CWP No.327 of 2010.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.327 of 2010 (O&M) Date of Decision: 16.03.2011 **** Mann Singh . . . . Petitioners VS. Managing Director, Punjab Water Resources Management & Development Corporation Ltd. & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Ms. Promila Nain, Advocate for the petitioner Mr. SS Bhinder, Advocate for the respondents ***** SURYA KANT J. (ORAL) (1). The petitioner was appointed as a Peon in the Punjab Water Resources Management and Development Corporation Ltd. He unfortunately met with an accident while in service and suffered severe injuries which caused ailment of “Cervical Myelopathy Quadruples” due to which the petitioner’s movement got restricted constraining frequent use of wheelchair by him. (2). This is an admitted case that the petitioner is 75% permanently disabled as certified by the authorities of CWP No.327 of 2010.doc - 2 – the Government Medical College & Hospital, Sector 32, Chandigarh. (3). Since the petitioner could not perform the duties of a Peon to the satisfaction of his superiors owing to his physical disability, the respondents passed an order dated 17.06.2009 (Annexure P3) holding him ‘guilty’ of intermittent absence from duty while being on earned/medical leave(s) and finally asked him to show cause as to why he be not prematurely retired? Thereafter, an order dated 10.07.2009 (Annexure P5) was passed holding that since “…..there is no improvement in his physical condition….” the petitioner is “…..retired prematurely on medical grounds being declared unfit by the Civil Surgeon, Ludhiana w.e.f. 08.10.2008……” (retrospectively), forcing the petitioner to approach this Court. (4). Totally insensitive to the legislative mandate contained in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short, ‘the Act’) which guarantees equal opportunities to the physically-challenged persons, what to talk of the globally recognized human rights of ‘specially-able’ persons, the respondents have filed their reply/affidavit CWP No.327 of 2010.doc - 3 – virtually accusing the petitioner of remaining absent from duty time and again and his failure to perform the duties of a Peon. Apropos Section 47 of the Act, the respondents have opined that since the petitioner has failed to lead any evidence that he suffered disability during the service that his case cannot be considered under the provisions of the Act. (5). Section 2(i) of the Act defines “disability” to mean – (i) blindness; (ii) lower vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (viii) mental illness; (6). The “locomotor disablement” as defined in Section 2(o) includes disability of bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. (7). Section 47 of the Act prohibits discrimination in Government employment against any person suffering from physical disability and it mandates that “no CWP No.327 of 2010.doc - 4 – establishment shall dispense with, or reduce the rank, of an employee who acquires a disability during his service” though the proviso thereof enables the employer to shift such an employee “to some other post with the same pay scale and service benefits”. Even the due promotion cannot be denied to an employee merely because he is suffering from physical disability. (8). The officials of the respondent-Corporation who are present in Court, on verification of the record, inform that the petitioner joined the Corporation as a Peon on 05.12.1977. It is nowhere averred by the respondent that at the time of his appointment the petitioner was suffering with any ailment like “Cervical Myelopathy Quadruples”. He has been performing his duties to the entire satisfaction of the authorities till he is said to have encountered the unfortunate accident in January 2008 which became the root cause of his poor health conditions. There can thus indeed be no doubt that the physical disability suffered by the petitioner is “during his service” only. It needs no special emphasis that the physical disability may not have been acquired during the course of employment. Suffice it to say that Section 47 of the Act comes to the rescue and protect against all types of discrimination to a person suffering from physical CWP No.327 of 2010.doc - 5 – disability. The impugned order has been passed against the petitioner de hors the legislative mandate merely because due to 75% permanent physical disability, he is unable to perform the duties of a Peon as used to be assigned to him earlier. (9). The impugned action is not only arbitrary, illegal and contrary to Section 47 of the Act, it also completely overlooks the law of the land. Reliance in this regard has been placed upon the decisions of the Hon’ble Supreme Court in (i) Kunal Singh v. Union of India & Anr., JT 2003(2) SC 132; (ii) Bhagwan Dass & Anr. V. Punjab State Electricity Board, (2008) 1 SCC 579; (iii) Bhagwan Dass & Anr. V. Punjab State Electricity Board, AIR 2008 SC 990. (10). For the reasons afore-stated, the writ petition is allowed; the impugned order dated 10.07.2009 (Annexure P5) is hereby quashed and the petitioner is ordered to be re- instated in service with all consequential benefits. It is directed that the petitioner shall be assigned such duties which he can perform effectively and comfortably while on wheelchair and if need arises, the respondents shall be obligated to construct a ramp in their office and provide such other amenities as are required under Section 46 of CWP No.327 of 2010.doc - 6 – the Act. The respondents shall also be obligated to create such congenial milieu consistent with the object and spirit of the Act. The petitioner shall also be entitled to cost of Rs.10,000/- besides interest @ 7% per annum on the arrears of pay from the date of his illegal premature retirement till realization. (11). Ordered accordingly. Dasti. 16.03.2011 vishal shonkar (S u r y a K a n t) Judge