Bombay High Court
Union Of India vs Pramod Sadashiv Thakre on 19 October, 2011
Author: S. A. Bobde
Bench: S. A. Bobde, M. N. Gilani
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3620/2011
1. Union of India, thr. Secretary,
Ministry of Defence, New Delhi.
2. Senior Higher Administrative Staff
Officer, HQ Maintenance Command (U)
Indian Air Force, Vayu Sena Nagar, Nagpur
3. The Commanding Officer, HQ
Maintenance Command (U), Indian
Air Force, Vayu Sena Nagar, Nagpur
ig .....PETITIONERS
...V E R S U S...
Pramod Sadashiv Thakre,
aged major, r/o Deshraj Nagar,
Surendragarh, Nagpur. ....RESPONDENT
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Dr. R. S. Sundaram, Advocate for petitioners.
Mr. B. Lahiri, Advocate for respondent.
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CORAM:- S. A. BOBDE & M. N. GILANI, JJ.
Date of Reserving the Judgment
: 10th
October, 2011
Date of Pronouncing the Judgment
: 19th
October, 2011
ORAL JUDGMENT (Per:- S. A. Bobde, J.)
1. Rule. Rule returnable forthwith. Heard finally by consent of the parties.
::: Downloaded on - 09/06/2013 17:52:03 ::: 22. The petitioners have challenged order dated 24.02.2011 passed by Central Administrative Tribunal solely on the ground that the respondent found to be Colour Blind. On 01.08.2003, the respondent was appointed as Civil Mechanical Transport Driver after due selection. He was found fit for the appointment on the basis of Medical Certificate from Civil Surgeon which declared him normal. The petitioners-authorities did not administer any other test to the respondent and he was duly appointed as Probationer.
Suddenly, on 29.08.2005, the respondent's services were terminated on the ground that he has been found to suffer from colour blindness. Aggrieved by the order of termination, the respondent has approached the Central Administrative Tribunal by filing Original Application No. 2117/2006. The Central Administrative Tribunal, vide order dated 24.02.2011 allowed the Original Application filed by the respondent thereby holding that the impugned order of termination is in violation of provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for Short the "Act"). It is against this order of Central Administrative Tribunal, the present petition is filed.
::: Downloaded on - 09/06/2013 17:52:03 ::: 33. Mr. Lahiri, learned counsel for the respondent submitted that the services of the respondent are protected by Section 47 of the Act, which prohibits an employee from being discharged, removed and protected the termination of his services on the ground that he has incurred any disability. Section 47 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."::: Downloaded on - 09/06/2013 17:52:03 ::: 4
4. The petitioners have not disputed the applicability of the Act to the employees but Mr. Sundaram, learned counsel for the petitioners, submitted that the respondent's services cannot be said to be protected by section 47 of the Act since that section protects only persons who have acquired disability during the course of employment. According to the learned counsel, the respondent's colour blindness is congenital as all colour blindness are and must have been there even when the respondent was initially appointed.
5. We have no doubt that if the respondent was Colour Blind from birth and continued to be so when he was employed, he could not have been said to be a person who acquired any disability in the course of his employment. However, in the present case, there is no evidence to that effect. In the first place, no medical evidence is placed on record to establish that colour blindness can only be congenital and cannot be acquired. Secondly, there is no evidence that the respondent was Colour Blind when he was employed. On the other hand, the petitioners accepted the respondent's fitness by relying on the certificate granted to him by Civil Surgeon, Nagpur who certified him as normal. The certificate that he was normal must ::: Downloaded on - 09/06/2013 17:52:03 ::: 5 be taken to refer to every functional aspect of the respondent including his eyesight. We are informed that the petitioners do not and in any case did not insist for a proforma in which medical fitness entries to be recorded and do not appear to have referred back the respondent's case for considering whether his vision was normal or he is Colour Blind neither did the petitioners administer any test to the respondent for determining whether he is Colour Blind. The petitioners can hardly claim to have established that the respondent was Colour Blind from birth and, therefore, also Colour Blind on the date of employment. We are, therefore, of the view that respondent is entitled to protection by the Act. It was, however, urged by Mr. Sundaram, learned counsel for the petitioners, that the respondent's services cannot be protected by Section 47 of the Act since the respondent was a temporary employee on probation. Section 47 of the Act, reproduced above, protects the services of an employee and makes no distinction between the nature of the services it protects.
The purpose and intention of the provisions is to protect an employee from unemployment on the ground that he has incurred disability.
Parliament has in its wisdom accommodated the possibility that an employee may not be able to discharge the duties of office prescribed for him and to that effect a provision has been made ::: Downloaded on - 09/06/2013 17:52:03 ::: 6 that an employee shall be employed in some other post with same benefits.
6. In the circumstances, we are of the view that the respondent incurred disability during the course of his employment and his services are liable to be protected. The order of termination, which is made only on the ground that the respondent has been found to be Colour Blind is rightly quashed and set aside by the Central Administrative Tribunal.
We find no merit in the petition. The same is,
therefore, dismissed.
Rule discharged. No order as to costs.
JUDGE JUDGE
kahale
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