THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.15140 OF 2008 DATED NOVEMBER, 2010 BETWEEN Abdul Khadeer … Petitioner And APSRTC, Musheerabad, Hyderabad, Rep. by its Managing Director. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.15140 OF 2008 O R D E R Yet another instance of the callous disregard shown by the Andhra Pradesh State Road Transport Corporation (APSRTC) to the statutory obligation cast upon it by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Notwithstanding the many decisions rendered by this Court to which it was a party, the APSRTC continues to parrot the very same contentions time and again to justify its action in discarding disabled employees and denying them alternate employment under this beneficial legislation. The petitioner, a Driver in the APSRTC since the year 1996, was retired from service under proceedings dated 06.11.2000 with effect from 06.06.2000, being the date of the Medical Certificate finding him unfit to continue as a Driver due to loss of his left eye. Prior thereto, the petitioner submitted application dated 26.09.2000, after he was found medically unfit, requesting the APSRTC to provide him alternate employment in a suitable post without reduction of pay, allowances and service benefits and to allow him to discharge his duties. The APSRTC’s proceedings dated 06.11.2000 retiring the petitioner from service referred to the said application and concluded by stating that the petitioner’s name was registered for providing alternate employment as a Shramik. The petitioner’s subsequent legal notice having failed to evoke any response from the APSRTC, he filed Writ Petition No.11311 of 2006 before this Court assailing his retirement from service without providing alternate employment as per Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity, ‘the Act of 1995’). The said writ petition was disposed of by a learned Judge of this Court on 01.08.2006 directing the APSRTC to consider the petitioner’s case for alternate employment expeditiously and preferably within a period of two months from the date of receipt of a copy of the order. Dissatisfied therewith, the petitioner filed Writ Appeal No.942 of 2006. The said appeal was disposed of by a Division Bench of this Court on 30.01.2008 observing that it was deplorable that the petitioner had not been employed as a Shramik though a decision was taken as early as on 06.11.2000 for providing him such employment and in spite of this Court’s order. The Bench therefore directed the APSRTC to provide employment to the appellant as a Shramik within a period of four weeks. Thereupon, the APSRTC under proceedings dated 03.03.2008 appointed the petitioner as a Shramik duly protecting his pay in the post of Driver. However, the period from the date of his being declared medically unfit till he joined duty as a Shramik was directed to be treated as ‘not on duty’ for all purposes, viz., gratuity, provident fund and other attendant benefits etc. Aggrieved by this enforced break in his service, the petitioner is once again before this Court. The APSRTC did not dispute that the disability suffered by the petitioner is covered by Section 2(i) of the Act of 1995. It however alleged that the said Act would have no application to the petitioner as he suffered the said disability due to an attack by his family members owing to some personal disputes. As he was not injured while on duty and the disability did not arise out of or in connection with his employment, the APSRTC asserted that Section 47 of the Act of 1995 would have no application to the petitioner. The APSRTC further stated in its counter that Section 47 of the Act of 1995 refers to Government employment and would therefore not be applicable to it, as it was an industrial establishment. As regards the registration of the petitioner’s name for alternate employment as a Shramik, the APSRTC stated that the same was done pursuant to its policy of earmarking a quota of 10% of the posts of Shramik for rehabilitating medically unfit persons retired from other posts. In so far as the grievance of the petitioner in the present case is concerned, the APSRTC pointed out that he had filed a review application in Writ Appeal No.942 of 2006 for the same relief and as the same was dismissed, the APSRTC contended that the present writ petition was not maintainable. These, then, are the grounds pressed into service by the APSRTC to deny the petitioner’s claim in the writ petition. The preliminary objection of the APSRTC as to the maintainability of this writ petition does not hold water. No doubt, the petitioner in the first instance sought review of the order in W.A.No.942 of 2006, seeking the reliefs sought herein. But, the Division Bench while dismissing the review petition specifically observed that if there is any fresh cause of action, it would be open to the petitioner to take appropriate action in accordance with law. That being so, the dismissal of the review petition does not bar the present writ petition. Relying on case law, Sri V.Narasimha Goud, learned counsel for the petitioner, argued that the approach of the APSRTC in dealing with the petitioner’s case did not conform to the statutory requirements of Section 47 of the Act of 1995. The learned counsel contended that in the light of the clear language of the said provision, the APSRTC was not justified in treating the petitioner as ‘not on duty’ during the period that he remained out of service for various purposes. Refuting these contentions, Sri K.Madhava Reddy, learned standing counsel for the APSRTC, strenuously contended that as the petitioner’s disability arose out of a private quarrel, as evidenced by FIR No.63/99 dated 12.08.1999 lodged by the petitioner himself on the file of Pargi Police Station, Ranga Reddy District, and had nothing to do with his employment, the petitioner was not justified in seeking benefit under Section 47 of the Act of 1995. Reiterating the contents of the counter, the learned standing counsel sought to justify the denial of the claim put forth by the petitioner in the present case. Section 47 of the Act of 1995, to the extent relevant, reads as under: “47. Non-discrimination in Government employments:– (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 benefit: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until suitable post is available or he attains the age of superannuation, whichever is earlier.” Thus, the Section categorically posits an obligation upon an establishment to abide by its mandate. Section 2(k) of the Act of 1995 defines an ‘establishment’ to which the provision would apply. There can be no dispute that the APSRTC fulfills the requirements to come within this definition. This aspect has already been settled in SYED MUSEBULLA ALI V/s. SECRETARY, GENERAL ADMINISTRATIVE DEPARTMENT, SECRETARIAT, HYDERABAD AND OTHERS[1] and MD.JANI MIYA V/s. APSRTC[2]. In spite of the same, the APSRTC once again raised the very same contention in its counter that it would not come within the ambit of the Act of 1995! Apropos the other contention of the APSRTC that the disability suffered by the petitioner was not attributable to his employment so as to deny him the benefit of the Act of 1995, reference may be made to the observations of the Supreme Court in KUNAL SINGH v. UNION OF INDIA[3] while dealing with the import of Section 47 of the Act of 1995: “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 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 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.” The perspicuous wording of the provision and the observations of the Supreme Court supra clearly demonstrate the statutorily binding obligation cast upon the APSRTC, being an establishment within the meaning of the Act of 1995, not to dispense with an employee who acquires a disability during his service. Pertinent to note, the Section speaks of disability acquired by an employee ‘during his service’ meaning while still in service and does not indicate that such disability should be a direct consequence of or be connected to his employment. Once an employee continuing in its service sustains disability, be it for whatever reason or circumstance, the APSRTC is bound to bring him within the protective umbrella of Section 47 of the Act of 1995 and provide him the benefits thereof. This aspect has already been addressed by this Court in SK. MOULANA V/s. DEPOT MANAGER, APSRTC, BANSWADA DEPOT, NIZAMABAD DISTRICT[4]. This Court, while dealing with a similar objection raised by the APSRTC, observed: “8. The above provision of law is an enabling provision to provide alternate employment in the event of an employee acquiring some disability during the course of service. The words "during his service" in my considered view shall not be interpreted in a narrow compass that at the relevant point of time the employee shall be in actual service. It is sufficient if the employee is on the rolls of the organization when he met with an accident at the relevant point of time. The organization has a duty to create alternate employment as per Section 47 of the Act. In fact, Section 47 of the Act makes it clear 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.” Again in M.V.RAMANA RAO V/s. APSRTC[5], a learned Judge of this Court, dealing with a similar contention, observed: “……… the words ‘disability during the course of service’ as mentioned in Section 47 of the said Act has to be construed meaningfully keeping the objectives of the Act in mind and the nature of the disability suffered by employee. As such, I hold that the disability suffered by the petitioner has to be construed as suffered during his service only and therefore, he is entitled to the benefits of the said Act.” Being a party to and having suffered the above Judgments, it is inexplicable as to why the APSRTC continues to raise the same contention ad nauseum. Yet again, in K.B.K.RAO v. CHAIRMAN AND MANAGING DIRECTOR, SHIPPING CORPORATION OF INDIA LIMITED[6], a learned Judge of this Court while dealing with a similar contention held to the effect that it was not open to an employer to contend that the Act of 1995 was not attracted as the employee did not suffer the injury resulting in the disability during the course of employment. The learned Judge was of the opinion that the employer would be bound to comply with the mandate under Section 47 of the Act of 1995 by providing alternate employment. In the light of the aforestated settled legal position that the disability suffered by the employee need not be a result of or arise during the course of his employment, the APSRTC is not justified in denying the benefit of Section 47 of the Act of 1995 to its employee on the ground that he sustained the disability in a private quarrel. Further, in the light of the mandatory obligation cast upon it by Section 47 of the Act of 1995, the action of the APSRTC in treating the petitioner as ‘not on duty’ during the period that he was forcibly kept out of its service by its own inaction cannot be countenanced. Reference in this regard may be made to the Judgment of the Supreme Court in BHAGWAN DASS V/s. PUNJAB STATE ELECTRICITY BOARD[7]. That was a case where the Board had denied alternate employment to the disabled employee on the ground that he had himself sought retirement, overlooking his subsequent withdrawal of the said request. The Supreme Court held that the forcible retirement of the employee in such circumstances amounted to a wrongful termination in violation of Section 47 of the Act of 1995. The observations of the Supreme Court are of relevance: “19. We understand that the officers concerned were acting in what they believed to be the best interests of the Board. Still under the old mindset it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty-bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largesse but their right as equal citizens of the country. 20. In light of the discussions 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 instalments from his future salary. The appellant shall continue in service till his date of superannuation according to the 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.” Pertinent to note, notwithstanding the employee’s own act in seeking retirement on medical grounds in the above case, the Supreme Court being conscious of the mandate and the statutory obligation created by Section 47 of the Act of 1995 held that the employee should be deemed to be in service throughout, entitling him to all the service benefits. The reliefs granted by the Supreme Court as spelt out in the paragraph extracted supra leave no room to doubt as to how a disabled is to be treated by virtue of the protection afforded by Section 47 of the Act of 1995. The provisos to the said Section demonstrate unequivocally that such a disabled employee should not even be subjected to a break in service owing to un-availability of a suitable post and must be accommodated in a supernumerary post till such suitable post is made available. In the light of this clear statutory edict, the action of the APSRTC in taking advantage of its own lapses and treating the period that it kept the petitioner out of service as ‘not on duty’ smacks of illegality and shocking arbitrariness. Notwithstanding the directions of this Court in the earlier round of litigation, the APSRTC continued to raise objections as to the very entitlement of the petitioner to claim the benefit of Section 47 of the Act of 1995 though the very same contentions stood settled in earlier cases to which the APSRTC was a party. Relevant to note, the APSRTC in its counter filed in Writ Appeal No.942 of 2006 raised the very same contention that the petitioner had suffered the disability owing to a quarrel with his relations and not due to his employment. Notwithstanding the same, the Division Bench passed orders directing the APSRTC to consider his case for alternate employment. It is therefore no longer open to the APSRTC to again raise the very same issue so as to deny the petitioner the benefits due to him under the Act of 1995. This approach and attitude on the part of the APSRTC is retrogressive, to say the very least. While implementing a social welfare enactment such as the Act of 1995, the APSRTC is expected to act fairly with due intent being upon implementing the objective of this beneficial legislation. However, the reality is otherwise. This case, arising out of the APSRTC’s obdurate violation of the statutory mandate created by the Act of 1995, clearly demonstrates that this obligation is discharged more in breach. The petitioner is therefore entitled to be treated as ‘on duty’ from 06.06.2000 upto the date of his joining duty as a Shramik for all purposes, including continuity of service, provident fund, back wages, gratuity, attendant benefits, etc. The proceedings dated 03.03.2008 of the APSRTC to the extent it denies him the said benefits shall accordingly stand nullified. The Writ Petition is allowed with costs of Rs.10,000/- (Rupees ten thousand). -------------------------- SANJAY KUMAR,J _______NOVEMBER, 2010 PGS (P.D) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.15140 OF 2008 NOVEMBER, 2010 [1] 1999 (1) ALD 632 [2] 2000 (5) ALD 166 [3] (2003) 4 SCC 524 [4] 2004 (1) ALD 445 [5] 2003 (3) ALD 550 [6] 2009 (6) ALD 212 [7] (2008) 1 SCC (L&S) 242 = (2008) 1 SCC 579