IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1371/2005 Decided on: 11.8.2008 Bali Ram. …Petitioner. Versus Union of India and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Rajesh Mandhotra, Advocate. For the Respondents : Mr. Ravinder Thakur, Central Government Counsel. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was enrolled with CRPF (Central Reserve Police Force) as constable driver on 31.7.1985. He was physically examined by the concerned specialist of the respondents-force and was found fit and no disease was found in the body of the petitioner. He had undergone regular/routine medical check up conducted by the respondent-force. In the year, 1996, he was examined at Government Medical College and Hospital, Jammu. The Medical Record Officer, Government Medical College and Hospital, Jammu had certified that the petitioner was found suffering from Dissemented Choroiditis and Retinal Atrophic Patihics 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Macular involvement left. His visual acuity was 6/12 in right and 6/60 in left eye with no improvement with P.H. (glasses). He was found to be blind by left eye and partially blind by right eye. The Chief Medical officer (NFSG) Station Hospital, GC, CRPF Jammu recommended to put up the case of the petitioner before the Departmental Rehabilitation Board. He was declared unfit for driving and combatant duty and he was referred to medical invalidation board on 17.1.1997 as per circulation order 28/29. He was examined by the Medical Board constituted by Base Hospital-II, CRPF, Hyderabad on 10.4.1997 and he was found permanently incapacitated for further service of any kind in the department. Consequently, he was served with a notice dated 12.2.1998 by respondent No.4 to submit representation against the order of his medical invalidation. He submitted application to respondent No.4 on 26.2.1998. He sought full 100% financial benefits from the department on his invalidation from service, however, vide order dated 11.3.1998 Annexure P-2 he was invalided from service with effect from 11.3.1998. He made a representation to the respondents on 15.10.2000. The same was rejected in the month of December, 2000 vide Annexure P-6. He approached this Court by way of a CWP No. 206/2003. CWP No. 206/2003 was decided by this Court on 31.3.2005. His case was again rejected by the authorities on 27.6.2005. Mr. Rajesh Mandhotra has strenuously argued that the case of his client is covered under the instructions issued from time to time for the grant of invalided/disability pension from the date of his discharge. He has assailed communication dated 27.6.2005 being arbitrary and violative of Article 14 of the Constitution of India. He further contended that the petitioner was serving as a driver and as per the report of the Government Medical College and Hospital, Jammu and Medical Invalidation Board, he 3 has been found permanently incapacitated for further service of any kind and since he was working as a driver, the disability suffered by his client is total. In other words his submission was that since the petitioner was working as a driver, his disability amounts to 100% and not partially. Mr. Rajesh Mandhotra has also drawn the attention of the Court to section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He has strenuously argued that at the time of invalidation of his client from service i.e. 11.3.1998, the provisions of the Act were applicable to the CRPF. He lastly contended that Central Reserve Police Force has been exempted from the applicability of section 47 with effect from 20th March, 2002. According to him, his client should have been suitably adjusted/ accommodated or shifted to some suitable post or if there was no post available for the petitioner, he should have been kept on supernumerary post till the date of his retirement. Mr. Ravinder Thakur, Central Government Counsel has reiterated his stand taken in the reply. The sum and substance of the reply filed by the respondents is that the petitioner has not suffered 100% disability as per circular 28/29 and he is not entitled to invalided/disability pension. The date of issuance of notification dated 20.3.2002 has not been disputed by Mr. Ravinder Tahkur. I have heard the learned counsel for the parties, perused the pleadings and the documents placed on record. It is not disputed by the parties that the petitioner was enrolled in the CRPF on 31.7.1985. He was medically examined at Government Medical College and Hospital, Jammu on 23.10.1996. He was found to be blind by left eye and partially blind by right eye. His case was referred to the Department of Rehabilitation Board. He was declared ‘unfit’ for driving and combatant duty and his case was ordered to be referred to the 4 Medical Invalidation Board. He was declared by the Medical officers of the Base Hospital-II, CRPF, Hyderabad permanently incapacitated for further service of any kind in the department on 10.4.1997 due to his blindness. He was served with one month’s notice on 12.2.1998. He submitted the reply on 26.2.1998. The representation made by him was rejected in the month of December, 2000. Pursuant to the judgment of this Court in CWP No. 206/2003 dated 31.3.2005, the case of the petitioner was again rejected on 27.6.2005. It is evident from the contents of Annexure P-6 dated December, 2000 that the persons, who are invalided from this force on the basis of the recommendations made by the Medical Board they are entitled to two types of payments, i.e. (i) the employee who has suffered less than 100% disability is entitled to Rs. 15,000/- (lump sum) and (ii) the employee who has suffered 100% disability is entitled to Rs. 1500/- per month. According to Central Welfare (Risk Premia) Fund Rules 100% disability for invalidation will be declared when a person becomes completely incapacitated or rendered absolute immobile on account of the following disabilities: insanity, total blindness, total deafness, amputation of both upper limbs at any level, amputation of one upper limb at shoulder level, amputation of both lower limbs at any level, amputation of one limb at hip level. The petitioner has been granted only pension @ Rs. 1275/- per month for life. The petitioner was discharging the duties of a driver. He has been found unfit to discharge the duties of the driver due to his blindness as per the recommendations of the Department of Rehabilitation Board dated 17.1.1997. He has also been found permanently incapacitated for further service of any kind in the Department. He has been declared permanently incapacitated. It was only on the basis of the recommendations of the Medical Board dated 10.4.1997 that he has been invalided out from the 5 service. It is evident from the Medical Board report placed on record that the petitioner was found blind by left eye and partially blind by right eye. Taking into consideration the duties, which the petitioner was discharging even if the petitioner was found partially blind in right eye cumulatively he has to be declared totally blind in view of the nature of the duties he was discharging. He cannot discharge the duties of a driver after being invalided from the force. The petitioner was medically fit at the time of his enrollment and it was only during the discharge of his duties that he was declared medically unfit. The loss of sight of the petitioner is such which has rendered him unable to perform any work for which the eye sight is essential/necessary. His disability was to be assessed at 100% and was entitled to get the dues on the basis of circular 28/29. The respondents while rejecting the case of the petitioner have not gone into the close connection of petitioner’s eye sight with the discharge of his duties for which purpose he was trained. No employer will engage the petitioner, who is suffering from complete blindness in left eye and partially blindness in right eye. It will also be against the public interest to engage such a driver who has been found incapacitated to discharge the duties of a driver. It is declared that the petitioner’s case was to be considered of 100% blindness. He was entitled to get a sum of Rs. 1500/- per month on the basis of circular 28/29. The case of the petitioner has been rejected on 27.6.2005 in an illegal and arbitrary manner. The matter is also required to be considered in view of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as ‘the Act’ for convenience sake), which came into force on 7th February, 1996. Section 2 of the Act defines various expressions, including ‘appropriate 6 Government’, ‘blindness’ and ‘person with low vision’. It will be apt at this stage to reproduce section 2 (a), (b) and (u) of the Act, which read thus: (a) “Appropriate Government” means:- (i) In relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, (2 of 1924) the Central Government; (ii) In relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government; (iii) In respect of the Central Coordination Committee and the Central Executive Committee, the Central Government; (iv) In respect of the State Coordination Committee and the State Executive Committee, the State Government; (b) “Blindness” refers to a condition where a person suffers from any of the following conditions, namely (i) Total absence of sight; or (ii) Visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or (iii) limitation of the field of vision subtending an angle of 20 degree or worse; (u) “Person with low vision” means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device.” Section 47 provides in clear terms that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. First proviso to sub-section (1) of section 47 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 7 and service benefits. Second proviso to sub-section (1) of section 47 provides 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. The wholesome principle postulated under section 47 is that a person, who acquires disability during the service neither his service shall be dispensed with nor he be reduced in rank with a further stipulation that if an employee after acquiring the disability is not suitable for the post he was holding, he could be shifted to some other post of equivalent pay scale and service benefits and if it is not possible to accommodate/adjust the employee against any post, he is to be kept on supernumerary post until suitable post is available or until he attains the age of superannuation. The petitioner, as noticed above, was enrolled in the Central Reserve Police Force on 31.7.1985. His visual acuity was 6/12 in right eye and 6/20 in left eye with no improvement with P.H. (glasses) and he was found to be blind by left eye and partially blind by right eye. The petitioner was found unfit for driving and combatant party by the Departmental Rehabilitation Board in its meeting held on 17.1.1997. The Medical Board has opined on 10.4.1997 that the petitioner is permanently incapacitated for further service of any kind in the department. He was invalided out from service with effect from 11.3.1998. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has come into force with effect from 7th February, 1996. The respondents were bound to consider the case of the petitioner strictly as per the provisions of this Act and he was to be retained in service as per section 47 of the Act by shifting him to some other post in the same pay scale with same benefits and if it was not possible to the Force to adjust him, he was to be kept on a supernumerary post until he 8 was to attain the age of superannuation. The Ministry of Social, Justice and Empowerment had issued notification on 28.3.2002 whereby in exercise of the powers conferred under section 47 of the Act, the Central Government having regard to the type of work carried out exempted all categories of the posts of the combatant of the Armed Forces from the provisions of section 47. The notification is prospective in nature. The Act was also applicable to the Central Reserve Police Force at the time when the decision was taken by the respondents to invalidate the petitioner with effect from 11.3.1998. It appears that the petitioner was not aware of the provisions of the Act, however, it cannot be said by any stretch of imagination that the respondents being the employer were not aware of the Act and its enforcement with effect from 7.2.1996. If the respondents had been alive to the situation that the enactment had already come into force, they were bound to take effective steps for rehabilitation of the petitioner strictly as per the provisions of the Act instead of invalidating him with effect from 11.3.1998. In the present case the petitioner has suffered total blindness taking into consideration the nature of his duties being driver. Mr. Ravinder Thakur, Central Government Counsel, however, has argued that there are no pleadings in the writ petition qua the applicability of the Act. This is a very hyper technical plea. Their Lordships of the Hon’ble Supreme Court in Kunal Singh versus Union of India and another, (2003) 4 SCC 524 while interpreting the provisions of the Act have held that even though a specific plea on the basis of section 47 was not taken before the Court, still the Supreme Court has entertained a new plea being a pure question of law. In the present case even though the petitioner has not taken a plea, however, this is a pure question of law and has been entertained by the Court. Their 9 Lordships have held that an establishment which was not exempted from section 47, a person acquiring disability during service and getting incapacitated, he will be covered by section 47. Their Lordships have held as under: “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 for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service. 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 10 distinct and different definitions of "dis- ability" 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 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 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 at tains 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.” 11 Mr. Ravinder Thakur, has also argued that since the petitioner had been granted the pension @ 1275/- per month, he cannot invoke the protection of section 47 of the Act. This plea has been raised merely to be rejected. This question is no longer res integra since this plea was also raised before the Hon’ble Supreme Court in Kunal Singh versus Union of India (supra), but the same was rejected in the following manner: “We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia special/bus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads:- "72. Act to be in addition to and not in derogation of any other law:- The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities." 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 12 avail able or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.” It is clear from the phraseology employed in section 72 that this Act is in addition to and in derogation of any other law. The fact that the petitioner is getting merely a pension @ Rs. 1275/- after serving the organization for 13 years and suffering disability during the service will not take his case away from the ambit and scope of section 47 of the Act. Their Lordships of the Hon’ble Supreme Court in Bhagwan Dass and another versus Punjab State Electricity Board, (2008) 1 SCC 579 while dealing with the matter under the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 have criticized the approach of the department. The facts of the case in Bhagwan Dass and another versus Punjab State Electricity Board (supra) were that the appellant, who was an employee of the Punjab State Electricity Board suffered visual impairment on 17.1.1994 and then became completely blind. He requested for his retirement vide letter dated 17.7.1996. He was retired on 14.12.1999. However, he was relieved retrospectively from 21.3.1997, i.e. the date of issuance of medical certificate of his blindness. He subsequently wanted to withdraw his request for retirement when he came to know that he was entitled to protection under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. His request for withdrawal for volunteer retirement was turned down by the department. The Hon’ble Supreme Court criticized the approach of the respondent- Board in the following manner: 13 “This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of appellant No.1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Boards rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded