Central Administrative Tribunal - Ernakulam
Priya Varma vs Bsnl Represented By The Cmd on 8 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00439/2016
Monday, this the 8th day of August, 2016
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Priya Varma, Aged 46, W/o. R. Sree Devan,
Working as SDE (Sub Divisional Engineer),
(HR No. 199509025) Computer Cell, BSNL,
Aroor, Cherthala, Alleppy, Pin Code - 688 534. ... Applicant
(By Advocate : Mr. K.C. Eldho)
Versus
1. BSNL represented by the CMD,
BSNL Corporate Office,
4th Floor, Bharat Sanchar Bhavan, Ganpath,
New Delhi - 110 001.
2. The Chief General Manager, Office of the Chief
General Manager Telecom, HR-III Section, 2nd Floor,
Doorsanchar Bhavan, PMG Junction, Thiruvananthapuram-695 033.
3. The General Manager, Alleppey SSA, Office of GMT,
Pitchu Iyyer Junction, Alappuzha, Pincode - 688 001.
4. The Principal General Manager Telecom, Office of the
PGMT, BSNL Bhavan, Kalathiparambu Road,
Valanjambalam, Cochin - 682 016.
5. The Union of India, represented by the Secretary (Personnel),
Department of Personnel and Training, Ministry of Personnel
Public Grievances and Pensions, North Block,
New Delhi - 110 001. . . . Respondents
[By Advocates : Mr. Thomas Mathew Nellimoottil (R1-4) &
Mr. Anil Ravi, ACGSC (R5)]
This application having been heard on 20.07.2016, the Tribunal on
08.08.2016 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant is a lady Sub Divisional Engineer (SDE) suffering from hearing impairment with 60% disability, working under respondent No. 1 BSNL. While she was working as SDE at Ernakulam Secondary Switching Area (SSA) under respondent No. 2, by Annexure A2 order dated 30.4.2014 she was transferred to Alleppey SSA at Alleppey by way of routine periodic transfer. Annexure A2 transfer to Alleppey forced her to undertake travel 160 Kms. every day up and down from office to her house at Kakkanad, Ernakulam which has affected her family life with two children with asthmatic disorder, besides suffering her own disability of hearing impairment. She sent Annexure A7- a detailed representation to respondent No. 2 praying for indulgence to reconsider Annexure A2 in view of Annexures A3 & A4 guidelines issued by the Government of India in the matter of posting of physically handicapped employees. As no action was taken by respondent No. 2 on Annexure A7 representation, the applicant's husband approached the Deputy Chief Commissioner for Persons with Disabilities under the Government of India. Though the Deputy Chief Commissioner sent Annexure A8 order to the 1 st respondent no action was taken by respondents 1 & 2. Thereafter respondent No. 3 vide Annexure A9 order shifted the applicant to Aroor, at a place in Alleppey district, bordering with Ernakulam district. The posting at Aroor also was onerous to the applicant with her disability to commute from her residence. In the meantime the Deputy Chief Commissioner for Persons with Disabilities passed Annexure A11 order directing the Assistant General Manager (HR) in the office of respondent No. 2 to consider the applicant's husband's request in its true spirit. Without considering Annexure A11 order, respondent No. 2 issued Annexure A12 transfer order dated 16.4.2016 transferring the applicant from Alleppey to Ernakulam along with other SDEs working under different units to different places. However it was specified in Annexure A12 that the officials may be relieved only after completion of two years of service in the unit, on the joining of substitutes and further that extra leaves taken over and above 60 days shall be deducted from the stay at that unit. Applicant had availed of leave for about three months for undergoing auditory training therapy and had to take intermittent leaves on medical grounds. Annexure A10 is the certificate issued by the ENT surgeon prescribing auditory training to her for three months. As the applicant was aggrieved by Annexure A12 transfer order burdened with the aforesaid conditions, she submitted Annexure A13 representation dated 16.4.2016 to respondent No. 2 requesting for immediate transfer of her to Ernakulam SSA at Thrikkakarra Telephone Exchange - the most convenient place, considering her disability. She has also submitted Annexure A14 representation dated 19.4.2016 to respondent No. 4 for a suitable posting at Ernakulam considering her disability. She is still continuing in the Alleppey unit under respondent No. 3 and Annexure A12 order takes away her right as disabled person. According to her the conditions stipulated in Annexure A12 is in violation of the express provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995 [hereinafter referred to as PwD Act].
2. Respondents BSNL filed reply statement contending that applicant was appointed in the BSNL as a JTO under general category, not under the category of physically disabled persons. She has never disclosed her disability of hearing impairment till 2008. She suppressed her disability at the time of initial appointment for the purpose of securing the job. She has never made any complaint against non-inclusion of her name in the list of differently abled persons and hence she was considered for the routine transfer vide Annexure A2. When she was considered for rotational transfer she was included in the list of persons with long stay in Ernakulam SSA. Even after knowing that she was likely to be shifted out of Ernakulam SSA she has not stated anything about her disability. Instead she submitted Annexure R1 representation dated 8.1.2014 requesting her to post her in the nearest SSA like Kottayam, Alleppey and Thrissur. After her transfer to Alleppey as per her request she cannot complain now based on the Government of India directions on posting of disabled persons. She joined Alleppey in May, 2014 without mentioning anything of her difficulties. As per Annexure R2 transfer rules/policy of the BSNL the extra leave taken over and above what is due to an employee during the tenure period shall be deducted from the stay where the employee was and hence a stipulation was made in Annexure A12 that she shall be relieved only after she fulfills the tenure for the period for which she has taken the extra leave over and above what is due to her. Therefore, there is nothing illegal prescribed with the posting of the applicant vide Annexure A12 transfer order. Annexure A8 communication received from the Disabilities Commissioner did not contain the name of the aggrieved person and hence no action was taken. Respondents, therefore, pray for rejecting the OA.
3. A rejoinder was filed by the applicant refuting the contentions of the respondents and pointing out that she had acquired the disability while in service with the respondents and that she was certified to be suffering from that disability vide Annexure A15 certificate dated 13.6.2008 issued by the medical board that she is severely handicapped due to speech and hearing disability which is assessed to be 70%.
4. Heard the learned counsel for the applicant Mr. K.C. Eldho and learned counsel appearing for respondents Nos. 1-4 Mr. Thomas Mathew Nellimoottil. Mr. Anil Ravi, ACGSC for respondent No. 5. Perused the record.
5. Annexure A1 is the latest certificate issued by the Medical Board on 7.8.2014 whereby the applicant is assessed to be 60% disabled. There is no dispute that she therefore comes within the meaning of 'disability' under clause (i) read with (t) of Section 2 PwD Act, 1995. Respondents BSNL do not dispute the Government of India instructions contained in Annexures A3 to A5 for providing facilities to persons with disabilities in the matter of transfer and postings are to be followed by them as well. However, they contend that the applicant's disability was for the first time brought to their attention only in the year 2008. They even go to the extent stating that applicant has suppressed her disability of hearing impairment at the time of securing job in the BSNL. Applicants states that she acquired the disability while in service under the BSNL. In support of this contention she has produced Annexure A/15 Certificate issued by the medical board in 2008. Respondents admit that the applicant disclosed her disability for the first time in 2008 only. Nevertheless, the fact remains that by virtue of Annexure A1 medical certificate applicant is suffering from disability as the term is defined under PwD Act, 1995. Therefore, no doubt, the entitlements of disabled persons in relation to her employment as provided in the Act are applicable to the applicant also. It is worth noting that Annexure A5, the latest OM issued by the Government of India in this connection, clearly instructs :
'As far as possible, the persons with disabilities may be exempted from the rotational transfer policy/transfer and be allowed to continue in the same job, where they would have achieved the desired performance. Further, preference in place of posting at the time of transfer/promotion may be given to the persons with disability subject to the administrative constraints.
The practice of considering choice of place of posting in case of persons with disabilities may be continued. To the extent feasible, they may be retained in the same job, where their services could be optimally utilised.' (underlinings supplied)
6. A reading of Annexure A5 goes to show that the aforesaid OM takes care of providing aids and assertive devices for improving the efficiency of the disabled employees. Even the administrative instructions regarding transfer and posting as extracted above reveals that the objective behind such instructions is to ensure that such employees should be allowed to continue in the same place where they would have achieved the desired performance and where their services could be optimally utilised. It is worth noticing that Annexure A5 administrative instructions are in tandem with the UN Convention on the Rights of Persons with Disabilities 2008 wherein India is a signatory. The UN Convention, 2008 envisages equal opportunities for persons with disabilities and to guarantee all rights for full enjoyment of their life without any discrimination. The UN Convention 2008 further recognises 'disability' as a evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. India, being a signatory to the UN Convention 2008, is bound to ensure that the provisions in the convention are binding as law to be enforced by the authorities.
Enforceability of international legal instruments where India is a signatory was endorsed by the Apex Court in Apparel Export Promotion Council v. A.K. Chopra - AIR 1999 SC 625. Annexure A5 OM relating to preference in transfer and posting envisages the applicant to continue in the same job at a place where she could have achieved the desired performance. She, therefore, preferred to work from Ernakulam, her native place where she would be close to her home and could attend to the needs of her family members including children also.
7. It is worth noticing that applicant was in fact working in Ernakulam before her transfer to Alleppey vide Annexure A2 and therefore, there was no need for her to complaint about her disability. It appears that out of sheer attempt to preserve her right to privacy (which, of course is an extension of the right to life protected under Art.21 of the Constitution, to live a dignified life) she preferred not to disclose the embarrassing deficiency she suffered. It is only a matter for imagination to visualise the predicament of persons with hearing impairment - without any external manifestation - especially in relation to a woman, commuting to and fro for 160 kms. every day. Applicant points out that while she was working in Ernakulam SSA there was no adverse remarks regarding the efficiency with which she had worked.
8. It appears that the problems as a hearing impaired person began to crop up only when she was transferred to Alleppey, a place distant from her home town. Though the applicant filed Annexure A2 representation pointing out her disability and for posting her back in Ernakulam, there was no response from the respondents. Therefore, her husband approached the Disability Commissioner who issued Annexures A8 and A11 orders for considering her case which also fell into the deaf ears. The respondents BSNL attempt to wriggle out of the allegation that they have not adverted to Annexures A8 & A11 orders by contending that there was no name of the person to whom Annexures A8 & A11 are concerned. One can see that such a statement is without any bonafides on a simple look at Annexure A8 which begins with a sentence 'please find enclosed a copy of e-mail dated 31.7.2014 of Shri R. Sree Devan'. When a copy of the e-mail also was enclosed with Annexure A8 it was not fair on the part of the respondents to contend that they could not decipher as to whom Annexure A8 related to.
9. It appears that when the applicant began to lay stress on Annexures A3 to A5 Government of India instructions, respondents BSNL came up with Annexure A9 communication dated 18.6.2015 shifting the applicant from Alleppey to Aroor 'as a special case on compassionate grounds'. Annexure A9 indicates that the respondents have approached the matter 'on compassionate grounds' without realising the legal rights of the disabled protected in the PwD Act. The PwD Act protects the right and ensures full participation of disabled persons. With the enactment of the PwD Act the disabled persons are in no way to be seen as persons unequal to others in the matter of employment and in the matter of their other rights protected. Section 47 of the PwD Act provides for:
'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.' (emphasis supplied)
10. As observed above, Annexure A5 direction regarding transfer and posting is in tune with PwD Act and is in furtherance of the UN Convention on the Rights of Persons with Disabilities 2008. In Deaf Employees Welfare Association & Anr. v. Union of India & Ors. - (2014) 3 SCC 173 the Apex Court had the occasion to deal with the rights of deaf & dumb people. The Apex Court quoted the relevant provison of the UN Convention, 2008:
'2. 'Discrimination on the basis of disability' means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;
'Reasonable accommodation' means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. ' The observation of the Apex Court is quite significant in this case:
'26. ............................................Sometimes, they have to commute long distances to and fro. There has been an unprecedented increase in the commutation time between the residence and place of work which affects the work environment in offices adversely as the employee spend much of their energy in commuting and in the case of persons with disabilities, the situation is more grave.'
11. As a result of the continued pressure exerted by the applicant and her husband invoking the provisions in PwD Act and relying on Annexures A3 to A5 OMs, the respondents finally yielded by posting the applicant at Ernakulam SSA vide Annexure A/12 order but adding the onerous condition that she should complete two years service in the Alleppey unit before she is relieved from there. Applicant states that while in Alleppey she had availed of 250 days of leave for the purpose of treatment of her impairment. Respondents state that she had availed of such leaves not only for her treatment but also for completing the part-time course she is undergoing in the Indian Institute of Management, Kochi for which she had obtained permission from the respondents. According to the respondents the period during which she had availed of extra leave has to be compensated in terms of Annexure R2 transfer rules of BSNL. This Tribunal feels that such contentions of the respondents are unsustainable in the light of the supervening provisions in the PwD Act and therefore, rules and guiding principles in the matter of transfer contained in Annexure R2 will have no relevance in the case of a disabled person whose rights are given a high pedestal in the light of the provisions in the PwD Act, 1995 and also in the light of the provisions of the UN Convention, 2008 which contemplates measures for bringing in more equality in the case of disabled persons by giving special assistance to them.The right of disabled employees in granting them special assistance and 'reasonable accommodation' within the meaning given in the UN Convention has been upheld by the apex court in Syed Bashir-ud-din Quadri v. Nazir Ahmed Sha (2010) 3 SCC 603.
12. It has to be noted from the pleadings in the reply statement and rejoinder that applicant has acquired the disability while in service and that it came to the notice of the respondents for the first time in 2008. Annexure A15 certificate dated 13.6.2008 of the medical board shows that she was suffering from 70% disability at that point of time. It appears that due to the continued treatment thereafter severity of her disability has come down to 60%.
13. In the light of the provisions in the PwD Act, 1995, the aforementioned international legal documents and the Government of India policy as revealed from Annexures A3 to A5 it was the bounden duty of the respondents to provide special assistance to the applicant in the matter of providing a working place near to her residence where she would have achieved the desired performance and where her services could be optimally utilised.
14. On the contrary the HR department of the respondents BSNL have been adopting an unhelpful and obstructive attitude to the applicant. Without considering the rights of the hearing impaired persons the HR department of BSNL treated her merely 'on compassionate ground' by issuing Annexure A9 order as if the authorities of the respondents are showing benevolence and compassion to her. It has to be noted that the disabled persons need not beg for any one's compassion. Their claims are now right based. Their rights have indeed been protected not only by statutory instruments but also by international legal instruments. It is quite obvious in this case that the HR department of the respondents BSNL have been insensitive and were unwilling to open their eyes to the legislative and administrative mandates for providing facilities to the disabled employees to enable them to overcome their disability and to utilise their services optimally from a place where they would have achieved the desired performance.
15. For the foregoing reasons this Tribunal is inclined to set aside the conditions prescribed in Annexure A12 transfer order qua the applicant and to direct them to give effect to Annexure A12 transfer under Ernakulam SSA at a place near to her home town, taking into consideration of her requests in Annexures A13 and A14 representations. Ordered accordingly. Respondents shall complete the aforesaid exercise in relation to the applicant's transfer to Ernakulam within 15 days from the date of receipt of a copy of this order.
16. Original Application is allowed as above. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER 'SA'