Delhi High Court
Life Insurance Corporation Of India vs Chief Commissioner For Disabilities, ... on 11 September, 2002
Equivalent citations: 2003(67)DRJ136
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The Petitioner Life Insurance Corporation of India (for short the LIC) is aggrieved by an order dated 23rd December, 1999 passed by the Chief Commissioner for Disabilities under the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 (the Act) in Case No.93 of 1999. A letter filed by the LIC for review of this order was turned down by the Deputy Chief Commissioner on 9th March, 2000.
2. Pursuant to an advertisement, Respondent No.2 submitted an application for the post of a Peon sometime in February-March, 1997. The application was accompanied by a certificate issued by the Chief Medical Officer, Ghaziabad (and also signed by an orthopaedic surgeon and an eye specialist) to the effect that Respondent No.2 is a case of Chorea and that he is 45% disabled.
3. Respondent No.2 was called by the LIC for a written test and an interview, both of which he passed. He was then put to a pre-recruitment medical examination in July, 1997 by the doctors attached to the LIC. The Medical Examiner recorded a note that he had personally examined Respondent No.2 and gave his findings as under:-
" CHOREA: Patient is suffering from Huntington Chorea. This is slowly progressive disease and requires life long medication.(He is not taking any medication). This may respond to Haloperidol. Long term psychological support and even institutional c re may be required as dementia progresses, which has already started to some extent. He is acceptable only if permanent sheltered employment is available. Has already 45% disability and is likely to increase. In my opinion unfit. However, ZMR opinion is needed."
4. The case of Respondent No.2 was then referred to the Divisional Medical Referee and the Zonal Medical Referee of the LIC. While their reports are not on record, it appears that they concurred with the Medical Examiner and found Respondent No.2 unfit f or employment as a peon with the LIC. Respondent No.2 was informed accordingly by a letter dated 22nd September, 1997.
5. Respondent No.2 then lodged a complaint under Section 59 of the Act with the Chief Commissioner about the failure of the LIC to appoint him. The LIC was asked by the Chief Commissioner to respond to the complaint made by Respondent No.2, which it did.
The Chief Commissioner then gave a personal hearing to the parties on 14th October, 1999.
6. During the hearing on 14th October, 1999, Respondent No.2 produced before the Chief Commissioner a certificate dated 9th October, 1999 issued by the Director, VIMHANS to the effect that Respondent No.2 had been examined by him and found to be "a case of non-progressive Dystonia affecting head and upper limbs. He appears mentally normal and medically suitable for being employed as a Peon."
7. In view of the conflicting medical opinion, the Chief Commissioner took a decision which he communicated to the LIC by a letter dated 5th November, 1999. The sum and substance of this communication was that Respondent No.2 was required to undergo a fresh medical examination by a Medical Board of a Government Hospital and a report thereof submitted to the Chief Commissioner before 30th December, 1999. The directions given by the Chief Commissioner are as follows:-
"1. Life Insurance Corporation would subject the complainant Mr. Harish Chander Dabral to a fresh medical examination by a Special Medical Board of a Govt. hospital comprising experts from the field of neuroscience, orthopedics and psychiatry.
2. The complainant would be subjected to necessary objective, medical and psychological tests such as I.Q. Test, behavior test, movement test, CT scant, MMR, whichever is necessary in the opinion of the Medical Board, to ascertain the correct physical, neurological and intellectual condition of Mr. Dabral.
3. The medical report must reflect:-
The percentage of disability, separately, in each affected part and also the total percentage on adding percentage of the disability of different affected parts of the candidates body.
The intellectual condition of the candidate in a language which an ordinary person can understand, be explained.
4. All costs incurred on the medical tests shall be borne by the respondent L.I.C.
5. The report of the medical examination, as advised, should be submitted to the office of Chief Commissioner, Disabilities by 30th December, 1999."
8. A medical examination of Respondent No.2 was then conducted by a duly constituted Medical Board of doctors from RML Hospital on 29th November, 1999. The Board gave its opinion as below:-
"He is a case of Generalised Dystonia involving face, neck and all four limbs (left side more than right). The total percentage of disability is fifty percentage in relation to whole body. It is also ascertained that the disability is permanent in natre and he is a physically handicapped person.
His general intelligence is on an average and he can comprehend and speak normally. Cognitive functions (comprehension, concentration, memory, judgment and abstract thinking) are within normal limits."
The Board recommended that Respondent No.2 "is fit to be employed for the job of peon."
9. Based on the report of the Medical Board, the Chief Commissioner again considered the complaint made by Respondent No.2 and passed the impugned order dated 23rd December, 1999. In the impugned order, the Chief Commissioner gave three directions which are as follows:-
"(a) Take all necessary steps to make the appointment of Shri Harish Chandra Dabral to the post of Peon with immediate effect and not later than 21.1.2000.
(b) Subject all incumbents with disabilities to a Medical Fitness Test by a properly constituted Medical Board of a Govt. Medical Hospital.
(c) Amend its service rules and promotion policy taking into account the provisions of the Disabilities Act 1995 and other Govt. orders, issued time to time."
10. LIC was not satisfied with the directions passed by the Chief Commissioner and, therefore, requested for a review of the case which was turned down.
11. Learned counsel for the parties were heard on 23rd August, 2002. On that date, I passed an order to the effect that the power of the Chief Commissioner to issue directions (b) and (c) requires detailed consideration. The writ petition was admitted f or this purpose. However, the validity of direction (a) could be expeditiously considered more so since it involved the employment of Respondent No.2 which is pending since 1997. Orders in this regard were, therefore, reserved.
12. The facts that stand out in this case are that there is some doubt about whether Respondent No.2 suffers from Chorea or Dystonia. According to the Chief Medical Officer, Ghaziabad and the LIC doctors, Respondent No.2 suffers from Chorea, while the Director, VIMHANS and the Medical Board of RML Hospital opine that he is a victim of Dystonia. In any event, there does not appear to be any dispute whatever that Respondent No.2 is a "person with disability" as defined in Section 2(t) of the Act, that is a person suffering from not less than 40% of any disability. There is, therefore, no dispute that Respondent No.2 is entitled to the benefit of the provisions of the Act.
13. What is in dispute is the ability of Respondent No.2 to work as a peon with the LIC. The Chief Medical Officer, Ghaziabad has given no opinion in this regard inasmuch as he was not required to do so. The doctors of the LIC have opined that Respondent No.2 is unfit to work as a peon while the Director, VIMHANS and the Medical Board of RML Hospital have opined that he is capable of working as a peon.
14. Learned counsel for the LIC drew my attention to the main duties of a peon as provided in the LIC's Establishment Manual. These include, inter alia, the following:-
"(i) Dusting of office furniture, machines, files, table equipments, fans, lights, etc., removing and replacing of cover of machines, filling up ink pots etc.
(ii) Opening of windows etc. in the morning and switching off the fans and lights and closing the windows etc. in the evening.
(iii) Carrying messages, papers, registers, circulars, packets (portable size) etc. from one place to another inside the office or outside.
(iv) Serving drinking water to employees and to visitors.
(v) Carrying typewriters, franking machines etc. within the building and franking machines and other such portable items from one place to another.
(vi) Pinning, bostitching, sorting or arranging of papers and circulars in accordance with the instructions of the departmental head.
(vii) Filling and replacing of policy or another similar records identified by number of symbol.
(viii) Affixing stamps, sticking or sealing envolopes or wrappers, typing of packets or packing up of parcels etc.
(ix) Operation of Franking Machines.
(x) dispatch and/or hand delivery of letters and taking cash etc. to Banks.
(xi) Any other work of similar nature which the officer-in-charge instructs the peon to carry out."
15. A bare perusal of the main duties of a peon indicates that none of the duties that he is required to perform is of a specialized nature or requires some skill or talent. It is possible that because of his disability, Respondent No.2 may not be able t o perform a couple of tasks, but it is not as if he is going to be the only peon working with the LIC. There will be other peons also and surely they can chip in once in a while so that all the main tasks of peons are carried out. It is not LIC's case hat each peon is insulated and has no concern with the work of another peon.
16. Learned counsel for the LIC submitted that the mental faculty of Respondent No.2 would deteriorate with the passage of time, as dictated by the natural history of the disease. If that be so, and if it renders Respondent No.2 unfit for work, his services can always be dispensed with in accordance with the recruitment rules of the LIC, if they so permit. What may happen in future cannot be a ground to deny employment today.
17. In so far as the medical opinion is concerned, it is not possible for me to comment on it. Suffice it to say that Respondent No.2 has categorically averred in his counter affidavit that he was not examined by the Divisional or the Zonal Medical Referee of the LIC. In paragraph 7 of the counter affidavit of Respondent No.2, it is stated as follows:-
"In reply to para 7 it is submitted that the medical report of Dr. S.S. Bedi was totally incorrect in so far as it declared the answering respondent unfit for employment. Petitioner has not filed the report of the Zonal Medical referee as part of the Anexure B(colly) to the petition. It may be relevant to note that Dr. S.S. Bedi is MBBS MD(Med) has not specialisation in the field of Neurology etc. He did not put answering respondent to any test. He only carried out physical examination of the answeing respondent. Petitioner did not ask the answering respondent to appear before any other Doctors except Dr. Bedi. It seems that Petitioner merely got the opinion of Dr. Bedi confirmed from their own doctors at divisional and zonal level on papers eve without asking the answering respondent to appear before them and under go any physical or medical examination."
18. The averments made by Respondent No.2 in his counter affidavit have not been specifically denied by the LIC. There is only a general denial (if it can be said to be so) in the following words:
"Para No. 7 of the reply is not correct and of the petition is correct and reaffirmed. The entire material has been placed on record. As per the rules the respondent No.1 was required to undergo a medical examination and can be offered appointment only in the event he is found medically fit by the Corporation. Dr. Bedi is the Authorised Medical Examiner of the Corporation and he is MBBS and MD in Medicine. He is competent to examine and give his report in the field of neurology. It is wrong that the respondent No.2 was not put to any test by the doctor. The report of the Divisional Medical Referee and the Zonal Medical Referee was obtained on the report of the Medical Examiner itself."
19. Whatever be the position, whether Respondent No.2 was examined by the Divisional and Zonal Medical Referees of the LIC, the fact still remains that the Chief Commissioner preferred to accept the view of the Director, VIMHANS and the Medical Board of RML Hospital that Respondent No.2 was capable of performing the duties expected of a peon.
20. Learned counsel for the LIC has not been able to show anything to suggest that the decision taken by the Chief Commissioner in accepting the view of the Director, VIMHANS and the Medical Board of RML Hospital is irrational or perverse. At best, it ma y be an erroneous, though a possible, view but that is not sufficient to set it aside. Consequently, the decision taken by the Chief Commissioner that Respondent No.2 is fit to perform the duties of a peon has to be accepted and cannot be interfered wih under Article 226 of the Constitution.
21. Learned counsel for the LIC finally contended that the report of the Medical Board of RML Hospital was not in the form or manner prescribed by the Chief Commissioner. This cannot, with respect, be termed as a material irregularity which vitiates the report of the Medical Board. What was essentially required of the Medical Board of RML Hospital was to opine whether Respondent No.2 was capable of performing the duties of a peon. This opinion was rendered in the affirmative. If, however, the LIC beleves that the view of the Medical Board may vary if it gives its report in the manner required by the Chief Commissioner, it can always approach the RML Hospital for doing the needful. But, it is necessary to note that the impugned order is silent about his perhaps because even the Chief Commissioner did not seem to lay much emphasis on form and formality.
22. The Act, being a beneficial legislation, required some affirmative action to be taken on the part of LIC and other authorities. V. Finkelstein and S. French, as quoted in "Disability: Challenges vs Responses" by Ali Baquer and Anjali Sharma have said that:-
"Disability is the loss or limitation of opportunities that prevents people who have impairments from taking part in the normal life of the community on an equal level with others due to physical and social barriers."
23. It is for this reason that one of the great world leaders, Nelson Mandela said (as quoted in Disability: Challenges vs Responses):-
"All countries today need to apply affirmative action to ensure that the women and the disabled are equal to all of us."
24. That affirmative action is required to be taken in some form or the other is also recognized by the Act particularly Chapter VII thereof. Needless to say, it would have been more befitting of LIC to have accepted the report of the Medical Board of RML Hospital and employed Respondent No.2. In fact, during the pendency of the writ petition, an opportunity was granted to LIC to take Respondent No.2 on probation to see if he was capable of working (if nothing else) as a peon, but learned counsel fo LIC regretted the inability of his client to accept the suggestion. It is for this reason that the case was required to be argued on the employability of Respondent No.2 when it could more appropriately have been settled amicably out of Court.
25. Be that as it may, since I have come to the conclusion that there does not appear to be anything wrong with the order passed by the Chief Commissioner in so far as it directed LIC to engage Respondent No.2, there is no reason for me to interfere with the order impugned by the LIC to this extent.
26. Accordingly, direction (a) issued by the Chief Commissioner is affirmed. LIC will issue a letter appointing Respondent No.2 to the post of a peon, as already directed by the Chief Commissioner, within a period of two weeks from today and in any case before 1st October, 2002.
27. LIC will pay litigation expenses of Rs.5,000/- to Respondent No.2 before 1st October, 2002.