Delhi High Court
Kunwar Pal Singh vs D.T.C. And Anr. on 16 March, 2006
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1.Issue Rule. Mr. J.N. Aggarwal, learned counsel waves notice of Rule. With consent, the petition is heard for disposal.
2.The petitioner had incurred disability on 18.10.1993 during the course of his employment as a bus Conductor; the bus in which he was traveling met with an accident as a result of which he received multiple fracture on both his legs. He was hospitalised and operated upon. The medical treatment was of the petitioner was prolonged. He had approached this Court by filing W.P.(C) 4089/1996 claiming reimbursement of medical expenses incurred by him. During its pendency, on 5th November, 1996, his employer offered him the post of Peon, a Class-IV post, lower in grade than the post of Conductor (which is a Class-III post).
3.By an order dated 27th August, 1997, a Single Judge of the Court dismissed the petition. However, the Court directed the reimbursement of the medical expenses by him. The petitioner appealed to the Division Bench which dismissed the Letters Patent Appeal. The matter was carried in appeal by Special Leave to the Supreme Court which by its order dated 28th February, 2000 disposed it off by the following order:
Special leave granted.
Learned counsel for the appellant had brought to our attention to Section 47 of the Persons with Disabilities (Equal Opportunities etc.) Act, 1995. Having heard the learned counsel for the parties, we are of the opinion that it is the duty of respondent No.1 to employ the appellant in a Class IV post if no such post exists, then by virtue of Section 47 of the said Act, a Supernumerary post shall be created within eight weeks from today and employment given to the appellant with such relief as the appellant may be entitled to.
The appeal stands disposed off accordingly.
4. After the above order was passed, the DTC issued an office order dated 19.5.2000 appointing the petitioner in a Class- IV post as a Peon in the pay- scale of Rs. 2610-3540. The petitioner approached the Supreme Court claiming that the order offering the post of Peon was in contempt of its directions. The contempt petition was dismissed on 18th October, 2000. The petitioner apparently approached the Supreme Court again with the same grievance that its earlier order dated 28th February, 2000 has not been complied with and that he was entitled to the benefit of Section 47 which meant for fixation of the grade in which he was working, namely, as Conductor. That application was also dismissed.
5. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads 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:
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.
6. In the light of the above provision, counsel for the petitioner contended that the Supreme Court's order has to be understood as granting the benefit under Section 47 and that the statutory benefit cannot be in any manner whittled down by the phraseology adopted in the order.
7. It was also submitted that once the statutory intention was to extend the benefit of pay parity/protection to the disabled employees in respect of job or employment at the time he incurred disability, such benefits could not be curtailed.
8. Learned counsel for the respondent on the other hand submitted that in the normal course, the question of extending benefits under Section 47 could have been considered. However, in the peculiar facts of this case where the Supreme Court expressly directed that the benefits, petitioner was entitled to, was a Class-IV post, he could not claim any higher entitlement. The mere mention of Section 47 did not empower the Court to exercise relief which would virtually amount to re-writing the Supreme Court's order.
9. The statutory intention of Section 47 has been explained by this court as well as by the Supreme Court in several decisions. The provision was conceived of as a non-discriminatory entitlement to enable an employee incurring disability to protection, and to extend continuity in employment. Section 47 is also a measure to prevent creation of barriers in employment at the workplace on account of disability. The proviso to Section 47(1) states that if the employee after acquiring disability is not suitable for the original post he was holding, the employer has to ensure that the same pay-scale and service benefits enjoyed by him before incurring disability are preserved and that if it is not possible to do so, the employer is under a positive obligation to keep the employee in a supernumerary post till the equivalent post is available or he attains the age of superannuation.
10. If the petitioner had approached the Court in the first instance, I am of the opinion that the benefit of Section 47 which is unambiguous in its term would have been available to him. However, it is an admitted case of the parties that he approached this Court earlier and the matter reached the Supreme Court which held that the petitioner was entitled to a Class-IV post. In such an eventuality, this court exercising jurisdiction under Article 226 cannot exercise its discretionary jurisdiction so as to virtually review or re-write the order of the Supreme Court.
11. In view of these facts and circumstances, the petitioner is not entitled to any relief. The writ petition is accordingly dismissed.