Special Concessions

R. Govindarajan vs. Hindustan Petroleum Corporation Ltd

Filed Under: Article 226 of the Constitution of India, 1950
Appellant: R. Govindarajan
Respondent: Hindustan Petroleum Corp. Ltd. rep. by Deputy General Manager
Citation: W.P. No.31862 of 2002; Decided on 12.09.2003 (Unreported)
Court: In the High Court of Madras
Judges: P.K. Misra

This is an appeal made by Govindarajan against the punishment given to him including the punishment of transfer by the Disciplinary Authority.

Facts

R. Govindarajan was employed in the Hindustan Petroleum Corporation Ltd. A departmental enquiry proceeding was held against him by the Disciplinary Authority. On the basis of the charges leveled against him, the Disciplinary Authority concluded that the charges against him warranted a serious penalty.

A punishment was imposed upon him in the form of stopping his next two increments with cumulative effect. He was also transferred to a new place as a part of the punishment.

Govindarajan filed a writ petition against the decision taken by the Disciplinary Authority, which was rejected by the Appellate Authority. The Appellate Court confirmed the order of the Disciplinary Authority. He then filed this appeal.

His lawyer argued that out of the three charges leveled against him, the first charge of habitual neglect of work had not been accepted by the enquiry officer and yet, the Disciplinary Authority had considered that all charges had been proved.

It was contented that this erroneous approach made the order of the Disciplinary Authority invalid. It was further argued that the other charge relating to engagement in unauthorized private trade or personal work within the premises of the establishment during working hours was related to his activity of filing a writ petition on behalf of Contract laborers.

It was argued that taking up this matter for the Contract Laborers should not be viewed as misconduct. On this basis, the lawyer argued that the decision taken by the Disciplinary Authority was not a fair one.

The lawyer had also argued that apart from imposing the above-mentioned punishment, the Department had also imposed a punishment of transfer. According to the lawyer, this order of transfer could not be issued as a matter of punishment.

Observations of the Court

The Court held that in previous hearings of the case it had ordered Hindustan Petroleum Corporation Ltd to modify the punishment of stopping two increments with cumulative effect to stopping of increments without cumulative effects.

The Court however held that even if the first two charges had not been proved, the third charge of holding meetings within the Corporation without permission was a serious form of misconduct. Accordingly, the Court held that the punishment could only be modified to some extent.

However, the Court stated that Govindarajan was a handicapped person. The Court cited the order of the Commissioner for Persons with Disabilities. The order held that Govindarajan should be posted to one of the places offered if he so desires.

It was further stated in the order that he should be transferred immediately to Chennai on availability of a vacancy. The Court held that the directions given in the order should be followed by Hindustan Petroleum Corporation Ltd.

Sections Referred:

  • Article 226, Constitution of India, 1950

Top

V.K. Bhasin vs. State Bank of Patiala and Ors

Filed Under:: Sections 2, 38 & 73 Persons with Disabilities Act, 1995 Article 226 of the Constitution of India D.R.T.A Regulations, 1952
Appellant: V.K. Bhasin
Respondent: State Bank of Patiala and Ors.
Citation: LPA 74/2005; Decided On: 03.O8.2005 (Unreported)
Court: In the High Court of Delhi
Judges: B.C. Patel, C.J. and Sanjay Kishan Kaul

Facts

V.K. Bhasin was employed with the State Bank of Patiala and while he was posted at Delhi, he met with a serious accident. The accident occurred while he was traveling from Dehradun to Delhi to resume his duties. After the accident, he went through several surgeries and was declared as suffering permanent disability. He was on bed rest for a period of 10 months.

He was then informed by the Bank to report at the Haridwar Branch of the Bank at Dehradun in a supernumerary capacity. He followed the orders and reported to that branch accordingly. After a period of about 3 years, he was relieved from duty and was told to report at the Allahabad Branch.

He however, represented against this order along with the relevant medical reports. He was asked to procure a medical certificate from the Chief Medical Officer regarding his inability to travel. It was stated that the CMO refused to issue the certificate in the absence of a request from the bank.

Bhasin however produced the OPD certificate but there was some dispute regarding the issuance of the certificate. Bhasin's main grievance was that he was transferred to Varanasi without waiting for his medical report. Prior to the issue of transfer arising, he had sought voluntary retirement under the Voluntary Retirement Scheme (VRS) floated by the Bank. But, the Bank rejected this appeal and refused to let him go.

Feeling aggrieved at the transfer order he filed a writ petition along with an application for interim relief. A notice was issued in the petition and the order of transfer was stayed. However, certain proceedings took place before the Sessions Judge and once again the issue arose of Bhasin's examination by the Medical Board.

However, on certain occasions, the medical examination could not take place and on other occasions, he was unable to go. As a result, his medical examination could not take place and the Sessions Judge dismissed his writ petition. The Judge found that Bhasin was mobile and had avoided the last examination. It was also stated that he had a disability of only 28% and thus the provisions of the Persons with Disabilities Act were not applicable to him.

Bhasin then filed this appeal against the order passed by the Sessions Judge. He raised a basic plea that he had a disability of 40% and he was thus entitled to the benefits of the Act. It was also stated that the Sessions Judge had relied upon a report that was not the latest one.

The Court took note of this and further directions were given to Bhasin to report to the Medical Superintendent at the R.M.L. Hospital, New Delhi. Direction was also issued to the Bank that he should be relieved from the Branch and he would be treated on leave in accordance with the rules.

The Medical Board examined him and the report was submitted. The report stated that he had a permanent disability of 33.5%. However, Bhasin's lawyer contended that the certificate issued had not been made in accordance with the guidelines of the proforma provided by the Ministry of Social Justice and Empowerment.

It was also stated that if an appropriate calculation had been made in terms of the proforma, his disability level would have been more than 40%. Accordingly, the Court directed the Medical Board to submit the report in the proforma and the Board was also permitted to re-examine Bhasin for this purpose.

Thereafter, the report was submitted after the board had re-examined Bhasin and his disability level was assessed to be at 35.7%. Thus, it was again found that his disability level was less than the 40% benchmark provided by the Act.

He still had objections to the manner of calculation. He made a representation against this and the Medical Board considered it. After due consideration and re-examining the patient, the Medical board submitted a report certifying that he suffered from a 40.8% disability that was permanent in nature.

In view of this, the State Bank of Patiala was directed to take a fresh decision in respect to his transfer and to report the decision to the Court. The Court also took into account the fact that he was being treated on leave, but by debit to his leave account.

Despite this fact, there were periodic problems of payment to him by the Bank and directions had to be issued by the Court even in that respect.

In response to this, the Bank filed an affidavit that consisted of the decision made by the Deputy General Manager (Delhi). The case of V.K. Bhasin had been rejected.

Observations of the Court

The Court examined the contents of the affidavit. The Court emphasized the approach of the bank towards Bhasin by pointing out that instead of examining his case in terms of his disability; the Bank had taken up the issue of earlier levels of disability. The Bank had also contended that no reliance could be placed on the medical certificate because of this reason.

The Court also stated that instead of taking into consideration the relevant office memorandums on the issue of posting of physically handicapped individuals, the Bank had relied on previous circulars and had interpreted the contents in a manner that was erroneous according to the Court.

After referring to the response of the Bank, the Court condemned the stand taken by the Bank toward the issue of his transfer. It was also stated that under normal circumstances, the Court would have directed the Bank to take a fresh decision but after seeing the attitude of the bank, the Court directed the Bank that Bhasin should be posted and accommodated at Dehradun.

It was further stated that he should be allowed to continue at Dehradun unless there was a case of extreme administrative emergency in which case he should be posted in a nearby area.

The appeal was therefore allowed and the Bank was directed to post Bhasin at Dehradun within a period of 15 days. The Court also stated that since he had utilized a large part of his leave, his leave account would not be debited. The appeal was allowed with costs of Rs. 10,000/-.

Sections Referred:

  • Sections 2, 38 & 73 Persons with Disabilities Act, 1995
  • Article 226 of the Constitution of India

Top

Rakesh Kumar vs. All India Institute of Medical Sciences & Others

Filed under: Article 226 of the Constitution of India
Appellant: Rakesh Kumar
Respondent: All India Institute of Medical Sciences & Others
Citation: 89 (2001) Delhi Law Times 526
Court: In the High Court of Delhi
Judge: Manmohan Sarin

Facts

Rakesh Kumar was suffering from 50% permanent disability of bony ankylosis. He had applied for and was allotted a STD/ISD/PCO Booth at Masjid Moth, Doctors Hostel of AIIMS. AIIMS had invited applications by a tender/advertisement for the allotment of STD/ISD booths.

Rakesh, whose license for the booth had been renewed from time to time, also applied for renewal of the agreement for the Booth. On being denied which he filed the current Writ Petition.

Arguments made on behalf of Rakesh

His main grievance in the petition was that the license agreement in his favour had not been renewed and the booth had been allotted to Respondent No. 5 (name not mentioned). Rakesh’s lawyer contended that even though the license was being renewed from time-to-time, it was really on perpetual basis and the understanding was that this agreement would continue unless the service given by Rakesh was unsatisfactory.

It was further claimed that Rakesh was unable to fulfill the illegal demands that were made on him by the AIIMS staff and because of this reason they became hostile towards him and this resulted in non-renewal of the license. Rakesh’s lawyer further urged that the booth was allotted to him since he belonged to unemployed handicapped category.

Arguments made on behalf of AIIMS

The lawyer on behalf of AIIMS refuted these submissions. According to him, Rakesh had applied for and was considered for the grant of license as per the advertisement/tender issued. However, he failed to get selected and respondent No. 5 had been awarded the contract.

The lawyer also refuted the suggestion that the agreement was intended to continue in perpetuity unless there was unsatisfactory service. The lawyer also drew attention of the Court to the fact that Rakesh had been fined for not maintaining the complaint book.

Observations of the Court

The Court examined the records of agreement and held that the license agreement was not intended to be in perpetuity. Accordingly the Court held that the first argument made by Rakesh was devoid of merit. Rakesh had also contented that the terms and conditions of the tender/advertisement were in violation of the stated policy and accordingly were liable to be quashed.

This contention was also rejected by the Court. According to the Court, Rakesh’s application had been considered for renewal, and it was not open for him to challenge the decision, which was within the realm of the contract.

The lawyer on behalf of AIIMS had also argued that the earlier policy of granting STD/ISD/PCO booths to unemployed graduates only, had been modified and the allotments were now liberalized and freely available. It was further submitted that the policy of preference to widows, handicapped, SC/ST’s etc was that of the Department of Telecommunication and was not applicable to AIIMS.

The Court also took into account the fact that Rakesh had already vacated the STD/ISD booth and had removed his luggage and had transferred the booth to the new allottee who had been operating the booth. The term of the present allotment was going to expire by the end of 2001.

In light of these circumstances, the Court held that rather than disturbing and interfering with the present allotment, Rakesh could apply to AIIMS for allotment of another STD/ISD booth. The Court held that AIIMS would duly consider this application for the next available vacancy while giving due regard to the preference to be given to a handicapped, widow and other categories. The Writ Petition was accordingly disposed of.

Sections Referred:

  • Article 226 of the Constitution of India

Cases Referred:

  • Tata Cellular vs. Union of India, AIR 1996 SC 11

Top

Sunil Raosaheb Narke vs. Air India and Anr.

Filed under: Section 2, 32, 33, 34, & 38 Persons with Disabilities Act, 1995
Article 226 Constitution of India
Appellant: Sunil Raosaheb Narke
Respondent: Air India and Anr.
Citation: No. 1400 of 1994, Decided on 13.01.2006 (Unreported)
Court: In the High Court of Bombay
Judge: Ranjana Desai and A.S. Oka

This petition is filed against Air India by Sunil Roasaheb challenging the denial of employment on the ground of his disability.

Facts

Sunil Roasaheb was suffering from a physical disability, which had been assessed at 40%. After completing his diploma in mechanical engineering, he registered himself with the Special Employment Exchange for physically handicapped people. In the meanwhile, he joined as a Trainee Quality Control Engineer with a private Company at Nasik.

During this period, the Manager, Establishment Engineering of Air India, issued a communication to the Special Employment Exchange for physically handicapped, calling for the names of suitable candidates holding a diploma in mechanical/ electrical/ industrial electronics engineering for recruitment as trainee technicians.

Accordingly the Employment Officer of the Special Employment Exchange forwarded names of nine candidates including Sunil. While forwarding the names in the prescribed format, the nature of the handicap of the candidates was also mentioned. Sunil then appeared for the written test and interview following which he was called upon to undergo a medical examination.

Subsequently, Sunil was informed by the Manager, Establishment of Air India that he had qualified for the appointment to the post of the trainee technician subject to his medical fitness being approved by the Medical Officer. However, by communication dated 31st January, 1994, Sunil was informed that he had been declared medically unfit for the post.

Sunil pointed out to Air India that he does not suffer from any abnormality except post-polio paralysis of the left lower limb and requested to be considered under the physically handicapped category. He was however informed that there was no reservation for physically handicapped in the category of the trainee technician.

It was stated that he had been declared unfit by the standards of the medical fitness prescribed for the post of trainee technicians and thus Air India was unable to help him. Sunil then made a representation to Air India to consider his case under the physical handicapped category. As there was no response from Air India he filed this Writ Petition.

Arguments made on behalf of Sunil

It was argued on behalf of Sunil that according to an office memorandum issued by the Government of India certain posts ought to have been reserved for the physically handicapped by Air India. It was further stated that he was sponsored by the Special Employment Exchange which had its own medical board and therefore Air India ought not to have compelled Sunil to undergo a medical examination. It was also claimed that notwithstanding his physically handicap Sunil was in a position to perform the duties of a trainee technician.

Arguments made on behalf of Air India

It was argued on behalf of Air India that the Government of India directed for one percent reservation in Groups C and D for orthopaedically handicapped persons. Since the post of trainee technician fell in category II, which corresponds to Group B, reservation was not applicable to it. It was further argued that Sunil would not be able to perform the duties of a trainee technician with his physical handicap as he was afflicted by chronic residual poliomyelitis because of which he could not hold the post of trainee technician.

Observations of the Court

The Court observed that certain posts had been identified by the Central Government, to be filled in by the physically handicapped persons. It was opined that as Air India was aware of the physical disability suffered by Sunil before he was called for the written test and interview, the establishment like Air India ought to have considered his case sympathetically.

It was also pointed out that, India is a signatory to the proclamation for full participation and equality for people with disabilities. Considering this and the legislative mandate in the form of the Persons with Disabilities Act, the Court concluded that establishments like Air India should consider the case of Sunil sympathetically as far as possible by offering him a job consistent with his status as a holder of a diploma in mechanical engineering.

The Writ Petition was accordingly disposed of with directions to Air India to consider the case of Sunil with sympathy.

Sections Referred:

  • Section 2, 32, 33, 34, & 38 Persons with Disabilities Act, 1995
  • Article 226 Constitution of India

Cases Referred:

  • National Federation of Blind vs. Union Public service Commission AIR 1993 Supreme Court 1916.

Top

Vikram Trisal vs. Union of India and Ors

Filed under: Article 14 of the Constitution of India
Appellant: Vikram Trisal
Respondent: Union of India and Ors
Citation: AIR 1998 J&K 92
Court: In the High Court of Jammu and Kashmir
Judge: T.S. Doabia

This case challenges the preference given to blind, physically handicapped and other categories in the allotment of STD and PCO’s.

Facts

A policy decision was taken to the effect that educated unemployed people could apply for the allotment of STD, PCOs. The qualification mentioned was eighth class or middle pass in rural areas and matriculation or higher school and above in urban areas. The following categories were to be given preference according to the policy:

  • Handicapped including blind persons
  • SC/ST applicants Ex-servicemen/War widows
  • Retired DOT employees or their dependents
  • Dependents of Freedom Fighters
  • Charitable Institutions/Hospitals

This preference was however challenged by Vikram Trisal who filed the present Writ Petition. The argument raised was that if preference was given to the above mentioned categories then the earlier eligibility criteria would stand totally diluted. The main points raised were as follows:

  • That basically the allotment was to be made to educated unemployed persons
  • If preference was given to the categories mentioned above then persons, who were otherwise eligible might not get allotment.
  • It was also argued that ex-servicemen and retired employees could not be said to be unemployed.
  • Finally a charitable institute or hospital would not fall within the definition of unemployed persons.

Accordingly, it was suggested that the criteria mentioned for these categories should be struck down. It was also contended that another policy decision was later taken by the Government and according to this decision any person could apply for STD, PCOs.

According to the policy the applications received would be filed and allotment would be made according to the order in which they are filed. As a part of this policy, it was also stated that stress would be given to the eligibility criteria mentioned before, and the special categories mentioned above would be ignored.

The basic contention of Vikram Trisal regarding this policy was that if the allotments were made to such special categories then it would amount to 100% reservation in favor of these categories. Many previous cases were also cited in order to substantiate this point. It was also stated that preference could be given to those individuals who had higher qualifications.

Observations of the Court

The Court stated that it could find no fault with the policy evolved by the Union of India. It was stated that the basic qualifications were the same for all except that certain special categories were to be given preference. According to the Court, the preference given to the special categories could be equated with the additional weightage that was taken into account by the Supreme Court in certain previous cases. The Court held that if everything was considered equal then the special categories should be given additional weightage. This would not amount to a reservation in their favor.

The appeal was disposed of accordingly.

Sections Referred:

  • Article 14 of the Constitution of India

Top

Sandhya Jain, Rajana Purwar, Satyendra Pal Singh, Smt.Anjana Mishra (Dixit), Jyotsana Bhatnagar vs. State of U.P & Others

Filed under: Persons with Disabilities Act, 1995
AppellantS: Sandhya Jain, Rajana Purwar, Satyendra Pal Singh, Smt.Anjana Mishra (Dixit), Jyotsana Bhatnagar
Respondent: State of U.P & Others
Citation: Civil Misc. Writ Petition No. 29494, 44714, 26434 of 2004 and 16790, 4419 of 2005 decided on 18.03.2005 (unreported)
Court: In the High Court of Allahabad
Judge: V.K.Shukla

This case consists of five writ petitions that were taken up together by this Court as they all dealt with the common aspect of law. This petition was for deciding the issue that persons with physical disabilities should be given age relaxation benefit in Training Course (B.T.C).

Facts

An advertisement was issued on 21.01.2004 and 21.02.2004 in which applications were invited from eligible candidates for undergoing Special B.T.C Course 2004. In the said advertisement 40 years of age limit was prescribed for candidates, however relaxation in respect of upper age limit was provided to SC/ST/OBC, Ex Serviceman and D.F.F category candidates, but physically handicapped category candidates were not given the benefit of age relaxation.

Rajana and others filed the present petition claiming that physically handicapped category candidates were entitled for horizontal reservation. Further, they also stated that there were large number of vacancies for the trained persons, and all the trained graduates should be offered appointment immediately after completing their training.

Arguments made on behalf of Rajana Purwar and others

It was argued on behalf of Rajana and others that no reasons could be found for not extending the benefit of age relaxation to physically handicapped category candidates in the advertisement and that the policy of State Government was totally employment oriented after successful completion of training and thus, not extending the benefit of age relaxation was wholly unjustifiable.

It was further argued that for B.T.C Course-2004 and in respect of Special B.T.C Course for Urdu teachers 2005, similar benefit had been extended by the State Government for according age relaxation in the training to physically handicapped category candidates and thus, there was no ground to discriminate against them as they also required special attention, being from the same physically handicapped category.

Arguments made on behalf of State

It was contended on behalf of the state that this was merely training and not employment and as such the Government Order on which reliance had been placed was of no consequence. It was further argued that wisdom of the State Government could not be questioned and no relief whatsoever could be granted to the candidates.

Observation of the Court

The Court held, after taking note of the fact that 46,189 seats were vacant in recognized institutions run and managed by the Board that it was not merely training but clearly gave legitimate expectation to candidates that after successful completion of training, employment was a necessary consequence of the same.

It was further observed by the Court that rule 9 of 1981 Rules dealt with Reservations and provided for Reservation to candidates belonging to SC/ST/OBC., Departments of Freedom Fighters, Ex–Servicemen and other categories, should be in accordance with the U.P Act and the orders of the State Government in force. Thus, it was held that the benefit of age relaxation should have been given to Physically Handicapped candidates, as per existing provisions.

For the above said reasons, the writ petition was allowed.

Cases Referred:

  • Devendra Singh vs. State of U.P Special Appeal No. 461 of 2004
  • Nirenjan Singh vs. State of U.P Writ Petition No.22141 of 2004
  • S.P JAIN vs. K.M Gupta AIR 1987SC222
  • Administrator, Municipal Corporation Bilaspur vs. Dattatramya Dahanker AIR 1992 SC 1946
  • Colour–Chem Ltd vs. A.L.A Alaspurkar 1998(3) SCC 192

Irrigation Development Employees Association & Ors v. Government of A.P.& Ors

Filed Under: Article 226 of the Constitution of India
Appellant: Irrigation Development Employees Association & Ors
Respondent: Government of A.P. & Ors
Citation: W.A.Nos.1039 of 2002 and 1594 of 2003 Decided on 16.03.2004 (Unreported)
Court: Andhra Pradesh High Court
Judges: Honorable Mr Justice B. Sudershan Reddy

This is an appeal against the judgment and order of the Single Judge in the Writ Petition filed by the Irrigation Development Employees Association.

Facts

The Irrigation Development Employees Association (the Association) comprised of various employees working in the A.P State Irrigation Development Corporation Ltd. (hereafter referred to as the corporation). The Government of Andhra Pradesh had constituted a committee to review the performance of various state level public enterprises out if which the corporation was one. The committee, among other things, recommended that the cadre strength of the corporation be downsized which was accepted by the A.P. government.

Accordingly the corporation identified its surplus employees on the basis of the ‘Last come first go’ principle and called upon them to opt for a Voluntary Retirement Scheme the Association filed a Writ Petition before the A.P. High Court challenging the decision of the government of A.P. to downsize the cadre strength of the corporation. The process of identifying the surplus employees by the corporation was also challenged.

The Single judge dismissed the Writ Petition. But insofar as the SC/ST employees of the corporation were concerned, the Single Judge directed the corporation to reexamine the matter and consider applying the reservation roster backwards while identifying surplus employees belonging to the SC/ST category.

Against the dismissal of the Writ Petition, the present appeal was filed

Observations of the Court

The High Court upheld the order of downsizing the cadre strength of the corporation and identifying the surplus employees. It then went on o examine and deal with the various categories of employees of the Corporation. While dealing with the employees who had been appointed to vacancies reserved for the physically handicapped under section 33 of the persons with Disabilities Act 1995 the Court observed that the rights of persons with disabilities had to be protected and that such persons should be treated as a separate class.

It directed the corporation to examine the feasibility of applying the reservation roster backwards in the case of employees suffering from disability in the similar manner as the employees belonging to the SC/S T category.

Held: Appeal dismissed except with regard to the physically disabled employees whose cases were directed to be reconsidered.

Sections Referred:

  • Article 226 of the Constitution of India

Top

T. Raja Rama Mohan Rao vs Income-tax Officer

Filed Under: Direct Taxation
Appellant: T. Raja Rama Mohan Rao
Respondent: Income-Tax Officer
Citation: (1989) 281 ITD 534 (NULL)
Court: In the ITAT Hyderabad, ‘B’ Bench
Judges: T.V. Rajagopala Rao and G. Santhanam

This is a case in which Rama Mohan challenged the decision of the Income Tax Commissioner who dismissed his claim to an exemption under Section 80 U

Facts

T. Raja Ram Mohan Rao was suffering from a permanent physical disability and had claimed a tax deduction of Rs.10,000 for the assessment years 1983-84 to 1985-86 under the provisions of Section 80U of the Income-tax Act. In view of this claim the assessments were under 143 (1) of the Act. The Commissioner of Income-Tax however, invoked the provision 263 (1) and stated that Rama Mohan was not entitled to the same.

Arguments made on behalf of Rama Mohan

It was argued on behalf of Rama Mohan that he was suffering from a permanent physical disability with impairment of one leg below the knee. His one leg was shorter and he could walk only with support. He had joined as a stenographer in the Life Insurance Corporation of India (LIC). In spite of 2 decades of dedicated service, promotion had been denied to him on account of his physical disability.

He was also unable to improve his career prospects by obtaining more gainful employment elsewhere in another capacity. It was argued that the Commissioner has conveniently overlooked and these aspects of the case and that the inference drawn by him was wrong and unjustified. Moreover, it was stated that the Commissioner had not applied the provisions of the circulars of the Central Board of Direct Taxes that were binding on him. Therefore, it was contended that the order of the Commissioner of Income-tax should be set aside.

Arguments made on behalf of income Tax Officer

It was argued on behalf of Income Tax Officer that Rama Mohan was not entitled to deduction under Section 80U because he was already engaged in gainful employment as a stenographer with the LIC notwithstanding his disability. It was also argued that it would have to be proved to the satisfaction of the Income-tax Officer that his disability was preventing him from engaging in gainful employment. As this test had not been satisfied in this case, it was argued that the Commissioner had thus rightly invoked the provisions of Section 263 (1) of the Income-tax Act.

Observation of the Court

After hearing the arguments and considering the material in hand, the Court invalidated the order of the Commissioner of Income-Tax. The Court held that the Commissioner had misinterpreted the purpose of Section 80U. This Section offers a deduction of Rs. 10,000 from the total income of an assessee suffering from a permanent physical disability, which has the effect of reducing substantially his capacity to engage in a gainful employment or occupation.

Further, the Section also required for the production of a certificate from a registered medical practitioner while making the claim for exemption before the Income-Tax Officer. The fact that Rama Mohan could not be promoted to the post of Development Officer despite his qualification was also considered and it was concluded that mere employment, which does not offer a chance of promotion could not be called gainful employment. For these reasons, it was concluded that the order of Commissioner of Income-Tax could not be sustained.

Held: The appeal was allowed

Top

Shri Suresh Kumar Tiwari v. Union of India (UOI) and Ors

Filed under: Section 47 of the Persons with Disabilities Act, 1995 Rule 38 of theCentral Civil Service (Pension) Rules, 1972
Appellanst: Shri Suresh Kumar Tiwari
Respondent: Union of India (UOI) and Ors
Citation: 115 (2004) DLT 247
Court: In the High Court of Delhi
Judge: Mukundakam Sharma and Gita Mittal

Facts

Suresh Kumar Tiwari joined the Special Bureau (SSB) under the Ministry of Home Affairs as a Constable. At the time of his appointment he was declared medically fit for appointment in government service by the Medical Officer in 18 Army Rifle, Lunglie.

After appointment he completed his basic and recruit training and thereafter he was promoted to the rank of LNK (GD) and NK (GD) fulfilling all the eligibility terms and conditions for promotion to said ranks. During the year 1998, he underwent medical treatment and the unit Medical Officer advised him to consult with an Orthopedic Surgeon. Consequently, he took sanctioned 30 days earned leave to undertake medical treatment as advised. He remained under medical treatment and the concerned medical authority declared him fit for duty. In the written application submitted by him at the time of resuming duty, he stated that he was suffering from pain in the left feet since December 1997. He again proceeded on 45 days earned leave to get himself treated once again.

Thereafter Suresh had been taking medical treatment from time to time, being allowed to receive the same, since he was on medical leave. He was thereafter directed to appear before the Medical Board at the Civil Hospital, Lunglei. After a through medical examination carried out by the Medical Board he was invalided out of service with effect from 11.10.2001 and his name was struck off from the strength of department. Against this decision he filed a Writ Petition in Delhi High Court.

Arguments made on behalf of the Union of India

It was argued on behalf of the Union of India that there was neither such sedentary work nor any post of LDC available in the cadre to which he belonged. It was argued that Suresh was completely and permanently incapacitated for further service in the department and, therefore, he was released from service. It was also argued that he would be entitled for invalid pension, which would be granted to him on receipt of pension papers, which he has failed to, submit. It was also argued that a notification dated 16 August, 2004, was issued by the Central Government which discloses that the Central Government having regard to the type of work carried on by the combatant personnel of the service Bureau (SSB) exempted all categories of posts of “combatant personnel” of the Special Service (SSB) under the Ministry of Home Affairs from the applicability of the provisions of the Section 47.

Observation of the Court

Considering the facts and circumstance of the case and having regard to fact that a notification had been issued by the Central Government on 16 August, 2004 where by all categories of persons of combatant personnel of the Special Service Bureau under the Ministry of Home Affairs have been exempted from applicability of the Persons with Disabilities Act, 1995, the Court held that Suresh could not be directed to be taken on service with effect from 16th August, 2004 .

However from the date of his retirement till 16th August , 2004 he was entitled to be considered under the aforesaid beneficial provision, which was held to be mandatory by the Supreme Court also. Therefore, in the peculiar facts and circumstances of this case, the Court directed for payment of salary and allowances to Suresh for the post, which he was holding at the time of invalidation from service with effect from 11.10.2001. In case no sanctioned post was available for the period from 11.10.2001 to 16.8.2004 with the Government, he would have to be treated as holding a supernumerary post and shall be paid all pay and allowances for the said period.

Benefit of the aforesaid service would also have to be available to him for the purpose of computation of his pension. The Writ Petition was allowed to the extent directing the Government to release his pay and allowances for the period from 11.10.2001. The Government further, directed to give the benefit of the said period of service for the purpose of computation of pension as well.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Kunal Singh v. Union of India Anr. AIR 2003 SC 1623

D Saibaba vs. Bar Council of India

Filed Under: Article 136 of the Constitution Of India, 1950 Sections 28, 35, 37, 38, 44A, 48AA of the Advocates Act, 1961 Section 18 of the Land Acquisition Act, 1894
Appellant: D Saibaba
Respondent: Bar Council of India
Citation: AIR 2003 Supreme Court 2502
Judges: Hon'ble Justice R. C. Lahoti and Hon'ble Justice Ashok Bhan

D Saibaba appealed to the Supreme Court for reversal of the Bar Council decision to remove his name from the Roll of Advocates on the grounds that he was allotted an STD booth that was operated by his parents.

Facts

D Saibaba was a person with an orthopedic handicap. He was allotted an STD booth in the quota of handicapped persons to earn a livelihood. As time went by, he graduated from Law School and was enrolled as a lawyer under the Advocates Act, 1961. Thereafter, he started his apprenticeship where he worked from 10 am to 5 pm. In the meantime, his father who had retired from service  took up the task of looking after the STD booth.

As the allotment stood in Saibaba’s name, he was advised by the Bar Council to surrender the booth. He sought time on the ground that there were some outstanding dues to be collected, which would become difficult if he abruptly surrendered the booth.

The Bar Council however, issued an order for the cancellation of his name from the Roll of Advocates.

Faced with this situation, D Saibaba, within a few days of the order of the Bar Council, surrendered the license to operate the STD booth and appealed to the Bar Council to recall or suitably modify its earlier order of directing deletion of his name from the Roll, in view of his corrective action.

Observations of the Court

The Supreme Court held that the Bar Council should have condoned the lapse on the part of the Saibaba by exercising its descretion. The Supreme Court further held that the Bar Council should have taken a sympathetic view and permitted the appellant to continue as a lawyer after surrendering the booth.

In view of these observations, the Supreme Court stated that the order of the Bar Council should be set aside and that the enrolment of Saibaba as an advocate, be restored.

Sections Referred:

  • Article 136 of the Constitution Of India, 1950
  • Section 28, 35, 37, 38, 44A, 48AA of the Advocates Act, 1961
  • Section 18 of the Land Acquisition Act, 1894

Top