Punjab-Haryana High Court
State Of Haryana & Another vs Suraj Mal --Respondent on 13 June, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No. 919 of 2008 (O&M)
Date of Decision: 13.6.2012.
State of Haryana & another --Appellants
Versus
Suraj Mal --Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Ms. Tanisha Peshawaria, D.A.G., Haryana for the appellants.
Mr. R.N. Sharma, Advocate for the respondent.
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TEJINDER SINGH DHINDSA.J Plaintiff Suraj Mal instituted a suit praying for a decree of declaration to the effect that the order dated 25.8.1999 as also order dated 14.9.1999, whereby he had been ordered to be compulsorily retired and having been adjusted against a post carrying a lower pay scale were illegal and void and the plaintiff be held entitled to be reinstated on a post carrying equal status and scale and he be also held entitled to all consequential benefits with interest @ 12% per annum. Plaintiff pleaded that he was employed as a Driver on regular basis in the Transport Department, Govt. of Haryana and posted at Jind Depot, Haryana Roadways. After having served for almost 23 years he was retired compulsorily vide order dated 25.8.1999 on the ground that he had suffered 30% disability in vision. He was consequently adjusted in terms of offering an appointment on the post of Chowkidar in a lower pay scale vide order dated 14.9.1999. Against such backdrop the suit had been filed.
The Trial Court dismissed the suit vide judgement dated 21.2.2006 on the premises that the plaintiff himself had submitted a written RSA No. 919 of 2008 (O&M) -2- consent and accordingly had accepted the alternative employment on the post of Chowkidar. Trial Court further reasoned that no evidence had been led so as to prove that the plaintiff had been compelled by the defendants to have accepted the alternative job of Chowkidar carrying a lower pay scale.
Aggrieved of the judgement passed by the Trial Court the plaintiff preferred a civil appeal and vide impugned judgement dated 20.12.2007 the Lower Appellate Court has held the impugned orders to be violative of the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 (herein after referred to as the 1995 Act) and has accordingly, set aside judgement and decree dated 21.2.2006 passed by the Trial Court and has declared the impugned orders dated 25.8.1999 and 14.9.199 to be illegal and void. The plaintiff has been held entitled for all the benefits of service i.e seniority, promotion, pay scale etc. with effect from the date of passing of the impugned order of compulsory retirement till his date of superannuation thereby providing the plaintiff complete protection under Section 47 of the 1995 Act. The State of Haryana is in second appeal before this Court impugning the judgement and decree dated 20.12.2007 passed by the Additional District Judge, Jind.
I have heard Ms. Tanisha Peshawaria learned D.A.G. Haryana appearing for the appellants and Mr. R.N. Sharma, learned counsel appearing for the respondent at length.
Learned counsel appearing for the appellants-State has vehemently argued that the plaintiff-respondent having accepted the alternative post of Chowkidar, he was accordingly estopped from challenging his order of compulsory retirement as also his appointment to RSA No. 919 of 2008 (O&M) -3- the post of Chowkidar. Learned counsel would also make a reference to a notification dated 27.6.2005 issued by the Haryana Govt., Social Justice and Empowerment Department to bring to the notice of this Court that by virtue of the powers conferred by the proviso to sub section (2) of Section 47 of the 1995 Act the posts of Drivers and Conductors in the Haryana Roadways had been exempted from the provisions of the said section. Accordingly, learned counsel would argue that the protection under the provisions of the 1995 Act would not be available to the present appellant as he had been holding the post of Driver with Haryana Roadways.
In the first instance it requires notice that the notification upon which reliance has been placed upon by learned State counsel came into effect on 27.6.2005. The plaintiff-respondent was compulsorily retired vide orders dated 25.8.1999 and was thereafter appointed on the post of Chowkidar vide order dated 14.9.1999. The notification exempting the posts of Drivers and Conductors from the operation of Section 47 of the Act issued on 27.6.2005 would clearly be prospective in operation and as such would not apply in the present facts and circumstances in so far as the claim of the plaintiff-respondent is concerned. As such the contention raised on behalf of the appellants-State in terms of having placed reliance upon the notification dated 27.6.2005 is concerned, stands rejected.
Admittedly, the pay scale of the post of Driver at the relevant point of time was Rs.4000-6000/- and that of the post of Chowkidar was Rs.2550-3200/-. Section 47 of the 1995 Act reads in the following terms:-
"47. Non-discrimination in Government employment-
Provided that if an employee after acquiring disability is not suitable for the post, he was holding can be RSA No. 919 of 2008 (O&M) -4- 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, which ever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability:-
Provided that the appropriate Govt. 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 statutory provision would make it clear that in terms of the mandate contained therein the service of an employee would not be dispensed with or he shall not be reduced in rank on account of a disability incurred by such employee during his service. It has further been stipulated that, if, on account of acquiring such disability such employee is not suitable for the post then he is to be shifted to some other post carrying the same pay scale and service benefits.
The plaintiff-respondent, who had served the Haryana Roadways on the post of Driver for a period of more than 20 years had incurred disability as regards vision while in service. Section 2 sub clause
(i) of the 1995 Act defines disability and the same also includes low vision.
The protection in terms of the statutory provisions contained under the 1995 Act was as such available to the plaintiff-respondent and the impugned orders of compulsorily retiring him and thereafter adjusting him on a post carrying a lower pay scale were in direct conflict with the protection awarded in favour of an employee suffering disability under the 1995 Act. To such extent the impugned orders could not be sustained in the eyes of RSA No. 919 of 2008 (O&M) -5- law.
The plea raised on behalf of the State to contend that the plaintiff-respondent had himself consented to be appointed on a lower post of Chowkidar is also without merit. Every State action has to confirm and qualify the principle of fairness and equality on the touchstone of Article 14 of the Constitution of India. Even though, the plaintiff-respondent had conveyed a consent in writing with regard to accepting a post carrying a lower pay scale but such consent was clearly to ensure a means of livelihood. It would not lie in the mouth of a Welfare State to contend that a consent given by an employee on account of the glaring disparity in the bargaining power between an employee on the one hand and State on the other, that such consent would stand in the way of such employee and he be estopped from claiming the rights that have come to vest in him by virtue of a beneficial legislation in the nature of the 1995 Act. The observations of Hon'ble Supreme Court in the landmark judgement of Central Inland Water Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly and another reported as AIR 1986 (S.C) 1571 would be most relevant, which are reproduced hereunder:-
" 90. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold RSA No. 919 of 2008 (O&M) -6- the Constitution and the laws." The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that, the courts will not enforce and will, when called upon to do so strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargain power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his accent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however, unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of a giant corporations with their vast infra-structural organizations and with the State through its instrumentality's RSA No. 919 of 2008 (O&M) -7- and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its, on facts and circumstances."
In the light of such dictum, I have no hesitation in rejecting the contention raised on behalf of the appellants-State, wherein it was sought to be contended that the plaintiff-respondent was estopped from claiming his rights under the 1995 Act on account of a consent having been given to accept a post carrying a lower pay scale.
For the reasons recorded above, I find that the Lower Appellate Court has rightfully set aside the judgement passed by the Trial Court and for sound and valid reasoning has afforded the protection of Section 47 of the 1995 Act in favour of the plaintiff-respondent. The present second appeal is devoid of any merit and does not raise any question of law much less a substantial question of law. The appeal, accordingly, is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE June 13, 2012.
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