Punjab-Haryana High Court
Haryana Vidyut Prasaran Nigam (Hvpn) & ... vs Smt. Roshni Devi on 5 July, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
LPA No. 823 of 2012 -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
LPA No. 823 of 2012 (O&M)
Date of Decision: 05.07.2012
Haryana Vidyut Prasaran Nigam (HVPN) & others
......... Appellants
Versus
Smt. Roshni Devi
............ Respondent
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CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present : Mr. Mohnish Sharma, Advocate
for the appellants.
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1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest.
RAJIV NARAIN RAINA, J.
1. The present appeal under Clause X of the Letters Patent is directed against the judgment and order dated 6.3.2012 of the learned Single Judge who while denying quashing of the order of premature retirement passed on 10.7.2002 (P-6) by the appellant against late Vijay Sudarshan Sharma, husband of the petitioner-respondent, has however directed consideration of the case of petitioner's son for compassionate appointment on the premise that the retirement was made on account of physical unfitness.
2. The reason which led to the premature retirement was chronic mental illness of Vijay Sudarshan Sharma (hereafter 'Sharma'). The request for premature retirement was made to the employer HVPN by the wife-petitioner before the writ Court and respondent in this appeal, since the husband was unfit to serve the department due to his LPA No. 823 of 2012 -2- chronic mental disability. The prayer in the writ petition was for treating Sharma as having retired on reaching the age of superannuation by affording the protection of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called, 'the 1995 Act'). The prayer was for release of retiral benefits falling due consequentially under the Rules as a fallout of effect of Section 47 or in the alternative the prayer was for release of financial assistance in lump sum in terms of the Rules, 2006 applicable to the appellant HVPN. The main thrust, though, of the petition was for grant of compassionate/ex gratia appointment to the petitioner's son in accordance with the scheme dated 31.8.1995 (P-7) which extended consideration for compassionate appointment also to persons who had been declared medically unfit/blind/ handicapped by the Special Medical Board or had retired on or before attaining the age of 55 years in the case of Class- I, II and III Officers and 54 in the case of Class IV employees, as a dependent of government employee who became disabled during service.
3. The petition was resisted by HVPN by filing written statement. A long correspondence was cited in defence to establish the medical condition of the petitioner's husband and the appropriate attention that it received at the hands of the HVPN. It was said that the premature retirement order was passed on the request of the petitioner herself and was processed under Rule 2.2(b) of the Punjab Service Rules, Vol. II. as applicable to the State of Haryana and, resultantly the HVPN. There was no mala fide involved in passing of the order nor was any harassment intended. It was submitted that LPA No. 823 of 2012 -3- HVPN had not forced the husband of the petitioner to retire. The petitioner also did not make any request to retain him in service or shift him to some other post with the same pay scale and service benefits. The blame was put on the petitioner. It was denied that the petitioner was an illiterate person or had applied for premature retirement out of ignorance and mistake of law or fact. Insofar as the claim for compassionate employment is concerned, the stand of the HVPN was that the case was not covered by the instructions of 2003 as Sharma was not retired by HVPN but had voluntarily retired and the scheme permitted ex gratia employment only to dependents of deceased/ missing employees. HVPN also raked up delay of 7 years in approaching Court as a ground justifying dismissal of the petition. Applicability of Section 47 of the 1995 Act was denied and in any case it was submitted that the petitioner should be estopped from raising such pleas after premature retirement w.e.f. 24.2.2001 brought about by order dated 10.7.2001. It was said that no fundamental right of the petitioner had been infringed by any action of the respondent- appellants. These were the issues debated before the learned Single Judge.
4. The learned Single Judge has held that the "termination order" is not bad in law or that it would require to be quashed in the manner sought in the writ petition. While upholding the premature retirement order the learned Single Judge has assumed that it may have been possible that the HVPN must have apprised the petitioner or her husband properly that Section 47 of the 1995 Act protected continuance in service and there ought to have been an effort to readjust the petitioner's husband in some other type of activity which LPA No. 823 of 2012 -4- may have yet been suitable to his condition, though there was no record produced before the learned Single Judge that the employer undertook such an exercise. The learned Single Judge would rightly suggest in the Indian context where illiteracy is present in large measure there would be a concomitant duty on the part of the employer to counsel an employee who is physically or mentally vulnerable suitably on his rights. The learned Single Judge has returned a finding that the petitioner had not been properly counselled and the employer did not act in accordance with the 1995 Act but has sustained the premature retirement order. There appears to be some contradiction in the judgment under appeal between the finding that the termination order calls for no interference on the one hand and at the same time is short of the mandate of Section 47 and absence of counselling regarding rights granted to special persons thereunder. But we find ourselves in agreement with respect to the broad over-arching canvas envisioned by the learned single judge of the compulsion or necessity of informing persons of their rights under the law before embarking upon a misadventure. We see such rights as akin to the Miranda warning cards which changed American criminal jurisprudence following the decision of the United States Supreme Court speaking through Chief Justice Earl Warren in Miranda v. Arizona; 384 US 436 (1966), that even a criminal must be told of his rights. To be fore warned is to be fore armed. We support the directions issued by the learned single judge in para 7 of the judgment in appeal and that it should be given full effect to. Those directions would form intrinsic part of this judgment and order and would merit inclusion for convenience of reference and necessary action of those who are required to LPA No. 823 of 2012 -5- implement the 1995 Act and protect persons with disability against unlawful invasive action. To quote:-
"The copy of this judgment is directed to be circulated to the Central Ministry of Social Justice and Empowerment as well as to the and State Co-ordination Committees constituted under the 1995 Act for them to issue appropriate guidelines to the Departments of Labour, Human Resources Development and the State Agencies dealing with empowerment of persons with disabilities that no employer shall terminate the services of an employee who has become mentally ill during the service,without due consideration of suitability of the employee to any other post and without properly counselling the employee about his rights. It is also further directed that whatever compassionate assistance scheme exists that contains provision for giving employment to any dependent to such employee, the employer shall counsel the dependent for appropriate application in that regard and adjust such dependent for suitable employment."
5. The effect of violation of Section 47 of the 1995 Act has been dealt with by a Division Bench of this Court in a case arising out of a decision of Central Administrative Tribunal reported as Nirmal Rani v. Union of India and others; 2008(4) S.C.T. 689: 2009(1) ILR (Pb & Hry) 112. In that case the services of Yash Pal were terminated w.e.f. 13.8.1994 on a finding that for all practical purposes late Yash Pal had been declared permanently incapacitated vide medical report dated 5.8.1994 and declared unfit for service. The LPA No. 823 of 2012 -6- termination order was passed on 11.6.2002 with retrospective effect from 13.8.1994. The claim for terminal benefits and for compassionate appointment was turned down by the employer and the Tribunal in the Original Application brought for redressal of the grievance. The issue before the Court was whether in the face of Section 47 of the 1995 Act the services of an employee acquiring disability during service could be terminated. Since it was not disputed that the order of termination was passed in 2002 after coming into force of the 1995 Act, the same was held to be in violation of the provisions of Section 47 of the 1995 Act and thus could not be sustained. The Division Bench relied upon a decision of the Supreme Court in the case of Kunal Singh v. Union of India and another, 2003(1) SCT 1029 : (2003) 4 SCC 524 to arrive at the conclusion. The Division Bench set aside both the orders of the Tribunal and the impugned order of termination with the direction to treat late Yash Pal in service up to the date of his death.
6. It is not disputed in the present case as well that the history of mental disability did not relate back to the date of appointment and was acquired during service. The Special Medical Board had certified the disability. Therefore, we find that the order of premature retirement/ termination cannot be legally sustained being in violation of Section 47 of the 1995 Act, and the law laid down in Nirmal Rani case supra the termination order would necessarily deserve to be re- examined by the appellant for it to review the same in the light of the said rendition of the law in the aforesaid judgments and/or consider the case for compassionate appointment of the petitioner's son from the date of death of Sharma or to grant financial assistance in the alternative in accordance with law and in the light of polices of HVPN LPA No. 823 of 2012 -7- that might exist effective on the date of death of Sharma keeping in view that the eligibility criteria is met with. In the case of ex gratia appointment the material date for consideration would remain the date of death as recently explained by this Court in the Full Bench decision rendered in Krishna Kumari v. State of Haryana & others; CWP 4303 of 2009 decided on 20.4.2012 together with 40 connected cases.
6. The appeal consequently fails and is dismissed but with the above modification of the order in appeal with further direction to take an appropriate decision within three months of the receipt of the copy of this order.
(HEMANT GUPTA) (RAJIV NARAIN RAINA)
JUDGE JUDGE
05.07.2012
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