1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6934 OF 2004 WITH CIVIL APPLICATION NO.2282 OF 2008 Maharashtra State Road Transport Corporation. ...Petitioner. Vs. Tukaram Kisan Dhanwade. ...Respondent. .... Mr. G.S. Hegde with Mr. G.A. Kamalkar for the Petitioner. Mr. Rajesh N. Kachare for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 30, 2008. P.C. Civil Application 2282 of 2008 has been taken out after the petition has been admitted for the expeditious hearing of the petition. Counsel appearing on behalf of the Petitioner submitted that the issue which arises in this case is covered by the judgments of the Supreme Court in Kunal Singh vs. Union of India, 2003 (2) ALL MR 369 and the Union of India vs. Sanjay Kumar Jain, AIR 2004 SC 4139. In the circumstances, with the consent of Counsel appearing on 2 behalf of the Petitioner, the Petition is taken up on Board for hearing and final disposal. 2. The Respondent was employed with the Maharashtra State Road Transport Corporation as a driver and on 22nd February 1998 when he was on duty, the bus which he was driving, met with an accident. The Respondent was medically examined and the Civil Surgeon issued a medical certificate dated 12th September 2000 on the basis of which he was assigned light duty, of filling diesel. The Respondent worked from 27th September 2000 to 27th December 2000. He was again referred to the Civil Surgeon who issued a certificate on 7th January 2001 stating that the Respondent was permanently unfit to perform duties as a driver. The services of the Respondent were terminated on 31st January 2001 on the ground that there was no policy of providing an alternative job to a driver, who was medically unfit. The Respondent filed a complaint of unfair labour practices which was allowed by the Industrial Court on 30th April 2004. The Industrial Court granted reinstatement and directed the Petitioner to give alternative work to the Respondent. 3 3. Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Act defines the expression “disability” in Section 2(i) as follows: “(i) “disability” means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness.” The definition includes a locomotor disability as a category of disabilities. The expression “locomotor disability” is defined in Section 2(o) to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. The expression 'persons with disability' is defined in Section 2(t) to mean a person suffering from not less than forty percent of any disability as certified by a medical authority. Section 47 of the Act provides 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: 4 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.” 4. In Section 47, there is an absolute prohibition on the dispensing of the services of an employee who acquires a disability during service. If the employee after acquiring a disability is not suitable for the post which he is holding, the Act permits the employer to shift the employee to some other position with the same pay scale and service benefits. In the event that it is not possible to adjust the employee against any post, he is to be kept in a supernumerary post until a suitable post is available or he attains the age of 5 superannuation, whichever is earlier. Under the proviso, the appropriate Government is empowered to exempt any establishment from the provisions of the Section, having regard to the type of work carried on in the establishment, by a notification and subject to such conditions as may be specified. 5. These provisions were interpreted in the judgment of the Supreme Court in Kunal Singh vs. Union of India, 2003 (2) ALL MR 369 (SC). The Supreme Court held as follows: “The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the 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, he 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 a 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 6 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.” A similar view was taken by the Supreme Court in the judgment in Union of India Vs. Sanjay Kumar Jain, AIR 2004 SC 4139, in the context of promotion. 6. The Learned Trial Judge has correctly relied upon the judgment of the Supreme Court in Kunal Singh (supra). The Respondent is a person with disability within the meaning of the Act and the Petitioner was not justified in terminating his services on the ground that there was no policy to provide alternative employment to an employee, who was rendered medically unfit as a result of an accident. In the circumstances, the direction which has been issued by the Learned Trial Judge cannot be faulted. The Petitioner is duty bound to comply with the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 7 7. The Petition shall accordingly stand dismissed. 8. The amount of back wages deposited in pursuance of the interim order dated 7th April 2005, shall be paid over to the Respondent-workman. 9. Counsel appearing on behalf of the Petitioner has stated that a communication has been issued to him by the Divisional Controller, Satara, recording that the workman has been reinstated and has been assigned work as a peon while at the same time protecting his salary in the erstwhile post of a driver. .....