IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 12129/2008 Reserved on: 11.3.2011 Decided on: 23.3. 2011 _____________________________________________ Mohan Singh. …Petitioner. Versus Himachal Pradesh State Electricity Board and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Sanjeev Bhushan, Advocate. For the Respondents : Mr. Shashi Shirshoo, Advocate. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed on daily wage basis in the year 1974 in the respondent-Board. He was regularized as Chowkidar on 6.6.1997. Since both the legs of the petitioner were amputated, he moved an application on 30.6.2004 seeking retirement on medical grounds and also seeking employment of his son in the respondent-Board. Thereafter, respondent No.2 referred the case of petitioner to the Chief 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Medical Officer, D.D.U. Hospital, Shimla for medical examination and recommendations. Petitioner appeared before the duly constituted Medical Board and was declared permanently incapacitated for further service of any kind in the Department where he was serving as Chowkidar. Thereafter, Senior Executive Engineer called upon respondent No.3 on 3.8.2004 for resubmission of the case of petitioner for leave. According to the contents of letter dated 3.8.2004, petitioner has availed leave with effect from 22.9.1999 to 10.11.2002. Respondent No.3 was also called upon to explain the circumstances in which the leave was extended to the petitioner. Petitioner was thereafter called upon by respondent No.3 to give his explanation about the absence from the duty on 21.8.2004. Respondent No.2 without waiting for the explanation of the petitioner, terminated the services of the petitioner on 27.8.2004 vide Annexure A-9 with effect from 5.8.2004. Petitioner was paid G.P.F. etc. vide letter dated 21.9.2004. 2. Mr. Sanjeev Bhushan has strenuously argued that since his client was permanently incapacitated, his case was required to be considered under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred 3 to as ‘the Act’ for brevity sake). He then contended that though the petitioner was regularized on 6.6.1997, his services have been terminated without following the principles of natural justice. According to him, in normal circumstances, petitioner had to superannuate in the year 2006. 3. Mr. Shashi Shirshoo has argued that the services of the petitioner have been terminated on the basis of Annexure A-6 dated 21.7.2004 as well as on account of willful absence from the duties. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. It is not in dispute that both the legs of the petitioner have been amputated. This is also clear from Annexure A-1. Petitioner has been regularized as Chowkidar on 6.6.1997. Since he was finding it difficult to work as Chowkidar, he moved an application seeking retirement on medical grounds on 30.6.2004. He appeared before the duly constituted Medical Board. The Medical Board recommended that the petitioner is permanently incapacitated for further service of any kind in the Department. In view of Annexure A-6 dated 21.7.2004, case of the petitioner was required to be considered under the provisions of Persons with 4 Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 6. In the instant case, respondent-Board has not been exempted under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Petitioner was entitled to the benefit of section 47 when the fact of his permanently incapacitated was within the knowledge of the employer. 7. Mr. Sanjeev Bhushan, Advocate has drawn the attention of the Court to Section 47 of the Act, which reads thus: “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: 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 5 notification, exempt any establishment from the provisions of this section.” 8. A bare perusal of Section 47 of the Act reveals 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. The respondents have not followed the mandate of Section 47. The Act is applicable to the Corporation. 9. Their Lordships of the Hon’ble Supreme Court in Kunal Singh versus Union of India and another, (2003) 4 SCC 524 have held that employee of an establishment, which was not exempted from section 47, acquiring disability during service and getting incapacitated is covered under section 47 (i) (v) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Their Lordships have further held that the protection is mandatorily available to an employee acquiring disability during his service and the same could not be denied on the ground that he has been granted invalid pension under section 38 of the Central Civil Services (Pension) Rules, 1972. Their Lordships have held as under: “1. The appellant was recruited as a Constable in the Special Service Bureau (for short 'the SSB'). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left 6 leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20.11.1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he would discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in the SSB. Hence, this appeal is filed assailing the impugned order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act). However, a specific ground is raised in this appeal based on Section 47 of the Act. Since it is a pure question of law, we have heard learned counsel for the parties or the contentions including the one based or Section 47 of the Act. 7. From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. 7 Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from (i) blindness or low vision: (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service. 8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 8 9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "dis- ability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/ expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of 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, 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 social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, 9 the view that advances the object of the Act 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. 12. Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits: if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was avail able or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.” 10. Their Lordships of the Hon’ble Supreme Court in Bhagwan Dass and another versus Punjab State Electricity Board, (2008) 1 SCC 579 have criticized the approach of the Punjab State Electricity Board for its highly insensitive and apathetic attitude. In this case the appellant became blind and he remained absent from 18.1.1994 to 21.3.1997. He had requested for his retirement vide letter dated 17.7.1996. He was retired vide order dated 14.12.1999. He wanted to withdraw his request of his 10 retirement when he came to know that he was entitled to protection under the Act. The request for withdrawal was turned down by the Departmental authorities. In these circumstances, their Lordships have held as under: “2. This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of appellant No.1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous. 18. Appellant No.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 concerned officers of the Board, to our mind, was deprecable. 19. We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers 11 were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realize that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country. 20. In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.” 11. In the case in hand also, petitioner at one given time looking at his condition had submitted application for retirement on medical ground. The case of the petitioner was not considered by the respondent-Board for retirement 12 and in a very very arbitrary manner, terminated the services of the petitioner, that too, without holding any inquiry. 12. Their Lordships of the Hon’ble Supreme Court in Union of India versus Devendra Kumar Pant and others, (2009) 14 SCC 546 have held that “Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”, as per its preamble and purpose is to extend helping hand to persons with disabilities so that they can lead self-reliant life with dignity and freedom. Their Lordships have further held that sections 32, 33 apply to pre- employment situation whereas section 47 to post- employment situation. 13. The Apex Court in Syed Bashir-Ud-Din Qadri versus Nazir Ahmed Shah and others, (2010) 3 SCC 603 have held that the purpose of the Act is to enable the disabled/physically challenged persons to lead a life of purpose and human dignity. Their Lordships have granted petitioner consequential benefits with continuity in service with all notional benefits since he was disengaged wrongfully. 14. Their Lordships of the Hon’ble Supreme Court in Government of India through Secretary and another versus Ravi Prakash Gupta and another, (2010) 7 SCC 13 626 have held that object of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is to (i) integrate persons with disabilities into the social mainstream (ii) lay down a strategy for comprehensive development and programmes and services and equalization of opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities, (iii) give effect to proclamation on full participation and equality of people with disabilities in Asian and Pacific regions. 15. Respondent No.2 has asked respondent No. 3 the circumstances in which the leave of the petitioner was sanctioned for about 1147 days vide letter dated 3.8.2004. In sequel to letter dated 3.8.2004, respondent No.3 has sought the petitioner’s explanation on 21.8.2004. Respondent-Board without waiting for the reply from the petitioner terminated his services on 27.8.2004 with effect from 5.8.2004. It is borne out from the records that the leave of the petitioner was sanctioned for 1147 days. However, in letter Annexure A-9 whereby the services of the petitioner have been terminated, it is mentioned that this period was not regularized. In these circumstances, respondent-Board has invoked rule 6 of the Central Civil 14 Services (Temporary) Rules, 1965. Once the leave of the petitioner has been sanctioned, it was not open to respondent No.3 not to regularize the period with effect from 22.9.1999 to 10.11.2002. It is evident from Annexure A-7 that the petitioner had applied for the leave and the same was extended. The Court is of the considered view that since the petitioner had been appointed on regular basis, his services could not be terminated without holding regular inquiry. Respondent-Board has not even waited for the reply of the petitioner pursuant to letter dated 21.8.2004 and has terminated his services on 27.8.2004. The action of respondent-Board of terminating the services of the petitioner was wholly arbitrary. 16. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under: “20. To the same effect is the meaning given to the expression “arbitrary” by Corpus Juris Secundum which explains the term in the following words: “Arbitrary.-Based upon one’s will, and not upon any course of reasoning and exercise of judgment; bound by now; capricious; exercised according to one’s own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, non-rational, or not done or 15 acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and unforbearing. When applied to acts, ‘arbitrary’ has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with ‘willful’.” 21. There is no precise statutory or other definition of the term “arbitrary”. In Shrilekha Vidyarthi V. State of U.P. this Court explained that the true import of the expression “arbitrariness” is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: (SCC p. 243, para 36) “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. The rule of law contemplates governance by laws and 16 not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.”. 23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 17. What emerges from the observations and discussions made hereinabove is that the services of the petitioner has been terminated without following the principles of natural