1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5482 OF 2004 Maharashtra State Road Transport Corporation. ...Petitioner. Vs. Manikrao Ganpat Hajare. ...Respondent. .... Mr. G.S. Hegde with Mr. G.A. Kamalkar for the Petitioner. None for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 30, 2008. P.C. Counsel appearing on behalf of the Petitioner submitted that the issue which arises in this case is covered by the judgments of the Supreme Court in Kunal Singh vs. Union of India, 2003 (2) ALL MR 369 and the Union of India vs. Sanjay Kumar Jain, AIR 2004 SC 4139. In the circumstances, with the consent of Counsel appearing on behalf of the Petitioner, the Petition is taken up on Board for hearing and final disposal. 2. The Respondent was engaged by the Maharashtra State 2 Road Transport Corporation – the Petitioner and was employed as a conductor. On 2nd January 1996, the bus met with an accident as a result of which the Respondent suffered injuries and was admitted initially to the Sion Hospital and later, to the K.J. Somaiya Hospital. The Respondent was discharged on 1st July 1997 and was issued a certificate of fitness by the Hospital on 21st October 1997. The Respondent was thereupon sent to the JJ Hospital for medical examination and a certificate dated 17th November 1997 was issued to the effect that the Respondent was fit to perform light duty. According to the Petitioner, its Chief Medical Officer had also recommended that the Respondent should be given light work and accordingly, he was allotted light duty at the Bombay Central Bus Depot from 15th November 1997 until 15th November 1998. The Respondent was again sent to the Medical Board on 17th October 1998 and the Board certified that he was fit for light work. The services of the Respondent were terminated on 8th December 1998 on the ground that there was no policy of providing a light job to a conductor who is found to be medically unfit. 3 3. Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Act defines the expression “disability” in Section 2(i) as follows: “(i) “disability” means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness.” The definition includes a locomotor disability as a category of disabilities. The expression “locomotor disability” is defined in Section 2(o) to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. The expression 'persons with disability' is defined in Section 2(t) to mean a person suffering from not less than forty percent of any disability as certified by a medical authority. Section 47 of the Act provides as follows: “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 4 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.” 4. In Section 47, there is an absolute prohibition on the dispensing of the service of an employee who acquires a disability during service. If the employee after acquiring a disability is not suitable for the post which he is holding, the Act permits the employer to shift the employee to some other position with the same pay scale and service benefits. In the event that it is not possible to adjust the employee against any post, he is to be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Under the proviso, the 5 appropriate Government is empowered to exempt any establishment from the provisions of the Section, having regard to the type of work carried on in the establishment, by a notification and subject to such conditions as may be specified. 5. These provisions were interpreted in the judgment of the Supreme Court in Kunal Singh vs. Union of India, 2003 (2) ALL MR 369 (SC). The Supreme Court held as follows: “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, he 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. 6 Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.” A similar view was taken by the Supreme Court in the judgment in Union of India Vs. Sanjay Kumar Jain, AIR 2004 SC 4139, in the context of promotion. 6. The Learned Trial Judge has correctly relied upon the judgment of the Supreme Court in Kunal Singh (supra). The Respondent is a person with disability within the meaning of the Act and the Petitioner was not justified in terminating his services on the ground that there was no policy to provide alternative employment to an employee, who was rendered medically unfit as a result of an accident. In the circumstances, the direction which has been issued by the Learned Trial Judge cannot be faulted. The Petitioner is duty bound to comply with the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 7 7. The Petition shall accordingly stand dismissed. 8. The amount of back wages deposited in pursuance of the interim order dated 7th April 2005, shall be paid over to the Respondent-workman. .....