1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1117 OF 2002 Shree Satish Prabhakar Padhye Age 51 years Occ: Nil Residing at 10, Shantibramha Society 104 Dahanukar Colony, Lane No.3 Kothrud, Pune-411 029. ...Petitioner Vs. 1. Union of India Through the Secretary Ministry of Law Justice & Company Affairs (Legislative Department) having its office at New Delhi. 2. Minister Of State for Social Justice and Empowerment (Independent Charge) Shashtri Bhawan, New Delhi-110001. 3. State of Maharashtra Through the Secretary Department of Social Welfare Cultural Programmes and Sports, Having its Office at Mantralaya, Vistar Bhavan Mumbai 400 032. 4. Commissioner for the Welfare of Disabled Persons, having His Office at 3, Church Lane Pune 411 001. Maharashtra. 5. Dalco Engineering Private Ltd. (A Company incorporated under the Companies Act, 1956) having its Registered Office at H.A.Ltd. Compound, Pimpri, Pune 411 018. ...Respondents ----- Mr. Amogh Paralikar, Adv. for Petitioner Mr. Suresh Kumar, Adv. for Respondent Nos.1 & 2 Mr. S.R. Nargolkar, A.G.P. for Respondent Nos.3 & 4 Mr.Deshmukh with Mr. A.V. Anturkar for Respondent No.5 CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. 2 DATE OF RESERVATION OF JUDGMENT : 12.8.2005 DATE OF RESERVATION OF JUDGMENT : 12.8.2005 DATE OF RESERVATION OF JUDGMENT : 12.8.2005 DATE OF PROUNCEMENT OF JUDGMENT : 23.12.2005 DATE OF PROUNCEMENT OF JUDGMENT : 23.12.2005 DATE OF PROUNCEMENT OF JUDGMENT : 23.12.2005 JUDGMENT : (Per Smt.R.S. Dalvi, J.) JUDGMENT : (Per Smt.R.S. Dalvi, J.) JUDGMENT : (Per Smt.R.S. Dalvi, J.) 1. The Petitioner is a person with hearing disability who has acquired his disability consequent upon and during his service with Respondent No.5. The Petitioner was a trained Telephone Operator working as such with Respondent No.5 for 23 years. Respondent No.5 are in the business of manufacturing industrial equipments and the Petitioner was posted in their factory. He was not provided with a soundproof cabin. The Petitioner contends that he worked under extremely noisy surroundings in the 5th Respondent’s factory. It is his case that due to constant loud manufacturing sounds his sense of hearing became gradually impaired and he had to undergo medical treatment ultimately leading to the termination of his services by Respondent No.5. His legal rights to employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter, for the sake of brevity, referred to as "the Act") are under consideration in this matter. 2. The Petitioner has relied upon the Certificate of his Physician dated 29th October 1994 showing that he suffers from bilateral sensory neural loss. He was advised not to get exposed to noisy surroundings. 3 Thereafter, on 17th March, 1998 he has undergone an audiogram which illustrates the hearing loss in decibels as against the frequency in hertz in respect of both his ears. The Audiologist has shown how the Petitioner’s hearing has been impaired. The right ear shows profound sensory neural loss. The left ear shows severe sensory neural loss. A certificate given by another Physician dated 25th March, 1998 shows around 85% deafness. He was certified handicapped for his day-today activities due to his deafness. 3. A subsequent Audiogram dated 10th June, 2000 showed further impairment of his left ear. The Audiologist’s report showed no benefit from amplification. It was advised that the Petitioner should not be doing any job which requires use of only auditory modality. It was further advised that Visual Auditory Modality may be a better option. 4. The Petitioner’s Advocate has explained the two Audiograms of 1998 and 2000. The Amplification showing the frequency in hertz is seen to have been almost complete in the right ear since 1998 itself showing "profound" hearing loss. "Severe" hearing loss in the Petitioner’s left ear in 1998 has deteriorated to "profound" hearing loss in his left ear in the year 2000. The later Audiogram therefore, shows both his ears almost completely damaged. The two audiograms further show that this damage has taken 4 place over the years and whilst the Petitioner served in the factory of Respondent No.5. 5. The Certificate dated 11th June 2000, Exhibit-E to the Petition shows that the Petitioner suffers from profound sensory hearing loss which is seen to be progressive. It shows that it would be better for the Petitioner to be occupied in work which entails not merely auditory, but visual and auditory requirements. Thus, the Petitioner can be employed to do any work which entails not merely hearing, but hearing as well as seeing requirements. 6. The Petitioner therefore, wrote to Respondent No.5 - his employer on 26th June, 2000 entreating them to transfer him to another section. Instead, Respondent No.5 by their letter dated 1st December 2000 terminated the services of the Petitioner as he was unfit to perform his duties as Telephone Operator without any chance of recovery of the deformity. The termination was notified to be with effect from 31st December 2000. 7. The Petitioner applied to the Disability Commissioner appointed under the Provisions of the Act for being provided a suitable alternate posting as a handicapped person. 8. The Commissioner by his order dated 12th 5 October 2001, Exhibit-N to the Petition rejected the Petitioner’s claim seeking such a transfer and to be given another posting on the ground that Respondent No.5-employer was not covered under the Act. He however, made a suggestion to Respondent No.5 to re-employ the Petitioner on any other work in the Company which he can discharge since the Petitioner was handicapped only in relation to deafness but was in a position to do any other work. He observed that the Rehabilitation of Disabled is to be treated as a Social Responsibility and hence made that suggestion in his order. 9. Respondent No.5 have not headed the suggestion. The termination of the services of the Petitioner has not been set aside. Consequently the Petitioner has filed this Petition challenging the order of the Commissioner dated 12th October 2001 and seeking reinstatement with effect from 31.12.2000. 10. It is the contention of the Petitioner that Respondent No.5 is an "Establishment" covered under Section 2(k) of the Act and consequently in view of the protection of the Act his services cannot be dispensed with. He further contends that he cannot be reduced in rank since an employee who acquires the disability during his service is protected against that under Section 47 of the Act. The Petitioner concedes that he can be shifted to some other post in 6 the establishment of Respondent No.5 under the proviso to Section 47 or be kept on a supernumerary post until a suitable post becomes available or until he attains the age of superannuation as per the second proviso of Section 47. 11. The Petitioner claims rights and remedies under the aforesaid Socio Economic Legislation. The Legislation has come to be passed in view of and pursuant to the Proclamation On The Full Partition and Equality of People With Disabilities In The Asian and Specific Region ( hereinafter referred to as "the Proclamation") to which India was a signatory and consequent upon which the aforesaid Act came to be promulgated. The Petitioner therefore, seeks a reasonable and broad interpretation to be placed on the provisions of said Act with a view to advance justice under it as against a pedantry, narrow interpretation which would frustrate its provisions. This interpretation, it is contended, should bring Respondent No.5 within the sway of the Act, since it is the contention of Respondent No.5 that the Act does not apply to it since it is not a Government undertaking. This contention has been upheld by the Commissioner in the impugned order. 12. The object of the Act is to give effect to the above-referred Proclamation. The Proclamation recognizes the Economic hardships of the disabled 7 persons and their rights to overcome them through the remedy of a Socio Economic Legislation and obtain opportunities for rehabilitation, education and employment to ameliorate their condition and to enable them to live with dignity and the worth of a human being. The Act is therefore a beneficent legislation, enacted in terms of and in the spirit of the Proclamation which is intended to reach out to all the Disabled Persons in the Asia-Pacific Region in the modes specified thereunder. 13. For determining the applicability of the Act to a given undertaking, the definition of Establishment under Section 2(k) must be first examined. It runs thus:- . ‘‘Section 2(k)- "Establishment Establishment Establishment" means a corporation established by or-under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in Section 617 of the Companies Act, 1956 and includes Departments of a Government.’’ 14. It can be seen from this definition of an "establishment" that there are 4 types of Establishments which come under the umbrella of the Act. These are Corporations, Authorities of 8 Government, Local Authority and Government Company. In the present matter, we are not concerned with Government or local authorities or a Government Company, but with the question as to whether Respondent No.5 could be considered to be a Corporation to be covered under the concept of an establishment. The Corporations may be established by and or under an Act. The Act may be a Central, Provincial or a State Act. All such Corporations fall within the definition of the term ‘‘Establishment’’. Respondent No.5 is a Private Limited Company incorporated under the Companies Act I of 1956. Under the Companies Act I of 1956, a Company is required to be formed and registered under that Act as per Section 3(i)(i) to become a ‘‘Company’’. The mode of establishment of such a Company is therefore by Registration. The formation of the Company under Section 12 of the Companies Act I of 1956 is by a minimum number of persons subscribing their names to its Memorandum of Association and complying with the requirements of the said Section in respect of its registration. The registration of the Company takes place after presentation for registration of its memorandum and its articles, if any, and its agreement with its Managing or whole time Director or Manager, to the Registrar of the State in which the Registered office of the Company is to be situated. On the registration of the memorandum of the Company the Registrar of the Companies (ROC) issues a certificate 9 of its incorporation under Section 34 thereof. The formation of the Company by such registration which is statutarily laid down is therefore a mode of its establishment. Once the Company is formed and incorporated under the Indian Companies Act, it is a Company established under that Act. The Companies Act I of 1956 is a Central Act. All Companies formed and registered thereunder are, therefore, established under that Central Act. The Petitioner contends that all such Companies fall within the sway of the Act under the concept of "Corporation" and, therefore, the term ‘‘Establishment’’. 15. The contention of Respondent No.5 is quite the contrary. Respondent No.5 contends that a Limited Company is not a "Corporation". It is established under the Provisions of Companies Act and it is registered thereunder. It is contended on behalf of the Respondent No.5 that an entity which is incorporated under the provisions of a special Act would alone be a "Corporation" for example a University established under the Maharashtra Universities Act, a State Financial Corporation established under the State Financial Corporation Act etc. Those are Statutory ‘‘Corporations’’. Those are established under such specific Statutes. Companies Act is a general Statute which deals with all kinds of business undertakings and which provides the requirement of their formation and incorporation. 10 Once incorporated they are issued a Certificate of incorporation by the ROC. 16. That apart, it is further contended on behalf of Respondent No.5 that a Company is not directly established under the Companies Act but its provisions are only enabling provisions. Such contention is entirely erroneous. A Company which is a Body Corporate can be established only by strict compliance of the provisions relating to its formation and thereafter its registration. Once founded and registered it becomes an Incorporated Company which is a separate Legal Entity. 17. It may be mentioned that the Government Company defined under Section 617 of the Companies Act, 1956 has been specifically set out and covered under Section 2(k) of the Act. The statutory Corporations such as the two illustrations given above by Respondent No.5 are not so included under Section 2(k). Consequently the first limb of Section 2(k) which covers "a Corporation established by or under a Central, Provincial or State Act" would take within its fold not only a Statutory Corporation but also a Registered Company. If the intention of the Legislature was to exclude all Incorporated Companies, the first clause would have mentioned specifically a Statutory Corporation just as it specifically includes a Government Company. 11 18. Our attention has been drawn by the Petitioner to the judgment in the case of Hakam Singh V. Gammon Hakam Singh V. Gammon Hakam Singh V. Gammon (India) Ltd., A.I.R. 1971 SC 740 (India) Ltd., A.I.R. 1971 SC 740 (India) Ltd., A.I.R. 1971 SC 740 which deals with the question of jurisdiction of a Civil Court in those cases in which cause of action would accrue within the jurisdiction of more Courts than one. The Court held that under the explanation to Section 20 of the C.P.C. the term "Corporation" was held to include not only a Statutory Corporation but a Company registered under the Companies Act. The object of that provision was to cover as many suits as possible which can be filed against Corporations registered within the jurisdiction of one of the Civil Courts when the cause of action arises within the jurisdiction of more than one Court. This lends support to the submission that the phrase " Corporation "Established" under any Act" used while defining an Establishment would include a limited Company. 19. Whether or not a private limited Company such as Respondent No.5 can be included in the term ‘‘Establishment’’, can be seen further upon reading the Act as a whole. 20. Definition of ‘‘Employer Employer Employer’’ in Section 2(j) is thus :- . ‘‘Employer’’ means:- 12 .(i) in relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and .(ii) in relation to an establishment, the Chief Executive Officer of that establishment. 21. It is therefore seen that there is a distinction between a Government Undertaking and other Establishments. These other Establishments could be interalia Companies established under the Central Act namely Companies Act. 22. Further the term "Appropriate Governments", "Appropriate Governments and Local Authorities", "Establishments" are used under separate provisions of the Act denoting the applicability of those Provisions either to the appropriate Governments or the appropriate Governments and Local Bodies or even other Establishments. 23. Chapter IV, V, VI, VII, VIII, IX and XIII make separate provisions in that behalf. It will be material to refer to their salient provisions separately. .(a) Under Chapter IV which deals with Prevention and early detection of 13 disabilities, the Appropriate Government and Local Authorities are enjoined to take certain steps for such prevention. .(b) Under Chapter V which deals with Education the Appropriate Governments and Local Authorities are enjoined to provide free education to the disabled children and also to make certain scheme for Informal education, Research and Training Institutes. .(c) Under Chapter VI which deals with Employment, the Appropriate Governments are required to identify posts in Establishments which can be reserved for persons with disabilities and review such posts. Similarly the Appropriate Government is enjoined to reserve atleast 3% of posts for persons with disabilities. . The Appropriate Governments and Local Authorities are required to formulate schemes for aspects of employment and all Government Educational Institutions and other Educational Institutions receiving Aid from the Government are to reserve 3% of the seats for them. .(d) Under Chapter VII, which deals with Affirmative Action, the Appropriate 14 Governments are required to provide appliances to persons with disabilities whereas the Appropriate Governments and Local Authorities are to frame Schemes for preferential allotment of lands on concessional rates and Schemes for provisions such as housing, setting-up business, recreation centres, Special Schools, Research Centres and Factories for persons with disabilities. .(d) Under Chapter VIII, dealing with Non-discrimination, the Establishments in Transport Sector are required to take special measures in certain Public Transports and in toilets. Further the Appropriate Governments and Local Authorities are enjoined to provide for certain signs and symbols on roads for the disabled. This chapter includes Section 47 under which no Establishment can dispense with or reduce in rank any employee who acquires a disability during his service. .(e) Under Chapter IX which deals with Research and manpower Development, the Appropriate Governments and Local Authorities are enjoined to promote and sponsor Research under certain specified areas. Only the Appropriate Governments are enjoined to provide financial assistance to Universities 15 and other Institutions of learning for Special Education, Rehabilitation and manpower Development required for the disabled. .(f) Chapter XIII deals with Social Security. The Appropriate Governments and Local Authorities are enjoined to undertake Rehabilitation of the disabled and grant financial assistance to NGOs. Only the Appropriate Government is required to frame an Insurance Scheme for benefit of its employees with disabilities to frame a scheme for grant of Unemployment Allowances to them. 24. It would be useful to set out the specific Statutory Mandate upon the Governments, the Local Bodies and the Establishments in a tabular form for easy reference:- ------------------------------------------------------ Sr.No. Chapter No. Subject Section of Particulars of the Act the liabilities ------------------------------------------------------ 1. IV Prevention and 25 Appropriate Govt. & early detection Local Authority of disabilities 2. V Education 26 & 27 Appr.Govt. & Loc.Auth. 3. VI Employment 32 & 33 Appr.Govts. 38 Appr. Govts.& Loc.Auth. 39 Govt. Edl.Instns.& 16 & Aided Edl.Instns. 40 & 41 Appr.Govts.& Loc. Auth. 4. VII Affirmative 42 Appr.Govt. Actions. 43 Appr.Govts.& Loc. Auth. 5. VIII Nondiscrimi- 44 Establishment in Transport. -nation Sector. 45 & 46 Appr.Govts.& Local Auth. 6. IX Research & 47 Establishments Manpower 48 Appr.Govts.& Local Auth. 7. XIII Social 66 Appr.Govts.& Securities Local Auth. 67 & 68 Appropriate Governments ------------------------------------------------------ Hence it can be seen that only the Appropriate Governments have the specific Legislative Mandate upon themselves to initiate Research (Section 28), Set up Teachers Training Institute (Section 29), Appropriate Education Scheme (Section 30), Identify posts (Section 32), Reserve the posts (Section 33), provide aids and appliances to persons with disabilities (section 42), frame Insurance Scheme for its employees with disabilities (Section 67) and frame a Scheme for payment of unemployment allowance to persons with disabilities who though registered on the Special Employment Exchange would not be gainfully employed for more than 2 years. It must be appreciated that this Legislative Mandate can be made only upon the 17 State. 25. For several other aspects under this Act where Municipal Bodies can also contribute their might, the Legislative Mandate is fixed not only upon the Appropriate Government but upon Appropriate Government and Local Bodies. These relate to taking steps for prevention of occurrence of disabilities (Section 25), providing education as well as schemes for Informal Education to the disabled (Sections 26 & 27), formulating schemes for Insurance to employees or persons with disabilities (Section 38), reserve 3% in Poverty Alleviation Schemes (Section 40), provide incentives to employees both in public and private sectors to ensure atleast 5% of their employment is made available to persons with disabilities (Section 41), frame schemes for allotment of land at concessional rates for specified activities for the disabled (Section 43), provide for facilities on the roads (Section 45) provide for an environment conducive to the disabled (Sections 46), promote and sponsor Research in various areas for the disabled (Section 48), undertake rehabilitation of the disabled and grant financial assistance to NGOs (Section 66). 26. It can be easily seen that all the social schemes are to be undertaken by both the Appropriate Government and Local Bodies whereas the provisions of infrastructural finance is left only to the 18 Appropriate Governments. 27. All Educational Institutions are required to provide amanuensis amanuensis amanuensis to blind students (Section 31). Similarly all Government and Aided Educational Institutions are required to reserve 3% of the seats for the disabled (Section 39). Further all the Establishments in the Transport Sector are required to provide amenities in Railways, buses, vessels and aircrafts and adopt their ramps for easy access to the disabled (Section 44). It may at once be mentioned that the Establishments in the Transport Sector are private and public Establishments. Section 44(a) deals with interalia buses which are owned by the private sector also and to whom the Legislative Mandate would squarely apply. Similarly aircrafts may be owned by private as well as public sector undertakings, both of which are equally liable to provide facilities for the disabled under the Legislative Mandate. 28. Further all the Establishments are enjoined not to dispense with or reduce in rank any employee who acquires a disability during his service (Section 47). It is upon this Section that the Petitioner claims his legal rights. This Section 47 of the Persons with Disabilities Act, 1995 reads as follows:- " 47. Non-discrimination in Government 47. Non-discrimination in Government 47. Non-discrimination in Government 19 employment employment 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. (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." 29. Under the proviso to this Section the employee acquiring disability may be shifted to some other post with the same pay scale and service benefits if the 20 post already held by him becomes unsuitable for him upon the acquisition of the disability. Under a further proviso to this Section if the employee cannot be so adjusted he is required to be kept on supernumerary post until his superannuation. Further his promotion is not to be denied under Sub Section 2 of the said Section. Under the Proviso to Sub Section 2 the Appropriate Government may exempt any establishment from the provisions of that Section having regard to the type of the work of that Establishment. 30. The Scheme of the Act is therefore to provide various ways in which the disabled can be given succour and their position can be ameliorated. The responsibility for these provisions is fixed upon the various Institutions and Agencies, Government and Non-Governmental as laid down in various Sections. 31. What is important to note is that though there is no Mandate upon every Establishment to employ disabled persons and though the reservation of posts is only to be made by the Appropriate Government, every Establishment is required to continue the service of the employees already in employment of these Establishments as per these provisions 32. Under Section 41 of the Act, the Appropriate Governments and the Local Authorities are required to 21 provide incentives to employees both in public and private sectors to ensure that atleast 5% (five per cent) of their workforce is composed of persons with disabilities. That provision