Allahabad High Court
Union Of India (Railway) And Others vs Jagdish Narain Verma And Another on 12 July, 2010
Author: Sunil Ambwani
Bench: Sunil Ambwani, Kashi Nath Pandey
1
AFR
Court No. 29
CIVIL MISC. WRIT PETITION NO. 8152 OF 2008
Union of India and others vs the State of U.P. and others
Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
Heard Shri B.B. Paul, learned counsel for the petitioners. Shri Anubhav Chandra appears for the applicant-respondent no. 1.
The pleadings have been exchanged. With the consent of the parties, the matter was finally heard.
The Union of India, through General Manager, Northern Railway, New Delhi; the Divisional Railway Manager, Northern Railway, Allahabad; the Divisional Commercial Manager, Northern Railway, Allahabad and the Chief Parcel Supervisor, Kanpur Central, Kanpur, are aggrieved by the judgement of Central Administrative Tribunal dated 16.11.2007, in Original Application No. 855 of 2002, by which the Tribunal, after giving benefit of Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereinafter called as PWD Act, 1995), has directed the payment of gratuity to the applicant for services rendered from the year 2000, till he attained the age of 60 years. His past service as casual labour service was not qualified for counting to work out the service gratuity. The Tribunal has further awarded back wages from the date of discharge, till the applicant reached the age of 60 years, and the order to be complied with within a period of four months.
The applicant was working as a 'parcel porter' in the North Central Railway at Kanpur from 1986 to the year 2000. He was considered for absorption in pursuance to the directions issued by the Supreme Court in A.I. Railway Parcel & Goods Porters' Union v. Union of India, (2003) 11 SCC 590 decided on 2 27.4.1998, for which he was subjected to medical examination, and was found fit in Class C-1 vide Sr. DMO/ALD's Fit Memo No. 227311 dated 24.4.2000, with date of birth dated 20.2.1945, noticed in the order.
The appointment letter annexed Annexure-2 to the writ petition, shows that the applicant was given temporary appointment vide letter dated 10.5.2000, issued by Assistant Personnel Officer, Northern Railway, Allahabad as 'Sub. Parcel Porter' in the pay scale of Rs. 2550-3200 (RS/RP) including grade pay and dearness allowance subject to condition, that he will pass medical examination by the authorized medical officer.
The applicant was again subjected to the medical examination on 26.7.2001 and vide certificate of the Chief Medical Superintendent dated 26.7.2001 issued from the office of Northern Railway, Allahabad he was found to be suffering from 'Severe Bilateral Ortho Arthritis Knee Joint'. The Chief Medical Officer reported his medical fitness as follows:-
"Sri Jagdish Narain Verma is a case of Severe Bilateral Ortho Arthritis Knee Joint. He is unfit to work as Parcel Porter and recommended sitting sedentary duties. He is fit in original category Cee One."
The Chief Medical Officer, in his certificate indicated that the applicant cannot be permitted to discharge the duties for which he was declared unfit. The question of his absorption for any alternate post will be considered by the Divisional Railway Manager/Divisional Superintendent, Northern Railway or his departmental superior separately as he is advised in due course by him.
Shri B.B. Paul, learned counsel for the petitioners submits that in case of applicant's appointment, his unfitness to perform the duties was considered by the Divisional Railway Manager, 3 Allahabad by his letter dated 29.1.2002. He was discharged from service on the ground, that the applicant, having been declared unfit to work as Parcel Porter vide CMS/ALD letter No. 54 Med/1 dated 26.7.2001, vide unfit Certificate No. 386390 dated 1.8.2001, there was no post available for sitting sedentary duties in the category of parcel porter. Since he was declared incapable to perform the duties for which he was appointed as per directives of Hon'ble Supreme Court, he was discharged from Railway service with immediate, effect after payment of one month's pay in lieu of notice 30 days for completion of six months service as compensation.
Shri B.B. Paul submits that the appointment on compassionate ground in case of medical invalidation/de-categorization was considered by the Railway Board pursuant to the Notification of the PWD Act, 1995 and the instructions issued by the Board dated 29.4.1999. The Supplementary Circular No. 39 to Master Circular No. 16 was issued by the Railway Board on 18.1.2000 as follows:
"R.B.E. No. 8/2000(Supplementary Circular No. 39 to Master Circular No. 16) Subject: Appointment on compassionate grounds in cases of medical invalidation decategorisation.
(No. E(NG)-II/95:RC-1/94, dated 18.1.2000) Kindly refer to the instructions contained in Board's letters No. E (NG)III/78/RC-1/1 dated 7.4.83, 3.9.83, as well as Board's letter of even number dated 22.9.95 (Bahri's .../95, p.
95) on the above mentioned subject.
2. Pursuant to the notification of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995," instructions were issued vide Board's letter No. E(NG)1/96 RE-39(2) dated 29.4.99 (Bahri's 89/99, p. 88), laying down inter-alia that, in cases where an employee has been medically invalidated decategorised and where the Administration cannot find a suitable alternative post for such an employee, he may be kept on a supernumerary post in the grade in which he was working on regular basis, till such time a suitable post can be identified or till his retirement, whichever is earlier. As these instructions 4 provided for continuation in service of a medically invalidated decategorised employee, there would be no occasion for an employee to be retired from service on medical ground. Therefore, according to these instructions, in such cases, the occasion to consider a request for appointment on compassionate ground of an eligible ward would not arise.
3. The matter has been reviewed pursuant to a demand raised by the staff side in the DC' JCM and it has now been decided that in cases where an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement. In such cases request for appointment on compassionate ground to an eligible ward may be considered.
4. In the cases of medical de-categorisation i.e., those cases in which an employee becomes medically unfit for the post held at present but is fit to perform the duties of an alternative suitable post in lower medical category, the request for appointment on compassionate ground to an eligible ward will not be admissible, even if the employee chooses to retire voluntarily on his being declared medically decategorised. Such an employee may then either be continued in a supernumerary post or allowed to retire voluntarily if he so desires but without extending the benefit of appointment on compassionate grounds to a ward."
Shri B.B. Paul submits that the Tribunal has erred in law in holding that the applicant was entitled to alternate employment. Section 47 of the PWD Act, 1995 provides that in case of disability, by which the applicant is unable to perform the duties for which he was appointed, the appointing authority is required to consider for any alternate/sheltered appointment. The person does not get a right to continue in employment. In the present case, since the applicant's regularization was subject to his medical fitness, and that the applicant was not found medically fit to perform the job of Parcel Porter, he was considered for alternate employment. The Competent Authority considered and found that no alternate appointment was available and thus he was discharged. The Tribunal has committed gross error in giving benefit of gratuity and back pay to the applicant till the date of his superannuation.
5Shri Anubhav Chandra appearing for applicant-respondent submits that the Tribunal has incorrectly observed that the applicant was declared medically unfit before his services were regularized. The appointment letter was issued on 10.5.2000 after the applicant was subjected to medical examination and was declared fit on 24.4.2000. The applicant was again subjected to medical examination five months after his appointment on 26.7.2001 and was found to have developed 'Severe Bilateral Ortho Arthritis Knee Joint'. The disability was acquired by him during the course of employment and that even if the disability is not attributable to him, Section 47 (2) of the PWD Act, 1995 allows applicant to continue in employment on an alternate/sheltered appointment and if any such post is not available, he was required to be allowed to continue on a supernumerary post.
Shri Anubhav Chandra would submit that the disability acquired by the applicant namely 'Severe Bilateral Ortho Arthritis Knee Joint' is included in Section 2 (i) (v) which also includes the disability of bones, joint, muscles leading to substantial restriction of the movement of limbs. The non-discrimination in government employment guaranteed under Section 47 is applicable to such disability. He has relied upon the definition clause and Section 47 of PWD Act, 1995 quoted as above.
"2. Definitions - In this Act, unless the context otherwise requires,-
(a) to (d) . . . . . . . . . . . . . . . . . . . . . . . . .
(e) "Cerebral palsy' means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development :
(f) to (h) . . . . . . . . . . . . . . . . . . . . . . . . .
(i) "disability" means-
(i) to (iv) . . . . . . . . . . . . . . . . . . . . . . . . .
(v) locomotor disability;
(vi) to (vii) . . . . . . . . . . . . . . . . . . . . . . .
(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in Section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;
(1) to (n) . . . . . . . . . . . . . . . . . . . . . . . . .
(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."
(p) to (s) . . . . . . . . . . . . . . . . . . . . . . . . .
(t) "persons with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;
(u) to (v) . . . . . . . . . . . . . . . . . . . . . . . . .
(w) "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;
"47. Non-discrimination in Government employments - (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."
In Kunal Singh vs. Union of India and another (2003) 4 SCC 524, the Supreme Court held:-
8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in natural life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the "Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the 7 Asian and Pacific Regions' This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons.
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.
10. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that 8 benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability."
The Railway board had admitted the applicability of PWD Act, 1995 to the railway employees by the Supplementary Circular No. 39 to Master Circular No. 16 issued on 18.1.2000 as quoted above.
In Union of India vs. Sanjay Kumar Jain (2004) 6 SCC 708 the Supreme Court considered the effect of the proviso to Section 47 (2) of the PWD Act, 1995. The Supreme Court found that proviso does not give unbridled power to exclude any establishment from the purview of Section 47. The exclusion can be only done under certain specified circumstances, i.e. issuance of a notification and prescription of requisite conditions in the notification. The notification can be issued when the appropriate government having regard to the type of work carried on in any establishment thinks it appropriate to exempt such establishment from the provisions of Section 47. In this case the railway has accepted the applicability of Section 47 and has not issued any notification providing for any exclusion of any work carried out in the railway establishment.
It is not denied that the petitioner was issued appointment letter as parcel porter in pursuance to the decision of the Supreme Court after medical examination in which he was found fit. He was declared unfit to work on account of 'Severe Bilateral Ortho Arthritis Knee Joint' after seven months of his appointment. He was not totally unfit for any work, to be retired. The Medical Officer recommended him for sitting sedentary duties. There is nothing to show that the department tried to find out any sedentary duties for him. Even if such duties were not immediately available the applicant was required to be kept on supernumerary post until such 9 employment could be found for him.
The PWD Act, 1995 guarantee to a person, who develops disability as defined in the Act, from being put off the employment. He has to be offered an alternate/sheltered job. If such a post is not found, he has to be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
The right of a disabled person to receive sympathetic consideration to continue in employment on acquiring disability during the course of his tenure, has been replaced by a statutory right by PWD Act, 1995, to continue in employment until an alternate/sheltered appointment is given. This statutory right is not subject to any discretion and cannot be defeated on the prejudice of the employer unless the establishment has exempted any particular category of work. The applicant's valuable right guaranteed under Section 47 of PWD Act, 1995 was violated when he was terminated from service on account of acquiring disability after his appointment.
We do not find that the Central Administrative Tribunal committed any error in setting aside the termination order and allowing service benefits to the applicant including back wages till the age of discharge, or till he reached the age of 60 years.
The writ petition is dismissed.
Dt. 12.7.2010 RKP/