RSA No.123 of 2009 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.123 of 2009 Date of Decision: 11-09-2009 Om Parkash ......Appellant Versus State of Haryana and others .....Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 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: Shri Rajiv Sharma, Advocate, for the appellant. Shri Kulvir Narwal, Additional AG, Punjab. HEMANT GUPTA, J. (Oral). The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby his suit challenging his retirement vide order dated 9.5.2003 under Rules 5.11 and 5.18 of the Punjab Civil Services Rules, Volume-II, was dismissed. The plaintiff joined as conductor with the defendants in the year 1982. He suffered problem in his eyes in the year 2001, when he was working in the Hisar Depot of the Haryana Roadways. On his request, the plaintiff was medically examined by the Civil Surgeon, RSA No.123 of 2009 [ 2] Hisar, who referred him to the Post Graduate Institute of Medical Sciences, Rohtak. The Medical Board in its report dated 28.4.2003 opined that the plaintiff is not fit to serve as a conductor. On the basis of such report, the plaintiff was relieved vide order dated 9.5.2003. Subsequently, a request of the plaintiff for giving appointment to his dependent family member, was declined on 21.12.2004. Aggrieved, the plaintiff filed the present suit for declaration, which has been dismissed by the Courts below. I have heard learned counsel for the parties on the following substantial question of law:- “Whether in terms of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the defendants are bound to engage the plaintiff on an alternative suitable post or to pay the pay and allowances attached to the post in terms thereof? Learned counsel for the appellant has referred to Bhagwan Dass and another v. Punjab State Electricity Board (2008) 1 Supreme Court Cases 579, wherein the petitioner sought retirement and also requested for suitable job for his wife. Though the petitioner was retired but his wife was not given employment. The Hon'ble supreme Court held to the following effect:- “17. From the materials brought before the Court by none other than the respondent-Board, it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man RSA No.123 of 2009 [ 3] on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated 17.7.1996. The letter was written when a charge-sheet was issued to him and in the letter he was trying to explain his absence from duty. In his letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. 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 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.” In Makhan Singh, Ex. Driver, Punjab Roadways, Nangal v. State of Punjab and others, 2006(3) PLR 47, this Court while RSA No.123 of 2009 [ 4] considering the earlier judgment of the Hon'ble supreme Court in Kunal Singh v. Union of India, AIR 2003 S.C. 1623, held that the provisions of Section 47 of the Act are mandatory. It contemplates that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. In view of the said mandate, the order of premature retirement was set set aside and the respondents were directed to extend to the petitioner all the benefits of Section 47 of the Act. Learned counsel for the respondents has raised an argument that in terms of Section 2(t) of the Act, the plaintiff cannot be said to be suffering from disability so as to attract the provisions of Section 47 of the Act, as the Medical Board has not certified that the disability suffered by the appellant is not less than 40%. The said argument is not tenable for the reason that the Medical Board has opined that the plaintiff is not fit for carrying on the duties of conductor. With that report of the Medical Board, the plaintiff cannot be discharged from service, but it is for the respondents to find out alternative a suitable post for him. It is for the respondents to assess the extent of disability of the plaintiff. Still further, it is the respondents, who have failed to prove that the disability of the appellant is less than 40% so to deny him the benefit of the Act. In view of the above, the judgment and decree passed by the Courts below cannot be sustained being totally contrary to the mandate of Section 47 of the Act and various judgments of the Hon'ble RSA No.123 of 2009 [ 5] Supreme Court and this Court, as referred to above. Consequently, the present appeal is allowed. The judgment and decree passed by the Courts below are set aside. The suit of the plaintiff is decreed with a direction to the defendants to appoint the plaintiff on a suitable post keeping in view his disability and physical condition or to create a supernumerary post till such date, the plaintiff attains the age of supernnuation. The arrears of salary payable to the appellant shall be adjustable with the amount of pensionary benefits paid to the appellant. (HEMANT GUPTA) JUDGE 11-09-2009 ds