Bombay High Court
Sumit S/O Kailash Padgilwar vs The State Bank Of India, Through Its ... on 30 July, 2012
Author: S.C.Dharmadhikari
Bench: S.C.Dharmadhikari, M.T.Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.90 OF 2012
Sumit S/o Kailash Padgilwar
Aged about 26 years, Occupation Service,
R/o Plot No.30,
Amar Trupti Housing Society ,
Beltarodi Road,
Nagpur 440 027. ..... Petitioner.
Versus
1) The State Bank of India,
Through its Regional Manager,
Region-II, Administrative Office at Sardar
Vallabbhai Patel Marg,
Post Box No.37,
Nagpur-440 001.
2) The Civil Surgeon &
Chairman of Handicap Board,
Indira Gandhi Government Medical
College and General Hospital, Nagpur. ..... Respondents.
===============================================
Shri Rohit Joshi, Advocate for the petitioner.
S/Shri S.N.Kumar, Y.Ramani, S.Lavatawar, R.B.Puranik and Shri Sunil Chopkar,
Advocates for R-1.
Shri A.Joshi, AGP for R-2.
===============================================
CORAM : S.C.DHARMADHIKARI &
M.T.JOSHI, J.J.
DATE : 30th JULY, 2012.
ORAL JUDGMENT : (Per S.C.Dharmadhikari, J.)
1) By this Writ Petition, the petitioner who is disabled .....2/-
::: Downloaded on - 02/08/2016 16:57:48 :::2 wp90.12.odt employee seeks to set aside the Notice of Termination dated 9.12.2011, a copy of which is at Annexure-'M' to this Writ Petition, issued by the Regional Manager, State Bank of India.
2) Since the affidavits have been filed and the parties have been heard extensively, we proceed to dispose of this Writ Petition with their consent.
3) Rule.
4) The respondents waive service of notice.
5) The petitioner is a permanent resident of Nagpur, holds
educational qualification of Bachelor of Science. He has also passed examination of Computer Course and English Typewriting.
6) Respondent No.1 is a body corporate with perpetual succession and common seal constituted as a Bank under the State Bank of India Act, 1955. For all purposes, it is a State within the meaning of Article 12 of the Constitution of India.
7) Respondent No.1 issued an advertisement inviting .....3/-
::: Downloaded on - 02/08/2016 16:57:48 :::3 wp90.12.odt applications from the willing candidates for appointment on various posts in Clerical Cadre. The petitioner made such an application and passed written test and was found suitable for appointment after personal interview. He was selected and an intimation in that behalf dated 8.12.2008 was issued to him.
The petitioner was selected for appointment in the Clerical Cadre as an "Assistant". Appointment order dated 5.1.2009 came to be issued and he was posted at Talodi, Balapur Branch of respondent No.1. On 11.4.2009, the petitioner was travelling from Talodi to Nagpur. He was returning to his house at Nagpur since the following day was a holiday.
During the course of the journey, he met with an accident resulting in serious injuries. He was given first aid at the Primary Health Centre, Bhiwapur, and thereafter admitted to the "Orange City Hospital and Research Institute, Nagpur." He was hospitalized for more than a month viz. from 11.4.2009 to 20.5.2009. He was required to undergo major Brain Surgery.
Those surgeries resulted in Paralysis of the left side portion of the petitioner. The Discharge Card notifies that the said injury required prolonged treatment. The petitioner was confined .....4/-
::: Downloaded on - 02/08/2016 16:57:48 :::4 wp90.12.odt to bed and needed regular treatment, medicines and Physiotherapy. The petitioner's condition improved with passage of time and he gained some strength in his right limbs, which are now stated to be functional including his Brain faculties. The petitioner claims that he can now do table work of writing, operating computer with the right hand and such other jobs though his left hand and limbs are not functional as he is not completely recovered from Paralysis.
8) The petitioner was advised by respondent No.1 to resume his services. He had no intention to quit the job and accordingly he joined the services at Talodi on 4.5.2011. The petitioner is still under medication, but before he could satisfy the authorities that he is able to discharge duties with his right hand and of the nature mentioned in the certificate, the petitioner received a communication dated 14.9.2011 from respondent No.1 - Bank and he was asked to appear before the Medical Board in September, 2011.
9) Annexure-'K' to this petition is the opinion of the Medical Board and insofar as it is relevant for our purpose, the same is .....5/-
::: Downloaded on - 02/08/2016 16:57:48 :::5 wp90.12.odt mentioned in Annexure-'L' dated 21.12.2011, which reads as under --
"Percentage of disability in figure 50 percent.
Percentage of disability in words fifty percent.
Shri Sumit K. Padgilwar meets the following physical requirements for discharge his duties.
F-can perform work by manipulating with fingers - No
PP-can perform work by pulling and pushing - No
L-can perform work by lifting
ig - No
KC-can perform work by kneeling & crouching - No
B-can perform work by bending - No
S-can perform work by Sitting - No
ST-can perform work by standing - No
W-can perform work by walking - No
SB-can perform work by seeing - Yes
H-can perform work by hearing/speaking - Yes
RW-can perform work by reading and writing - Yes
Member of Civil Surgeon
Handicapped Board Chairman of Handicapped Board
Member of
Handicapped Board"
10) It is in these circumstances that the petitioner is able to
do work, he is able to communicate, he is able to comprehend and, therefore, he is in a position to do the nature of job, .....6/-::: Downloaded on - 02/08/2016 16:57:48 :::
6 wp90.12.odt which can be carried out in terms of the Disability Certificate, he is certainly a person with disability as defined in Section 2(t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the said Act").
11) The petitioner is aggrieved by the fact that despite these beneficial legislation, respondent No.1 issued notice on 9.12.2011, terminating the petitioner's services w.e.f.
10.1.2012. The letter/communication, reads as under--
"ABSENCE SINCE 13/04/2009 With reference to above, we have to advise that you are absenting since 13/04/2009 on account of your illness. The total absence is for more than 970 days. As per the opinion of our Medical Board, the chances of 100% recovery from injury and complete fitness to perform bank's job are looking far away in near future.
In terms of provisions of "Terms & conditions" of your appointment, you are required to complete the probation period of six months successfully from the date of joining, which you failed to complete. Hence as an appointing authority, I am serving this notice for 30 days from the 10th December 2011 that your services will be terminated with effect from 10th January 2012 and you will cease to be in the service .....7/-::: Downloaded on - 02/08/2016 16:57:48 :::
7 wp90.12.odt of State Bank of India.
Please note."
12) It is contended by Shri Rohit Joshi, learned counsel appearing for the petitioner that under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the employer can not to do away the services of disabled persons like the petitioner, but it should assist him and to help him in rehabilitation in life. It is an Act to give effect to the Proclamation on the Full Participation and Equality of the people with Disabilities in the Asian and Pacific Region, which was proclaimed by the Government of India and signed on 5.12.1992. That proclamation contemplates full participation and equity of people with disabilities. It is in this backdrop, he submits that if the person like the petitioner can be certified as suffering from not less than 40% of disability certified by the Medical Authority and which is of the nature mentioned in Clause (i) of Section 2, then, in terms of Section 47, the obligation of the employer is to assist him and not to do away with his services.
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::: Downloaded on - 02/08/2016 16:57:48 :::8 wp90.12.odt Sub section (1) of Section 47, which reads as under--
"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."
13) Then reliance is placed on the judgment of this Court in the case of Union of India and others vs. Pramod Sadashiv Thakre, in Writ Petition No.3620 of 2011 decided on 19.10.2011, reported in 2012(1) Mh.L.J. 738.
14) Shri Puranik, learned counsel appearing for respondent No.2, submits that the petitioner's termination is not on account of disability but on account of this inability to satisfactorily perform his services. The petitioner is a .....9/-
::: Downloaded on - 02/08/2016 16:57:48 :::9 wp90.12.odt probationer, such a probationer can be discharged simplicitor from the services on account of his inability to successfully complete the probation period. This is an exception even in the case of disabled employee and once this is the effect or consequence flowing from the appointment as a probationer, then, there is nothing in Section 47 of the said Act, which would disable or prevent respondent No.1 from doing away with the services of the petitioner. In fact, respondent No.1 waited for the petitioner to resume duties and he was absent for more than 970 days. In these circumstances, it is not a case where respondent No.1 acted arbitrarily or defeat the mandate of said Act in any manner. Reliance is placed upon two decisions of the Hon'ble Supreme Court by Shri R.B.Puranik, learned counsel for respondent No.1.
15) With the assistance of the learned Counsel appearing for the parties, we have perused the petition, Annexures, including the impugned order and the affidavits, which are placed on record. In our view, the argument of Shri Puranik, proceeds on misreading of the said Act. The paras relied on in the case of State Bank of Patiala and others Vs. Vinesh .....10/-
::: Downloaded on - 02/08/2016 16:57:48 :::10 wp90.12.odt Kumar Bhasin, reported in (2010) 4 SCC 368, would go to show that instead of permitting the employer like respondent No.1 to do away with the services of a person like the petitioner, the Act mandates that they should assist and rehabilitate him by providing alternate employment or even by creating a supernumerary post to accommodate him in the service. By relying on a judgment in case of Kunal Singh Vs. Union of India, reported in 2003 (4) SCC 524, the Hon'ble Supreme Court holds that the Act postulates that no person with disability be deprived of the opportunity to work and find a source of employment. The provisions have been termed as non-discriminatory.
16) It is in such circumstances that the Supreme Court holds that Section 47 contains two distinct provisions. It applies to post employment situation. The first provision is for non-
discrimination in the employment and it provides that if an employee acquires disability during his services and if that person is not fit or suitable for the post, he could be shifted to some other post with the same pay scale and service benefits, and if it is not possible to adjust the employee against any .....11/-
::: Downloaded on - 02/08/2016 16:57:48 :::11 wp90.12.odt post, he should be kept on supernumerary post until a suitable post is available or he attains superannuation, whichever is earlier. Therefore, para-29 of the decision in Union of India Vs. Devendra Kumar Pant and others, reported in (2009) 14 SCC 546, should not be seen as an isolated observation or finding, but on a reading of all the paragraphs together, it would be clear that the Supreme Court reinforces the object and purpose of this Act and mandates employer like Union of India and similarly placed before us to follow the Act.
17) The Division Bench of this Court in the case of Union of India and others vs. Pramod Sadashiv Thakre cited supra observes that Section 47 of the Act, protects the services of an employee and makes no distinction between the nature of the services it protects. In para-5 of this decision the Division Bench dealt with the argument similar to that raised by Shri Puranik, learned counsel, before us in the following terms --
Para-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 .....12/-
::: Downloaded on - 02/08/2016 16:57:48 :::12 wp90.12.odt 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 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 that an employee shall be employed in some other post with same benefits."
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18) We are in respectful agreement with this conclusion of the Division Bench. We are of the view that the petitioner's services could not have been done away as admittedly he is a person with disability, that he suffered it during the course of his employment in an accident in which he lost control of the left side of his body and he got Paralytic stroke, is not disputed by respondent No.1. The Medical Board - respondent No.2 certifies the petitioner as fit and he can do certain jobs and duties by utilizing his right hand and right part of his body. In these circumstances, we expect respondent No.1 not to take a technical view of the matter, but to assist the petitioner.
Merely because he remained absent for 970 days and could not resume services, therefore, respondent No.1 terminated him, is not the manner in which a disabled employee ought to be treated by respondent No.1 - Bank, especially when it was under obligation to assist and accommodate the petitioner, under the said Act. The persons with disabilities need to be extended not just sympathy, but positive assistance to rehabilitate themselves. They are not a liability but very often victims of circumstances and events beyond their control.
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::: Downloaded on - 02/08/2016 16:57:48 :::14 wp90.12.odt Disability, physical or mental, is not always a handicap. With proper care, attention and assistance even persons with disabilities can be a asset for the nation. This principle is infused by the legislation, which is social and beneficial, however, the authorities need to be imbibed the legislative intent by moulding and changing themselves. It is not that the petitioner is expecting respondent No.1 not to take any work from him. All that he expects is commensurate with this disability and on account of certain circumstances over which he has no control, he needs to be accommodated in the services and protected by respondent No.1. That reasonable expectation should have been satisfied and fulfilled by accommodating the petitioner on a suitable post. It is not as if respondent No.1 will have to create a supernumerary post commensurate with, what the petitioner can handle and depending upon the contents of the Medical Board's findings.
The respondent No.1 can give the petitioner a suitable work.
19) In these circumstances, this Writ Petition is allowed by setting aside order dated 9.12.2011 and directing respondent No.1 to permit the petitioner to either resume duties in his .....15/-
::: Downloaded on - 02/08/2016 16:57:48 :::15 wp90.12.odt current posting in Clerical Cadre or to take such steps as are warranted by Section 47 of the said Act. However, all such steps be taken as expeditiously as possible within a period of six weeks from the date of receipt of a copy of order of this Court. Respondent No.1 may also consider the petitioner's request to post him at a place where adequate medical care and attention is available and certainly not a place at Talodi which requires him to travel from Nagpur, at which place the necessary medical facilities are not completely available.
20) Rule is made absolute in above terms, however, there shall be no order as to costs.
JUDGE JUDGE
brw
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