Punjab-Haryana High Court
Shri Rupender Singh vs State Of Haryana And Ors. on 28 April, 2006
Equivalent citations: (2007)ILLJ61P&H, (2006)143PLR469
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
JUDGMENT M.M. Kumar, J.
1. This petition filed under Article 226 of the Constitution prays for quashing order dated 13.8.2004 passed by General Manager, Haryana Roadways Delhi (Annexure P-5) maintaining his earlier order dated 26.7.2002. By the aforementioned order, the petitioner has been retired from service w.e.f. 31.7.2002 from the post of driver on the ground that he was found unfit for serving as Driver on account of loss of vision in left eye and that he was incapacitated for further service as driver in the Haryana Roadways. The petitioner has been offered alternative job on the post of helper-tyreman from where he is to retire on attaining the age of superannuation on 31.5.2017.
2. Brief facts of the case are that the petitioner had joined as driver with the Haryana Roadways on 13.2.1990. When he was on duty while driving Bus No. HR-26-A-1154 belonging to Haryana Roadways, Delhi Depot enroute from Delhi to Shimla an accident occurred with another Bus No. HR-37-0342 of Himachal Pradesh Roadways Transport Corporation. The petitioner sustained injuries as reflected in his medical examination. On 20.6.2002 he was eventually medically examined by the Medical Board at P.G.I., Rohtak and he was declared 'unfit for driving duty. On 31.7.2002, respondent No. 3 passed an order of retirement of the petitioner from the post of driver and gave him alternative job of Helper-tyreman in the lower pay scale of Rs. 2550-3200/-. It is appropriate to mention that the petitioner was enjoying the pay scale of Rs. 2000-5150/- as basic pay plus usual allowances at the time of passing the impugned order dated 31.7.2002.
3. The petitioner filed a representation on 16.9.2002 but no action was taken. On 22.3.2004 his representation was rejected by the Joint State Transport Controller, Haryana. The aforementioned fact was disclosed by the respondents in their written statement filed by them in reply to C.W.P. No. 5382 of 2003 by the petitioner. The aforementioned petition was eventually decided on 20.5.2004. A Division Bench of this Court set aside the order dated 31.7.2002 (P-1) after issuing directions to the respondents to pass an appropriate order in accordance with Section 47 of the Persons with Disability (Equal opportunities, Protection of Right and Full Participation) Act 1995 (for brevity the 'Disability Act)' and instructions of 1992. Accordingly, respondent No. 3 has passed the impugned order dated 13.8.2004 (P-5) which is the subject matter of challenge in the instant petition. The operative part of which reads as under:
The Medical Board found him unfit on account of loss of vision in his left eye incapacitated for further service as driver. In Haryana Roadways, vide his endst. No. PGIMS/MS/Cell-II/2002/i003 dated 20.6.2002. Since Shri Rupinder Singh Driver No. 58 has been found unfit for driving, he cannot be retained in the department as driver and retired on 31.7.2002 on medical ground. The petitioner could not be appointed in the workshop on technical post in the scale equivalent to driver as he does not fulfill the requisite qualification required for an employee to be appointed in the workshop i.e. I.T. Certificate. Even otherwise Class-Ill posts in the workshop are technical one. However, Class-IV post of Helper Tyreman in the pay scale of Rs. 2550-3200/- has been given to the petitioner as per the instructions dated 20.8.1992 of the Transport Commissioner, Haryana Chandigarh and the claimant Shri Rupinder Singh has joined as Helper Tyreman on 1.8.2002. The provisions of Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Act') cannot be applicable in this case as there is neither any post exists in the pay scale of driver i.e. Rs. 4000-6000/- except to technical post, nor can be created. For technical posts specific qualification is required. Shri Rupinder Singh has no such technical qualification, hence he cannot be appointed on technical post. In these circumstances explained above, I find no merit in his representation and the same is rejected being devoid of merits.
4. In the written statement the respondents have admitted the fact that the petitioner was employed as driver on 13.2.1990 and he lost his eyesight on account of bus accident while on duty on 24.8.1997. It has also been conceded that on the basis of medical opinion given by the Post Graduate Institute of Medical Sciences, Rohtak on 20.62002, he has been declared medically unfit. The pay scale of the driver namely Rs. 4000-6000/- and the fact that the petitioner was drawing salary of Rs. 5150/- plus allowances has also been accepted. Along with the fact that the petitioner was offered alternative employment on the basis of Helper-tyreman in the pay scale of Rs. 2550-3200/- plus usual allowances which is consistent with the policy of the department as reflected in the instructions issued by the Transport Commissioner i.e. respondent No. 1 on 20.8.1992. The petitioner could not be offered any post equivalent to the post of driver and as no such post has been available. It is claimed that Section 47 of the Disability Act, 1995 is not applicable. The aforementioned claim has been made on the basis of notification dated 27.6.2005 excluding the application of Section 47 of the Disability Act, 1995 to the post of drivers and contractors of the Haryana Roadways (R-6).
5. Mr. Bhoop Singh, learned Counsel for the petitioner has argued that in face of Section 47 of the Disability Act, 1995, the petitioner cannot be retired from the post of driver by giving him a lower post of Helper-tyreman. According to the learned Counsel, such a course is not available to the petitioner in view of the expressed provisions of Section 47 of the Disability Act, 1995 prohibiting any establishment from dispensing with or reducing in rank an employee who has acquired such a disability. If he is to be posted against another post then his pay scale cannot be reduced nor any promotion could be denied to such a person. Learned Counsel has attacked the instructions dated 27.6.2005 (Annexure R-6) by submitting that the accident in this case has taken place on 24.8.1997 and therefore instructions issued on 27.6.2005 cannot have the retrospective effect.
6. Mr. Harish Rathee, learned State counsel has argued that the respondent has acted within the four corners of law. Justifying the impugned order dated 13.8.2004 (P-5) by referring to the directions issued by this Court in the earlier representation filed by the petitioner namely C.W.P. No. 5382 of 2003 on 20.5.2004. He has then argued that according to the provisions of the Disability Act 1995, the respondent-State is entitled to exempt any category or class of people from the operation of the Act which has been done by issuing notification dated 27.6.2005 (Annexure R-6). He has maintained that this notification would govern all the pending cases and there is no retrospectivity if the same is applied to the case of the petitioner.
7. Having heard learned Counsel for the parties, it would be necessary to reproduce the extract of the provisions of Section 2 and 47 of the Disability Act, 1995, which read as under:
2. Definitions.- In this Act, unless the context otherwise requires.-
xxx xxx xxx xxx xxx
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;
xxx xxx xxx
(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;
(u) "person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device;
(Emphasis added)
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.
8. A perusal of the above extracted provisions, makes it clear that there is a complete prohibition to dispense with or reduce in rank an employee who has acquired disability during his service. This provision has been incorporated in Chapter VIII which deals with an employee of an establishment who has acquired disability during service. There are two provisos in Section 47 that if such a disabled person is not suitable for the post which he was earlier holding then he should be shifted to some other post with same pay scale and service benefits and that if it is not possible to adjust such an employee then he be kept on a supernumerary post till such time a suitable post is available for him or he attained the age of superannuation whichever is earlier. Sub-section 2 of Section 47 goes to the extent of prohibiting denial of any promotion to any such person on the ground of his disability. A proviso to Sub-section 2 empowers the appropriate Government to exempt any establishment from the provisions of Section 47 by keeping in view the type of work carried in that establishment.
9. The aforementioned provision came up for determination of the Supreme Court in the case of Kunal Singh v. Union of India . The Hon'ble Supreme Court referred to the background of Disability Act, 1995 giving the details of commitment at an international meet held at Beijing in the first week of December 1992. In that meet a proclamation was adopted to which India is signatory and it had agreed to give effect to the proclamation for safeguarding the rights of person with disabilities and enabling them to enjoy equal opportunity. As a consequence of the aforementioned proclamation the Disability Act 1995 was passed, the interpretation given by the Supreme Court to Section 47 emerges from reading of para 9 of the judgment which is extracted as under: -
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 a 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 the 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 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 it 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 a 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 service.
10. The aforementioned observation of their Lordships do not leave any manner of doubt that an employee who has suffered disability during service cannot be deprived of the benefits which would otherwise accrue to him merely on account of disability. When the facts of the present case are examined in the light of the observation made by the Supreme Court in the case of Kunal Singh v. Union of India, and the provisions of Section 47, it becomes evident that order dated 13.8.2004 (Annexure P-5) cannot be sustained in the eyes of law and has to be held as violative of Section 47 of the Disability Act, 1995. The prohibition against retirement of an employee who acquired disability while in harness has been completely ignored by respondent No. 3 while passing the impugned order on 13.8.2004. Firstly, the petitioner cannot be retired, and secondly efforts ought to have been made to adjust him on a post carrying equal pay scale and thirdly if no post is available, an employee like the petitioner has to be permitted to work on. a supernumerary post. Therefore, the order dated 13.8.2004 (P-5) suffers from a serious legal infirmity and thus liable to be quashed.
11. The argument of the learned State counsel that the benefit of Section 47 of Disability Act, 1995 cannot be extended to the petitioner on account of exclusion of driver from the operation of Disability Act, 1995 as per the notification dated 27.6.2005 (R-6) would not require any detail consideration because no subordinate legislation could be considered retrospective in nature unless it is expressly provided. There is no provision made in the notification dated 27.6.2005 (R-6) for implementation of the same w.e.f. a retrospective date. Therefore, such a notification . would not apply to the case of the petitioner who had lost his vision in a bus accident while in harness on 24.8.1997. Moreover, he was declared unfit on 20.6.2002 and his claim for the post of driver was rejected on 31.7.2002 (Annexure P-1) which was quashed by this Court and it was again rejected on 13.8.2004 (Annexure P-5). On none of those dates, the notification dated 27.6.2005 was in operation and therefore, the argument for applying the aforementioned notification has to be rejected.
12. The other argument that the rights of the petitioner has to be considered strictly in accordance with the considerations/directions issued by a Division Bench of this Court in C.W.P. No. 5382 of 2003 decided on 20.5.2004 has to be rejected because the instructions dated 20.8.1992 to which reference has been made does not exclude Section 47 of the Disability Act, 1995. It is apparent that the aforementioned instructions could not have excluded the operation of Section 47 of the Disability Act, 1995 as instructions were issued in 1992, therefore, the submission made by the learned State counsel is rejected.
13. For the reasons stated above, the order dated 13.8.2004 passed by respondent No. 3 is set aside. As a result, the petitioner is ordered to be reinstated in service on the post of driver in the pay scale of Rs. 4000-6000/- along with allowances given from time to time along with consequential benefits with regard to seniority, promotion, payment of arrears of salary etc. The petitioner shall report for duty on the post of driver within six weeks from today. He shall also be entitled to costs which are quantified at Rs. 5000/-Copy be given dasti on payment of usual charges.