IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7979/2008 Reserved on:7.7.2009 Decided on:21.8.2009 ________________________________________________ Puran Dutt. …Petitioner. Versus Himachal Road Transport Corporation and another. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Ms. Ranjana Parmar, Advocate. For the Respondents: Mr. Adarsh Sharma, Advocate ________________________________________________________ Rajiv Sharma, Judge . The petitioner has assailed Annexure A-15, whereby he has been retired from the service with immediate effect on medical ground under the provisions laid down under Rule 38 of the Central Civil Services (Pension) Rules, 1972. Mrs. Ranjana Parmar, Advocate appearing on behalf of the petitioner has strenuously argued that the respondents while retiring 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 the petitioner from service have failed to take into account Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “the Act” for brevity sake). She then contended that as per the medical opinion, the petitioner was fit to discharge the light duties. However, the respondent-Corporation in an illegal and arbitrary manner has sought specific opinion from the Medical Board whether the petitioner was fit to discharge the duties of driver or not. In other words, her submission is that the petitioner after his disability which he incurred during the course of his employment in the Corporation should have been offered lighter job. Mr. Adarsh Sharma, Advocate appearing on behalf of the respondent-Corporation, has supported the decision of the Corporation, whereby the petitioner has been retired from service on medical ground. He then contended that the petitioner has not taken a specific plea with regard to the implementation of the provisions of the Act. According to him, the petitioner is estopped from taking up the plea which has not been taken in the pleadings. He lastly contended that the petitioner has been retired under Rule 38 of the Central Civil Services (Pension) Rules, 1972 and he has got invalid pension and in these circumstances, Section 47 of the Act cannot be applied. I have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioner was appointed as a Driver in the respondent- Corporation on 20.12.1990. He met with an accident and remained in Hospital with effect from 30.7.1999 to 20.12.1999. He was declared fit to resume the duties vide Annexure A-1. He was advised to undertake 3 light duties. Consequently he was posted in Garage Section in place of one Shri Kulbhushan Singh, Clerk. He was assigned light duties as per Annexures A-2 to A-4. He was directed to appear before the Chief Medical Officer, Deen Dayal Upadhyay Hospital, Shimla vide letter dated 25.3.2000. He was examined by the Medical Board. The Medical Board has certified that the petitioner was not fit for driving for one year. However, he was declared fit for other light duties. The certificate issued by the Medical Board is Annexure A-6. In sequel to Annexure A-6, he was assigned light duties as per Annexures A-7 to A-10. He was again directed to appear before the Medical Board vide Annexure A-11. He was examined by the Medical Board. He was recommended fit for sedatory job vide Annexure A-12. He was assigned light duties after the issuance of Annexure A-12. Surprisingly, the petitioner was again directed to make himself available before the Chief Medical Officer, Deen Dayal Upadhyay Hospital, Shimla. A specific direction was given to the Chief Medical Officer to recommend whether the petitioner was fit or unfit to driving duty in the respondent –Corporation. He was examined by the Medical Board and was not found fit for the job of Driver. The request made to the Chief Medical Officer is dated 13.7.2001. Thereafter, the Medical Board opined that the petitioner was unfit for the job of Driver vide Annexure A-14 dated 3.8.2001. He was retired from service on medical ground vide order dated 19.9.2001(A-15). Mrs. Ranjana Parmar, Advocate has drawn the attention of the Court to Section 47 of the Act, which reads thus: “47. Non discrimination in Government employment. 4 (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.” A bare perusal of Section 47 of the Act reveals 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. The respondents have not followed the mandate of Section 47. The Act is applicable to the Corporation. It is true that this plea specifically has not been taken by the petitioner in the petition, however, this is a pure question of law and this plea has rightly been taken by Mrs. Ranjana Parmar, Advocate. In fact, the petitioner has been assigned light duties vide Annexures A-2 and A-4. The respondent-Corporation for the reasons best known to it had been 5 seeking medical opinion from time to time from the Chief Medical Officer, Deen Dayal Upadhyay Hospital, Shimla. The Medical Board has specifically held the petitioner fit to perform light duties as per Annexure A-6. He had discharged the light duties on the basis of Annexures A-7 to A-10. Even, as per Annexure A-12, the Medical Board has found the petitioner fit for doing sedatory job. There is no explanation why the respondent-Corporation has again sought specific medical opinion from the Medical Board whether the petitioner was fit or unfit to work as a Driver vide Annexure A-13. Once the petitioner was found fit to discharge the light duties as per medical opinion, he was not required to be re-examined by the Medical Board to assess his suitability to drive. The respondent-Corporation has given complete go-bye to the mandatory provisions of the Act. The respondent-corporation is not exempted from the operation of the Act and is bound to implement the same. Their Lordships of the Hon’ble Supreme Court in Kunal Singh versus Union of India and another, (2003) 4 SCC 524 have held that although before the High Court no argument was advanced specifically in support of the writ petition on the basis of section 47 of the Act, a specific ground was raised in the appeal. Their Lordships have permitted to raise pure question of law. Their Lordships have further held that a person does not acquire or suffer disability by choice. An employee, who acquires disability during the course of service, is sought to be protected under section 47 of the Act specifically. Their Lordships have also held that merely because of rule 38 of the Central Civil Services (Pension) Rules, 1972, the appellant got invalid pension is no ground to deny the protection 6 mandatorily made available to the appellant under section 47 of the Act. Their Lordships have also reiterated the legislative history of the Act. Their Lordships have held as under: “1. The appellant was recruited as a Constable in the Special Service Bureau (for short 'the SSB'). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20.11.1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he would discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in the SSB. Hence, this appeal is filed assailing the impugned order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act). However, a specific ground is raised in this appeal based on Section 47 oi the Act. Since it is a 7 pure question of law, we have heard learned counsel for the parties or the contentions including the one based or Section 47 of the Act. 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 for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service. 8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal 8 opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to 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 proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 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 "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, 9 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 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 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. 12. 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 10 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 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.” Their Lordships of the Hon’ble Supreme Court in Bhagwan Dass and another versus Punjab State Electricity Board, (2008) 1 SCC 579 have criticized the approach of the Punjab State Electricity Board for its highly insensitive and apathetic attitude. In this case the appellant became blind and he remained absent from 18.1.1994 to 21.3.1997. He had requested for his retirement vide letter dated 17.7.1996. He was retired vide order dated 14.12.1999. He wanted to withdraw his request of his retirement when he came to know that he was entitled to protection under the Act. The request for withdrawal was turned down by the Departmental authorities. In these circumstances, their Lordships have held as under: “2. 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 11 corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous. 18. 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 him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable. 19. We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set 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 12 charity or largess 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 No.1) with effect from March 21, 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 March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments 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.” Moreover, the respondent-Corporation has also not followed the mandate of Rule 38 of the Central Civil Services (Pension) Rules, 1972. He was found fit to discharge light duties as per Annexures A-1 and A-6 and sedatory job as per Annexure A-12. The case of the petitioner, in view of the observations made hereinabove, is squarely covered under Section 47 of the Act. The action of the respondents to retire the petitioner on the basis of the recommendations made by the Medical Board vide Annexure A-15 is declared illegal and arbitrary. 13 Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-15 dated 19.9.2001 is quashed and set aside. The respondents are directed to suitably adjust/accommodate the petitioner as per the mandate of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 within a period of four weeks from today. No costs. (Rajiv Sharma), J. 21.8. 2009. *awasthi*