Continuation of Service till the age of Superannuation

Tarlochan Singh Aujla vs. Delhi Transport Corporation

Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellants: Tarlochan Singh Aujla
Respondent: Delhi Transport Corporation
Citation: W.P. (C) 2708/1998 Decided on 12.05.2005 (Unreported)
Court: In the High Court of Delhi
Judge: Vikramajit Sen

Facts

Tarlochan Singh had joined the Army and was discharged in October, 1983.Thereafter he was employed by the Delhi Transport Corporation as a Driver in December, 1985.

He met with an accident while coming from Lucknow to Delhi as a consequence of which his left foot was amputated and was prematurely retired in December, 1995. In compliance with the requirements of the Disabilities Act, he was employed as a Store Attendant, which according to D.T.C was a job, which he could perform.

Tarlochan filed the present petition seeking directions to D.T.C to place him on the post which he would have been entitled to if he had not suffered the accident and to grant all service benefits, and to pay the entire arrears of salary and allowances with effect from August, 1994(time of the accident) till date.

He also requested the Court to grant in his favour any other order that the Court may deem fit and proper under the circumstances of the case.

Arguments made on behalf of Tarlochan

It was argued on behalf of Tarlochan that he has been paid salary in the scale of a Store Attendant whereas, as obligated under the Act, D.T.C should have shifted him to the present post with the same pay –scale and service benefits.

Thus he prayed that he should receive emoluments in the scale payable to a Driver, which were the duties performed by him at the time of the accident, he must also clear the physical test which would entitle him to continue after the age of 55years.

Arguments on behalf of D.T.C

It was argued on behalf of D.T.C that the Disabilities Act should not be enforced retrospectively.

Observations of the Court

After hearing the arguments of both the parties, the Court held that the Disabilities Act does not give any added benefit to a person who has suffered an accident; it endeavors to level the disadvantages facing the employee as a result of the injuries sustained by him.

If Tarlochan, due to his disability could not claim as a right the continuance in service beyond the age of 55 years because of his being medically unfit on reaching that age, he could not steal an advantage over other persons because of his disability.

The Court further held, that whilst he would be entitled to payments in the pay scale and receive all service benefits of a Driver, since he was not medically fit beyond the age of 55, he would have to superannuate on his attaining that age.

This Writ Petition was thus allowed to the extent that Tarlochan would be entitled to salary in the pay-scale of a Driver together with all service benefits till his superannuation on attaining the age of 55 years.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

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Rama vs. State of Rajasthan and Ors

Filed Under: Section 2, 47 & 47(1) of the Persons with Disabilities Act, 1995 Section 617 of the Companies Act, 1956 Articles 46 & 311 of the Constitution of India Rajasthan Employment of the Physically Handicapped Rules, 1976 Rajasthan Services Rules
Appellant: Rama
Respondent: State of Rajasthan and Ors
Citation: RLW 2005 (4) Raj 2911
Court: In the High Court of Rajasthan
Judge: R.P. Vyas

The petition was filed by Rama, a visually handicapped person, praying therein that the order of the termination of his services be quashed and set aside and the State be directed to take him back on duty with all consequential benefits.

Facts

Rama was a visually handicapped person. He had acquired the disability during the course of employment in October-November, 1997. Rama had joined the services with the State Forest Department as a daily wage employee and since then, he had been working as a Cattle Guard. In 1986, he was declared semi- permanent by the State of Rajasthan.

Once, Rama moved an application for medical leave stating therein that due to an eye problem, he had to go for treatment to Udaipur. When he made the application, he was partially blind. He remained hospitalized in Udaipur for about 20 days but however, in the course of time, Rama was rendered blind in both the eyes.

When he was discharged from the hospital, he joined the duties with the Forest Department, but an order was passed by which, his services were terminated and he was ordered to be discharged. Aggrieved by the order, he filed the present petition.

Observations of the Court

The Court dealt with both the contentions raised by Tulshidas’s lawyer. The Court held that the argument of delay in filing of the complaint was not valid since the victim was suffering from mental subnormality and had not been aware of the consequences of the act committed by Tulshidas. Regarding the second argument that the intercourse had taken place on a voluntary basis, the Court stated that since the victim was mentally challenged she could not have given her consent.

The Court even explicated the difference between submission and consent (refer to quotes) and stated that since the victim had a mental age of below 12 years, the gravity of the offense should especially be taken into account. Based on these reasons, the Court found no infirmity in the conclusions arrived by the Trial Court and the High Court to warrant interference.

The appeal was thereby dismissed and Tulshidas Kanolkar was ordered to undergo the remaining period of the sentence imposed.

Arguments on behalf of Rama

On behalf of Rama, the lawyer relied on Section 47 of the Persons with Disabilities Act and argued that he was to be protected under the above provisions and that he cannot be removed from service till the time of superannuation and if a suitable job is not available, he has to be kept on a supernumerary post.

It was further argued that before termination of service, notice was not given to him, nor nay enquiry was conducted and that he was not terminated for misconduct. He was terminated only because he became blind. Therefore, it was in violation of constitutional principles also.

Arguments made on behalf of the State of Rajasthan and the Forest Department

It was argued on behalf of the state that so far as the visually handicap of Rama was concerned, the blindness had not occurred during the course of employment, while discharging duties on the post of Cattle Guard. It was also argued that he had become completely blind and remained on medical treatment at Udaipur, but he could not improve his vision therefore, he could be given the consequential benefits and his son could be taken in the job, in his place.

Thus, in this view of the matter, an order was passed in accordance with Chapter 3 (10) (4) of the Work Charge Employees ’ orders, and Rama was discharged from services.

It was further contended that Rama had already received the G.P.F. Amount of Rs. 65,884 on 10.5.1999 and he had requested for pension relief. Apart from that, he was not a permanent employee of the Forest Department, he was only a semi permanent Cattle Guard, and so the provisions of the Rajasthan Services Rules and of Section 47 of the Persons with Disabilities Act, 1995 were not applicable to him.

Observations of the Court

After hearing the arguments of both sides, the Court was of the view that as provided in Section 47 of the Act, if an employee, after acquiring a disability, was not suitable for the post he was holding, he was to be shifted to some other post with the same pay scale and services benefits.

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

It was further held that Rama belonged to a weaker section of the Society and according to Article 46 of the Constitution of India the State had to promote the educational and economic interests of the weaker sections of people, in particular, of the Scheduled Castes and the Scheduled Tribes and to protect them from social injustice.

In case of those who acquired a disability during his services, he was sought to be protected under Section 47 of the Act, 1995. The very frame and contents of Sections 47 clearly indicated its mandatory nature. The Writ Petition was therefore allowed, and Rama was to be given the benefit of regular pay scale from the date he was re-instated back in services.

Sections Referred:

  • Section 2, 47 & 47(1) of the Persons with Disabilities Act, 1995
  • Article 46 & 311 of the Constitution of India

Cases Referred:

  • National Federation of Blind s. U.P.S.C and Ors. AIR 1993 SC 1916
  • Anand Bihari and Ors. vs. Rajasthan State Road Transport Corporation, Jaipur, (1991) 1 SCC 731
  • Ramaeshwar Dass and Ors. vs. State of Harayan and Ors., (1995) 3 SCC 285
  • Kunal Singh vs. Union of India and Anr. (2003) 4 SCC 524
  • Union of India vs. Sanjay Kumar Jain, (2004) 6 SCC 708

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Shivaji S/o Vishwanath Dongre vs. State of Maharashtra and Ors

Filed Under: Section 2, 47, 47(1) and 47(2) of the Persons with Disabilities Act, 1995 Section 617 Companies Act, 1956
Appellants: Shivaji S/oVishwanath Dongre
Respondent: State of Maharashtra and Ors
Citation: 2006(1) MHLJ 417
Court: In the High Court of Bombay (Aurangabad Bench)
Judge: R.M.S Khandeparkar and S.P.Kukday

Facts

Shivaji was working as a bus driver with the Maharashtra State Road Transport Corporation. During the course of his service, he developed an ailment and was sent for a medical examination to the Civil Surgeon.

After the medical checkup, it was certified that he was suffering from a mental sickness called ‘Resistant Major Depression’ and therefore would be unable to work as a driver, but was fit for discharging any other light work.

On the basis of this certificate, respondent no.3 (name not mentioned) terminated Shivaji’s services with immediate effect. He was informed that if he so desired, he could submit an application for employment on compassionate grounds for his dependent, within fifteen days from the date of the order.

Aggrieved by this order of termination, Shivaji made a representation to respondent No.3, requesting for some light work in conformity with the certificate of the Civil Surgeon as ten years of his service were still available and he was the only earning member of the family.

This representation was forwarded by respondent no. 3 to respondent no. 2 (name not mentioned). However, no decision was taken and the representation was merely kept pending.

Therefore, Shivaji filed the present petition. During the pendency of the petition, directions were issued to the Regional Manager of MSRTC for deciding on the representation.

Accordingly, through a letter it was communicated to Shivaji, that only the visually impaired drivers were entitled to the benefit of alternative employment and that there was no provision for alternative employment to the persons suffering from mental sickness, therefore Shivaji’s representation was rejected.

Arguments made on behalf of Shivaji

It was argued on behalf of Shivaji that he had developed mental sickness during the course of employment and was therefore, entitled to be retained in service in view of the provisions of Section 47 of the Persons with Disabilities Act, 1995

Arguments made on behalf of respondents 2&3

It was argued on behalf of State that an alternative remedy (of job to dependent) was available to Shivaji therefore; the petition should not be entertained. It was further submitted that there was no provision for providing work to persons suffering from mental sickness and therefore Shivaji was not entitled to seek any relief

Observations of the Court

Dealing with the contention of the respondents that the petition could not be entertained as another remedy was available to Shivaji, the Court noted that he had not approached this Court on the ground that his conditions of services had been violated.

He had come to the Court with the contention that the Transport Corporation had failed to comply with the mandatory requirements of Section 47 of the Disabilities Act.

It was further observed that having regard to the decision taken by the Transport Corporation while rejecting his representation, Shivaji was entitled to make the writ petition for implementation of the provisions of the Disabilities Act. Therefore, the contentation that the petition was not maintainable could not be sustained.

The Court further held that Shivaji was a disabled person; he was, therefore entitled to protection under Section 47(1) of the Disabilities Act. Therefore, the termination order issued by the Transport Corporation was in breach of the mandate of Act, and the order was liable to be quashed and set aside.

The certificate issued by the Civil Surgeon showed that he was capable of doing light work. Thus the Transport Corporation would have to give him some light work, if it was available.

If no such light work is available, Shivaji was entitled to be kept on a superernumerary post until a suitable post was available or he attained superannuation, whichever was earlier. He was therefore, entitled to be reinstated in service with full back wages.

The petition was allowed.

Cases Referred:

  • Kunal Singh vs. Union of India and Anr. AIR 2003 sc 1623

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