fK. B|ff IN THE HIGH COORT OF JUDI^ATURE AT BIIASPUR8_ ''ISGARH iss •'••' .• &sf Bfi B8? WRIT PETITION N0 -2<®0 /2001 PETITIONER* Sri R.P Mishra,s/o S.N Mishra aged 37 years, . B^o Quarter No D.BlockNO.8 Stree-b No 7, Sector3» Bhllai,Di3tt.Durg.Chhatti3garh :VERSUS_:_ 1. Union of India,Through: The Secretary» Ministry of Home Affairs, ^IEW DELHI . 2. Asstt. Inspector General, (Establishment) Directorate General, Central Industrial Security Jorce Block 13,OGO complex, Lodhi ^oad, New Delhi-3 3. Dy.Inspector General, Central Industri.al Sscurity FQrce, Unit Bhilai Steel Elant Bhilal-Durg " . ^? 4. TheConniandsnfc, % Central IndusSrtal Secyri.tx\,Eorcffi .'Uait';BbiXs^;&teel;'PIant^^;; •,-:'•'•, ..•S^ Bhilai-aiu?g~ S^g:^-^*SS9S^SSmKMSsSS i:i:?'?'S'%^^'S%Sf:%M!®*SBB 'ia-ITIffl-I 'UNBER.ARTIGSE.^a26, AND 227 ,OP THE 'CONS'i'ITOTION lC®• INES^ •i3rV~ .^*^ .•jiB^1' SsS'ff.^ try^';' y^i |d wtdeosuit 11.3ated o^-o^oo 2-^ B^PPndent ito St MaiS^el ^a^ ?£*'ns-^Bg?i(n^3/'ye- F'*l.*s^t.^hawat-' '"Tf Ua(l.Steel-%ant i '7; ;'',:^ ^. ^ ,.s .'''tefBshi^-.Burg,'"'"^ ^ HI 1 COURT 01- C1-iHATnS6ARH AT Bi.LASPUR WRIT PfcTTUON No. 2»U/ZOOl Sri R.P. Mishrci Versus Union of India and others Post for ORDERS on l^) -11-2006 Sd/- Ohu-endraMfe^ Judge • fc^l: \^ HISi-t COUKT OF CMMATTISeARM AT 8ILA5PUR WRSL Pfc 1111UN N0. 28U/ZUU1 Sri R.P. Mishr-a 11 Versus Union ot india and others v Shri K.5. Koshy, Advocate tof petitioner. Shri S.K.. Ber-iwal, Stcndinq C'ounsel with Shr-i Ajay BaraiK, Advocate f ut i i 1's* i is-ai/wf iw&l l) ••r. O R D ER Ihe petitioner by this petition under Article 'i'ibl'i'i! ot the C.'onstitul'ion ot india has challenged the order dated t3-l-2UUl ot Annexure P-1 issued by respondent No. 1 whereby respondent No. 2 hos confirmed the order passed by the C'ommandant, Central Industr'ial Secur-ity f-orce (C.l.S.h.), unit Bhilai Steel Plant, Bhilai dated /-6-ZUUU ot Annexure f-'Z. 'i. Co.se ot the petitioner is that the petitioner wos wor'kinq as C'onsta&le ti'ith Central Industriai Security Force, Unit Bhiiai Steel Piant, Bhilai w/fth eftect from lb-/-19B;J. He was issuecl an order ot Amiexure P-~3 to proceed on temporapy duty to C.I.S.F. unit K.S.T.P.P., Korba to attend a d'epar-tmentai enquiry on 15-9-199/. Ihe train by which he reas proceedinq to Korba met with sn accident on route snd in the above accident, The petitioner sustoined multiple in.iuries on his head and cervical spine injury with .tracture on his vertebra 06 and 07, and C4 and C5. i-ie was admitted firstiy into KSTPP, K.orba Hospital and thereatter- shitted to the Bhilai Steel F'iant MospitQl tor further treatment. The petitioner remained in hospital til! 30 jQnuary', 199S. He was deciared fit with effect from 31" Januarv, 1998 for pertorminq liqht nature ot duties other* than tield work ond accordinqly he Joined his duties with effect from 31" Jonuary. 1998 and the resoondents al'otted him liqht nature ot dutias i.e. ottice work and table work. A show csuse notice of Annexure P-4 daTed 6/8-&-2WJU was issued to the petitioner callinq upon him to show cause as to why he should not be I'l- retired troni service on account ot his physical intirmity as per medical (•epor-t ot Annexure P-&, to which the petitioner repiied vide Annexures !^-6 snd V-l. Reter'rinq to the report ot Annexure H-B dated 4-4-ZUUU by the Medical tioard, the petitioner' submitted thst he wos in a position to perfor-m duties jn a sittinq.position and was only untit tor tield duties. Ihe petitioner' was aqain sent tor medical examination by medical board which gave the report vide Annexures H-1U and F-11 respectively. I hese repor'Ts specitieally msntion that the petitioner ccn do any Job in a sitting posiTion like telephone attendant and table work etc. and that his condition is fast improving. Ihe r'espondents vide order ot Annexure 'i'-Z, retirsd The petitioner trom ser'vice with immediQte ettect owinq to his physical intirmity and his petition for canceiiotion of finai order of Annexure P-2 was rejec^ed by order of Annexu"eP-l. ii-sr 4. Learned counsel tor- the petitioner submits that atter discharqe trom the-hospitsi, the petitioner Joined his duty on 31" January. 1998 as he was deciared m&dicaliy fit to perfor'm iiqht duties other than the fieid work. He continued to dischor'qe his dutles for a period of almost Zf yeors when he i»'QS served with a show cause notice of Annexure P-4 on 6/8 May, 2000. The reports of Medical Board contained in Annexures P-10 and' P-11 cleariy rnention that the petitioner is tit tor turther service of a less labor'ious 'n ' •f- (^ character than that which he had been doing and he is copable ot pertorminq table work, ottice Job, telephone attendont, etc. and he is improvinq qr-adually. 1T is Turther' contended that the review petition ot the petitioner was rejected vide order of Annexure K-l with an observation that C'.i.S.f-. is an arwed torce ot The Union and its all members should be fit in all respect to per-torm their duties. Ihere are no separate p6sts sanctioned in c.1.5.h. which carries less laborious job, ther'etore, it may not be possible To employ a medically untit person on any lower post in c'lSh'. However", the cbove order is discriminstor'y and contrary to'the Qdmitted tacts as in many cases, the respondents hsve retained the employees in service by giving them liqht dutias in the ottice. Ihe petitioner places relicnce in the JudgmenTs in the ^ -V- reported in AIR 199S S€ 519, ond Kinai SSnah -v- Un'ion of India and wwtiterrepovtea m [2033} 4 5CC 924. S>. (Jn the other- hand, iearned counsel tor the respondents not disputing the averments ot the petition, so tar as it relates to'employment, accident durinq the course of emptoyment and the cer'tificates ot medica! board Tiled by the petitioner, submits that trom the C'ertiticates ot Annexures P-1U and P-11, it is evident Thiat the petitioner was tound to be completeiy and permanently incapacitoted tor turther service ot any kind in the department to which he belonqs, in consequence ot oTd fracture on Vertebra with Tracture on D-6 and D-/. Ihe extent ot disability ot the petitioner' was tound To be about IWa vide r'eport o1- Annexure R-;;. As per C'ircular Annexure R-3, there is a direction by the respondent-orqanizQtion that the employees who are tound per'manently incapacitated tor- active service or other iwise al-l-er /' ,/• . {^ msdical examination, the competent authority may retire such goyernment sefvant from service, ifhe 'is a permanent qover-nment servant and qrant him invciiid pension/firatuity etc. undep Ruie 38 of Centrai Civii Servicss (Pension) Ruies, 1972 and this is aiso appiicable to such disabled persons who attain disabiement which is attr'ibutiAile to the qovernment service. Repiying to the specific instances qiven in the petition jn par-a 6-0, it is contended that Constabie 6.N. Sahu and V. Devi t>as, in the r'espondent-organizction posted st CISF, Unit Bhiiai Steei Picnt, Bhilai were found medicaiiy fit to resume duty and they were recornmended to be qiven liqht Job and in thess cir'cumstances, they have been retained in the empioyment. 6. I have heard the learned counsei for the parties. 7. In the instant matter, facts are not in dispute. It is not in dispute that the petitioner meT with a r'ailway accident and sustained injuries deseribeci in 1tie repor-t of msdical 'ooard. It i.s also not in dispute thct the petitioner* atter his dtecharqe trom hospital was allowerf To join servicas on Sl-l-iyytt and discharqed his duties under~ the respondents tilf he was retired from service vide order of Annexure P-2 on 7 June, 2000. Ruie 38 (4j ot the C'entral Civil Services (Kension) rules, Wf'i provides that where the medical authority reterred toin sub-rule i? has declffl-ed a iSovernment servant fit for further' service of I'ess iaboriouy character, than that which he has been doing, he shouid, provided he is wiiiinq to be SQ empioyed, be zmpioyed on iower post and if there be no means of empioying him even on a 'iower posT, he may be adiiiitted to invalid pension. Ihe petjtioner has been retir'ed &y order ot Annexure K-l and P-e; with an observation thaT there afe i^ no sepin-Qte posts ssnctioned in the CISF' which car'ries leas laborious job. !heretore,it may not be possibte to employ o medically untit person on any lower post in C'J.Si-'. Ihe above cited reason cannot be justitied in view ot the specitically cited cases ot inciividuals in para 6-D ot the petition vehers similoirly situated disabled employees were not retired and ware retained in smployment by aiiowinq them iiq'ht duty. This facl-uoi aspect has been admitted by the respondents m their aciditiona! return and os such the petitioner has made out a case ot discrimination. Ihat apart, The Supreme Court in the matter of Kunal S/wls (supra), while dealinq with an appeal ot a constsbie in the Special Ser'vice Bureau who wos invaiidQTed from service on the reporT of medica! board, under which he was dectared permanentiy incapacitated for further service under- Rule 38 of the Centrai Ciyii Services [Kension] Rutes V)f'i and gfanted invalidity pension, allowed the appeat, considerinq The provisions ot the Kersons with Disabilities (fcqual Opportunities, Protection of Riqhts cnd Puii Pa'ticipation Act. 1995 (For 8 , her-ainatter reterred as the 'Act'). SecTion 4/ ot The AcT is feproduced betow:- •4/'. Non-diserimmiation in govemment empieyment.-cij No astabSishmsnt shsi! disper^e with, or reduce in rcnk, sn effipbyse who ocquires a disability during his sarvice; Frovided that, it an employee, atter acquirinq disability is not suitable for ths po3t hs w'as hoidhig, CGuid be Shift^ the scme pay scaie and service benefits: for ths po3t hs w'as hoidhig, CGuid be Shiftsd tO 3Gi"11£ G'^Si" pGSt With Provided further that if it is not possibte to adjust the SlitplQyS^ G^uiuST vSi¥f pGST^ it£itidy D2; KSp* Gn G 3up£tnuinSiuiy pOST untii Q suitable post is availabie or, he s+tains the age of 3UV<wI ^U'ilUUIlUII, Vttl tl\ft I^V^'t 10 a>\itl it^il . (2) No promotion shan be denied To a person mereiy on ths qround v( tiia yi.syL>iil fy' •i^. l-'rovided that the appropriate eovernment may, havinq reqard iw ioc- i ]fpi=' uj vwf'rS ^•uii'ic.u </ti iff uiiy ci3juU!J»?tifii<..'iii, w^ iiwi j j i^ui ivfi and subject to such conditions, if any, as may be specified in such HGtificGtion^ exciTipt Qny sstGblishiTisnt from th£ provi^iGns of thls section." / tn Kwial Singh's case (supro), the Supreme C.ourt while otloiuinq the appeat has held thus ;- "9. C'haptei* VI ot the AcT deals with employment relatinq to per5GH3 vyiTii uiSG&iiiiies^ ^?iio GfG y®1 1^ sscurs sn^pioyyssi'ii. ^iecTion 4/, tohich talis in C'hopter Vill, deals with an employee, who is already ill »?<£•!yi<>/d UIiU ^JttxUUl! S.-O U ^tUUI^IIl IV <i^U( IIIM 11*3 ac>) vat^Ct. A i liiuas fc^c* fc/wi iiVi in mind that Section 2 ot the Act hos qiven distinct ond ditterent »I—X!—;A:—— ^.£ ".J;^/.t*:l:4.>." —-JM^—^.-.— —.:4.1. <J:/<—L*:1:A>." TA ;—,..-*il ~u 1 jyfto uT uioyyiii iy unu ptirovH wiTn QiSuUJitiy . j.T iS w5ti settled that in The same enactment it two distinct detinitions sre qivesi detininq a word/expression, they must be understood o/.-./i.t-Jix^l** :»+»»^>».^.-<-£ 4.L.-* /j->^;»<:4.:-<«< T-l. w.—+l^n h*--n-—t^n-/i,-4+L.-*+ -. ^tiK^tiif) uiti^iy iii ic<iiitt9 v) !iic- us< [ iiti i IVD. ^i iituoi L^Ct i'c-dtSrfisiL/di s>u iiiwt u person does not acquir-e or sufTer* disability by choice. An employee, wf tu Uth-^uii s><3 Mivutj'iti f y ^itui iiiy 1110 ••?<<•! VKr^', ta a\«»u<-jtl< iv irf'^> [^a w)<E>^ti^^i under Section 4/ of the Act spsciticslly. Such employee, acquir-inq Qi3u£?iiiT'y, iT fiOT pFOT£C7£G,w'GUiQ Fiu7 GFiiy SUTTSi" Hi?n5£t7f E?U7 pGSSiDiy all those who depend on him would also sufter. the very trame and ^vfji^-tiEA uj ^iEr^iivri ~r/ ^is.ui'iy iiivif^.uis. ii»atiiuiiuujtrf'i y iiuiuic*. iiic. y&i-y openinq part ot sectton reads "no establishment shsll dispense with, or •.-.^JI.-^l ;•< f.ll/ -un At.*<ln.*-*-* ..*L»/» -—^.••i..-*— /. ^;-< rftt»;I;4-*. -j..».:.n—L.:^ rciwu^^ sft rutir\^ wa <.>iiipivyc;.<;; ^viiw u<i^uii-<;.»> u (jlauiL/iii j y Uuritiy flis serviee". Ihe section turther pmvides that it an emptoyee atter us^^wrii^ uiouyiitiy t-a fiui 3>U(juyi& (U!- in& pvsi fi^ iwus nviuitiy, fcuuiu be shitted to some other post with the same pay scale and service DSiiSTiTo, i) IT i3 TtST p033iDi£ 70 GOJuST »n£^£(Ft^iGiySS CiyCiinSi Gify p03T he will be kept on a supernumerary post until a suitable post is UVUtlUfc/l^ V/I 1 il£i Ul tUKth* tll^> U^& Wi i?Uj^S,iI UtiIIUlAl IV!1, svi if^f t^tW/t la v^wt fi^it . Added to this no promotion shall be denied to a person merely on the —..«-1--£ L.:-. -(:<,«.L.;!:-!-,. —-.:-, -..i.fo—J.£—_ -.,.L> <*«-4.:-—/-'>\ <,X C«-4.:«-. yr&Uilu i/i riia QiSQujiHy usi is ciyit.i^iii ifuui suL/-5^irfUuri \^j u| i^SCTtvn 4/. Section 4/ contains a clecn* directive that the employer shall not ^;-,**-.-,-/* ,W;4.L. -IX »,/>^..->- IU* x-*-<t/ —. ^un*^t/>..^-*-> ••/L.n /•/.-ii »*<-*/< rf. ^;/tnL»;l;+»* Ui^i^/'c'ii^c- vifiiti Vt- f'<.;^u^c> ift mrin wfi s»ritjJiuy<;.& BVJJ^ w^^uiic.aiu UiS>ujL?!ii i y durinq the service. in construinq a provision of a socia! beneficial SduC'TuiSri! TnuT 70G GeGiiity tnfiiti GiSGGiSG p£»30ri3itiTSHQSC 70 ytv£ them equal opportunities, protection of riqhts snd tull par'ticipation, Tn£ vi£vir THGT uQ'vuHC£3 THS ODJ6CT GT-THS r\CT uTiQ SEFV'eS iT3 pUrp036 must be preterred to the one which obstructs the object and •»-**,-<)*..«-*<••t.1^/. ^•.b.^A/*-< n^ +L.-* A-4. 1 /,-/..,-.«/. ^^; C^/.*;^«- A~7 :/. if-*:^ ^^-J ^/Ui'uiYt3Srf<.> iiic. ^/Ui pu^?& wj iri<i /-i^. t. wuiiyuuyci Vt ^^.wijvrt "T/ ii> pjutii ufiu certain casting statutory obli9ation on the employer to protect an £i?ipiC'ySSGC^uniiiy QiSuDiiiTy uuiirly SSiViCS, B. 5o Tar as the arquments ot learned counsel for the respondents that the petitioner is qeTTinq pension css per Rule 38 ot C'.C'.S. (Kension) Ruies, 19/Z is eoncerned, the Act is a special leqisiation dealinq with persons iwith dissbiiities to provide equal oppor-tunities, protection ot nqhts and tu!t par-Ticipation to them, it beinq special ensctmenT ot Rule 38 of the above Rules, cannot over ride Section 4/ ot the above Act. fcven other wise Section /'Z ot The Act which is reproduced hsreunder makes it cleer that the provlsions ot the Act are atTraeted in the insTant case. ~ Fi. Act to be in addition to and not in der'oqation ot ony other law.- f I i^> ^ft WI«li^/TI«>^j iIlt^rttKl^U! 1II%1 UKt-31 )|)UUI& II I&l OUItUS-t i3r I^AII i^<£i iii addition to, ancl not in deroqation of any other law tor the time beinq -C^^*/, /.!-. -W*^ *...i^/. AK-J^U* ^x * ^ :—,4.^...-~4.;/<.M/.:/•/., ,«-J 4.L,-*»-...^-J-**< iri (wi ^c. ur uily i--ujt;.^>, Vi-uc.i- ui uriy «ii>i ru<^ j ivii<» isaiu^-w 11 it-i c.uiiu'e-i , enacted or issued tor the benetit ot persons with dissbilities." 9. Iherefore, the petitioner cannot be denied protection available to him under Section 4/ ot the Act mersly beccuse he is gettinq invalidity pension under Rule 3S. C'onsiderinq that the petitioner' acquired disctoility durinq his service and further consjdepinq that after discharqe trom the hosoita!. he .ioined his services on 31 Januarv. 1998 and discharaed his -"^. duties ossiqned to him for a period of approximateiy 2 ? years, if the respondents found him not suitabie for the post he waS hoidinq, he couid be shifted to some other posts with some poy scale and service benetits; it it was not possible to adjust him aqainst ony post, he could be Kept on a supernumeraT-/ post until a suitcbte post was avoilable or he attains the aqs ot superannuation whichever is eorlier. No such etforts were mode by the respondent. ihey have proceeded to hold thot he is permanently incapacitated to continye in service without considerinq the ettect ot othe" 'H ppoyjsions ot Section 4y ot the Act. 1U. (Jn ths basis ot atoresaid discussion, the petition deserves to be allowed and accordinqly The same is ailowed. Ihe respondents ore dir'ected to qive reliet in tsrms ot Section 4/ ot the Act. 11. I here shell be no order ee to costs. Sd/- DhirendraMishra Judge jrirj';