Case: Shree Satish Prabhakar Padhye Vs. Union of India, Through The Secretary, Ministry of Law Justice &amp; Company Affairs (Legislative Department) &amp; Others

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. 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 Petitioners 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 hisactivities due to his deafness.3. A subsequent Audiogram dated 10th June, 2000 showed further impairment of his left ear. The Audiologists 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 Petitioners 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 Petitioners 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 place over the years and whilst the Petitioner served in the factory of Respondent No.5.5. The Certificate dated 11th June 2000,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.5his 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 October 2001,to the Petition rejected the Petitioners claim seeking such a transfer and to be given another posting on the ground that Respondentwas not covered under the Act. He however, made a suggestion to Respondent No.5 tothe 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.

Reasoning:
40. The case of the Petitioner therefore, goes further on humanitarian grounds. Having been employed in the foundry of Respondent No.5 and having had to work without acabin, and having had to discharge his duties as a Telephone Operator only with Auditory Modality usage, which solely caused his disability, the Petitioner deserves, even without the protection of the Act a shift in his posting after having put in about 23 years of service. It is a matter of regret that Respondentthinks otherwise. 41. It can therefore be seen that the scheme of the Act encompasses measures to be taken in a wide ambit. It is not confined to the measures to be taken by the State alone. Depending upon the gravity and strength of the measures, the duties and responsibilities are fixed either upon the Appropriate Governments alone or upon Appropriate Governments with Local Bodies or upon all the Establishments and even all Educational Institutions.42. The interpretation of the Act which is such a beneficent Socio Economic Legislation is required to be made such as to enhance its purport and object and make it available to all the disabled persons who would be beneficiaries under the Act. 43. The Advocate for the Petitioner has drawn our attention to various Judgments relating to such interpretation of other Socio Economic Legislations. In the case of Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation reported in A.I.R. 1986 S.C. 458, the principles of such interpretation are laid downoccurring in statutes of liberal import such as a social welfare legislation and Human Rights" legislation are not to be put in procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the "colour", the "content" and the "context" of such statues.(We have borrowed the words from Lord Wilberforces opinion in Prenn Vs. Simmonds, 1971 (3) All ER 237). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma Vs. Central Govt. IndustrialCourt, we had occasion to say "Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."44. Such liberal construction of expressions in such Statutes, as against literal construction, requires the Court to include within the definition of the term "Establishment", all the Corporations which are Bodies Corporate Established either by or under either a Central, Provincial or a State Act including the Indian Companies Act I of 1956. It may be mentioned that only such Corporations in the Transport Sector would require to provide the facilities mentioned in Section 44 of the Act which are required to be within the limits of their economic capacity and development. Similarly such Corporations would be required to continue providing employment to those who were employed with them and thereafter acquired disability either in the same post or by shifting them to any other posts with the same pay scales and service benefits except if they are exempted by the Appropriate Government, regard being at to the type of work in that Corporation.45. The interpretation of the Dowry Prohibition Act which is also a Social Legislation has been similarly given by the Honourable Supreme Court in the case of S. Gopal Reddy Vs. State of Andhra Pradesh reported in A.I.R. 1996 S.C. 2184 drawing on the observations made in the earlier Supreme Court Judgment in the case of Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. reported in A.I.R. 1987 Supreme Court 1023. It was observed that the Statute is best interpreted when we know why it was enacted and when the statute is looked at without the glasses provided by the context.The observation quoted in that Judgment runs thus:"With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."46. For interpreting a particular word in a judgment the observations of Lord Denning in the case of Seaford Court Estates Ltd. Vs. Asher reported in 1949 to All ER 155 (CA) cited in the aforesaid Judgments (supra) deserve to be looked into.Those observations runEnglish language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftment of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the Legislature... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."47. It may be mentioned that in the above judgment in the case of S. Gopal Reddy (supra) the interpretation of the term "dowry" in Dowry Prohibition Act, included the giving and taking of dowry before the marriage. The narrow interpretation that the Act did not apply until the boy and girl became the bridegroom and bride respectively was not taken. Upon the meaning of "dowry" being considered as property or valuable security given or agreed to be given either directly or indirectly, it was held that the expression must be liberally construed to include demands made before and after marriage.48. It can therefore, be seen that the word "Establishment" needs to be interpreted taking into account the intention of the Legislature to provide succour and benefits not only to the few disabled who would be employed in Government services but, as per the spirit of theProclamation to take its Sweep to as many as disabled persons in different walks of life and requiring different treatment and facilities in the countries which were signatories to the Proclamation as ours.49. Mr.Paralikar, learned Counsel on behalf of the Applicant, has further drawn our attention to the Judgment of the Honourable Supreme Court in the case of Regional Executive, Kerala Fishermens Welfare Fund Board Vs. M/s. Fancy Food and another reported in AIR 1995 Supreme Court 1620 in which the expression "processing for export" came up for interpretation. It was observed under the Kerala Fishermen Welfare Fund Act that the Dealer would be covered by that expression, since they were concerned with one of the steps leading to the export of fish. That Act was passed to upgrade the then traditional, miserable and pathetic condition of theand illiterate fishermen. In keeping with the object of the Act to ameliorate their bad condition one of the processes leading to export which included the function of the dealers was held to come within the purview of the expression "processing for export". It is in the same spirit that the expression "Establishment" in the present statute would require coverage. 50. In a judgment in the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines Vs. Ramjee reported in AIR 1977 Supreme Court 965 Honourable Justice Krishna Iyer has elucidated the opinion of the Honourable Supreme Court under the perspective of "Social efficaciousness". In paragraph 5 of that Judgment whilst considering and striking down the narrow interpretation upon the procedure laid down under the Coal Mines Regulations (1957) by Madhya Pradesh High Court, it has been observed thus:"Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends on its sensitized response to situation,and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire as in this case."Upon considering as to how the narrow interpretation resulted in a situation so as "to see the skin and miss the soul of the Regulation," it was observed that it resulted in over judicialisation which could be subversive of the justice of the law.51. It has been contended on behalf of the Respondent that the marginal note to Section 47 gives a complete answer to excluding the Petitioner from the purview of the Act. The marginal note isin Government employment". It is therefore contended that the requirement of not dispensing with the services of an employee who acquires the disability is for employees in Government employment. It can be seen that in this Section the marginal note is entirely out of contest. The Chapter under which Section 47 falls is Chapter VIII onThe marginal notes to each of the Sections in Chapter VIII begin withThe Chapter therefore deals withand transport (Section 44)on the road (Section 45),in built environment (Section 46) andin, what is called, "Government Employment" (Section 47). However, the Section itself does not begin with the expression "In any employment under appropriate Government or Local Authority....". It deals with "Establishment". It further deals with mandatory directions for persons already in employment. The proviso of2 of Section 47 gives power to the appropriate Government to exempt any Establishment from the provisions of that Section. That proviso therefore, gives a clue to what an Establishment isit is an undertaking which is not only a Government undertaking. It deals with employment of persons not only thereinotherwise the appropriate Government would exempt Government itself. 52. It may again be mentioned that in this light Section 47 must be contrasted with Section 33 of the Act under the Chapter of "employment". Hence, the mandate for reservation of the posts to the extent of 3% is only for appropriate Government. As against that, the directions for all the persons already employed is for all the Establishments under Section 47.53. The interpretation of the marginal note and its reading along with the main Section has been considered in a number of Judgments brought to our notice by Mr. Paralikar. In the earliest of those cases it was held by the Privy Council in the case of Emperor Vs. Sadashiv Narayan Bhalerao reported in A.I.R. 1947 Privy Council page 82 relating to the marginal note titled "Sedition" in Rule 124(a) of Defence of India Rules 1939 it was held that it cannot restrict the contents of the Section. It dealt with whether or not a sketch given by the Appellant Constituted a prejudicial Act within the meaning of those Rules. It was held that the two were different aspects and one could not restrict another by different expressions in the Rule and its marginal note.54. Further in the case of Nalinakhya Bysack Vs. Shyam Sunder Haldar reported in A.I.R.1953 Supreme Court, page 148. It has been held that:"Marginal note cannot control the Marginal note cannot control the Marginal note cannot control the meaning of the body of the section meaning of the body of the section meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself."(Emphasis supplied)55. In the Constitutional Bench Judgment in the case of State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society reported in A.I.R. 1954 Supreme Court 561, the marginal note of Article 29(2) of the Constitution and its contents came up for consideration. It was held that though the marginal note of the said Article was "Protection of Interest of Minorities", it was held that under Article 29(2) all citizens were conferred a special right for admissions into Education Institutions maintained or aided by the State. Such a right was not available only to citizens belonging to minority groups as they would then obtain double protection. It was available to all. 56. Similarly it is seen that Section 47 interpreted as above would confer rights upon the Petitioner, notwithstanding the marginal note mentioning only Government employment. 57. Upon such interpretation, there can be no doubt that Respondent No.5 is an Establishment as defined under Section 2(k) of the Act. Consequently Respondent No.5 is enjoined not to dispense with the services of the Petitioner or to reduce him in rank upon his having acquired disability during his service (and in fact he having acquired the said disability during service.) The Respondent No.5 is therefore bound to continue the services of the Petitioner or shift him to some other post with the same pay scale and service benefits in their Establishment. The Respondent No.5 is also bound to disburse theto the Petitioner from 1st January 2001, the date from which his services were dispensed with. 58. It may be mentioned that any such other post that may be offered to the Petitioner under the legislative mandate by Respondent NO.5 may be identified by Respondent No.5 That would meet the noble and humanist purpose and intent of the legislation which is itself in terms of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Regions, which includes our Country. It should be as far as possible a post with equivalent pay and service conditions.