LPA 506/2003 Page 1 of 22 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 506/2003 % Reserved on : 11.12.2008 Date of decision: 09.01.2009 Delhi Transport Corporation …Appellant Through: Mr. R. D. Makheeja, Adv. Versus Sh. Harpal Singh ...Respondent Through: Mr.G.S.Charya , Adv. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. 1. Brief facts giving rise to the filing of this LPA are; (i) That the respondent workman was employed with the appellant as a Security Guard. On 05.06.1991 while returning to his house after discharging his duties, he met with an accident and sustained grievous injuries rendering him unsuitable for employment as security guard, thereafter he proceeded on medical leave. He was referred to DTC medical board where he refused to appear. He was prematurely retired from service w.e.f. 22.02.1994 vide letter dated LPA 506/2003 Page 2 of 22 18.05.1994. The respondent aggrieved by the aforesaid order raised a Industrial Dispute before the Conciliation Officer, Delhi Administration for issuing directions to the Management for reinstating him in service. Govt. of NCT of Delhi referred the dispute between the respondent and the appellant to the Labor Court registered as ID No. 118/1996; (ii) The same was adjudicated upon by the Presiding Officer, Labor Court VII. Vide order dated 18.02.2002 an award was given in favor of the respondent directing inter alia his reinstatement with continuity of service and full back wages. It was further held that if the workman cannot be retained as a Security Guard, the management shall deal with his case in terms of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights And Full Participation) Act, 1995 (hereinafter referred to as „the said Act‟), as those provisions will prevail over any other administrative guidelines laid down by the management. The said Act came into being only in 1995 and was not applicable when the respondent suffered injury or was terminated out of service as the said Act was enforced only on 7.02.1996; (iii). The award delivered by the Labor Court was upheld by a learned Single Judge of this Court who was pleased to dismiss the writ petition filed by the appellant-corporation being CWP No. 2735/2003 for quashing the award. It is this judgment delivered on 25.04.2003 which is the subject matter of adjudication before us. LPA 506/2003 Page 3 of 22 2. It is the submission of the learned counsel for the appellant that the primary question to be gone into by this Court in this LPA is as to “whether the provisions of Section 47 of the said Act can have retrospective operation”. It is his contention that this is not the mandate of the Act. He has also relied upon the following judgments: I) P. Mahendran & Ors. Vs. State of Karnataka & Ors., AIR 1990 SC 405. ii) The Land Acquisition Officer-cum-DSWO Vs. M/s B.V. Reddy & Sons AIR 2002 SC 1045 iii) Shyam Sunder & Ors Vs. Ram Kumar & Anr. AIR 2001 SC 2472 iv) Raminder Singh Sethi Vs. D. Vijayarangam, AIR 2002 SC 2087 v) Union of India Vs. Deoki Nandan Aggarwal, AIR 1992 SC 96 vi) State Bank of India & Ors. Vs. Jaspal Kaur [Appeal (civil) No. 409/2007 decided on 01.02.2007. vii) Mr. C. Gupta Vs. Galxosmithklin Pharmaceutical Ltd. [Appeal (Civil) No. 6543-44/2004 decided on 23.05.2007 a) In the case of P. Mahendran & Ors. Vs. State of Karnataka & Ors. (supra) it has been held: “ that it is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statue or in the Rule showing the intention to affect the existing rights the Rule must be held to be prospective.” b) In the case of The Land Acquisition officer-cum-DSWO Vs. M/s. B.V. Reddy & Sons (supra) it has been held that: “ it is well settled principle of construction that a LPA 506/2003 Page 4 of 22 substantive provision cannot be retrospective in nature unless the provision itself indicates the same.” c) In the case of Shyam Sunder & Ors. Vs. Ram Kumar & Anr. (supra) it has been held that: “ there is no such rule of construction that a beneficial legislation is always retrospective in operation even though such legislation either expressly or by necessary intendment is not made retrospective.” d) In the case of Raminder Singh Sethi Vs. D. Vijayarangam (supra) it has been held that: “Ordinarily the rights of the parties to litigation stand crystallized on the date of commencement of lis. Any new provision does not apply to the pending litigation.” e) In the case of Union of India Vs. Deoki Nandan Aggarwal (supra) it has been held that: “the Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statue or read words into which are not there.” f) In the case of State Bank of India & Ors. Vs. Jaspal Kaur (supra), the Apex Court was pleased to hold: “ that the Scheme of Compassionate Appointment formulated by the Bank in 2005 could not be applied to an application for compassionate appointment made in 2000 under the old scheme prevailing at that time.” 3. On the other hand, the respondent has submitted that the said Act being a welfare legislation, the provisions of Section 47 of the said Act must be given retrospective operation. It is also submitted that even de hors the provisions of the aforesaid act, such benefits LPA 506/2003 Page 5 of 22 had been granted in the past keeping in view of the spirit of the said Act and the history of legislation as well as the Constitutional provisions. They have also relied upon various judgments on this point as follows: i) Order dated 29.01.2002 in CWP 722/1998 titled as DTC Vs. Shri Ganpat Singh ii) State of Haryana Vs. Narinder Kumar Chawla (1994) 4 SCC 460 iii) Baljeet Singh Vs. Delhi Transport Corporation, 83 (2000) DLT 286 a) In the case of DTC Vs. Shri Ganpat Singh (supra) it has been held that the workman therein be taken back into service and be paid salary from the date when the salary was stopped after termination of service. In that case, the petitioner met with an accident on 07.03.1987 and fractured his bones in his right leg and the Medical Board declared him to be medically unfit. This happened much before the said Act came into force. An Industrial Dispute was referred to by the workmen which was decided in his favor relyihg upon the earlier pronouncements. He was directed to be re instated in service with full back wages. Benfits of the provisions of the said Act were also given effect to and it was further ordered that in case the petitioner was not fit to perform his duty than his case to the dealt with in terms of proviso to Section 47 of the said Act. The ld. Single Judge up held the award in the light of previous pronouncement without deciding the question of the applicability of the Act retrospectively as the said issue was not before the Court at that time. b) In the case of State of Haryana Vs. Narinder Kumar Chawla (supra) it has been held that: “7……….. Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as an LDC. .” LPA 506/2003 Page 6 of 22 4. We have also come across some other judgments on this subject which are as under: i) Vijender Singh Vs. Delhi Transport Corporation, 105 (2003) DLT 261 ii) Delhi Transport Corporation Vs. Presiding Officer, Labour Court IV, Delhi & Anr., 2003 (105) DLT 2008 iii) O.P. Sharma Vs. Delhi Transport Corporation & Anr., 125 (2005) DLT 742 5. It may, however, be observed that all the aforesaid judgments are based upon the judgment delivered in Baljeet Singh‟s Case (Supra) and the judgment in Vijender Singh‟s Case (Supra) taken note of the decision of the Apex Court in the case of Ved Prakash Singh arising out of SLP No. 1575/1991 decided on 05.08.1991. 6. Before us, appellant has assailed the order passed by the learned Single Judge dated 25.04.2003 upholding the order of the Labor Court extending the benefit of Section 47 of the said Act to the respondent retrospectively despite the fact that the services of the respondent were terminated prior to the coming into force of the said Act. It is the submission of the appellant that the said Act contains no provision whereby the benefit of the said Act can be granted retrospectively even though one may be entitled to the benefit under Section 47 of the said Act if services are terminated after coming into force of the said Act. 7. To appreciate the relevant submissions, it may be appropriate to take note of Section 47 of the said Act which reads as under: 47. Non-discrimination in Government employment.- (1) No establishment shall dispense LPA 506/2003 Page 7 of 22 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. (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. 8. The said Act was enacted by the Indian Parliament pursuant to having become a signatory to an International Convention held in Beijing in December, 1992, which took a decision to launch the Asian and Pacific Decade of disabled persons 1993-2002. In that meeting a resolution about full Participation and Equality of People with Disabilities in the Asian and the Pacific Region was adopted. The members participating in the convention decided to grant certain benefits to the disabled persons in respect of their services. 9. The objects of the aforesaid Act provide:- "(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care education, training, employment and rehabilitation of persons with disabilities; (ii) to create better environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non disabled persons; LPA 506/2003 Page 8 of 22 (iv) to counter act any situation of the abuse and the exploitation of persons disabilities; (v) to lay down strategies for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (vi) to make special provision for the integration of persons with disabilities into the social mainstream." 10. Both the parties have filed written synopsis and have also made oral submissions. We have gone through the same and have also given our thoughtful consideration to the rival submissions. 11. It has been submitted on behalf of the learned counsel for the appellant that in view of the legal position examined the judgment of the Learned Single Judge as well as the award given by the Labour Court cannot be sustained. On the other hand learned counsel for the respondent argued otherwise. 12. At this stage, it may be appropriate to also take note of the some other Judgments. Firstly, we would make reference to some observations made by a Division Bench of this Court in the case of Delhi Transport Corporation Vs. Rajbir Singh reported 100 (2002) DLT 111, as under: 13. Can a provision be read differently than its plain and grammatical meaning. Answer to the said question must be rendered in the negative. 14. The true way to read and apply a legislation is to take the words as Legislature have given them and to take the meaning the word gives naturally, unless the construction in those words as offered by preamble or context appear contrary thereto. The golden rule is that all the statute should be interpreted literally. Exercises for construction of a statute should be taken recourse to only when the LPA 506/2003 Page 9 of 22 literal construction thereof would give rise to an absurdity. 15. Grant of some relief to the disabled person had been in the mind of all concerned for a long time. 16. As indicated hereinbefore 1995 Act came into force only after India became signatory to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. The said Act, therefore, must be read in the context of the said proclamation. 17. It is now well settled that construction of such a statute must be made in the light of the International Covenants. See Jolly George Verghese v. Bank of Cochin, 1980 SC 470; Vishaka v. State of Rajasthan, AIR 1992 SC 3011; Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625. 18. In G.P. Singh's Principles of Statutory Interpretation (Eighth Edn. 2001) at pages the law is stated in the following terms: "In construing Wills and indeed statutes and all written instruments, the grammatical and ordinary sense of the word is adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity, and inconsistency, but no further. And as stated Lord Atkinson: "in the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense". Viscount Simon, L.C., said: "The golden rule is that the words of a statute must prima facie be given their ordinary meaning". Natural and ordinary meaning of words should not be departed from "unless it can be shown that the legal context in which the words are used requires a different meaning". Such a meaning cannot be departed from by the Judges "in the light of their own views as to policy" although they can "adopt a purposive LPA 506/2003 Page 10 of 22 interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy". 13. At this Juncture it would also be relevant to refer to another Judgment of this court heavily relied upon by the respondent delivered in the case of Baljeet Singh Vs. DTC, 83 (2000) DLT 286. In the aforesaid judgment while interpreting Section 47 of the Act, it has been held: "13. Section 47 in clear terms mandates that no establishment shall dispense with or reduce in rank the employee who acquires the disability during his service. Even if he is not suitable for the post he was holding as a result of disability he is to be shifted to some other post with same pay scale and service benefits. Even when he cannot be adjusted against any other post he is to be kept on supernumerary post until a suitable post is available for he attains the age of superannuation, whichever is earlier. The intention of Section 47 is clear and unambiguous namely, not to dispense with the service of the person who acquires disability during his service. The purpose is not far to seek. When the objective of the enactment is to provide proper and adequate opportunities to the disabled in the field of education, employment etc. it is obvious that those who are already in employment should not be uprooted when they incur disability during the course of employment. Therefore their employment is protected even if the destiny inflicts cruel blow to them affecting their limbs. Even if he is not able to discharge the same duties and there is no other work suitable for him, he is to be retained on the same pay scale and service benefits so that he keeps on earning his livelihood and is not rendered jobless. Notwithstanding the aforesaid clear and mandatory provisions contained in Section 47 of the Act, the respondent Corporation has passed the orders of voluntary retirement in the aforementioned cases which is an establishment within the meaning of Section 2(k) of the Industrial Disputes Act as it was established under Central Act. Such obvious Legislature intent is not understood by the officials of the DTC who are at the helm of affairs and have handed out such shabby treatment to the petitioners. Even when their attention was drawn to the provision they chose to lend deaf ears and did and did not rectify their wrong acts." LPA 506/2003 Page 11 of 22 14. The Division Bench in Rajbir Singh‟s Case (Supra) also considered the ratio of the aforesaid judgment and observed as under: 24. The contention of Mr. Sabharwal to the effect that therein also this Court said "when they acquire disability during the course of employment" and thus, the same meaning should be attributed to Section 47 of the Act cannot be accepted. The said contention, in our opinion is misplaced. 25. A judgment, as is well known, must not be read as statute. It must be understood in the context of the facts involved therein and points required to be decided. 26. What was emphasized in the said paragraph was that those who were already in employment should not be uprooted when they incurred disability. It would not mean that such disability must occur during the course of employment which expression finds place in certain statutes, as for example, Workmen Compensation Act. 32. Whether a substantive right can be taken away by giving retrospective effect to a statute is not in question in these matters. Accident might have occurred in 1995, and the Act might have come into force on 7.2.1996 but the submission of Mr. Vibhu Shanker that the date of acquisition of disability must be considered to be the cut off date for the purpose of Section 47 of the Act cannot be accepted. After coming into force of the said Act only the order impugned was passed- If prior to coming into force of the said Act, services had been terminated the matter would have been different but as the services were not terminated till the Act came into force the same must be held to be bad in law. 33. Once the Act came into force having regard to the phraseology used in Section 47 the appellant herein became debarred from terminating the services of the respondent. 34. The question as to whether in a situation of this nature, the Act may be held to have retrospective effect or not has succinctly been stated in G.P. Singh's Interpretation of Statute (Eighth Edn. 2001) at page 403 as under: "The rule against retrospective 'construction is not applicable to a statute merely "because a part of the requisites for its action is drawn from a time antecedent to its passing" If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act is, therefore, not retrospective merely because it applies also to those to whom pre-amended Act was applicable if the amended Act has operation from the date of its amendment and not from an anterior date. But this does not mean that a statute which takes LPA 506/2003 Page 12 of 22 away or impairs any vested right acquired under existing laws or which creates a new obligation or imposes a new burden in respect of past transactions will not be treated as retrospective. Thus to apply an amending Act, which creates a new obligation to pay additional compensation, or which reduces the rate of compensation to pending proceedings for determination of compensation for acquisitions already made, will be to construe it retrospective which cannot be done unless such a construction follows from express words or necessary implication." 15. Thus, if a person is in employment may be his disability might have been acquired before the date the Act came into force, the benefit of Section 47 of the Act needs to be conferred upon the petitioner if he is sought to be terminated after coming into force of the Act. However, the said Act does not have any retrospective operation. To that extent the judgment of the learned Single Judge cannot be upheld. 16. However, whether de-hors the provisions of the said Act, benefits of similar nature can be granted to a person who is shunted out of the service by the state or the instrumentality of the state is another question. In this regard also some observations made in the case of Rajbir Singh (Supra) are important and needs to be referred to. Those observations are as under:- 9. Section 47 of the said Act occurs in Chapter VII thereof which deals with non-discrimination. Section 44 deals with non-discrimination in transport whereas Section 45 deals with non- discrimination on the road. Section 46 deals with non-discrimination in the built environment. Section 47 deals with non-discrimination in Government employment. The said provision reads thus: "47.Non-discrimination of Government employment.- (l) 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, LPA 506/2003 Page 13 of 22 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