IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.12.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.11728 of 2007 (O.A.No.2077 of 2002) C.Narayanan ...Petitioner Vs 1.The Deputy Director-cum-Principal In Charge, Government Industrial Training Institute, Chennai – 600 021. 2.The Director, Employment and Training, Chepauk, Chennai. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records on the file of the respondent relating to the impugned order bearing ref.Rc.No.6884/Neel/99 dated 09/08/2001 and the order bearing ref.Na.Ka.No.6884/N1/99-2 dated 25/01/2001 and quash the same and consequently direct the respondents to treat the petitioner on service till date of his superannuation and grant him all arrears of salary and other monetary and other service benefits. For Petitioner : Mr.Sathish For Respondents: Mr.R.Murali, G.A. O R D E R The petitioner was working as an Office Assistant in the Government Industrial Technical Institute at Chennai -21. The petitioner filed O.A.No.2077 of 2002, challenging the order of the respondent dated 25.01.2001 as well as 09.08.2001. By an order dated 25.01.2001, the petitioner was relieved from service on the ground that the Medical Board had recommended unfitness for the petitioner to continue in service. 2. The petitioner issued a legal notice through his counsel dated 28.06.2001 stating that the petitioner was suspended from service on 30.07.1999. Subsequently after his explanation, he was referred for Medical Examination by a letter dated 10.12.1999. It was stated that the petitioner was continuing his treatment for his illness and therefore, there was no ground for relieving him from https://hcservices.ecourts.gov.in/hcservices/ service on 25.01.2001. No opportunity was given to the petitioner before his relief from service. It was also stated that he was entitled to get salary from the date of relief till the date of his reaching the age of superannuation. 3. In reply to the legal notice sent on behalf of the petitioner, the first respondent by a letter dated 09.08.2001 informed the petitioner that the earlier memo given to him was nothing to do with his present medical condition. He was directed to appear before the Institute of Mental Health, Chennai -10. The Director(incharge) of the Government Mental Health, Chennai informed that the Regional Medical Board at Chennai attached to the Government General Hospital may be contacted to obtain a detailed report in respect of the petitioner. The Medical Board on being reminded of their report, finally sent a reply on 10.01.2001 stating that on examination of the petitioner on 27.10.2000 it was found that he was having 'Dementia with mood disorder depression'. On the strength of the said report, he was relieved from service and proposal for pensionary benefits was also forwarded. The petitioner himself had accepted the retirement on medical invalidation and also submitted pension proposals. Therefore, it was stated that there was no further action to be initiated at their stage. 4. Challenging these two orders, the petitioner filed the Original Application and Notice of Motion was ordered by the Tribunal on 16.04.2002. 5. On notice from the Tribunal, the respondents had filed a reply affidavit dated 11.06.2002. Along with the reply, the report received from the Medical Board was also enclosed. The said report nowhere indicates that the petitioner had become unfit to continue his employment. In page 2 of the reply affidavit, the respondents referred to the condition of the petitioner, which reads as follows:- "In the medical report furnished by the Dean, Government General Hospital, Chennai 3, it was diagnosed after a thorough clinical examination held on 27.10.2000 that the applicant was suffering from the mental illness (copy enclosed) namely 'Dementia with Mood disorder – depression' and he was permanently incapacitated for further service of any king or in the department to which he belongs, consequent on the above mental disorder." 6. The circumstances under which he was discharged as stated in page 3 reads as follows:- "Moreover, the applicant was discharged from Government Service on the recommendation of the Medical Board and there is no provision in Fundamental Rules to permit an employee who was https://hcservices.ecourts.gov.in/hcservices/ permanently incapacitated for further service. The period of suspension from 31.7.1999 to 26.10.2000 has also been regularised with eligible leave. Hence, the claim of the applicant is not sustainable in law." 7. It is also stated that the petitioner had sent an application seeking for his terminal benefits and that itself will show that he had given consent for being relieved. The averments made in page 3, in this regard are as follows:- "Based on the medical report read above, the applicant was relieved off from his duties, with effect from 27.10.2000 on invalid retirement. The application submitted by the applicant dated 22.05.2001 praying terminal benefits evidently vindicates the consent of the applicant to the above orders and he has received all his terminal benefits. Hence the question of treating the applicant on service till date of his superannuation is hypothetical." 8. Therefore, the only point to be decided in the present case is whether the prayer made by the petitioner can be countenanced by this Court. Though the petitioner in his affidavit did not refer to the statutory ban on such discharge as per Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short Act 1995) that cannot non-suit the petitioner from claiming the relief in this writ petition. 9. Mr.R.Murali, learned Government Advocate emphasized similar contentions raised in the counter affidavit. He also stated that the petitioner had settled his claim and therefore, the present prayer cannot be granted by this Court. 10. Before proceeding to deal with the case, it is necessary to refer to Section 47 of the 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: 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. https://hcservices.ecourts.gov.in/hcservices/ (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." 11. The terms mental illness or retardation can be brought within the term "disability" under Section 2(i) of the Act 1995. The definition of the term 'disability' includes mental retardation as per Sub-rule (vi) and mental illness as per Sub-rule (viii). In fact, the term "mental illness" is also defined under Section 2(q) and it means "any mental disorder other than mental retardation". Mental retardation as defined under Section 2(r) means "a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence". 12. The question whether mental illness is protected by Section 47 of the Act 1995 and whether the ban also applies to Government servants came to be considered by this Court in A.Tamilarasi v. District Collector, Tuticorin and others reported in (2007) 6 MLJ 425. In that case, when a Government servant was terminated on grounds of "Schizophrenia" disability, this Court found that such a disability is covered by the Act 1995. The petitioner in that case was made to undergo medical examination by a competent Medical Board. The Medical Board certified that the Government servant did not suffer from any illness. Hence, this Court found fault with the authorities' insensibility in terminating the services of a Government Servant without due process. After setting aside the termination order, this Court also imposed costs on the authorities concerned for their indifference in treating the government servant in such fashion. 13. In the present case, it is an admitted stand of the respondents that the opinion of the Medical Board as extracted in the counter affidavit led to dispensing with the services of the petitioner. The fact that it is not due to any other misconduct but only due to the mental condition of the petitioner the said discharge took place is not disputed. If that is so, then certainly the prohibition contained under Section 47 of the Act comes into operation automatically. It is immaterial the petitioner had sent a proposal for accepting pensionary benefits. Infact, immediately after his discharge, he had caused a legal notice calling upon the respondents to pay his full salary. It is the respondents who in their reply as well as in the counter affidavit had taken the stand that his request was hypothetical and there was no requirement for retaining such a person in service. 14. It is ironical that the respondents belong to the Department of Employment and Training. They are expected to advise https://hcservices.ecourts.gov.in/hcservices/ other departments about the rights of employees employed by such departments. If the Department of Employment itself was not aware of the provisions of Act 1995, (which was very much in existence at the relevant time) that really is a sorry state of affairs. The contention of the learned Government Advocate that the petitioner had sent pension proposals will not non-suit the petitioner from claiming the relief if he is otherwise entitled to get the relief. In essence, there is no estoppel against a statute. The petitioner submitting pension proposals may be due to penury or ignorance. But that will not dis-entitle him from claiming what is due to him under law. 15. An identical question came up before the Supreme Court in Bhagwan Dass and another v. Punjab State Electricity Board reported in (2008) 1 SCC 579. The Supreme 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." 16. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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) 17. 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 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 18. In the present case, the following facts cannot be disputed:- i) The petitioner is entitled to have the protection under Act 1 of 1996. ii) His mental condition which is certified by the Medical Board is an acquired disability while in service. iii) On account of the Medical Board's opinion, he was discharged (though the learned Government Advocate wanted to label it as a relief but the counter affidavit speaks to the contrary) from service on account of mental disability. iv)The fact that he had applied for pension need not stand in the way of his claiming the relief of backwages from the date of disability till the date of his superannuation. v)The action of the respondents is clearly in contravention of Section 47 of the Act 1995. 19. In the light of the above facts, the writ petition is allowed with costs. The respondents are directed to pay full salary to the petitioner including annual increments from the date of his relief till the date of his actual date of reaching the age of superannuation. While making such payment, the pension paid https://hcservices.ecourts.gov.in/hcservices/ during the relevant period can be adjusted against the amounts to be paid. The respondents by their action had completely betrayed their ignorance of the Act 1995 and had made the petitioner to run from Court to Court. Therefore, it is a fit case for imposing costs on the respondents. Costs quantified at Rs.5000/- towards legal fees which has to be paid to the learned counsel for the petitioner. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki To 1.The Deputy Director-cum-Principal In Charge, Government Industrial Training Institute, Chennai – 600 021. 2.The Director, Employment and Training, Chepauk, Chennai. + 1 cc to M/s. Sai, Bharath & Ilan, Advocate Sr.89303 + 1 cc to Government Pleader Sr.89165 W.P.No.11728 of 2007 (O.A.No.2077 of 2002) NSM(CO) Eu 10.1.10 https://hcservices.ecourts.gov.in/hcservices/