Madras High Court
S.Rajendran vs The Deputy Commissioner Of Police on 16 February, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/02/2006
Coram
The Honourable Mr.Justice N.PAUL VASANTHAKUMAR
Writ petition No.27016 of 2005
S.Rajendran ... Petitioner
-Vs-
1. The Deputy Commissioner of Police,
Crime & Traffic,
Madurai City, Madurai 1.
2. The Commissioner of Police,
Madurai City, Madurai 1. ... Respondents
This Writ petition came to be numbered by way of transfer of
O.A.No.6445 of 2001 from the file of Tamil Nadu Administrative Tribunal with a
prayer to call for the records of the first respondent in his proceedings made
in CPO/No.243/2001, C.No.K2/03165/2000, dated 5.2.2001 as confirmed by the
second respondent in his proceedings made in C.No.K2/03165/2001 dated
30.5.2001 and quash the same as null and void, illegal and invalid and
consequently reinstate the petitioner in service with all service and monetary
benefits together with arrears of salary from February, 2001.
For Petitioner : Mr.A.Amalraj
For Respondents : Mrs.D.Malarvizhi,
Government Advocate
:O R D E R
In this writ petition, petitioner challenges the order of the first respondent dated 5.2.2001, confirmed by the second respondent by order dated 30.5.2001, by which the petitioner was medically invalidated from service.
2. The brief facts of the case as stated in the affidavit are as follows,
(a) The petitioner was appointed as Constable Grade-II on 15.7.1975 and initially posted at Armed Reserve Madurai South and in the year 1 985 he was transferred to Local Police. He was promoted as Grade-I Police Constable in the year 1988 and from the year 1992 he was serving at B1-Vilakkuthoon Police Station, Madurai. Whileso, on 21.9.1994, when the petitioner was returning in his two-wheeler after completing his duty, a lorry came in a rash and negligent manner and dashed against the petitioner, as a result of which the petitioner sustained multiple injuries. Petitioner was admitted in a private hospital and underwent treatment as inpatient for nearly two months. Due to the accident, petitioner's left fore-foot was amputated and hence he went on medical leave from 22.9.1994 to January, 1995 and the medical leave was also sanctioned by the Department. After expiry of the leave period, petitioner returned back to duty by submitting medical fitness certificate and he was posted at Crime Record Bureau. It is stated by the petitioner that thereafter he continuously discharged his routine duty regularly without any complaint and considering his sincere and dedicated services, he was promoted as Head Constable on 13.11 .1998.
(b) It is the further case of the petitioner that he was directed to appear before the Medical Board on 30.1.2001 at 8.00 a.m., and accordingly petitioner appeared before the Resident Medical Officer and four Doctors, who examined him and according to the petitioner, he was found fit for duty by the Medical Board, but copy of the report was not furnished to him. Thereafter, the first respondent by proceedings dated 5.2.2001 issued the impugned order invalidating the petitioner from service without assigning any reason. Petitioner challenged the said order in appeal before the second respondent, who dismissed the appeal on 30.5.2001 by a non-speaking order and directed the petitioner to sign his pension papers. The case of the petitioner is, even assuming the Medical Board found that the petitioner is unable to discharge his regular duties, he should have been given alternate employment and hence the invalidation of the petitioner from service is unsustainable.
3. The second respondent filed counter affidavit stating that as per the report of the Medical Board, petitioner's name was struck off from the Police strength of Madurai City Police with effect from 8.2.20 01 and the petitioner applied for pension on 25.9.2001 and the same was sanctioned on 23.10.2001. It is further stated that the report of the Medical Board need not be furnished to the petitioner as he himself appeared before the Medical Board and only based on the report of the Medical Board, petitioner was invalidated from service. It is also stated in the counter affidavit that in Police Department, which is service oriented department, one is expected to keep good health and physic as warranted by duty and therefore, there is no illegality in the impugned order.
4. Mr.A.Amalraj, learned counsel appearing for the petitioner argued that the impugned orders of the respondents are contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as the said Act is fully applicable to the respondent Department and the benefit under the said Act shall be given to the deserving persons as held in the decision of the Supreme Court reported in 2003 (2) Supreme 102 (Kunal Singh v. Union of India & Another). The learned counsel also placed reliance on the very recent decision of this Court reported in 2006 (1) CTC 124 (P.Thangamarimuthu v. Tamil Nadu State Transport Corporation, Madurai (Division-I)) and prayed for setting aside impugned order of the respondents and reinstate the petitioner with back wages with continuity of service from February, 2001.
5. The learned Government Advocate argued that in view of the report submitted by the Medical Board, petitioner was invalidated and there is no illegality in the impugned orders and the same do not call for any interference.
6. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Government Advocate.
7.(a) In the decision reported in 2003 (2) Supreme 102 (Kunal Singh v. Union of India & Another) the Honourable Supreme Court held that if a person has acquired disability by injury during his service and if not found suitable for the post of constable he was holding, he should be shifted to some other post with same pay-scale and service benefits but he cannot be invalidated on this ground from service. The Court further held that Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, casts a statutory obligation on the employer to protect an employee acquiring disability during service. Paragraph 9 of the judgment is relevant and the same is extracted hereunder, "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 "disability" 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, 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."
(b) A Division Bench of this Court in the decision reported in 2004 WLR 398 (Metropolitan Transport Corporation v. The Presiding Officer, Principal Labour Court & Another) upheld the order of the learned single Judge, cancelling the order of medical invalidation. In paragraphs 5 to 7 of the Judgment the Division Bench held as under, "5. Counsel for the appellant sought to rely on a Government Order of the year 1981 which directs that the persons who are found medically unfit to continue to work on account of inter alia, of disability acquired during the course of employment should be treated only as a fresh recruits. It was therefore, claimed that the Government Order should be allowed to be implemented and the employees be treated as a fresh recruit.
6. We see no substance in this contention. That Government Order on which reliance was placed was made at a time when Parliament had not legislated with reference to persons who suffer from disabilities. Parliament having taken note of the plight of the disabled either born disabled or those who acquired it later, has legislated a special enactment for their benefit "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ".
7. That Act was enacted in the year 1995. Most of the agencies of the Government as also public at large appear to have remained quite ignorant of it's beneficial provisions and not enough care has been taken by those concerned to ensure the benefits conferred by that Act are in fact extended to those entitled thereto."
(c) In an another Division Bench decision reported in 2005 (2) L.W 5 65 (Metropolitan Transport Corporation Ltd., Chennai-2 v. K. Ravichandran), this Court held that the language of section 3(1) of the Workmen's Compensation Act is different from that of section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. In paragraphs 9 and 10, the Division Bench held thus, "9. Thus, the language of Section 3(1) of the Workmen's Compensation Act is very different from that of Section 47(1) of the 1995 Act. We cannot import notions of the Workmen's Compensation Act, 1923 into the 1995 Act which is a totally different Act.
10. It may be mentioned that the 1995 Act is a piece of welfare legislation and hence it has to be liberally construed giving a purposive interpretation. The object of the Act obviously is to fulfill the mandate of the Diretive Principles of State Policy in Part IV of the Constitution. Hence full effect must be given to this objective. In our opinion, the words "who acquires a disability during his service" means that the disability should be acquired while in employment, and it is not necessary that it should be acquired while performing his work. It is also not necessary that the employment should be the cause of disability."
(d) This Court in 2006 (1) CTC 124 (P.Thangamarimuthu v. Tamil Nadu State Transport Corporation, Madurai (Division-I)) quashed a similar medical invalidation order passed against a Conductor of the Tamil Nadu State Transport Corporation by applying the provisions contained in Section 47 of the Act and held that it is a beneficial legislation passed in favour of the disabled persons and the same cannot be narrowly interpreted.
8. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as under, "Section 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."
A bare reading of the above section clearly mandates the department to accommodate the disabled employee either by retaining him in the said post or shifting to some other post with same scale of pay and service benefits and if alternate suitable post is not available, the concerned employee shall be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier, and he shall not be denied promotion merely on the ground of his disability. As per the proviso the appropriate Government may issue notification specifying certain conditions and exempting any establishment from the provisions of the section.
9. In this case, admittedly no Government notification is issued to contend that the beneficial provision under Section 47 of the 1995 Act is not applicable to the Police Department. The case considered by the Honourable Supreme Court in the decision reported in 2003 (2) Supreme 102 (cited supra) deals with the service of a Constable of Special Service Bureau and in the said case the Supreme Court granted relief to the Constable, which is also a disciplined force. Therefore, the impugned order passed by the respondents are totally in violation of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and against the decisions referred above.
10. Therefore I am of the view that the impugned orders are unsustainable and the same are liable to be set aside and accordingly set aside. The petitioner shall be reinstated into service within a period of two weeks from the date of receipt of copy of this order. Petitioner is entitled to get all backwages. The pension paid to him from the date of his medical invalidation till the date of reinstatement shall be adjusted from the backwages to be paid to him.
The writ petition is allowed with the above directions. No costs.
vr To
1. The Deputy Commissioner of Police, Crime & Traffic, Madurai City, Madurai 1.
2. The Commissioner of Police, Madurai City, Madurai 1.