CWP No. 8122-CAT of 2004 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8122-CAT of 2004 Date of Decision: 29-07-2008 Nirmal Rani ......Petitioner Versus Union of India and others ......Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE AJAY TEWARI Present: None for the petitioner. Shri R.K. Sharma, Advocate, for respondent Nos.1 and 2. 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? HEMANT GUPTA, J. The challenge in the present writ petition is to the order dated 26.8.2003, whereby, an original application filed by Smt. Nirmala Devi (hereinafter referred to as `the applicant') was dismissed. Shri Yash Pal, deceased husband of the applicant was employed in the National Dairy Research Institute, Karnal (for short `NDRI') as an Attendant Grade-I, with effect from 24.1.1991. He met with an accident on 25.2.1993 and remained admitted as indoor patient in Sir Ganga Ram Hospital from 26.2.1993 to 19.3.1993. As per the medical opinion, Shri Yash Pal was found to be completely and permanently incapacitated for further service of any kind vide the report dated CWP No. 8122-CAT of 2004 (2) 5.8.1994. A representation was submitted by Shri Yash Pal on 11.10.1995 for his re-examination by the Medical Board on the ground of improvement of his physical condition. However, he was examined by the Medical Board only in the year 2002 and vide report dated 22.5.2002, it was found that there is no improvement in the condition of the applicant. On the basis of such report, an order was passed on 11.6.2002 terminating the services of Shri Yash Pal with effect from 13.8.1994. Unfortunately, Shri Yash Pal died on 13.7.2002. Aggrieved against the termination of his services, the applicant invoked the jurisdiction of the Tribunal by filing an application under Section 19 of the Administrative Tribunal's Act, 1985 ( for short `the Act'), wherein the applicant claimed terminal benefits as well as appointment for her son on compassionate ground. The learned Tribunal dismissed the application, inter- alia, on the ground that in terms of the provisions of the Central Civil Services (Medical Examination) Rules, 1957 (for short `the Rules'), the services of Shri Yash Pal have been terminated with effect from 13.8.1994. It was found that for all practical purposes, the deceased has been declared permanently incapacitated vide medical report dated 5.8.1994. The termination cannot be said to be unjustified only because respondent No. 2 has passed order dated 11.6.2002 conveying termination of services of the deceased with effect from 13.8.1994. It does not ipso-facto create a right for deeming him to be on duty from 1994 onwards to the date of passing of the order. It was also found that since the deceased has not completed 10 years continuous service at the time of invalidment, therefore, the family of the deceased is not entitled to the terminal benefits nor the claim of the son of the applicant can be considered for compassionate appointment. Learned counsel for the respondent relies upon Rule 2 CWP No. 8122-CAT of 2004 (3) (2) of the Rules and Rule 20 of the Central Civil Services (Leave Rules), 1972 (for short `the Leave Rules'), to contend that Yash Pal would be deemed to be invalidated out of service on the expiry of six months of leave i.e., the maximum leave which could be granted under Rule 20 of the Leave Rules. Thus, the order of termination has been rightly passed by the competent authority. However, learned counsel for the respondent was confronted with the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short `the Act'), which contemplates that services of an employee acquiring disability during service, cannot be terminated. Learned counsel for the respondents has contended that since the termination has been effected from the retrospective date and in terms of the Rules referred to above, Yash Pal is deemed to be invalidated out of service prior to the commencement of the Act, therefore, the benefit of Section 47 of the Act, cannot be extended to the husband of applicant i.e .Yash Pal. It is not in dispute that the order terminating the services of Yash Pal was passed on 11.6.2002 i.e., after the enactment of the aforesaid Act. Once, the termination has been effected after the commencement of the Act, the same is in violation of the provisions of Section 47 of the Act and thus, cannot be sustained. The only argument, which now requires to be examined is whether the services of Shri Yash Pal can be dispensed with, with the retrospective effective or can it be said that the service came to an end with the expiry of the maximum period of leave contemplated under Section 20 of the Leave Rules. Rule 20 of the of the Leave Rules, reads as under:- “20. Leave to a Government servant who is unlikely to be fit to return to duty CWP No. 8122-CAT of 2004 (4) (1) (a) xx xx xx (b) xx xx xx (2) A Government servant who is declared by a medical authority to be completely and permanently incapacitated for further service shall- (a) if he is on duty, be invalidated from service from the date of relief of his duties, which should be arranged without delay on receipt of the report of the medical authority; if however, he is granted leave under sub-rule (1) he shall be invalidated from service on the expiry of such leave; (b) if he is already on leave, be invalidated from service on the expiry of that leave or extension of leave, if any, granted to him under sub-rule (1).” A perusal of the above would show that the opinion of the Medical Board was received on 5.8.1994. But no order in respect of services of Yash Pal was passed. It was subsequent to second report of the Medical Board, the order terminating the services has been passed. No order of declining the leave was passed in respect of Yash Pal by the competent authority. There is no automatic cessation of service even if the report of the Medical Board is received to the effect that the Government servant is completely and permanently incapacitated. On the basis of such medical report, an order is required to be passed. Such order has been passed in the year 2002, therefore, it cannot be said that the service came to an end soon after the report of the Medical Board was received in the year 1994. Apart from the said Rule, learned counsel for the respondents could not refer to any precedent or Rule in respect of terminating the service of Yash Pal with retrospective effect. Reference may be made to the Hon'ble Supreme Court CWP No. 8122-CAT of 2004 (5) judgment in Kunal Singh v. Union of India and another, (2003)4 SCC 524, wherein it was held that an employee, who acquires disability during his service, is to be protected under Section 47 of the Act. In view of the said fact, we are of the opinion that the order passed on 11.6.2002 terminating the services of Shri Yash Pal, with retrospective effect, is wholly illegal; unwarranted and unjustified and is violative of the provisions of Section 47 of the Act. Therefore, the termination of Shri Yash Pal, after the commencement of the Act is of no legal consequence and unjustified. In view of the above, the present writ petition is allowed. The impugned order passed by the Tribunal dated 26.8.2003 is set aside. As a consequence thereof, the Original Application filed by the applicant is allowed and the order dated 11.6.2002 terminating the services of Shri Yash Pal with effect from 13.8.1994 is set aside. The respondents are directed to treat Yash Pal in service upto the date of his death i.e., 13.7.2002 and pay all consequential benefits. Needful be done with a period of three months. (HEMANT GUPTA) JUDGE (AJAY TEWARI) JUDGE 29-07-2008 ds