IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27.06.2011 Coram THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.150 of 2007 (O.A.No.2953 of 2001) S.Rajendran ... Petitioner Vs. 1.The Commissioner of Police, Madurai City. 2.The Deputy Commissioner of Police, Crime and Traffic, Madurai City. ... Respondents This petition under Article 226 of the Constitution of India came to be numbered by transfer of O.A.No.2953 of 2001 from the file of the Tamil Nadu Administrative Tribunal, praying for a Writ of Certiorarified Mandamus, to call for the records pertaining to the order passed by the 2nd respondent in his proceedings in CPO No. 243/2001.C.No. K2/03165/2001 dt. 5.2.2001 and quash the same and further direct the respondents to grant the petitioner with the entire service benefits monetary and consequential benefits. For Petitioner : Mr.V.Chandrasekaran For Respondents : Mr.RM.Muthukumar,G.A. O R D E R The petitioner filed O.A.No.2953 of 2001 before the Tamil Nadu State Administrative Tribunal, seeking to challenge an order dated 05.02.2001 passed by the second respondent Deputy Commissioner of Police, Crime and Traffic, Madurai City. 2. Notice of motion was ordered in the Original Application on 30.04.2001. Though the petitioner had sought for an interim order, the same was not granted by the Tribunal. 3. On notice from the Tribunal, the respondents have filed a reply affidavit dated 10.09.2001. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re- numbered as W.P.No.150 of 2007. 4. It is seen from the records that the petitioner was recruited as Police Constable on 21.07.1975. Subsequently, he was promoted as Grade I Police Constable and Head Constable and at the end of his service, he was serving in Crime Record Bureau, Madurai https://hcservices.ecourts.gov.in/hcservices/ City. The petitioner met with a lorry accident on 21.09.1994 while he was driving a two wheeler. Due to the accident, his left forefeet was amputated and after treatment, he joined duty. But however due to the amputation undergone by him, his case was sent for Medical Board for examining as to whether he was fit for continuing in the Police Department. On direction from the Secretary, Regional Medical Board, Government Rajaji Hospital, the petitioner appeared before the Medical Board on 30.01.2001. The Medical Board after examining issued a certificate dated 30.01.2001 holding that he was unfit for further continuance in the Department. It was on such direction, the petitioner was invalidated from service on 05.02.2001. Thereafter, his name was struck off from the Department on 08.02.2001. 5. Upon his invalidation, the petitioner sent a representation dated 05.03.2001 stating that after the completion of the treatment, along with the fitness certificate, he was posted under the District Crime Record Bureau and continued for six years and all of a sudden to disengage or invalidate him was unwarranted. He has also got nine years of service and the pre-mature invalidation will put him in economic penury. He also stated that he was being sent out for extraneous reasons. 6. In reply to the petitioner's allegation, it was stated by the respondents in Paragraph 5 of the reply affidavit, which is as follows:- 5.1 It is true that the applicant was appointed as Police Constable on 26.07.1975. Later he was promoted as Grade I Police Constable and Head Constable on seniority. He was lastly serving in Crime Record Bureau, Madurai City. It is not true that the applicant has been sincere and hardworking discharging his duties to the entire satisfaction of his superiors. In this regard, it is pertinent to note here that there are seven punishments to the discredit of the petitioner. 2.It is submitted that the averments contained in the para are true. 3.It is submitted that the applicant after undergoing medical treatment he was given desk work considering his physical inability to do routine work. 4.It is submitted that the averments contained in para 4 are not true. It is stated that the applicant was writing monthly review report and other such reports while he was on duty in the Crime Record Bureau, Madurai City. It is not an unusual work which was specifically discharged by the applicant as such there is nothing special in it. https://hcservices.ecourts.gov.in/hcservices/ 5. The averments contained in para 5 are not true. It is stated that the applicant is co-brother of one Tr.Chandran of Madurai who is a close friend of Thiru Misa.Pandian, the then Dy.Mayor of Madurai Corporation who is allegedly involved in a murder case and cases has also been registered against Thiru Chandran u/s 212 IPC. This fact of the relationship of the applicant with one Chandran of the above said case came to be known only through the averments contained herein. The respondents do not know the applicant's relationship with Chandran prior to the averments in the petition. So in such circumstances the action taken against Thiru Chandran could not have caused adverse effect on the applicant because the fact came to be known to the respondents only through this petition. 7. On the question of actual invalidation, in paragraph 7 of the reply affidavit, it was stated as follows:- "7. ...The Regional Medical Board headed by Chairman Dr.P.Jeevaraj, M.D., has issued proceedings No.072/G5/2001, dated 30.01.2001 stating that the applicant had undergone modified symes amputation left foot and he is unfit for further continuance in Police Department. As per the proceedings of Regional Medical Board, Govt. Rajaji Hospital Madurai, the applicant was invalidated from service on 5.2.2001 by the second respondent in CPO.No.243/2001-K3/03165/2001 dated 5.2.2001 and the applicant has acknowledged the order on 7.2.2001 and his name was struck off from the police strength of Madurai City Police w.e.f8.2.2001 FN in CPO.No.261/2001-K2/Pen.4/2001. So only on the basis of the Medical opinion the respondents, particularly the second respondent was constrained to take this extreme steps of invalidating the applicant from service. So above action of the respondents cannot be said as a tainted one or taken on the ground of malafide or arbitrary. Before issuing impugned order by the second respondent, the applicant need not have been issued any show cause notice. The benefit of Article 311 of the Constitution cannot be given in favour of the applicant." 8. Before proceeding to deal with the case, it is necessary to refer to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short Act 1995) which reads 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: https://hcservices.ecourts.gov.in/hcservices/ 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." 9. When a similar question came up before the Supreme Court in Bhagwan Dass and another v. Punjab State Electricity Board reported in (2008) 1 SCC 579, the Court in Paragraph 2 reminded the employers about their obligation under the 1995 law, which reads as follows:- "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 1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous." 10. Whether a person after entering into service acquires a disability is entitled for protection under the Act was also considered by the Supreme Court in Kunal Singh v. Union of India reported in (2003) 4 SCC 524. In pages 529 and 520, the Supreme Court observed as follows:- "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 "disability" and "person with disability". It https://hcservices.ecourts.gov.in/hcservices/ 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 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. " (emphasis added) 11. As to the obligation of the Department to inform the employee who are uninformed about their rights arising out of Act 1995 was also considered in Bhagwan Dass's case (cited supra). In paragraphs 18 and 19, the Supreme Court had observed as follows:- "18. Appellant 1 was a Class IV employee, a lineman. He completely lost his vision. He was not aware of any protection that the law https://hcservices.ecourts.gov.in/hcservices/ 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 officers concerned of the Board, to our mind, was deprecable. 19. We understand that the officers concerned were acting in what they believed to be the best interests of the Board. Still under the old mindset 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 charity or largesse but their right as equal citizens of the country." In that case, apart from directing the employer to pay the salary to the worker with all annual increments and promotions till the date of retirement, the Supreme Court had also imposed costs of Rs.5,000/- on the employer. 12. In this context, similar view was taken by this Court in C.Narayanan v. The Deputy Director-cum-Principal In Charge, Government Industrial Training Institute reported in 2011 (1) CTC 577 = 2011 (1) L.L.N.571. 13. In the light of the above, the respondents have miserably failed in keeping the statutory mandate found under Section 47 of the Act. The fact that after amputation, the petitioner had worked for six years is also not denied and he could have been accommodated in some light duty commensurate with his physical disablement. https://hcservices.ecourts.gov.in/hcservices/ 14. Hence, the impugned order stands set aside and the writ petition is allowed to the extent indicated below. Since the petitioner had already reached the age of superannuation, it is hereby directed that the petitioner will be paid the wages from the date of his disability till the date on which he is actually got superannuated and also to settle the terminal benefits after taking note of the service covered by this period. This exercise shall be undertaken within a period of three months from the date of receipt of a copy of this order. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar svki To 1.The Commissioner of Police, Madurai City. 2.The Deputy Commissioner of Police, Crime and Traffic, Madurai City. 2 cc to Mr.V.Chandrasekaran, Advocate, Sr.No.37373, 34868 1 cc to Government Pleader, Sr.No.34675 Order in W.P.No.150 of 2007 (O.A.No.2953 of 2001) RS {CO} TP/8.7.2011. https://hcservices.ecourts.gov.in/hcservices/