Civil Writ Petition No.1211 of 2009 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: July 07, 2011 Bateri Devi ...Petitioner VERSUS State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Suresh Kumar Redhu, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for respondent No.1. Mr.Siddharth Batra, Advocate, for respondent Nos.2 & 3. ***** RANJIT SINGH, J. Ignorance of law may some times be accepted and Civil Writ Petition No.1211 of 2009 : 2 : ignored, but where authorities refuse to mend its ways on being apprised of law, would call for serious view. This is one such case, where even educated elite has refused to act in accordance with law despite being made aware of it. The petitioner is a helpless wife of lowly placed employee of respondent-Ch.Charan Singh Haryana Agriculture University, Hisar. Her husband, Inder Singh, was employed as Mali with the University. Unfortunately, Inder Singh fell sick and became hundred percent disable. Instead of helping this poor employee, the University, in harsh manner, terminated his services. Poor employee breathed his last on 14.4.2006, while fighting and struggling for his and his family survival. He has left his legacy of struggle for his wife, petitioner in this case, to inherent. She has been guided to this Court and has invoked the provisions of recently legislated enactment named `Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995' (for short, “the Act”). Highly qualified elite of educated class governing the affairs of the University would refuse to see and study this Act and would not budge to see reasons. They are fighting this unequal contest with the wife of Mali- cum-Beldar. The attention of this highly informed and well versed elite was drawn to the provisions of Section 47 of the Act, which apparently would protect this poor late employee but it has just not sunk into the minds of this informed class. The husband of the petitioner was appointed as a Beldar on temporary basis on 28.7.1970 in Haryana Agriculture University, Hisar. Subsequently, his appointment was made regular in January, Civil Writ Petition No.1211 of 2009 : 3 : 1974 and since then had continuously served on this post till 24.6.2003 when his services were terminated. The petitioner would aver that her husband was performing his duty to the entire satisfaction of his superiors, but due to illness he could join his duties for certain period. His mentally disturbed condition and bad health in fact had led to his hospitalization. Instead of helping their employee, the respondent-University started showing him absent from duty. The University did not appreciate that sickness of the employee had made it impossible and beyond his control to report for duty. In fact, the husband of the petitioner was referred to Pt.Bhagwat Dayal Sharma, PGIMS, Rohtak on 22.12.2002. A special Medial Board for his medical examination was constituted. The Medical Board after examining the late husband of the petitioner opined that he had became 75% mentally handicapped and was not in a position to carry on official duty of Beldar being physically and mentally unfit. On 14.2.2003, the husband of the petitioner submitted an application before the Head of Landscaping Unit CCS HAU Hisar for granting job to his son under ex-gratia scheme as he was declared medically unfit by the Board constituted at PGIMS, Rohtak. The Dean of the University, however, raised objection regarding the age and qualification of his son. It was also observed that the case of compulsory retirement of late husband of the petitioner was pending before the authorities and no action could be taken for providing job to the son of the petitioner on account of his medical condition. The respondent- University, to say the least, in an most unfair manner decided to terminate the service of the husband of the petitioner Civil Writ Petition No.1211 of 2009 : 4 : instead of even pursuing with the case of his compulsory retirement. The order terminating the service of late husband of the petitioner was passed on 24.6.2003 with retrospective effect from 22.11.2002. This order apparently is in complete ignorance and in violation of the provisions of Section 47 of the Act. How could the University treat the late employee absent while being fully aware about his medical condition? The husband of the petitioner had still submitted an application before the authorities. The matter was under correspondence for providing job to his son, but in the meantime, the employee breathed his last on 14.4.2006. The petitioner has averred that she and her husband were given an assurance for providing job to their son under ex-gratia scheme. The petitioner thereafter kept on visiting the office of the respondents between 2003 to 2008 and ultimately has approached this court when the respondent- University has declined to provide any help to the petitioner. The respondent-University has filed reply. Some preliminary submissions have been made by averring that the job of Mali requires physical work and that late husband of the petitioner was suffering from “collapse of dorsal and lumbar vertebrae, mal union of right femur with shortening of right lower limb, paralysis of right upper limb and brain infarction and epilepsy”. It is then stated that the husband of the petitioner was habitual absentee, a contradiction of a sort. If the employee was so sick as is stated by the University, then his absence was not voluntarily but was beyond his control. Still, the University will maintain that he had remained Civil Writ Petition No.1211 of 2009 : 5 : absent from 12.9.2001 to 28.1.2002. He was asked to resume duty, but he did not obey the order. Stand also is that he did not submit any reply in response to the direction to resume duties. The husband of the petitioner was also served a charge sheet for remaining absent on 22.2.2002. Poor employee could not submit any reply and it is so highlighted in the reply. An enquiry was, therefore, constituted. The Enquiry Officer submitted his report and held that all the charges were proved against the husband of the petitioner. The Director of Research after considering the case proposed termination of the services of the husband of the petitioner. Accordingly, a second show cause notice was served on 2.11.2002. The husband of the petitioner submitted a reply to the show cause notice. He had applied for commuted leave from 2.4.2002 to 30.9.2002 but, it was not sanctioned as sufficient medical leave was not due to him. As per the reply, husband of the petitioner was declared unfit for discharging duties by PGIMS, Rohtak and so his services were accordingly terminated w.e.f. 22.11.2002 in terms of provisions of Clause 22.1(d) of Chapter 9 of the HAU Statute. Being fully aware that the late employee was seeking leave on medical ground, the late employee was treated absent and dismissed. The stand of the University would reflect a rather sorry state of affairs. Instead of helping a sick person, the University has apparently acted in a rather unfair and unreasonable manner. A person does not fall sick willingly. Some says health is wealth. Poor employee was deprived of his only wealth by Providence. The husband of the petitioner has not only suffered the wrath of Nature Civil Writ Petition No.1211 of 2009 : 6 : but that of the University. The University has rather added to the miseries and worries of this struggling family. When this case came up for hearing before this court on 9.11.2010, counsel for the University was required to have instructions from the University to find if the petitioner could be shown some concession as would be due to employee in terms of law and under the provisions of Section 47 of the Act. The case was adjourned to 29.11.2010 to await response. The counsel appearing for University thereafter had taken time to file response but has not done so. Today, the counsel of the respondent-University has informed the Court that University is not prepared to budge and would not grant any concession to the petitioner as his services had been terminated. It would not matter much for the respondents to see if this termination is justified, fair and reasonable as per law. It is not with an aim to sermonise the University that reference is made to the provisions of the Act and the purpose and commitment behind legislating the same. In this regard, I may refer to some observations made by the Hon'ble Supreme Court in Kunal Singh Vs. Union of India and another, 2003(2) RSJ 199, only if it could have some added weight with the respondents. About the purpose and background of the Act, the Court observed as under:- “The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities Civil Writ Petition No.1211 of 2009 : 7 : should have equal opportunities and keeping their hopes and aspirations in view a meeting called the `Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure `full participation and equality of people with disabilities in the Asian and Pacific Regions. This meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons.” This Act has not only made provision regarding persons with disability but has addressed to the cases of employees, who suffer disability during the course of their employment in the form of Section 47 of the Act under Chapter VIII. This Chapter deals with employees who are already in service and acquire a disability during their service. A word `disability' and `person with disability' have been distinctly defined. These terms, thus, have to be accordingly understood. It can be observed that a person does not acquire or suffer disability by choice. It can visit any one. Such employees suffering disability are sought to be protected under Section 47 of the Act, which the respondents are ignoring though being apprised. Section 47 of the Act is as under:- Civil Writ Petition No.1211 of 2009 : 8 : ““47. Non-discrimination in Government employment.-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability : carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” Concededly, the husband of the petitioner was found to be suffering from 75% disability. This disability was acquired during the course of service. It is not that this fact was not in the notice of the University. In fact, it is conceded in the reply, as is noticed, that the husband of the petitioner was declared unfit for discharging the duties by PGIMS, Rohtak. Instead of taking cognizance of this fact and giving benefit of the provisions of Section 47 of the Act, the University apparently has acted in an unfair, un-equitable and unreasonable manner. Even on being apprised to act in accordance Civil Writ Petition No.1211 of 2009 : 9 : with law, the respondents have declined to see reasons. One is not sure if the issue has been placed before the Vice Chancellor. One can hope that Vice Chancellor, if apprised, may not have acted in this manner to ignore law. It is rather sad to notice University ignoring legal provisions. Section 47 of the Act makes a clear position for non- discrimination in Government employment. Section provides that no establishment shall dispense with, or reduce in rank, an employee, who acquires a disability during his service. By violating this law, the University has arrogated itself even to terminate the services of the employee. The provisions of Section 47 of the Act would clearly show that no establishment shall dispense with services of an employee, who acquire disability during service. Even, if it is not possible to adjust an employee against any post, he is to be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Even provision is made that no promotion is to be denied to a person merely on account of his disability. That being the legal position, which is outcome of a commitment made by our country before the International Forum, it would not be possible for any establishment coming under the Act to ignore the provisions of the Act. As is observed by the Hon'ble Supreme Court in Kunal Singh's case (supra), an employee acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him, would also suffer. Section 47 of the Act has been held to be mandatory, as can be so noticed from the following observations of the Hon'ble Supreme Court:- Civil Writ Petition No.1211 of 2009 : 10 : “The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. 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 a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, 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. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.” Civil Writ Petition No.1211 of 2009 : 11 : Hon'ble Supreme Court has also repelled the submission that an employee suffering permanent disability can not enjoy the benefit of Section 47 of the Act. Even the submission that an employee was given invalid pension would not be a ground to deny protection under Section 47 of the Act. Doctrine of generalia specialibus non derogent was applied. Once it is held that a person has acquired disability during service, the protection of the Section would come to his rescue. In view of what has been stated above, the order passed by the University terminating the services of the husband of the petitioner cannot be sustained. The provisions of Section 47 of the Act would stand to protect the late husband of the petitioner and would indicate the unfair and inequitable approach of the University. The respondents have not only dismissed the employee but did it with effect from retrospective date, which is legally impermissible. There can hardly be any option but to set-aside the order, Annexure P-4, and it is so ordered. The husband of the petitioner would be deemed to have served the University upto the date of his death, i.e., 14.4.2006, if he had not become due for superannuation on any date prior thereto. If the petitioner was to superannuate on any date prior to date of his death, then he would be deemed to be in service upto that date of his superannuation. If the date of superannuation was to fall after his death, then the husband of the petitioner would be deemed to have been in service till the date of his death. The allowances and other payments due to the husband of the petitioner till the date of his death/superannuation, as the case may be, would Civil Writ Petition No.1211 of 2009 : 12 : be released to the petitioner within a period of three months from the date of receipt of copy of this order. After the date of death/supernnauation whichever is earlier, the case for grant of family pension in terms of the rule shall be considered and the same if payable to the petitioner, shall also be released to her within this period. If any benefits have been released to the petitioner or her late husband, the same can be adjusted while making the payments which have now become due. The writ petition is accordingly allowed. Since the University has refused to follow the legal course, even on being apprised, it would be appropriate to direct that this order be placed before the Vice Chancellor, who can impress upon his administrative staff to learn to comply with legal provisions. It is always better to make oneself aware about the law of the land and to follow the same. July 07, 2011 ( RANJIT SINGH ) ramesh JUDGE