- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R J.S.Parmar vs. Union of India S.B.CIVIL WRIT PETITION NO.2673/1998 DATE OF ORDER : : April 30, 2008 PRESENT HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.S.K.Malik, for the petitioner. Mr.Vineet Kumar Mathur, for the Union of India. In this petition, petitioner is challenging impugned notice of discharge dated 9/7/1998 (Annex.P/4) issued by the respondents and prayed that respondents may be directed to continue the petitioner in service with all consequential benefits. Further it is prayed that respondents may be directed to get the petitioner examined from Civil Medical Authorities as per law. The facts of the case are that petitioner was initially appointed in General Reserve Engineer Force of Border Roads Organisation on the post of Supervisor – Non-Technical Gr.II w.e.f. 7/9/1982. Thereafter, he was posted at various places and when petitioner was posted at 504 SSTC Project Dhantak (Bhutan) in the month of June, 1996, AFMSF-10 was initiated - 2 - against him, though the same was not permitted under the law. Thereafter, petitioner was placed under medical category III (Temporary) for a period of six months and subsequently after six months of due date review was carried out and he was re- categorised during November, 1997 and up-graded in Medical Category -II (Temporary) for a period of six months. As per petitioner, next date for review was May, 1998 but before completion of due date for review, a fresh AFMSF-10 was initiated by respondent no.5 and though there was no problem of psychiatric with the petitioner, the above AFMSF-10 against the provisions of law was initiated. As per petitioner, ASMSF-10 is not applicable in case of GREF Personnel but ASMSF-10 was forwarded to Military Hospital, Jodhpur and at Military Hospital, Jodhpur, petitioner was straightway down graded to medical category -IV without following the rules and procedure. As per petitioner, it has been done with the connivance of respondent no.5 and Military Hospital, Jodhpur constituted a medical board against the petitioner for invalidment from service and forwarded the same to DDG (Med.) HQ, DGBR, New Delhi on 15/7/1998 and got its approval from the authorities in an arbitrary and illegal manner. Thereafter, petitioner was served with notice of discharge from service being declared physically unfit vide impugned order - 3 - dated 9/7/1998, which was served on petitioner on 21/7/1998. It is argued by learned counsel for the petitioner that respondents obtained No Objection Certificate from petitioner before issuing notice of discharge, wherein, petitioner categorically stated that he has objection for his invalidment through medical board and on the very day vide letter dated 21/7/1998 requested the respondent no.5 to supply copy of report of medical board but the same was declined by the respondent no.5 verbally. According to petitioner, he was medically fit in all respect but due to connivance of respondent no.5 AFMSF-10 was initiated against him which was totally against the provisions of law and petitioner was to be given fair chance to get the disability cured before down grading his medical category to IV. The main ground of challenge to notice of discharge is that report of medical board was not supplied to the petitioner and as per petitioner he was fit for all purposes but he was illegally discharged from service while treating him physically unfit. According to petitioner, after issuance of notice, said report of medical board was placed on record as Annex.R/2 and it is categorically observed in Part A of Appendix -B that the percentage of disability due to illness is Nil. If percentage of - 4 - disability due to illness is Nil then it is to be seen how the petitioner was invalidated from service on medical ground. The finding given in column No.3 of Part `A' First Examination “to be invalidated out from service in med. Cat. IV” is contrary to the report and totally without any basis and said report was not supplied to petitioner when it was demanded by him. When medical board itself found that percentage of disability due to disease is Nil then there was no ground available to discharge the petitioner from service while declaring him physically unfit, therefore, action of respondents while issuing notice of discharge is totally unwarranted and illegal as per finding of medical board. It is submitted by learned counsel for the petitioner that as per the Persons with Disabilities (Equal Opportunity, Protection of Rights of Full Participation) Act, 1995 recently a policy has been framed by the respondents and for the said purpose vide communication dated 20/3/2008 it has been decided that GREF Personnel, who have acquired 100% disability and are not suitable for the present post held by them may be kept on supernumerary post in the same pay scale and service benefits, in any static formation like HQ DGBR, GREF Centre, Pune etc. so that they can be deployed according to their restriction of employment and could also avail medical facilities. Further it is provided that in case any GREF Personnel who has acquired - 5 - 100% disability intends to seek invalid pension, his option may be obtained and his case may be processed accordingly since invalid pension cannot be granted unless the employee himself opts for it. Therefore, now a decision has been taken by the respondents to absorb an employee who has acquired even 100% disability, therefore, there was no occasion after enactment of Act of 1995 to discharge the petitioner for the reason that he is physically unfit in the year 1998. In this case reply has been filed by the respondents in which it is contended that petitioner was placed in low medical category GREF-III for six months w.e.f 16/4/1996 while he was serving in 504 SSTC and diagnosis (i)`Alcohol dependence' Syndrome (303) an d(ii) Alcohol withdrawal State (291) and not in the month of June, 1996 as stated by the petitioner. According to respondents, petitioner's case was medically reviewed by a Board held on 12/11/1996 in 10 AFH which extended his low medical category for another six months for the diagnosis `Alcoholic Hepatitis' w.e.f 12/11/1996. The petitioner was on treatment in Command Hospital Calcutta in psychiatry Ward for Psychiatric disabilities. The petitioner was again treated for Alcoholic dependence Syndrome in 10 AFH from 13/5/1997 to 20/5/1997 and in 158 BH from 21/5/1997 to 26/5/1997 and he was transferred back to 10 AFH on 26/5/1997 and discharged - 6 - by 10 AFH after reviewing his low medical category on 30/5/1997. As per respondents, his low medical category was reviewed by the Board held in 10 AFH and upgraded him to Medical Category GREF-II for six moths w.e.f 29/5/1997 and ultimately after due examination and following procedure the Military Hospital, Jodhpur on 17/4/1998 admitted the petitioner and treated for Alcoholic Dependence Syndrome and recommended to be invalidated in Medical Category GREF -IV (Psy.) in a medical board held on 26/5/1998. As per respondents, there is no irregularity in directing the petitioner to Hospital for treatment during pendency of medical low category, therefore, the contention of the petitioner is totally unfounded that procedure was not followed. According to respondents petitioner was declared medical category GREF – IV (Psy.) by a duly constituted medical board in accordance with the procedure, therefore, petitioner is not entitled to seek relief against notice of discharge. Petitioner was rightly discharged form service having been declared medically unfit for continuance in GREF Service by a competent medical board. As per respondents, petitioner was asked whether he desire to go on leave before invaliding from service to which he had given unwillingness. According to respondents, petitioner was recommended to be invalidated from service on medical - 7 - category GREF IV by a Medical Board held on 26/5/1998 and it was accepted by the competent medical authority of HQ DGBR (head of the Deptt.) on 15/6/1998 based on which Chief Engineer Project, Chetak issued notice of discharge on 9/7/1998 in which there is no illegality. As per respondents, there is no prohibition under the Rules for initiating AFMSF-10 to GREF Personnel. After hearing both the learned counsel for the parties, first of all it is required to be observed that though there is no foundation in the writ petition claiming any right under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 but it is an admitted fact that the Act of 1995 was enacted for welfare of the physically disabled persons in the year 1998 and made applicable by Union of India, therefore, when order of discharge was passed in 1998 respondents were under obligation to follow the provisions of the Act of 1995. Admittedly, in this case provisions of said Act are not complied with by the respondents and recently policy has been framed for welfare of disabled employees. According to facts of the case, petitioner was examined by the medical board finally on 17/4/1998 and the report of the medical board was not supplied to petitioner though it was - 8 - demanded by him and only on the basis of recommendations of said medical board notice of discharge was issued and petitioner was thrown out of job while declaring him physically unfit. Upon perusal of the report of medical board Annex.R/2 there is no finding with regard to disabilities of petitioner. In Appendix `B' of the report it is categorically observed in Part `A' that percentage of disability due to disease is Nil. If the medical board found that percentage of disability due to disease is Nil then how such decision was taken by the respondents for declaring the petitioner physically unfit so also the basis of opinion mentioned in para no.3 under the column of `other relevant information, if any' it is stated that `to be invalidated out from service in Med.Cat. IV (Psy.). Meaning thereby, the basis of notice of discharge was not in existence but the opinion was given by the board that petitioner is not physically fit to remain in service. In my opinion, such decision was not in consonance with the opinion expressed by the medical board. Learned counsel for the petitioner cited a judgment reported in (2003) 4 SCC 524 (Kunal Singh vs. Union of India & Anr.) in which it has been held that language of Section 47 of the Act of 1995 is plain and certain and cast a statutory obligation on the employer to protect an employee acquiring disability during service and according to petitioner his case falls under Section - 9 - 47 of the Act of 1995. Relevant paras 7 and 9 of the said judgment read as follow: “7. From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 “disability” and “person with disability” are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from : (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act, Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made of initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who - 10 - acquires a disability during his service. 9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of “disability” and “person with disability”. It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the 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 - 11 - 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 a social beneficial enactment that too dealing with disabled persons intended to given 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 paralysis 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.” In case of University of Rajasthan vs. Surendra Kumar Goyal reported in 2003 (2) WLC 578, this Court held that if retirement is given on the ground of disability of an employee then opportunity is required to be given to the petitioner to prove that he is capable to discharge his duties. In the present, no opportunity was given to the petitioner to prove that he is capable to discharge his duties so also as per opinion of medical board no percentage of disability was found, therefore, the adjudication made by Division Bench of this court covers the present controversy. - 12 - Another judgment relied upon by learned counsel for petitioner is (2008) 1 SCC 579 ( Bhagwan Dass & Anr. vs. Punjab State Electricity Board) in which the Hon'ble Apex Court held that a disabled person is entitled for protection under Section 47 of the Act of 1995. In the said case, petitioner being blind person requested for retirement in view of disability but subsequently made a request for withdrawal of his request which was not accepted by the departmental authorities and the Hon'ble Apex Court held that such an action is in violation of Section 47 (1) of the Act of 1995 and appellant of that case was directed to be reinstated in service with all consequential benefits. Relevant para 20 is as follows: “20. In light of the discussion made above, the action of the Board in terminating the service of the disabled employee (Appellant 1) with effect from 21/3/1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions, etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from 22/3/1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his - 13 - future salary. The appellant shall continue in service till his date of superannuation according to service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.” Upon above discussion, I am of the opinion that as per Section 47 of the Act of 1995, a complete restriction has been imposed by the Legislature that no establishment shall dispense with, reduce in rank, an employee who acquires a disability during his service. Further, it is 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 and 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. Meaning thereby, after enactment of Act of 1995, the Legislature has imposed complete bar upon discharge of any employee on the ground of disability which is acquired by the employee during his service. Therefore, in my opinion, the notice of discharge dated 9/7/1998 is totally illegal, unconstitutional and in violation of - 14 - provisions of the Act of 1995. Accordingly, this writ petition is allowed. The notice of discharge is hereby quashed and petitioner is held entitled for reinstatement in service with full back wages with cost of Rs.5000/-. (GOPAL KRISHAN VYAS), J. pankaj baweja