1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 2969/2005 (Jagdish Chand Parmar Vs. The Oriental Insurance Company Ltd. & Ors.) ......... Date of Order : 27/11/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Rajesh Joshi for the petitioner. Mr. M.S.Singhvi for the respondents. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of order Annex.8 dated 10.05.2005 passed by respondent No.3 terminating his services and payment of regular salary with consequential benefits etc. Briefly stated the facts and circumstances of the case giving rise to the instant writ petition are that the petitioner who is member of Scheduled Caste was appointed by the respondents as part-time worker on the post of “Safai Karamchari” by order dated 22.03.1991 Annex.1 on adhoc basis issued by respondent Regional Manager, Oriental Insurance Company Ltd. Jaipur. The petitioner 2 from the date of initial appointment in the year 1991, was discharging the duties with utmost satisfaction and devotion. While, the petitioner was in the employment of the respondents, when he was cleaning the staircase of first floor of office of the respondent insurance company, he fell down from staircase and accidently suffered grievous injuries on his right leg. He was hospitalized and subsequently operated upon and ultimately he lost his one of the leg and became permanently handicapped in the year 2001. Inspite of having suffered injuries and becoming permanently handicapped, the petitioner discharged his duties with devotion and satisfaction of the higher authorities of the insurance company. A medical board was constituted for medically examining the petitioner in respect of his permanent disability. The petitioner was medically examined and a certificate of permanent disability has been issued vide Annex.2 in favour of the petitioner. The case as set up by the petitioner is that he suffered the injuries while in the employment of the respondent company and while discharging the duties at the respondent's office. However, by order dated 28.02.2002 Annex.3, the petitioner was permanently appointed in the pay scale of Rs.2790-110-3340-115-4260-135-4800-165-5130 on the post of Safai Karamchari. The petitioner was discharging the duties as permanent employee of the respondent department from last two decades. Initially he was appointed on probation vide order dated 28.2.2002 Annex.3 for a period of six months which was 3 extended by the respondents from time to time vide Annex.4,5 and 6. According to the petitioner, the respondents extended the probation period with ulterior motive and the petitioner being a poor and uneducated person being member of the scheduled caste was not in a position to protect himself from the action of the respondents extending the probation period. The respondent insurance company sought opinion from the medical board regarding permanent disability of the petitioner and the medical board opined that the petitioner is not fit for giving services as Safai Karamchari, however, it was left open for the department to take the petitioner on duty or not vide order Annex.7 dated 02.04.2003. The petitioner was served with a notice terminating his service on 10.05.2005 Annex.8. Aggrieved by the order terminating his service vide Annex.8, the petitioner has filed the instant writ petition. It has been averred that the petitioner cannot be discriminated in view of the provisions of The Persons With Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995 (for short 'the Act of 1995' hereinafter). According to the petitioner, Section 47 of the Act of 1995 protects the petitioner from being discriminated only on the ground of having suffered the disability while discharging the official duty of the employer respondent insurance company. A reply to the writ petition has been filed by the 4 respondents stating therein that the petitioner was engaged for sanitation work that too on part-time basis and after about five years of his working, he started taking unduly long period of leave and remained absent for a period of 389 days and thereafter the petitioner has not been able to discharge his duty properly as having suffered from a serious ailment namely Pemphigus and on account of this disease, he became permanently handicapped and it was impossible for the petitioner to discharge the duties of Safai Karamchari and has stopped discharging the duties though attending the office of the respondent company with the support of somebody and faced with this situation, the respondent insurance company had to employ sweeper from Jalore office to Abu Road Office shifting Kishan Lal Sweeper from Jalore Office to Abu Road Office vide Annex.R/2 and on these premises, it is submitted that the respondents were justified in terminating the services of the petitioner. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Kunal Singh Vs. Union of India and another AIR 2003 SC 1623 and a decision of this Court in Rama Vs. State of Rajasthan and Ors. 2005 (5) RDD 1439 (Raj.). Per contra, learned counsel appearing for the respondents has relied on decisions of Hon'ble Supreme Court in Jaswant Singh and 5 Another Vs. State of Punjab (1996) 10 SCC 570 and in Managing Director, U.P.S.R.T.C. and Another Vs. P.N.Tandon and Another (1998) 9 SCC 681. Section 47 of the Act of 1995 reads as under:- “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: Provided that the Appropriate Government may, having regard to the type of work 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.” So far as, as to whether the respondent insurance company falls within the definition of Establishment is concerned, Section 2(k) of the Act defines the Establishment which provides 6 that an establishment means a Corporation established by, under a Central, Provincial or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government Company as defined under Section 617 of the Companies Act, 1956 (for short 'the Act of 1956' hereinafter) and includes Departments of a Government. According to the petitioner, the respondent insurance company is a Government company formed under the General Insurance Corporation of India which was formed under Section 9 of the General Insurance Business (Nationalized) Act, 1972 and as such the respondent insurance company is a company within the meaning of Section 617 of the Act of 1956 and therefore, the provisions of the Act of 1995 are fully applicable in the case of respondent insurance company and the respondents were wholly unjustified in terminating a handicapped person like the petitioner who has served for last two decades with the respondent insurance company. In Kunal Singh Vs. Union of India and another (supra), the Hon'ble Supreme Court observed as under:- “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 7 mandatory nature. It 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. The plea that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2 (i) of the Act and not a person with disability.” The Hon'ble Supreme Court further held that merely because under Rule 38 of CCS Pension Rules, 1972 the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay- scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, 8 whichever is earlier. In Rama Vs. State of Rajasthan and Ors. (supra), this Court observed as under:- “Sub-section (1) of Section 47 of the Act, 1995 provides that no establishment shall dispense with or reduce in rank, an employee who acquired a disability during his service. It further provided that if an employee, after acquiring disability, is not suitable for the post he was holding, be shifted to some other post with the same pay scale and service benefits. It also provided 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. Apart from that, Respondent-State is a Welfare State and cannot go against the welfare policy. It is also significant to note that the petitioner belongs to the Scheduled Tribe and his livelihood has been snatched/taken away, by taking the advantage of his blindness, in a well calculated manner. No doubt, the petitioner belongs to a weaker section of the society. According to Article 46 of the Constitution of India, the State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. A person does not acquire or suffer disability by choice. An employee, who acquire disability during his service, is sought to be protected under Section 47 of the Act, 1995. Such employee, 9 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. 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. In other words, Section 47 casts statutory obligation on the employer to protect an employee acquiring disability during service.” It was further held by this Court that 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 realise the objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view, a meeting called the “Meet of 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 10 proclamation and agreed to give effect to the same. Pursuant thereto, this Act was enacted. The Act provides some sort of succour to the disabled persons. In Jaswant Singh and Another Vs. State of Punjab (supra), the appellants therein were appointed as drivers. While in service, they became blind and therefore, they sought for alternative appointment. Instead, they were removed from service. The Hon'ble Supreme Court while allowing the appeals filed by the appellants therein, directed the respondent employer to consider the cases of the appellants for alternative appointment as and when vacancies arise. The Hon'ble Supreme Court considered the earlier decision in Anand Bihari Vs. Rajasthan SRTC (1991) 1 SCC 731 wherein Hon'ble Supreme Court held as under:- “In view of the helplessness shown by the Corporation, we are constrained to evolve a scheme which, according to us, would give relief as best as it can to the workmen such as the ones involved in the present case. While evolving the scheme and giving these directions we have kept in kind that the workmen concerned are incapacitated to work only as drivers and are not rendered incapable of taking any other job either in the Corporation or outside. Secondly, the workmen are at an advanced age of their life and it would be difficult for them to get a suitable alternative employment outside. Thirdly, we are also mindful of the fact that the relief made available under the scheme should not be such as would induce the workmen to feign disability which, in the case of disability such as the present one viz., the development of a defective eyesight, it may be easy to do. Bearing in mind all the aforesaid factors, we direct the Corporation as follows:- (i) The Corporation shall in addition to giving 11 each of the retired workmen his retirement benefits, offer him any other alternative job which may be available and which he is eligible to perform. (ii) In case no such alternative job is available, each of the workmen shall be paid along with his retirement benefits, an additional compensatory amount as follows: (a) where the employee has put in 5 years' or less than 5 years' service, the amount of compensation shall be equivalent to 7 days' salary per year of the balance of his service. (b) where the employee has put in more than 5 years' but less than 10 years' service, the amount of compensation shall be equivalent to 15 days' salary per year of the balance of his service; (c) where the employee has put in more than 10 years' but less than 15 years' service, the amount of compensation shall be equivalent to 21 days' salary per year of the balance of his service; (d) where the employee has put in more than 15 years' service but less than 20 years' service, the amount of compensation shall be equivalent to one month's salary per year of the balance of his service; (e) where the employee has put in more than 20 years' service, the amount of compensation shall be equivalent to two months' salary per year of the balance of his service. The salary will mean the total monthly emoluments that the workman was drawing on the date of his retirement. (iii) If the alternative job is not available immediately but becomes available at a later date, the Corporation may offer it to the workman provided he refunds the proportionate compensatory amount. (iv) The option to accept either of the two reliefs, if an alternative job is offered by the Corporation, shall be that of the workman.” 12 In Managing Director, U.P.S.R.T.C. And Another Vs. P.N. Tandon and Another (supra), the employer Managing Director retired compulsorily its employee on the ground that he had become blind and therefore, was not able to do the accounts work. In that case, the employee was Audit Officer in U.P. State Road Transport Corporation. The Apex Court upheld the order of compulsory retirement and held that the High Court was not right in directing the appellant-Corporation to provide alternative employment. However, having regard to the facts of the case, the Corporation was directed to determine pension by notionally adding eight years' qualifying service which the respondent would have rendered had he retired on superannuation. However, the Apex Court made it clear that such a direction not to be treated as a precedent. Under Article 142 of the Constitution of India when it has been made clear by the Apex Court that it shall not be treated as precedent, then the judgment cannot be cited as precedent in any other case vide decision of the Hon'ble Apex Court in Y.Suresh Babu Vs. State of A.P, 2005 (1) SCC 347. In the instant case, indisputably the petitioner was appointed as Safai Karamchari in the year 1991 by order dated 22.03.1991 and up till the date of order impugned Annex.8 dated 13 10.05.2005, the petitioner continuously served the respondent insurance company on the post of Safai Karamchari. Learned counsel for the petitioner submits that by order dated 19.05.2005, the effect and operation of the order dated 10.5.2005 (Annex.8) has been stayed and therefore by virtue of the interim stay order, the order terminating services of the petitioner has not been executed and the petitioner has been continuing in service with the respondents. The nature of work and the appointment granted to the petitioner was with regard to cleaning the office of the respondent establishment. The petitioner specifically came with a case that while carrying out the official duty of cleaning the office at first floor of the building of the respondent company, he suddenly fell down from the staircase and suffered grievous injuries and was taken to the hospital, treated and operated upon and ultimately the injuries suffered by the petitioner while in the employment resulted in loss of his leg, yet he continued to work as Safai Karamchari for good number of years and abruptly by order Annex.8 his services came to be terminated. The petitioner has been rendered permanent disabled by sustaining the injuries while performing the official duties of employer and therefore, in my view, he is entitled for the protection of Section 47 of the Act of 1995 in view of the decision of Hon'ble Supreme Court in Kunal Singh Vs. Union of India and another (supra) and in Rama Vs. State of Rajasthan and Ors. (supra). In this view of the matter, I 14 am of the considered view that the respondents were not justified in terminating the services of the petitioner by order impugned Annex.8 dated 10.05.2005. Consequently, the writ petition is allowed. The impugned order Annex.8 dated 10.05.2005 is set aside and quashed and the respondents are directed to allow the petitioner to continue in service. Stay petition also stands disposed of. There shall be no order as to costs. (H.R.PANWAR), J. rp