Rajasthan University. In view of his ailment, a Medical Board appointed by the University examined him. The Board opined that in his present state he was not fit for duty. After the report of the Board on August 30, 1993, the syndicate resolved as follows:

"That maximum benefits admissible under the rules may be given to Shri Goel and he may be relieved from the university as per the government rules applicable in such cases."

In consonance with the resolution of the syndicate, Surendra was retired from service. Aggrieved by the decision of the University, he filed a writ petition in the High Court of Rajasthan.

The writ petition was allowed by the judge on the ground that he was not given an opportunity to have his say before he was retired from service by the University. The Judge directed that he should be restored to the service, which he was holding at the time of retirement viz. the post of Aquatic Coach. The Single Judge also directed the payment of 50% of back wages on his reinstatement as Aquatic Coach. The University not being satisfied with the order filed this appeal.

Observations of the Court

The Court observed that before Surendra was retired from service, he should have been given an opportunity to show that he was capable of discharging his duties as a coach (refer to quotes). If not he should have been given an alternate job.

The Court upheld the order of the first Judge on the grounds that it was in violation of the principle of natural justice to retire a person without hearing him. Noting that the provisions of the Persons with Disabilities Act protect an employee from discrimination because of a disability, they were applicable to the present situation, and Surendra should have been restored to the post he was holding or be given an alternate position (Refer to quotes). The university was expected to follow the direction within three weeks.

The High Court observed that though Section 47 was not applicable in the case of Surendra Kumar Goyal (since at the time his services were terminated the Act had not come into force), the principle embodied therein could be applied to his case.

Sections Referred:

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

Quotes from the Judgment:

"It is the basic principle basic principle of natural justice, that in the event of an adverse action taken against a person, he should be heard in the matter or given an opportunity to project his case".

"Though Sec.47 of the Act in stricto-sensu is not applicable to the case of respondent, as he had acquired a disability earlier to the coming into the force of the Act, the principle which has been embodied in the Section 47 can always be applied and the respondent can be restored back tot he position which he was holding before he was retired on account of disability. Alternatively, the employer can be given an option to adjust the respondent in any other equivalent position, in case, the employer feels that it will not be appropriate to restore the respondent to the post which he was holding".

Top

A John Peter vs. Manager, Tamil Nadu Transport Corporation

Filed under: Section 47 of the Persons with Disabilities Act, 1995 Articles 21 and 226 of the Constitution of India
Appellant: A John Peter
Respondent: Manager, Tamil Nadu Transport Corporation
Citation: MANU/TN/0396/2003; Decided on 21.03.2003 (Unreported)
Court: In High Court of Madras
Judge: D Murugesan

This is a writ petition filed by John Peter against the order of a Transport Corporation in Tamil Nadu removing him from service on medical grounds.

Facts

A. John Peter was employed as a conductor in the erstwhile Pandian Roadways Corporation. When this Corporation was bifurcated, he was transferred to Maruthupandiar Transport Corporation and his services as a Conductor were regularized. Thereafter, all transport corporations were brought under the - Tamil Nadu Transport Corporation and John continued working there.

In 1997, the bus that John Peter was on, met with an accident where he sustained severe injuries - multiple fractures and shortening of a leg by 6 inches. He underwent treatment at the Government Hospital. On being discharged, John Peter wrote to the Corporation to provide him with alternate employment, as it was possible that he might not be in a position to continue working as a conductor.

A Medical Board from the Government Headquarters Hospital, Ramamnathapuram certified that though he was not fit for duty as a conductor, he was fit for other duties like billing, posting etc. In spite of this recommendation, John Peter was removed from serviceon medical grounds. John Peter challenged this order through this writ petition.

The question raised here was whether John Peter could be removed from service on the ground that he was incapacitated and hence unable to discharge the duties of a conductor.

Observations made by the Court

The Court observed that John Peter's right to continue in employment should be considered with reference to his 'right to livelihood' guaranteed under Article 21 of the Constitution of India. Article 21 protects "the right to livelihood as an integral facet of the right to life".

Such rights include the right to live with human dignity, which could be achieved only if there was protection of employment. The Court analyzed the arguments made on behalf of the parties in the light of Section 47 of the Act (refer to Quotes from the Judgment) and by keeping in mind that the disability acquired by him was during service and that it could lead to the possibility of him losing his livelihood.

The Tamil Nadu Transport Corporation during their argument, made a reference to an earlier case where a government order directed a new appointment of the petitioner with an appropriate scale of salary. The Court held that the case the Corporation was relying upon could not be used as a precedent since the facts of that case and the present one were different.

In the present case, it was not disputed that John Peter had suffered the injuries while still in service. The Medical Board had declared him to be fit for duties other than that of a conductor like billing, posting etc. The Court pointed out that the Tamil Nadu Transport Corporation, in their statement, had ignored this crucial issue.

Furthermore, in response to the suggestion made by the Tamil Nadu Transport Corporation that John Peter was entitled to alternate employment on the basis of fresh appointment and a fresh scale of salary, the Court held that in terms of Section 47 of the Act, John Peter could not be removed from employment and was entitled to an alternate job.

Held: The writ petition was allowed.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995
  • Articles 21 and 226 of the Constitution of India

Cases Referred:

  • Narendra Kumar Chandla vs. State of Haryana & others, (1994)4 SCC 460
  • S Palanivel vs. Managing Director, Tamil Nadu State Transport Corporation & another, (2003)1 LLN 355

Quotes from the Judgment:

"The right to livelihood which is an integral facet of right to life as guaranteed under the Constitution, coupled with the protection under Section 47 of the Act, entitles the employee who was incapacitated during service for continuance of service in suitable alternative post with same scale of pay drawn by him on the date of incapacity and all service benefits attached to such post which was held by him." (pg 3)

Top

Virender Kumar Gupta vs. Delhi Transport Corporation

Filed Under: Sections 47 & 59 Persons with Disabilities act, 1995 Article 226 of the Constitution of India D.R.T.A Regulations, 1952
Appellant: Virender Kumar Gupta
Respondent: Delhi Transport Corporation
Citation: C.W. No. 2949/1998 and C.M. No. 6731/1998; Decided on 04.09.2001(unreported)
Court: The High Court of Delhi
Judges: Dr. Mukundakam Sharma

Virender Kumar filed this writ petition against DTC seeking re-employment after he had been retired prematurely because of his disability.

Facts

Virender Kumar while working as a conductor with DTC met with an accident. Consequent to this he was admitted to a hospital from where he was transferred to the All India Institute of Medical Sciences (AIIMS). He remained under treatment in AIIMS under medical leave without pay. After treatment from AIIMS, he was issued a certificate, which certified that he was medically fit to resume his duties but that he was fit for a desk job only.

On receipt of the certificate, Virender met the Depot manager of DTC and requested him to take him back and to assign him an appropriate desk job as suggested by the hospital. The Depot manager directed him to meet the Medical Board of DTC. Virender reported to the Medical Board and submitted the certificate issued to him by AIIMS.

However, after he had appeared before the Medical Board, the Depot manager issued a memorandum to him, which stated that he had been declared medically unfit by the Medical Board and therefore he was retired prematurely.

Virender filed this petition seeking the order to be quashed and the DTC be given further directions to take him back in service with continuity of service along with all the consequential benefits.

Arguments made on behalf of Virender Kumar

Virender's lawyer contended that since one of the premier institutes of the country had opined that he was medically fit for a desk job, he should have been provided with an alternative job instead of passing an order that prematurely retired him from service.

It was further stated that there were several other posts that were equivalent to the post of a conductor and therefore, he should have been absorbed in any such post. The lawyer also argued that in refusing to accommodate Virender, DTC had ignored its responsibilities. In this connection, reference was also made to the relevant provisions of the Persons with Disabilities Act, 1995.

Arguments on behalf of DTC

The DTC contested the writ petition and stated that there was no provision for absorbing the operational staff in the light/desk jobs. Since Virender had been declared by AIIMS as only fit for such jobs, the Medical Board had declared him to be medically unfit. And since the Medical Board had opined that he was unfit, there was no question of retention of his services.

Accordingly he had been retired from service. The lawyer further submitted that the provisions of the Act were not applicable to the facts and circumstances of this case. It was argued that there was an alternative remedy available to Virendra (viz. to go to the Chief Commissioner and to file a complaint); the present petition should be dismissed.

Observations of the Court

The Court observed that despite the fact that Virender had been issued a certificate stating that he was medically fit to perform a desk job by one of the premier institutions of the country, his case had been referred to the Medical Board for further examination. According to the Court, the DTC should have acted upon this opinion of AIIMS.

The Court further added that even if a second opinion had been necessary, the doctor of the Medical Board should not have given an order that superseded the opinion of an expert working in AIIMS. The Court also observed that the doctor on the Medical Board had not disputed the fact that Virender was capable of doing a desk job. And based on the records, the Court held that it was established without any doubt that Virender was capable of doing a desk job.

The Court then referred to previous cases and the relevant provisions of the Act. The Court cited these previous cases in order to elucidate the point that several posts exist in the DTC, which could be treated equivalent to the post of a conductor. Based on these points, the Court allowed the writ petition and set aside the order issued by the DTC to prematurely retire Virender.

It was ordered that DTC should reinstate Virender and pay him arrears of his salary from the date when his salary was stopped after the accident. It was further directed that Virender would be treated in continuous service without any break and the DTC was directed to pass the appropriate orders within a period of six weeks offering him a post equivalent to the post of a conductor.

Sections Referred:

  • Sections 47 & 59 Persons with Disabilities act, 1995
  • Article 226 of the Constitution of India
  • D.R.T.A Regulations, 1952

Cases Referred:

  • Ved Prakash Singh vs. Delhi Transport Corporation and Ors, Civil Appeal No. 3138/1991
  • Baljeet Singh vs. Delhi Transport Corporation, 83 (2000) DLT 286

Top

Hari Om Singh vs. Union of India and Ors

Filed Under: Section 47, Persons with Disabilities Act, 1995 Rule 13 and 13 (3), Army Rules, 1954 Section 22 of the Army Act
Appellant: Hari Om Singh
Respondent: Union of India and Ors.
Citation: C.W. No. 129/2001; Decided On: 25.09.2001
Court: In the High Court of Delhi
Judges: Dr. Mukundakam Sharma

Facts

Hari Om Singh was enrolled in the Indian Army. While serving in a repair shop he was found to be suffering from Neurosis and was accordingly admitted to a military hospital for treatment. In view of his disability, he was down graded to a lower medical category on a temporary basis for six months. After this he was re-examined by the Medical board and was downgraded on a permanent basis.

After this Hari was issued a notice by the Commanding Officer to show cause as to why he should not be downgraded to a lower medical category for two years. He was also asked that he should justify the fact as to why he should not be discharged from service since he belonged to the Permanent Low Medical Category.

In reply to this notice Hari submitted a reply in which he stated that he had completed 8 years and 8 months of service in the Corps of Electrical and Mechanical Engineering. It was also stated that he was not willing to serve in his present medical category and that he might be discharged from service on medical grounds.

On receipt of this reply the Army issued an order discharging him from service. After this, Hari made a claim for disability pension. This plea was however rejected on the ground that his disability was neither attributable nor aggravated by his military service and was therefore not connected with his service.

Hari was paid invalid gratuity and other terminal benefits and the rejection of his disability pension was communicated to him. He was further informed that if he wanted to appeal against this order then he should do so within a period of 6 months. But Hari did not submit any appeal within the stipulated time. However, he served the Army with a legal notice and filed the present petition.

Arguments made on behalf of Hari Om Sharma

Hari's lawyer contended that an individual could not be discharged from service without referring to the relevant provisions of the Army Act. Further he had not been discharged by the Competent Authority of the Area but by the Commanding Officer and so the order taken by the Army should be quashed.

The lawyer also argued that Hari had not been discharged at his own request and so the records contradicted the stand taken by the UOI. It was also contended that the provisions of the Persons with Disabilities Act applied to this case and so he should have been provided with alternative employment. Finally, the lawyer also claimed that he had not signed the agreement (document annexed with the petition) and so there was no basis for the action taken against him.

Arguments made on behalf of UOI

It was argued on behalf of UOI that Hari had been admitted and examined by the Military Hospital because of his disability of neurosis. It was only after this examination that he was downgraded to a low medical category. It had also been opined by the Medical Board that his disability was a constitutional disease that had neither been caused nor aggravated by his service.

His disability had been assessed to be at 20% for two years. It was further argued that a show cause notice had been issued to him and in reply to that, he had stated that he was not willing to serve in that medical category and was therefore discharged at his own request. Because of these reasons, the provisions of the Act were not applicable to his case.

Observations of the Court

After examining the relevant rules and the documents on record, the Court observed that, the argument that Hari should be provided alternative employment had no merit since he had stated that he wanted to get discharged from service. Accordingly, this submission was rejected.

In regards to the point that Hari had not been discharged by a Competent Authority; the Court observed the relevant rules and records and concluded that he had been discharged by a Competent Authority and he could not make any grievance against the UOI on this behalf.

In regards to the point that Hari had requested his own discharge, the Court observed that he had signed the show cause notice stating that he was not willing to serve under that category and wanted to be discharged from service on medical grounds.

Accordingly, the Court rejected all the contentions made on behalf of Hari. The petition praying for the alternative relief for payment of disability pension was also rejected. However, the Court specifically stated that it was his choice if he wanted to appeal to the Competent Authority and seek redressal for his.

Sections Referred:

  • Section 47 of the Persons with Disabilities act, 1995

Top

Vijender Singh vs. Delhi Transport Corporation

Filed Under: Persons with Disabilities Act, 1995
Appellant: Vijender Singh
Respondent: Delhi Transport Corporation
Citation: 2003 (69) DRJ 641
Court: In the High Court of Delhi
Judges: Vijender Jain

Vijender Singh was retired prematurely from service after he acquired a disability as a result of an accident during the course of his employment.

Facts

Vijender Singh was appointed as a conductor in the DTC. After about nine years of service he met with an accident because of which his right hand was injured. As a result, he was unable to perform the duties of a conductor.

He was retired prematurely from service on medical grounds, without being given the option of re-designation to a subordinate or alternative post. Vijender filed this Writ Petition against that order.

Arguments made on behalf of Vijender Singh

Vijender's lawyer referred to relevant previous judgments and contended that the DTC was under an obligation to provide alternative suitable jobs to those who had incurred disability during the course of employment.

Arguments made on behalf of DTC

The lawyer on behalf of DTC referred to a previous case and contended that in the present case the order of termination as well as the disability acquired by Vijender was prior to the time the Disability Act came into effect and therefore he was not entitled to benefits under the Act.

Observations of the Court

The Court referred to previous relevant judgments and held that even before the Act came into existence the Supreme Court had passed judgments to rehabilitate the physically handicapped persons. Therefore, the Court held that the argument put forth on behalf of DTC had no merit.

Consequently, the writ petition was allowed. The DTC was directed to provide alternative suitable employment to Vijender Singh within a period of 4 weeks.

Cases Referred:

  • Baljeet Singh vs. DTC 83 (2000) DLT 286
  • DTC vs. Shri Sadh Ram LPA 650/2002
  • State of Hyderabad vs. Narendra Kumar Chawla 1994 (4) SCC 460
  • Ved Prakash Singh vs. DTC SLP No. 1575/91

Top

Kunal Singh vs. Union of India

Filed under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: Kunal Singh
Respondent: Union of India and Another
Citation: (2003) 4 Supreme Court Cases 524
Court: Before the Supreme Court of India
Judges: Shivraj V. Patil and H.K. Sema

This is an appeal by Kunal Singh against the order of the High Court of Himachal Pradesh dismissing his former appeal where he had questioned the order of the Special Service Bureau dismissing him from service on medical grounds.

Facts

Kunal Singh was recruited as a constable in the Special Service Bureau (SSB). While on duty, he suffered an injury in his left leg. Medication did not help and his leg was amputated. The Medical Board of Kullu declared him to be permanently incapacitated for service. Based on this report, his services from SSB were terminated.

He filed a writ petition in the High Court against the termination order and claimed that he should be assigned an alternative duty. The High Court dismissed the writ petition holding that as per medical opinion he had been permanently invalidated and that there was no scope for him to continue his service in the SSB.

Arguments made on behalf of Kunal

On Kunal's behalf, it was argued that according to the facts and circumstances of the case and keeping in view the object and purpose of the Act, he ought to have been granted the relief sought for in the petition.

Arguments made on behalf of SSB

On behalf of SSB the two main points that were raised in the arguments:

  • Firstly, while supporting the order of the High Court it was also argued that Kunal was receiving an invalidity pension under the Civil Service Rules and therefore cannot benefit under the Persons with Disabilities Act.

  • Secondly, he was permanently incapacitated and therefore did not qualify under the purview of the Persons with Disabilities Act.

Observations of the Court

It was observed from the facts, that Kunal's disability was covered under the Act and it was not in dispute that his disability was acquired during his service. The Court also examined Section 47 and observed that it dealt with an employee, who was already in service and acquired disability during service. An employee, who acquired disability during service, was to be protected under the provision.

Therefore, th argument that the benefit of Section 47 was not available to him, as he had suffered permanent invalidity could not be accepted. Further, mere receipt of an invalidity pension was not sufficient to deny protection under the Act.

The Court further said that once it was accepted that he had acquired a disability during the period of his service and in case a suitable alternative for the post he was occupying could not be found, then he could be shifted to some other post with the same pay scale and benefits.

Sections Referred:

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

Quotes from the Judgment:

"Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full protection, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. The language is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service" (page 528)

Top

Sadh Ram vs. Delhi Transport Corporation

Filed under: Article 226 of the Constitution of India, 1950, Section 47 of the Persons with Disabilities Act, 1995
Petitioner: Sadh Ram
Respondent: Delhi Transport Corporation & Ors
Citation: 97(2002) Delhi Law Times 228
Court: In the High Court of Delhi
Judge: Sanjay Kishan Kaul

Sadh Ram, a driver with the Delhi Transport Corporation, filed this writ petition challenging the order of the DTC removing him from duty on grounds of disability.

Facts

Sadh Ram was working as a driver in the DTC. He met with an accident as a result of which he sustained injuries. The medical board certified that he was unfit for the post of a driver. On the basis of the medical board's report he was removed from the job. Sadh Ram filed a Writ Petition challenging his dismissal from service.

The Observation of the Court

The Court referred to its previous decision in a similar case where the Court had ordered the DTC to provide alternate employment to the petitioner. In this case also the Court passed a similar order and allowed the petition. The Court ordered DTC to take Sadh Ram back into service and pay him salary from the day they had stopped paying the salary.

Sections Referred:

  • Section 47 of the Persons with Disabilities (Equal opportunities, Protection of Rights & Full Participation) Act, 1995
  • Article 226 of the Constitution of the India, 1950

Cases Referred:

  • Rajbir Singh vs. Delhi Transport Corporation & others, 97 (2002) DLT 19
  • Mandatory Reservation

Top

LIC vs. Chief Commissioner for disabilities, Harish Chander Dabral and Dr.Uma Tuli, Managing Director, Amar Jyoti Trust

Filed under: Section 59 of the Persons with Disabilities Act, 1995
Appellant: Life Insurance of India
Respondents: Chief Commissioner for Disabilities, Harish Chander Dabral and Dr. Uma Tuli, Managing Director, Amar Jyoti Trust
Citation: 2003(67) DRJ 136
Court: In the High Court of Delhi
Judge: Madan B Lokur

Life Insurance Corporation of India (LIC) filed an appeal against the order passed by the Chief Commissioner for Disabilities (under the Persons with Disabilities Act) directing them to engage Harish Chander Dabral in the advertised post of peon.

Facts

Harish Chander Dabral had applied for the post of a peon to Life Insurance Cooperation of India (LIC) in response to an advertisement. He had submitted a certificate issued by the Chief Medical Officer to the effect that he was a case of chorea and that he was 45% disabled. He passed both the written test as well as the interview.

The pre-recruitment medical examination indicated that Harish was suffering from Huntington Chorea, which is a progressive disease requiring life long medication, psychological support and institutional care. They opined that his disability was likely to increase beyond 45%. They declared him unfit but indicated that the opinion of the Zonal Medical Referee (ZMR) was required.

His case was then referred to the Divisional Medical Referee and ZMR of the LIC. They agreed with the medical examiner who had found Harish unfit for service. Harish then lodged a complaint with the Chief Commissioner under Section 59 of the Persons with Disabilities Act.

At the hearing, Harish produced a certificate from the Director, VIMHANS to the effect that he was a case of non-progressive dystonia affecting his head and upper limbs; he was declared mentally normal and fit to be employed as a peon. In the face of the contradicting evidence, the Chief Commissioner ordered a fresh medical examination by a medical board of a government hospital comprising of experts from the fields of neuroscience, orthopedics and psychiatry.

A medical board of doctors from the RML Hospital carried out a medical examination. They opined that Harish had generalized dystonia involving face, neck and all four limbs, the total percentage of disability being 50%. It was ascertained that his disability is permanent in nature. In addition, the report indicated that his intelligence was within normal limits and that he was suitable to carry out the duties of a peon.

In response to this, the Chief Commissioner directed that Harish should immediately be appointed to the post of the peon. It also directed LIC to subject all its officials with disabilities to a medical fitness test by a properly constituted medical board of a government medical hospital and to amend its service rules and promotion policy taking into account the provisions of the Persons with Disabilities Act.

LIC was not satisfied with this and requested for a review of the case, which was turned down. They then filed a petition in the High Court.

Observations of the Court

The Court observed that the power of the Chief Commissioner to issue directions with regard to subjecting officials to medical tests and amendment of policy etc. required detailed consideration and for that reason it had admitted the writ petition. Therefore it reserved the orders in this regard.

The Court further observed that there was some doubt as to whether Harish suffered from dystonia or chorea; however, it was clear that he suffered from disability beyond 40% implying that he is entitled to the benefit of the provisions of the Persons with Disabilities Act. The issue here was whether he was suitable for the job of a peon.

On a scrutiny of the main duties of a peon, the Court found that none of them was of a specialized nature or requiring some special skill or talent. In response to LIC's contention that Harish's mental faculties are likely to deteriorate in the future, the Court observed that in such an eventuality, his services may be dispensed off with in accordance with the recruitment rules of LIC but this cannot be a ground for denying him employment at present.

Finally, the Court indicated that it did not find anything wrong with the direction issued by the Chief Commissioner that Harish should be appointed within two weeks to the post of peon. It also directed LIC to pay the litigation expenses to the amount of Rs. 5000/- to Harish and dismissed the appeal filed by the LIC.

Sections Referred:

  • Sections 2 and 59 of the Persons with Disability (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995
  • Article 226 of the Constitution of India.

Top

Shri Sunil Kumar vs. Delhi Transport Corporation

Filed Under: Article 226 of the Constitution of India Section 2 of the Persons with Disabilities Act
Appellant: Shri Sunil Kumar
Respondent: Delhi Transport Corporation
Citation: 2005 V AD (Delhi) 484
Court: In the High Court of Delhi
Judge: Vikramjit Sen

Facts

Sunil Kumar was employed as a conductor in the DTC. He was prematurely retired by the DTC on medical grounds when he suffered from injuries during the course of his employment. The decision to prematurely retire him was taken on the basis of an in-house medical examination. Subsequent to the cessation of his employment, the DTC had themselves referred him to LNJP hospital. He was paid his terminal benefits after his services were terminated. He then filed this petition against the action of the DTC terminating his services on grounds of his disability.

Arguments made on behalf of DTC

On the 11th October 1996, the DTC had issued a resolution, which stated that in case an employee of DTC suffers from an injury caused by an accident arising out of and in the course of employment, which results in his getting incapacitated from service, the employee shall be rehabilitated either in an equivalent post or a lower post. However, the employee must fulfill the conditions of educational qualification and be medically fit for the new post.

The lawyer on behalf of DTC made the following arguments:

  • This resolution would apply only in the event that the injury was caused out of an accident that took place while he was on duty. Therefore, this resolution was not applicable in Sunil’s case.
  • It was also contended that Sunil’s injury did not fall within the term ‘locomotor disability’. Furthermore, it was argued that Sunil was employed as a conductor and because of the injuries sustained by him, he could no longer fulfill his functions as a conductor.
  • It was argued that according to section 2(t) of the Act, persons with disabilities are those who are suffering from more than 40% disability. Since Sunil did not suffer from 40% disability, the provisions of the Act were not applicable to him.

Observations of the Court

The Court took up the arguments extended by the lawyer on behalf of the DTC. With respect to the first argument the Court held that previous decisions of the Court had resolved this issue and it did not matter whether the employee was on duty or not at the time of the accident; as long as he was employed by the DTC at the time of the accident, the resolution was applicable.

The Court held that the second argument also did not have any merit. According to the Court, the term ‘locomotor disability’ had been defined to include disability of bones, joints or muscles, which lead to a substantial restriction of movement of muscles. The Court was unable to appreciate the argument that Sunil’s disability did not fall within the definition of locomotor disability.

For the third argument the Court observed that on one hand it had been contended by the DTC that Sunil’s disability was of such a degree that he was not able to fulfill his duties and therefore his services had to be terminated but on the other hand it was argued that his disability level was less than 40% and therefore he was not in a position to claim the protection of the Act. The Court used the term ‘double-edged’ sword to describe the argument taken by the DTC.

The Court also pointed out that according to Sunil the LNJP hospital had found him fit for employment. The Court also drew attention to the fact that the job of a conductor required occupying a fixed position in the bus and even though Sunil would not be able to run as well as others he was in a state where he could walk.

The Court also took into account the fact that judgments of several Branches of the Court had repeatedly struck down administrative decisions of this nature on the grounds that they were contrary to law (refer to quotes).

Accordingly, the Court quashed the order of Sunil’s termination. It was ordered that Sunil would report back for duty in the Office of Senior Manager (Personnel), I.P. Estate, New Delhi. Further, he should be paid his back wages within sixty days. The Court also held that the DTC should reconsider the futility of such orders. According to the Court it would have been more suitable if the DTC would determine the jobs to which the disabled employees could be rehabilitated. The amount that had already been paid to Sunil as compensation/retirement was to be adjusted against past wages. Sunil was entitled to continuity of service.

Sections Referred:

  • Article 226 of the Constitution of India
  • Section 2 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Baljeet Singh vs. DTC, 83 (2000) DLT 286
  • Shri Ompal Sharma vs. DTC, Corporation Writ Petition (Civil) No. 4311/1997
  • Jiwa Lal vs. DTC, CWP No 7840/2001
  • P.M. Singh (dead) vs. Sriniwas Sabtal, 1976 1 SCC 289
  • Shri Phool Chand vs. DTC & Anr
  • Ved Prakash Singh (Conductor) vs. DTC & Ors., CWP No. 1148 of 1991

Quotes from the Judge:

“Judgments of several Branches of this Court have repeatedly struck down administrative   decisions such as the one which has been impugned in this writ petition on the grounds that they are contrary to law. The Respondent ought to have endeavored to find a position for the petitioner which would permit him to continue in service even if his injury has disabled him to discharge the functions of a conductor (pg 486).”

Top

Anand Bihari & others vs. Rajasthan State Road Transport Corporation, Jaipur & anr

Filed Under: Sections 2(oo) (c) and 25-F, Industrial Disputes Act
Appellant: Anand Bihari and others
Respondent: Rajasthan State Road Transport Corporation, Jaipur and another
Citation: AIR 1991 Supreme Court 1003
Court: In the Supreme Court
Judges: PB Sawant and SC Agarwal

Note: This case consists of five writ petitions that were taken up together by the Supreme Court because they all deal with a common aspect of law. The workers of Rajasthan State Road Transport Corporation filed four of these appeals and the Corporation filed the fifth appeal against the decision of the High Court of Rajasthan.

Facts

The workers in question were working as drivers with the Rajasthan State Transport Corporation for several years. A routine medical examination showed that they had developed defective eyesight and did not have the required vision for driving heavy motor vehicles. The Corporation, therefore, constituted a Medical Board and directed the workers to appear before it for testing their eyesight. The Board found them totally unfit for driving heavy motor vehicles. Thereafter, the Corporation issued notices to them giving them a chance to defend themselves as to why their services should not be terminated.

The workmen submitted their explanations in which they asked for a second test of their eye-sight and also prayed that in case they were found unfit for driving the buses, they should be given some other job in the Corporation. The Corporation came to the decision that since the workmen’s eyesight was not of the standard required to drive the buses, they could not be retained in service and accordingly terminated their services.

The workmen filed individual writ petitions in the High Court challenging the order of the Corporation. The two main arguments given were as follows:

  • The termination was illegal since it was made without following the provisions of the S.25F of the Industrial Disputes Act.
  • It was also argued that there had been an agreement between the drivers’ union and the Corporation to the effect that if a driver was found unfit for driving the bus, he should be posted as a helper.

On these grounds, the workmen asked to quash the order of termination and also prayed for a direction to be given to the Corporation to offer them an alternative job of a helper.

The Corporation on the other hand contended that the termination was not illegal. The Corporation also stated that there had been no agreement between it and the drivers’ Union as alleged. Hence, the workmen could not claim any alternate employment.

The High Court upheld both the contentions of the Corporation and dismissed the workmens’ writ petitions. However, while dismissing the petitions the High Court also added that in case the workmen approached the Corporation for absorbing them as helpers, their cases for such absorption should be considered sympathetically, if they were otherwise found fit and eligible.

In another case, the services of a driver were terminated on the ground that he had lost vision in his right eye. He had approached the High Court with the same grievances as the workmen. The workman in this petition had further pointed out that after he had lost sight in one eye, he had started working in the maintenance section of the vehicles. His services however, had been terminated on the ground of his incapacity to work as a driver.

The High Court had concluded that although the workman had lost vision in one eye, he was fit to discharge the duties of any technician or helper or any other employee of that cadre. The Medical officer also supported this. Accordingly, the High Court quashed the order of termination and directed the Corporation to absorb him in the post of a helper or any other equivalent post. The Court further directed that the workman should be treated as being in continued service.

In this appeal, the Corporation challenged these two orders of the High Court.

Observations of the Court

The Court observed that the main question to be considered was whether the action taken by the Corporation in terminating the services of the workmen was proper, equitable and justified. The Court analyzed this question by pointing out that all the workmen were over 40 years of age and had put in many years of service and as a result of the nature of their work they had developed problems in their eyesight. In support of this contention, the Court pointed out that in a short period of time, the Corporation had been forced to terminate the services of no less than 30 drivers and this showed the extent of the occupational hazard to which the drivers of the Corporation were exposed to during their service (refer to quotes).

According to the Court, the Corporation had treated the cases of these workmen in the same manner as it would have treated the case of an employee who suffered from ill health for reasons not connected with the occupation he was involved in; this itself was discrimination against the employees. The Court further stated that there was injustice, inequity and discrimination in the decision taken by the Corporation. According to the Court the service conditions of workmen such as drivers must provide adequate safeguards to remedy the situation.

So the Court suggested to the Corporation to frame a suitable scheme of compensatory relief to the drivers. However, according to the Court the Corporation had taken an unhelpful stand in the matter and had formulated a scheme that was unrealistic and impracticable. In view of this, the Court evolved a scheme that would give relief as best as it could to workmen such as the ones involved in this case. The Court directed the Corporation to do as follows:

  • In addition to the retirement benefits, the Corporation should also offer the retired workmen any other alternative job which might be available and which they are eligible to perform.
  • In case no such alternative job was available, each workman should be paid along with his retirement benefits, an additional compensatory amount in accordance with his tenure of service.
  • If the alternative job was not available immediately but becomes available later, the Corporation may offer it to the workman provided he refunds the proportionate compensatory amount.
  • The option to accept either of the two reliefs, if an alternative job is offered would be that of the workman.

Accordingly, the decision of the High Court was set aside and the Corporation was directed to give the concerned workmen the benefit of the scheme formulated by the Court.

With respect to the writ petition filed by the Corporation, the Court held that the termination of the workman as a helper was not justified and was also illegal. The Court held that the workman was entitled to be reinstated in service as a helper with all the arrears of back wages as a helper.

The appeals were dismissed as per these terms and the parties were asked to bear their own costs.

Sections Referred:

Cases Referred:

  • Workmen of Bangalore, Woollen, Cotton and Silk Mills Co. Ltd. vs. Its Management, (1962) 1 LLJ 213

Quotes from the Judgment:

“As it is commonly known, the drivers of the buses run by the Corporation, such as the present one, have to drive the heavy motor vehicles in sun, rain, dust and dark hours of night. In the process, they are exposed to the glaring and blazing sunlight and the beaming and blinding lights of the vehicles coming from the opposite direction. They are required to strain their eyesight every moment of the driving, keeping a watchful eye on the road for bumps, bends and slopes, and to avoid all kinds of obstacles on the way. It is this constant straining of the eye that takes its inevitable toll of the vision. The very fact that the Corporation had to terminate the services of no less than 30 drivers who are before us shows the extent of the occupational hazard to which the drivers of the Corporation are exposed during their service. It also shows that weakening of the eye-sight is not an isolated phenomenon but a widespread risk to which all those who take the employment of a driver.”

Top

Krishan Chander and PO Bhainswal Kalan vs. Delhi Transport Corporation

Filed under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: Krishan Chander and PO Bhainswal Kalan
Respondent:Delhi Transport Corporation
Citation: 2003 (71) DRJ II
Court: In the High Court of Delhi
Judge:Vijender Jain

Facts

Krishan Chander was employed by the DTC. He sustained injuries while he was in service. The DTC retired him prematurely on medical grounds. Krishan Chander filed this Petition challenging that order.

Arguments made on behalf of DTC

The lawyer on behalf of the DTC argued against the petition and contended that there was an inordinate delay in filing of the Writ Petition. It was also asserted that Krishan had been given a sum of Rs. 41733/- as compensation.

Observations of the Court

The Court dismissed the first argument extended by the lawyer. According to the Court Krishan was prematurely retired and he was entitled to the benefit of Section 47 of the Persons with Disabilities Act. The Court held that it could not be said that there was a delay in filing of the Writ Petition. With respect to the second argument, the Court held that even if Krishan had been compensated he was still entitled for reinstatement in view of the order and direction passed by the Supreme Court in such cases.

Accordingly, the Court directed the DTC to reinstate Krishan in a post, which was equivalent to the post of a conductor with protection of pay. If no post were available then the DTC would have to create a supernumerary post within eight weeks to accommodate Krishan. The Court further held that Krishan was also entitled to half the back wages.

The writ petition was accordingly allowed.

  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Baljeet Singh vs. Delhi Transport Corporation, 2000 II AD (Delhi) 88
  • Shri Kuldeep Singh vs. Delhi Transport Corporation, CW 1137/96
  • Kunwar Pal Singh vs. Delhi Transport Corporation and ors, Civil Appeal No. 1864/2000
  • Kunal Singh vs. Union of India, AIR 2003 SC 1623

Top

Gujarat State Road Transport Corporation vs. Gopal Motambhaia Patel

Filed under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: Gujarat State Road Transport Corporation
Respondent: Gopal Motambhaia Patel
Citation: 2003 (3) G.L.H. 745
Court: In the High Court of Gujarat
Judge: H.K. Rathod

Gopal Motambhai Patel’s services were terminated from the Gujrat State Road Transport Corporation (GSRTC) subsequent to a paralysis attack.  The GSRTC filed this Writ Petition against the order of the Labour Court to reinstate Gopal.

Facts

Gopal Motambhai Patel was working as a driver in the Gujarat State Road Transport Corporation (GSRTC) for 10 years. He suddenly suffered from an attack of paralysis and had to be admitted in a hospital at Gandhinagar. Thereafter, he was shifted to the Civil Hospital. Due to the attack, he was unable to drive and was thus declared unfit by the Standing Medical Board. His services were consequently terminated.

Gopal then filed a claim in the Labour Court challenging the order of his termination. He pointed out that after his medical treatment, it was certified in the medical certificate that he was fit to work in a post requiring light duty. He then made a request before a competent authority of the Corporation for his reinstatement but the Corporation rejected his request.

At the time of his termination, no notice or notice pay was paid to him. Besides, he was even denied the retrenchment compensation. It was further stated that he was given no opportunity before the termination of his services and he remained unemployed despite his best efforts. On these grounds, Gopal asked for quashing and setting aside of the order of termination and reinstatement of his services with full back wages.

In response to these claims, the Corporation argued that Gopal was working at Ahwa as a driver and because of the paralysis, he was declared unfit by the Medical Board. It was further stated that his services were terminated as recategorization was not possible and therefore the order of termination was legal and valid as per the administrative rules.

The Labour Court examined the merits of the matter and considered it in light of the previous cases. On these grounds, the Court granted relief on reinstatement to any other equivalent post where light work was available with continuity of service. The Court also considered the fact that the Corporation was a public body and accordingly granted 85% of the back wages for the intervening period.

The GRSTC then filed this petition challenging the order passed by the Court.

Arguments made on behalf of the GSRTC

The lawyer appearing on behalf of the Corporation contended that the Labour Court had erred in granting relief to Gopal as the order was contrary to the settlement of the Corporation and to the policy laid down by the Corporation. He also submitted that in case of accidental injury, if any inability or incapacity had been earned by the workman then the case of the workman could be considered for light duty on any other equivalent post but in other cases, according to the policy laid down by the Corporation, such light duty could not be offered and therefore the relief was beyond the policy.

The lawyer also argued that Gopal’s disability or incapacity was not due to any incident during the course of employment and therefore, in view of the settlement and policy of the Corporation, the Court was not justified in making the award in question. According to him, the Court had made a gross error in granting 85% back wages with continuity of services because this would create financial burden on the Corporation.

It was also argued that the Court had considered some previous decisions but they were related to the injury received during the course of employment and therefore were not applicable to this case. He also contended that the financial position of the Corporation was weak and therefore the Court ought not to have passed such an award.

Observations of the Court

The Court considered the previous decisions of similar cases and also considered the facts and circumstances of this case. The main question before the Court was whether Gopal was entitled for the benefit of reinstatement or and whether the termination order passed by the Corporation was valid.

The Court held that the Labour Court was not bound by the settlement or policy of the Corporation. If any decision of the Corporation where the livelihood of a worker had been taken away, then the Labour Court was required to consider this question in accordance with the principles laid down by the Court and the settlement or policy of the Corporation did not have any binding effect on the Court. It was also stated that Gopal had an attack of paralysis during the course of employment and therefore this had to be considered as being an injury to him.

The Court further pointed out that Gopal had worked in the Corporation for a period of 10 years and the Corporation could not justify his termination just because he became unfit for the work of a driving because of an attack of paralysis. The Court also dismissed the argument that the Corporation’s financial position was weak and because of that Gopal could not be reinstated. The Court observed that the Corporation was a legal entity and was bound by law. It was affirmed that the Corporation had not kept the provisions of the Act in mind when terminating Gopal’s services.

In view of the observations made by this Court as well as the Supreme Court, the Court held that the Labour Court had been right in granting reinstatement to an equivalent post with protection of pay and continuity in service with 85% of back wages for the intervening period to Gopal. The Petition was accordingly dismissed.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Standard Chartered Grindlays Bank Ltd vs. Govind Phophale, 2003 (96) FLR 145
  • Amarsang Abhesang Vaghela vs. GSRTC 2002 II CLR 812
  • Manubhai Somnath Joshi vs. Gujarat State Road Transport Corporation and anr, 2001 (1) GLR 184
  • GSRTC vs. HT Parmar 2002 (2) Gujarat High Court Judgments 1010
  • Kunal Singh vs. Union of India & Ors, 2003 AIR SCW 1013
  • Kuldeep Singh vs. DTC, 2003 (1) LLJ 672
  • DTC vs. Rajvir Singh 2003 I LLJ 865
  • Hindustan Tin Works Ltd vs. Its workmen, AIR 1979 SC 75
  • Essen Deinski vs. Rajiv Kumar, 2003 SC Labour & Service 13

Top

Delhi Transport Corporation vs. Ganpat Singh

Filed under: Section 47 of the Persons with Disabilities Act, 1995 Article 226 of the Constitution of India
Appellant: Delhi Transport Corporation
Respondent: Ganpat Singh
Citation: 98 (2002) Delhi Law Times 133
Court: In the High Court of Delhi
Judge: Sanjay Kishan Kaul

This is a petition filed by DTC challenging the decision of the Industrial Tribunal to reinstate Ganpat who had been declared medically unfit permanently, after having acquired a disability while on duty.

Facts

Ganpat Singh was employed as a conductor with the DTC. In 1987 he met with an accident while he was performing his duty, which resulted in a fracture in his right leg. Ganpat then requested for a light duty but disputes arose regarding which post he should occupy. In 1992, he was examined by the Medical Board which declared him medically unfit permanently. Thereafter, he raised the issue before the Industrial Tribunal, which passed an order that he was entitled to reinstatement at an equivalent light post of Class III employee with continuity of service.

Against that order, the DTC filed this petition. Ganpat’s lawyer contended that he would be entitled to protection under the Persons with Disabilities Act.

Observations of the Court

The Court examined the arguments of both the parties and also referred to a previous judgement of the High Court. The Court directed the DTC to take Ganpat back into service and pay him salary from the date when his salary was stopped after the termination of his service. The Court directed that he be treated as in continuous employment without any break in service. The Court further held that in case he was found to be unfit to perform duty which he was performing before his disability, the DTC should deal with it in accordance with the terms of the provisions of Section 47 of the Act.

Sections Referred:

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

Cases Referred:

  • Rajbir Singh vs. DTC and others, 97 (2002) DLT 19

Top

S. Rajendran vs. the Deputy Commissioner of Police, Crime and Traffic and the Commissioner of Police

Filed under: Section 2, 47, 47(1) & 47 (2) Persons with Disabilities Act, 1995; Section 3(1) Workmen’s Compensation Act, 1923
Appellant: S. Rajendran
Respondent: The Deputy Commissioner of Police, Crime and Traffic and the Commissioner of Police
Citation: W.P No. 27016 of 2005, Decided on 16.02.2006 (Unreported)
Court: In the High Court of Madras
Judge: N. Paul Vasanthkumar

S. Vasanthkumar filed this Writ Petition against the order of the Deputy Commissioner of Police, Crime and Traffic, terminating him from service on grounds of medical invalidity.

Facts

S. Rajendran was appointed as a Grade-II Constable. He was later promoted to Grade-I and was posted at the B-I Vilakkuthon Police Station, Madurai. One day while he was returning from duty, he met with an accident and suffered multiple injuries. He was admitted in a private hospital where he underwent treatment for nearly two months.

However, due to the accident, his left forefoot had to be amputated and hence he took medical leave for about 4 months, which was sanctioned by the Department. After expiry of the leave period, Rajendran reported on duty after submitting a medical fitness certificate. He was posted this time in the Crime Record Bureau.

Thereafter he discharged his routine duties regularly without any complaint. Subsequently, on consideration to his sincere and dedicated services, he was promoted to the post of the Head Constable. On 30.01.01 he was directed to appear for medical examination before the Resident Medical Officer and four other doctors who found him fit for duty but the copy of the report was not given to him.

Thereafter, the Deputy Commissioner of Police, Crime and Traffic issued the order invalidating him from Service without assigning any reason. He challenged the said order in an appeal before the Commissioner of Police who dismissed the appeal and directed him to sign his pension papers. Against this order he filed the current petition praying to provide him an alternative job.

Arguments made on behalf of S. Rajendran

It was argued on behalf of Rajendran that the order of the Deputy Commissioner & the Commissioner of the Police were contrary to the provisions of the Persons with Disabilities Act. It was further contended that Act was fully applicable to the Police Department and the benefits under the Act had to be accorded to deserving persons as had been held in various decision of the Supreme Court.

Arguments made on behalf of Commissioner of Police

The Commissioner of Police filed a counter affidavit stating that as per the report of the Medical Board, Rajendran had been dismissed from service on the basis of the report of the Medical Board, with effect from 08.02.2001. He had then applied for pension on 25.09.2001, which was sanctioned on 23.10.2001. It was also stated that in the Police Department one was expected to keep good health and physique as was warranted by duty and therefore, there was no illegality in the order.

Observation of the court

The Court held that if a person has acquired disability during his service that had rendered him unsuitable for the post of a constable, he would be appointed to some other post with same pay scale and service benefits, but he could not be invalidated from service. The court further stated that Section 47 of the Person with Disabilities Act casts a statutory obligation on the employer to protect an employee who acquires a disability during service.

The Court thus concluded that the order of his dismissal was totally in violation of section 47 of the Disabilities Act. It further directed that Rajendran should be reinstated into service within a period of two weeks from the date of receipt of the copy of this order. The pension paid to him from the date of his medical invalidation till the date of reinstatement would have to be adjusted from the back wages that were due to him.

Held: The Writ Petition was allowed with these directions.

Sections Referred:

  • Section 2, 47 Persons with Disabilities Act, 1995
  • Section 3(1) Workmen’s Compensation Act, 1923

Cases Referred:

  • Kunal Singh vs. Union of India and Anr 2003 (2) Supreme 102
  • P. Thankamarimuthu vs. Tamil Nadu State Transport Corporation, Madurai (Division-I) 2006 (1) CTC 124
  • Metropolitan Transport Corporation vs. the Presiding Officer, Principal Labour Court and Anr 2004 WLR 398
  • Metropolitan Transport Corporation Ltd., Chennai-2 vs. K. Ravichandran 2005 (2) L.W. 565

Top

J. Benjamin vs. the Management of Bharat Earth Movers Limited, Kolar Gold Field

Filed Under: Section 15 (2) of the Payment of Wages Act, 1936
Section 47 of the Persons with Disabilities Act, 1995
Section 98 of the Employees’ State Insurance Act, 1948
Workmen’s Compensation Act, 1923
Regulation 98 of the Employees’ State Insurance (General) Regulations 1950
Article 21& 142 of the Constitution of India
Appellant: J. Benjamin
Respondent: The Management of Bharat Earth Movers Limited, Kolar Gold Field
Citation: 2003 (4) ESC 497, [2005 (4) JCR 240 (SC)], JT 2005 (7) SC 288, 2005] IIILJ 749 SC, 2005 (3) SLJ 410 (SC)
Court: In the High Court of Karnataka at Bangalore
Judge: N. Kumar

Facts

J. Benjamin was appointed as a mechanic helper B in the Management of Bihar Earth Movers Limited, Kolar Gold Field. While examining a vehicle, he accidentally fell down from the top of the vehicle and sustained multiple injuries and fractures. He was immediately taken to a hospital for medical treatment. As Benjamin was member of the ESI Scheme, he was treated for a period of eleven months in the ESI hospital.

He also took medical treatment as an outpatient at NIMHANS for a period of six months. Once he was medically fit again, he reported for duty along with a fitness certificate issued by a Competent Doctor. However, he was refused employment and was served with an order informing him that the medical board that examined him has declared him permanently disabled, assessing his disability at 100%. They also recommended that Benjamin be award permanent disability benefit.

Therefore, a declaration was made holding that Benjamin was unfit and was thus, deemed to have been discharged from the company. Aggrieved by this order of termination, he raised an ‘industrial dispute’. Conciliation having failed, the Government referred the case to the Labour Court, which held that Benjamin was entitled for reinstatement in a suitable post without back wages. Aggrieved by the order vis-à-vis his back wages, Benjamin filed the present petition.

Arguments made on behalf of Benjamin

It was argued on behalf of Benjamin that he had been injured in the course of his employment. Further, the company had not followed the procedure prescribed under Section 98 of the Regulation Act, before terminating his services. Therefore, it was contended that the order of termination was illegal and was liable to be set aside. It was also argued that though Benjamin was paid Rs. 28 per day from the ESI Corporation from the date of his discharge, he was not gainfully employed anywhere. Therefore, he sought for reinstatement, back wages and continuity of service.

Arguments made on behalf of Kolar Gold Mines

On behalf of the Kolar Gold Mines, it was argued that since Benjamin had been already been given the benefit under the Payment of Wages Act, he was not entitled to other benefits under any other enactments and accordingly he was not even eligible for back wages. The lawyer also contended that once the Medical Board had declared Benjamin was 100% disable and had determined the disablement benefit at the rate of Rs. 28.00 per day, which was being availed by him, the Company was fully justified in invoking Regulation 98 and discharging him from service.

It was also stated that Benjamin was unable to perform any job or duty. The Medical Certificate produced by him could not be accepted as valid and that the Labour Court was not justified in ordering reinstatement, ignoring medical opinion. It was also maintained that the Company was under no obligation to offer any alternative employment to him.

The lawyer on behalf of Kolar Gold Mines also stated that it was not a case of victimization or unfair labour practice, but was an unfortunate accident and therefore no liability by way of back wages from the day of termination till date of award of the Labour Court could be foisted on the Company.

Observations of the court

After hearing the arguments of both the parties the Court held Benjamin had acquired the injury during the course of employment and that the employer was under an obligation to provide him a lighter job or a suitable job. However, it was noted that the Company had not only not obliged but had by wrongly invoking Regulation 98 of the ESI Regulations terminated his services on the ground that he was not physically fit to perform any work. The order of termination was thus held illegal and it was stated that in law Benjamin was entitled to all consequential benefits, such as reinstatement, continuation of service and full back wages.

It was further observed that though an order of reinstatement was made by the Labour Court, he was not reinstated and in the meanwhile, he was superannuated. Therefore, no reinstatement was now possible. In the light of the given circumstances, the Court held that he should be paid full back wages less the amount paid by way of benefit under the Payment of Wages Act.

It was also stated that the Kolar Gold Mines was a Public Corporation, a Government of India undertaking and therefore it was required to be more sensitive to human sufferings and be a model employer.

The writ petition was thus allowed.

Sections Referred:

  • Article 21 & 142 of the Constitution of India
  • Section 15(2) of the Payment of Wages Act, 1936
  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Anand Bihari and Ors.vs. Rajasthan State Road Transport Coorporation, Jaipur and Anr, AIR. 1991 SC 1003: (1991) 1 SCC 731 : 1991 SCC (Land S) 393: 1991 Lab. I.C. 494 (SC)
  • Narendra Kumar Chandra vs. State of Haryana and Ors. (1994) 4 SCC 460: 1994 SCC (L and S) 882 1995 Lab. I.C. 309 (SC)

Top

Narain Singh vs. Delhi Transport Corporation and anr

Filed Under: Persons with Disabilities Act, 1995
Appellant: Narain Singh
Respondent: Delhi Transport Corporation and anr
Citation: CW 4264/97
Court: In the High Court of Delhi
Judge: Sanjay Kishan Kaul

Facts

Narain Singh was appointed as a Driver with the Delhi Transport Corporation (DTC) in May, 1984. He sustained an injury while returning from duty. His right leg was fractured and he was admitted to the PGIMS Hospital, Rohtak for treatment. Subsequently, he received letters from the Corporation alleging that he had not been reporting for duty. Narain replied stating that due to the plaster in his right leg he was not in a position to report for work.

A fitness certificate was issued by PGIMS, Rohtak to him and thereafter he was not allowed to join the duties and was retired prematurely on 24.7.1998. Narain then placed a circular on record to the effect that employees who sustained injury while on duty may be suitably adjusted in alternative jobs during the period of injury pending consideration of the decision to be taken on their rehabilitation. Finally, Narain filed the present Writ Petition against the order of the DTC.

Arguments made on behalf of Narain Singh

It was argued on behalf of Narain that he was entitled to the protection under the Persons with Disabilities Act, 1995.

Arguments made on behalf of Delhi Transport Corporation

It was argued on behalf of D.T.C. that since Narain had not met with the accident during service, the protection under the Act could not be extended to him. It was further stated that Narain had met with the accident while he was returning from duty, therefore he was not entitled to the benefits of the Act.

Observations of the court

The court held that Section 47 of the Act did not lay down any distinction as to the places where the person had met with the accident. The order of termination was quashed and directions were issued to D.T.C. to take Narain back into service and pay the salary from the date when D.T.C. stopped paying full salary after termination of his service.

He was to be treated as in continuous employment without any break in service. In case he was not found fit to perform duty which he was performing since the initial appointment till his disability, the Corporation would have to deal with his case according to the provisions of Section 47 of the said Act. Narain was also be entitled to costs of Rs.5000/-.

The Writ Petition was thus allowed.

Top

Mohd Yasin Ansari, Gyanendra Singh, Inder Deo, Ishu Narayan, Anil Singh and Hasib Ahmed Islam vs. Union of India and Ors

Filed Under: Section 47 of the Persons with Disabilities Act
Appellants: Mohd Yasin Ansari, Gyanendra Singh, Inder Deo, Ishu Narayan, Anil Singh and Hasib Ahmed Islam
Respondent: Union of India and Ors
Citation: Civil Misc. Writ Petition No. 17585 of 2003 (Unreported)
Court: In the High Court of Allahabad
Judge: Sunil Ambwani

Facts

Md. Yasin, Gyanendra Singh, Inder Deo Lshu Narayan, Anil Singh and Hasib Ahmed had filed petitions, which were taken together for consideration. All of them suffered from one disability or the other while they were in service.

On the ground of their disability they were discharged from their services. Aggrieved, they filed Writ Petition challenging the orders of their termination.

Arguments made on behalf of Md. Yasin and Ors

It was argued on behalf of Yasin and others that Section 47 of the Person with Disabilities Act 1995 provided that, no establishment should dispense with or reduce in rank any employee, on acquiring disability during his service.

The Act also provided that when after acquiring the disability the employee is not suitable for the post he had been holding, he could be shifted to some other post with the same pay scale and service benefits.

Further, it was argued that if it was not possible to adjust him against any post, the Act provided that the employee may be kept on a supernumerary post until a suitable post was available or he attained the age of superannuation, whichever is earlier.

Arguments made on behalf of Union of India

It was argued on behalf of Union of India that Central Government had issued notification under proviso to Section 47 of the Act, by which all categories of posts of combatant personal of Armed Forces were exempted from the provisions of Section 47 of the Act.

It was further argued that the Act could be made applicable to Armed Forces by virtue of Article 33 of the Constitution of India which gave the parliament unlimited power to restrict the fundamental rights in respect of members of Armed Forces.

Moreover, for proper discharge of duties, members of Armed Force, (besides other operational duties which include service in extreme climates of Rajasthan, high altitude of Leh and Ladakha, in thick forest of North East Regions and highest battle filed of the world i.e. the Siachin Glaciar), have to be physically fit at all time to meet the challenges of the job.

The medical examinations were made periodically to check the physical fitness of all ranks and officers. If any member of the Armed Force was found permanently medically unfit to perform the duties, and no sheltered appointment was available, then such person was medically boarded out of service, with retail benefits as admissible to him.

Observations of the Court

In case of Mohd.Yasim Ansari the Court held that he had rendered nine years and 270 days of service. His discharge was therefore, found to be violative of the existing policy of the Indian Army for treatment of a permanent low medical category personal contained in the Army Headquarters letter, and was thus held to be illegal.

This Writ Petition was consequently allowed. The Union of India was directed to reinstate him in service, with back wages and seniority and to reconsider him for sheltered appointment.

In Gyanedra Singh case it was held that he had accidentally suffered an injury in his right eye as he was hit by a wooden peg of tent flop. The loss of vision, due to the accident gradually improved.

The impugned order by which he was discharged from Indian Army serving as Recruit in the trade of Driver PMT on medical ground was thus set aside. He was directed to be reinstated with back wages and seniority.

Inder Deo Oraon case was invalidated from Indian Army being placed in permanent lower medical category on account of “Psychosexual Dysfunction and Depression”and was not considered for sheltered appointment by OIC Records in accordance with the policy of the Indian Army.

In this case the impugned order invalidating him from Indian Army was also set aside.

The UOI was directed to reinstate Inder in service with all consequential benefits and to reconsider him for sheltered appointment by OIC Records in accordance with the Army Headquarters.

In the next Writ Petition the Court held that Ishu Narayan was invalidated from Indian Army on being placed in permanent low medical category on account of ‘Generalised Tonic Clonic Seizure’.The OIC Records did not treat him for sheltered appointments in accordance with all consequential benefits. The UOI was directed to consider him for sheltered appointment.

In the case of Anil Singh it was held that his Writ Petition was barred by unexplained laches as well as the fact that the Court did not have territorial jurisdiction to decide the matter. The Writ Petition was consequently dismissed.

In the case of Hasib Ahmed it was held that he filed the petition after 11 years from the date of his discharge. This Writ Petition was as such barred by unexplained laches as well as lack of territorial jurisdiction. The writ petition is dismissed.

The Court gave directions that taking all the facts and circumstances into consideration, the Union of India should apply their mind properly to the question whether the appellants who suffered injuries and have become medically unfit can be put to some alternative jobs by way of rehabilitation.

The question of payment for additional compensation would arise only when it was not possible to provide alternative jobs to them or some of them.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act

Top

Shri Jagdish Prasad vs. Delhi Transport Corporation & the Depot Manager

Filed Under: Persons with Disabilities Act, 1995
Appellants: Shri Jagdish Prasad
Respondent: Delhi Transport Corporation & the Depot Manager
Citation: CW 7208/2001 Decided on. 21.10.2003 (Unreported)
Court: In the High Court of Delhi
Judge: Vijender Jain

Facts

Jagdish Prasad joined the D.T.C as Conductor in 1984. He sustained fractures in both of his legs in an accident he encountered while he was in the service of D.T.C. After his plaster was removed, he was given light duty in the ticket section where he worked up to 1997.

Thereafter, he was again asked to work as a conductor. He, however, remained on leave and it is his case that he was deprived of his pay and means of livelihood. He made a representation explaining his position. However, D.T.C passed the order of his premature retirement.

Arguments made on behalf of Jagdish

It was argued on behalf of Jagdish that in view of coming into force of the Persons with Disabilities Act, 1995 and the decision of Supreme Court in a number of cases, D.T.C could not deny reinstatement in view of specific provision of Section 47 of the said Act.

Arguments made on behalf of D.T.C

It was argued on behalf of D.T.C that they had formulated a scheme in view of directives given by the Supreme Court in and pursuant to the said scheme, compensation had been paid to Jagdish.

Observations of the court

Relying on the judgment given by the Supreme Court the Court quashed the order of compulsory retirement and directed to reinstate Jagdish in Class IV post with protection of pay as contemplated under Section 47 of Persons with Disabilities Act.

It was further held that if there was no class IV post available, D.T.C would have to create a supernumerary post for Jagdish. Further, D.T.C was directed to pay all the arrears of back wages to him.

The petition was allowed.

Delhi Transport Corporation vs. Sh. Himmat Singh and Others

Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellants: Delhi Transport Corporation
Respondent: Sh. Himmat Singh and Others
Citation: CWP 7019/2001 Decided on 21.05.2003
Judge: Mukul Mudgal

Facts

Himmat Singh met with an accident in the year 1988 while on duty and was declared medically unfit for driving. Thereafter he applied for change of his designation to the post of Store Attendant, when he was prematurely retired.

The Secretary  (Labour), Government of NCT of Delhi referred Himmat’s case to the Labour Court for adjudication on the subject whether the termination of his services by way of retirement was illegal and/or unjustified and if so, to what relief was he entitled.

The award of the Labor Court was based on the provisions of Section 47 of the Persons with Disabilities Act, 1995 whereby DTC was directed to reinstate Himmat in service. D.T.C filed this Writ Petition challenging the award given by the Labour Court in favor Himmat Singh

Arguments on behalf of D.T.C

It was argued on behalf of D.T.C that Himmat retired in 1992 and the Labour Court had applied the 1995 Act, retrospectively.

Observations of the court

The court relied on the previous judgments given by the Apex Court in which it was held that when an employee was rendered physically handicapped due to a disease, the Court could give directions to absorb such an employee carrying a pay scale equal to that of his original post.

It was further observed that even when the employee, in such a case was absorbed in a lower post, he was entitled to protection of his pay scale of the previous post. The Court opined that all those judgments were applicable to his case.

Therefore, the Court held that since D.T.C had not denied that Himmat had met with an accident while on duty the decision of the Supreme Court clearly applied to the facts of his case and it was directed that Himmat would be paid full back wages from the date of his termination till he attained the age of superannuation.

The Writ Petition was dismissed

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

Top