1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 716 OF 2008 Edward Swalin D'Cunha ) Adult, Indian Inhabitant, ) residing at 16/7, Green Crest, ) Amritvan, Goregaon (East), ) Bombay – 400 063. ... ) ...... Petitioner Versus 1) Commissioner for Persons ) with Disabilities, ) Having their office at ) Commissionerate for ) Persons with Disabilities, ) Maharashtra State, Pune - ) 411 001. ) 2) Shipping Corporation of ) India, Through its ) Chairman, having his office) at Shipping House, 245, ) Madam Cama Road, ) Bombay – 400 021. ) ..... Respondents. Mr. P. M. Havnur for the Petitioner. Mrs M.P. Thakur, AGP for respondent No.1 Ms Srivastava i/b M/s Consulta Juris for the Respondent No.2. 2 CORAM : SMT. RANJANA DESAI, and A. A. SAYED, JJ. RESERVED ON : 25TH SEPTEMBER, 2009. PRONOUNCED ON : 18TH MARCH, 2010. (AT 2.40 P.M. IN CHAMBER) JUDGMENT (Per A.A.Sayed, J.) : 1. Rule. By consent, rule made returnable forthwith and heard finally. 2. By the above petition, the petitioner, who is a person suffering from disability, has called in question the legality and validity of the order dated 30th December, 2006 passed by respondent No.1 – Commissioner of Persons with Disability, Maharashtra State, Pune. By the impugned order, respondent No.1-Commissioner rejected the Complaint filed by the petitioner against his employer respondent No.2 – Shipping Corporation of India (for short “SCI”). The Complaint was filed under Section 62 of the Persons with Disabilities (Equal Opportunity, Protection and Rights and Full Participation) Act, 1995 (for short “the Disabilities Act”) alleging discrimination in employment practiced by SCI and alleging contravention of provisions of the Disabilities Act. The petitioner has also prayed for directions to SCI to pay to the petitioner all back wages with appropriate promotions and to hold that the petitioner is in continuous service. 3 3. The petitioner joined SCI on 11th June, 1993 on being selected as a Trainee Nautical Officer Cadre (TNOC). The petitioner was confirmed in the rank of 3rd Officer after completion of the training period of 5 years and after securing a Second Mate (FG) Certificate. Sometime in the year 1997, when the petitioner was on duty in SCI vessel MT Major Somnath Sharma (PVC), he had to sign off as he fell sick. He was admitted in a nursing home at Vishakhapatnam by SCI. The petitioner has relied on the letter dated 6th June, 1997 addressed by Capt. Domir, Master of the said MT Major Somnath Sharma (PVC) of SCI to M/s. AVBGPR & Company, Agent (SCI), Vizag, copy of which is annexed as Exhibit “C” to the petition. In the said letter Captain Domir has stated that the petitioner be referred to the Company’s (SCI’s) Medical Doctor as he has been suffering from mental confusion for last one month and his state was aggravating progressively and he was getting bouts of nausea. It was requested by the said letter that the petitioner may be kept ashore for further investigation and on being fit he may be sent to Head Office for further instructions. 4. After a few months of treatment, the petitioner resumed and worked for about six months on vessel MT Sarojini Naidu. The petitioner submitted his Second Mates (FG) Certificate of competency on 27th March, 1998, after being declared fit for sea service by the Chief Medical 4 Officer of SCI. The petitioner was thereafter posted on vessel MV Kabirdas at Mangalore. However, he again fell sick on account of mental illness and signed off on 17th April, 1998. After recovery, the petitioner joined MT Bankimchandra Chatterjee on 29th September, 1998 and signed off on 30th September, 1998 on account of mental illness. On 6th November, 1998 he joined MV Harkishan and signed off on 3rd January, 1999 due to mental illness. The petitioner also served on vessels MT Homi Bhabha and MT Rajendra Prasad. 5. On 27th April, 2000, the petitioner was posted on vessel MT CHM Piru Singh and signed off from the said vessel at Chennai on 11th May, 2000 on account of mental illness. That was the last vessel he sailed. 6. It is the case of the petitioner that on 10th June, 2000 he went to submit the medical certificate dated 20th May, 2000 of his doctor, Dr. Rajan S. Prabhu, M.D. (Psychiatrist) (Exhibit “D” to the petition), with a request to grant him 3 months leave on account of his illness as stated in the certificate. However, Capt. S. D. Kundhari, coerced him to resign taking advantage of his illness by promising him that he would be considered for onshore job if he submits his resignation. On 13th August, 2001, Mr. Mohan Ajgaonkar of SCI made him write another letter by representing to him that his earlier resignation dated 10th June, 2000 was 5 missing. On 23rd October, 2001, Dr. Rajan S. Prabhu, M.D. (Psychiatrist) certified the petitioner to be fit for shore job. The said certificate is annexed as Exhibit “E” to the petition. On 5th November, 2001, Capt. C. P. Athaide, Dy. General Manager of SCI addressed a letter to the petitioner calling upon him to fill up exit interview form. 7. According to the petitioner, he and his father, who is his guardian, were not aware of his rights under the Disabilities Act and therefore submitted letter of resignation on 10th June, 2000, as also the letter of 13th August, 2001. 8. The petitioner thereafter by his advocate’s letter dated 27th November, 2001 called upon SCI to give him onshore task and pointed out that the letter of resignation was given by the petitioner believing that he would be entrusted onshore job considering his mental health condition, as was assured to him by the officers of SCI. By the said letter dated 27th November, 2001, SCI was called upon to restore the petitioner on duty, else, the petitioner would file appropriate proceedings for being discriminated against, under the provisions of the Disabilities Act. However, SCI by its letter dated 10th December, 2001 replied to the aforesaid legal notice stating that the resignation was given by the petitioner on his own free will on 10th June, 2000 and that SCI had no 6 policy to offer shore cadre posting to floating staff officers. 9. It is the further case of the petitioner that he had not filled his Exit Interview Form as the resignation was not tendered of his own free will and was obtained by taking undue advantage of his mental illness. The petitioner, therefore, filed a Complaint dated 6th February, 2001 against Respondent No.2-SCI under Section 62 of the Disabilities Act before the respondent No.1 - Commissioner for Persons with Disabilities, Pune. 10. On filing of the Complaint, respondent No.1-Commissioner called upon the petitioner to submit Medical Certificate of his disability. The petitioner furnished a Medical Certificate issued on 4th April, 2002 by Dr. Y. A. Matcheswalla, M.D.(Psy.), J.J. Government Hospital, certifying the petitioner to be fit for Office (shore) duties and to avoid sailing duty. It appears that since the said Certificate was not issued by the Medical Board as required under the rules framed under the Disabilities Act, the respondent No.1-Commissioner upon the request of father of petitioner, by his letter dated 3rd July, 2003, requested the Civil Surgeon, J. J. Group of Hospitals (Medical Board), Mumbai that the petitioner be medically examined by the Medical Board as constituted under the Disabilities Act and to issue an appropriate Medical Certificate in respect of his disability. Pursuant to the said letter, the Standing Medical Board, Sir J. J. Group of 7 Hospitals, vide their letter dated 4th April, 2004 addressed to the Commissioner, after medically examining the petitioner, forwarded the Disability Certificate to the respondent No.1 – Commissioner, certifying that the petitioner was suffering from disability and his diagnosis was described as – “Schizophrenia is partial remission. Psy. Disability is seventy per cent”. The said Disability Certificate is signed by the Chairman and two other Standing Medical Board Members of Sir J. J. Group of Hospitals (Exhibit “P” to the petition). The petitioner, in his petition, has made a grievance that the entire process of getting himself examined by the Medical Board and the issuance of the Disability Certificate took him altogether 9 months and involved innumerable visits to Sir J. J. Group of Hospitals at Mumbai. The petitioner has also annexed to the petition, a copy of Disabled Persons Identity Card dated 30th August, 2004 issued to him by the Directorate of Social Welfare, Maharashtra State. 11. During the pendency of the Complaint before respondent No.1- Commissioner, SCI vide their letter dated 26th April, 2004 addressed to the petitioner, forwarded the full and final settlement receipt along with full and final account and called upon the petitioner to return the said full and final receipt duly filled in and informed the petitioner that the cheque towards the full and final settlement will be released only on receiving the receipt from the petitioner. 8 12. According to the petitioner, time and again his father reminded the respondent No.1-Commissioner to pass orders in the pending dispute concerning the petitioner. Ultimately, his father on 13th November, 2006 applied under the Right to Information Act, to inquire about the fate of the petitioner’s pending case. Since no information was furnished, the petitioner filed an appeal under Section 91 of the Right to Information Act on 18th December, 2006 inquiring about the status of his case pending with respondent No.1-Commissioner. Thereafter, petitioner's father also filed a Second Appeal on 12th February, 2007 before the State Commissioner. It is stated that after a period of 4½ years, the respondent No.1-Commissioner has passed the impugned order of 30th December, 2006 which appears to be backdated, rejecting the Complaint of the petitioner, on the ground that the petitioner had given his resignation voluntarily and that he had not produced any Disability Certificate issued by the Medical Board while filing the complaint. The petitioner has stated that it was only on 3rd November, 2007 that he received a copy of the impugned order dated 30th December, 2006. The petitioner has therefore, filed the present writ petition on 6th December, 2007, interalia claiming protection of his service under the provisions of Section 47(1) the Disabilities Act. 9 13. Reply is filed on behalf of respondent No.1-Commissioner stating that the petitioner had resigned from his job voluntarily on 10th June, 2000 and the petitioner had himself applied for settlement of monetary claim on 13th August, 2001. It is further stated that the petitioner had not produced any Disability Certificate issued by the Competent Authority to prove his disability at the time of filing of his Complaint. It is also stated that on 4th March, 2004 a Certificate of Disability of even date, viz., 4th March, 2004 was received by the office of the Respondent No.1- Commissioner issued by the Medical Board, Sir J. J. Group of Hospitals showing the diagnosis of the petitioner as - “Schizophrenia is partial remission. Psy. Disability is seventy per cent”. It is further stated that Section 47(1) of the Disabilities Act is applicable to those individuals who acquire disability during service and as the petitioner had resigned on 10th June, 2000, the benefit of Section 47(1) of the Disabilities Act of shifting the petitioner to some other post with the same pay scale and service benefit could not be provided to the petitioner. Insofar as the delay in passing the impugned order is concerned, it is stated that respondent No. 1- Commissioner has to perform all administrative functions under the Disabilities Act and also required to implement various schemes, orders and directions issued by the State Government from time to time and also further required to attend the High Court at Bombay, Nagpur and 10 Aurangabad as also the other Courts. It is stated that the petitioner was heard from time to time, not less than 15 times, and there was no intentional delay on the part of respondent No.1-Commissioner in passing the impugned order. 14. Reply has also been filed by respondent No.2-SCI, wherein it is stated that the petitioner had no documentary evidence to support his claim nor any Disability Certificate issued by Medical Board constituted by the Government Authority in terms of the guidelines for evaluation and assessment of disability claim under the Disabilities Act at the time of filing of the Complaint and hence the petitioner was not entitled to apply for facilities, concessions and benefits admissible under any of the schemes under the Disabilities Act. It is stated that the petitioner on his own free will submitted his resignation on 10th June, 2000 and has by his letter dated 13th August, 2001 confirmed his resignation from service with effect from 10th June, 2000 and also reminded SCI for settlement of his dues at the earliest and his resignation was accepted. It is contended that the petitioner did not fall under Section 2(i) (vii) or any other provisions of the Disabilities Act at the time of his resignation. It is stated that the petitioner was employed exclusively as a member of the floating staff in the rank of 3rd Officer and SCI does not have any policy to offer shore cadre posting to floating staff officers at the level of 3rd Officer. It is 11 further stated that when the petitioner approached respondent No.1- Commissioner on 6th February, 2002, no Medical Certificate for disability was submitted along with the application. It is further averred that in the letters dated 10th June, 2000 and 13th August, 2001 the petitioner has nowhere mentioned about his mental illness, which would show that the petitioner had resigned on his own. It is further contended that the petitioner remained absent without applying for leave after he signed off from vessel CHM Piru Singh on 11th May, 2000 and that he had not acquired any disability during his service tenure. 15. Rejoinder to the affidavits has been filed by the petitioner reiterating the facts stated in the petition. Pertinently, in the rejoinder of the petitioner to the affidavit in reply filed by respondent No.2-SCI, a reference is made by the petitioner to a telegram received by him from SCI on 9th August, 2002 asking him to join his employment. 16. Learned Counsel for the petitioner at the outset took us through the relevant provisions of the Disabilities Act including the definitions of “disability” and “mental illness”. He submitted that the employment of the petitioner is required to be protected under Section 47(1) of the Disabilities Act. He submitted that as per Section 47(1), the petitioner ought to have been offered a suitable job onshore considering his mental 12 illness. Learned Counsel contended that the alleged resignation given by the petitioner was taken by force and coercion and that the same was not given on the petitioner’s own free will. Learned Counsel submitted that the officers of SCI, taking advantage of the mental illness of the petitioner, took his signature on a typed resignation letter, when infact the petitioner had on 10th June, 2000, sought to submit his medical certificate issued by Dr. Rajan S. Prabhu, M.D. (Psychiatrist), dated 20th May, 2000 and had requested for 3 months leave as reflected in the Medical Certificate. Therefore, there was no intention on part of the petitioner to resign from the SCI. It is further submitted that the petitioner did not fill the Exit Interview Form as desired by the SCI and the petitioner continued to remain in service of SCI. The learned Counsel submitted that the petitioner became aware of his rights under the Disabilities Act only at a later date from his well wishers and from an NGO. Learned Counsel submitted that the impugned order is passed without considering the facts of the case and without considering the provisions of the Disabilities Act and urged that the same be set aside and it be declared that the petitioner has continued in service and he be granted all arrears of salary and benefits of promotion and the Respondent No.2 - SCI be directed to provide suitable onshore job to the petitioner. 17. In support of his contention regarding force and coercion the 13 learned Counsel for the petitioner relied upon the case of Subhash Chandra Das Mushib V/s Ganga Prasad Das Mushib and Ors., reported in (1967) 1 SCR 331. In support of his contention relating to protection of employment of the petitioner under the Disabilities Act, the learned Counsel has placed reliance upon the following cases: (1) Kunal Singh V/s Union of India & Anr., reported in (2003) 4 SCC 524; (2) Unreported judgment of the Division Bench of this Court in Writ Petition No. 3545 of 2005 (Ashwini Ashok Desai V/s Chattrapati Shivaji Maharaj General Hospital) decided on 5th August, 2005. 18. Learned Assistant Government Pleader appearing on behalf of respondent No.1- Commissioner supported the impugned order. 19. Learned Counsel for respondent No.2-SCI, also supported the impugned order and submitted that the petitioner had on his own free will tendered his resignation on 10th June, 2000 which was confirmed by his letter dated 13th August, 2001 and therefore Section 47 of the Disabilities Act was not attracted. She further submitted that in any event there was no policy of SCI to offer shore cadre posting to floating staff officer at the level of 3rd Officer. The learned Counsel contended that no disability certificate, as required under the provisions of the Disabilities Act, was submitted by the petitioner to SCI. 14 20. We have heard the learned Counsel appearing for the respective parties and perused the material on record including the impugned order. The two questions, though interlinked in the facts of the present case, which arise for our consideration, are as under:- (1) Whether the resignation tendered by the petitioner can be said to be a voluntary resignation? (2) Whether the petitioner is entitled to protection of employment under Section 47 of the Disabilities Act? 21. At the outset, it needs to be stated that the most important and relevant aspect, which we find has remained to be brought to fore, is the tenor and purport of the letter of resignation dated 10th June, 2000. Copy of this letter dated 10th June, 2000 has not been annexed to the petition as an Exhibit. This letter finds place as an annexure to the reply of respondent No.2-SCI in the proceedings before respondent No.1- Commissioner for Persons with Disabilities, which reply is annexed as Exhibit “N” to this petition. The said resignation letter is, in our view, crucial for the purposes of determining whether or not the resignation of the petitioner was voluntary. The said letter dated 10th June 2000 is reproduced hereinbelow. It reads as under: 15 “From: E. S. D’Cunha, E.C.No. 540936, 2nd Officer, S.C.I., Mumbai-400 021. 10/06/2000 The Deputy General Manager, Fleet Personnel, Shipping Corporation of India, Madame Cama Road, Mumbai – 400 021. Dear Sir, Sub : My resignation from service. Due to stress at sea, I could not continue sailing for a long period. My request for a shore job was turned down, I have no alternative but resign from your service as a 2 nd Officer . Kindly arrange to settle my dues as early as possible. Thanking you, Yours faithfully, Sd/- (E.S.D’Cunha) Address: 16/7, Green Crest, Amritvan, Goregaon (E), Mumbai – 400 063, Ph : 8403037.” (emphasis supplied) 16 22. From a plain reading of the above letter dated 10th June, 2000, it is apparent that since the request of the petitioner for a shore job was turned down, he was left with no alternative but to resign from the employment of respondent No.2-SCI. 23. At this juncture, in the context of submission of letter of resignation, it would be necessary and advantageous to extract Section 47(1) of the Disabilities Act. It reads thus: “(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.” Thus section 47(1) clearly lays down that if an employee acquires a disability during his service, his service cannot be dispensed with. He is required to be shifted to some other post with the same pay scale and service benefits. The section goes on to state 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. In light of the mandate of Section 17 47(1), and considering the facts and circumstances of the instant case, we find that SCI was duty bound to offer an onshore post to the petitioner looking to the disability which the petitioner was suffering from, which they failed to do. 24. In a recent judgment delivered by the Hon’ble Supreme Court in the case of Bhagwan Dass and Anr. V/s Punjab State Electricity Board, reported in (2008) 1 SCC 579, (which we have also referred to later) the Apex Court was concerned with a somewhat similar issue. In that case the appellant before the Apex Court was an employee of the respondent Board who suffered visual impairment and became completely blind and he remained absent from duty from 1994 to 1997. Charge sheet was issued to him. The appellant vide his letter dated 17th July, 1996 explained his blindness and requested for his retirement with a further request that his wife may be provided a suitable job. The appellant subsequently wanted to withdraw his request for retirement when he came to know that he was entitled for protection under the Disabilities Act and he was not under any compulsion to seek retirement due to his blindness. His request for withdrawal of his resignation was however turned down. His Lordship Justice Aftab Alam, speaking on behalf of the Bench, in para 2 of the said judgment observed as follows: 18 “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.” In para 17 of the said judgment, the Hon’ble Supreme Court observed that the letter was written by the appellant requesting retirement, but at the same time he asked that his wife should be given suitable job in his place. The Apex Court while rejecting the contention of the respondent Board observed - “In our view it is impossible to read that letter as a voluntary offer for retirement”. In para 18 of the said judgment, the Apex Court observed as under: “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 depreciable.” 25. In the case before us also the circumstances under which the resignation came to be offered is clear from the resignation letter itself. It was the duty of the officers of respondent No.2-SCI to point out to the petitioner that his service was protected under Section 47 of the Disabilities Act, which they failed to do. Infact, it is specifically