Section 47 not applicable to Private Bodies

Hem Chand vs. Union of India (UOI) and Ors

Filed under: Article 12 of the Constitution of India
Section 47 of the Persons with Disabilities Act, 1995
Societies Registration Act, 1860
Appellants: Hem Chand
Respondent: Union of India (UOI) and Ors
Citation: (2003) 135PLR65
Court: In the High Court of Punjab and Haryana
Judge: S.S. Nijjar and S.S. Grewal

Facts

Hem Chand was appointed on the post of a Staff Car Driver in 1999 by Army Institute of Laws. However, in 2001, his service was terminated. During service, he had met with an accident. On account of the accident, his right leg was amputated from thigh downwards.

The Medical Board, Jind, assessed his disability to the tune of 80% in a certificate issued to him. Hem Chand’s complaint was that he was entitled to the protection of Section 47 of Disabilities Act. Aggrieved, he filed this petition.

Arguments made on behalf of Hem Chand

It was argued on behalf Hem Chand that the action of the Government in terminating his services was illegal, arbitrary, discriminatory, and contrary to the provisions contained in the Persons with Disabilities Act, 1995.

It was further argued that he was entitled to be shifted to some other post with the same pay scale and service benefits, under Section 47 of the Act. If no such post was available, he had to be kept on a supernumerary post until a suitable post become available or he attained the age of superannuation.

Besides, it was contended that the order of termination had been passed without giving any opportunity of hearing to Hem Chand and thus, the Government had acted in breach of the rules of natural justice.

Arguments made on behalf of Union of India

It was argued on behalf of the Government of India that the Army Institute of Laws was being run by the Army Welfare Education Society, which was not an instrumentality of the State under Article 12 of the Constitution of India. Therefore, the Writ Petition was not maintainable.

In support of their argument, the UOI relied on a judgment of the Division Bench of the High Court of Jammu & Kashmir rendered in Mrs. Asha Khosa vs. Chairman Army Public School and Ors.

Observations of the Court

After hearing the arguments of both the parties and considering Section 47 of the Act the Court held that this Section applied to government establishments. The Court further held that Army Welfare Association was not an instrumentality of the “State” as defined under Article 12 of the Constitution of India and was purely a private body.

No statutory duty had been imposed on the Society, which was registered under the Societies Registration Act, 1860. It was further stated that the Government exercised absolutely no control in the management of the Society.

It was not a company, which would fall within Section 617 of the Companies Act, 1956. Thus in view of Section 47 of the Act, the protection under this Section would not be available to Hem Chand and the Society had not acted in breach of any statutory rule.

The Writ Petition was dismissed.

Sections Referred:

  • Article 12 of the Constitution of India
  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Mrs. Asha Kosha vs. Chairman Army Public School and Ors, W.P. (Service) No. 1415 of 1996
  • Gurwinder Kaur vs. Union of India and Ors, C.W.P. No. 14993 of 2000