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Bombay High CourtIndian Cases

Devki Nandan (Dr.) vs Union Of India (Uoi) And Ors. on 2 July 2004

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Bombay High Court
Devki Nandan (Dr.) vs Union Of India (Uoi) And Ors. on 2 July, 2004
Equivalent citations: 2005(3)ESC1974, (2005)IILLJ51BOM, 2005(1)MHLJ382, 2004 LAB. I. C. 3401, (2005) 27 ALLINDCAS 164 (BOM), (2005) 1 MAH LJ 382, (2005) 3 SERVLR 142, (2005) 104 FACLR 909, (2005) 3 ESC 1974, (2005) 2 LABLJ 51, (2004) 4 ALLMR 1 (BOM), (2004) 6 BOM CR 51
Author: F.I. Rebello
Bench: F.I. Rebello, S.R. Sathe
JUDGMENT

F.I. Rebello, J.

1. Rule. Heard forthwith.

2. On 8th June, 2004 also last opportunity of three weeks was granted to the respondent to file a reply with a clear understanding that no further adjournment will be granted and the matter will be heard and disposed off.

3. The present petition has been filed by the petitioner through his Power of Attorney. The petitioner was employed with respondents as Medical Officer since 26-8-1974. In the course of his employment he has served at various places. The last posting was as Port Health Officer, Mumbai. It is the case of the petitioner that he has been suffering from Rheumatoid Arthritis since last 20 years due to which he had to undergo five major joint replacement operations which are set out in Paragraph 5 of the petition. In February, 2002, he underwent a Coronary Artery Heart By-pass Surgery and was under medical treatment for two months. In July, 2002 he fractured his Ilium bone involving the right hip joint and was hospitalized for the same for four days. The doctor whose opinion was sought arrived at the conclusion that the petitioner had developed Cervical Neuropathy with Secondary Cot Compression of the nerve root. It was also concluded that surgery could only help the petitioner but surgery was not possible in the petitioner’s case as anesthesia could not be administered to the petitioner due to his weak heart condition. In March, 2003 the petitioner started developing a pain in his neck and thereafter he started experiencing paraplegia in his hands. Therefore, he consulted his Cardiologist Dr. Eric Borges who then referred him to a neuro-surgeon. Dr. S. N. Bhagwati. After complete investigation, it was concluded that the petitioner had developed Cervical Neuropathy with Secondary Cot Compression of the nerve root. It was also concluded that surgery could only help the petitioner but surgery was not possible in the petitioner’s case as anesthesia could not be administered to the petitioner due to his weak heart condition. The petitioner further states that slowly and gradually the cot compression as mentioned above increased and now he has been completely bed-ridden since May, 2003. Therefore, the petitioner applied for leave from 14th May, 2003 and was trying to find a treatment for his medical condition for which he consulted various Doctors and Medical Experts. It was finally concluded by all Doctors that no line of treatment can be carried out. The petitioner has been therefore, medically incapacitated for carrying out any work. The petitioner had leave to his credit which was almost exhausted and as such he was compelled to avail 180 days of his accumulated earned leave from 29th August, 2003. The petitioner states that therefore, he made a representation to the respondent on 27-8-2003 inter alia praying that as per the ratio of the Delhi High Court in Delhi Transport Corporation v. Rajbir Singh, 100(2002) Delhi Law Times 111 (DB) which has interpreted the provisions of Section 47 of the Persons With Disabilities (Equal Opportunities etc.) Act, 1995 (hereinafter referred to as Disabilities Act) that he be given the benefit under the Disabilities Act.

The petitioner also stated that he was under treatment of Dr. T. Sreedhar who had certified his condition. He thereafter represented to the respondent by several letters to the respondent for a speedy reply to his representation and for extension of his earned leave to facilitate payment of his salary. The petitioner was called upon by the respondents by letter dated 23-12-2003 to approach the All India Institute of Physical Medicines and Rehabilitation, Mumbai to enable the medical board to examine the extent of the disability of the petitioner. Despite his medical condition, the petitioner remained present before the Medical Board on 30-12-2003 for examination in accordance with the above said notice dated 23-12-2003. The petitioner had to travel to the said board in an ambulance since no other means of transport could be used for him. The Medical Board examined him and sent their report to the respondents. The petitioner does not have a copy of the said report but is given to understand that the Medical Board once again certified the disability of the petitioner. The petitioner states that on account of the fact that his leave was not sanctioned on time, he has not been paid his salary from December, 2003 till date in spite of the fact that he is fully entitled to the same.

The petitioner further states that his condition was worsened both physically and financially. He was also compelled to surrender the accommodation given to him with his services. Therefore, on 27-2-2003, the petitioner surrendered the official accommodation and shifted to his own accommodation and is at present residing at the address mentioned in the cause title. There is also claim for promotion which we do not propose to consider considering that it is the case of the petitioner himself, that he is totally incapacitated and unable to move. In the case of promotion, whether it be by merit cum seniority or even in a case of seniority cum fitness, the candidate must be fit to be considered for promotion.

The respondent by letter dated 27-3-2004 had intimated to him that his representation was considered sympathetically but could not be granted on account of the 100% disability (as mentioned in the medical report) of the petitioner and that he can be asked to apply for invalid pension as per Rule 38 of the Pension Rules. It is this order which has been challenged by the petitioner contending that this will be contrary to the provisions of Section 47 of the Disabilities Act.

4. On the other hand, on behalf of the respondents, their learned counsel relies on the rules framed by the respondents. It is not disputed that the petitioner is a person with physical disability. The relevant rule which is relied on by the respondent reads as under :

“(a) If he is on duty, shall not be invalidated from service during his service period;
(b) If he is already on leave, the period of leave or an extension thereafter to the extent permissible under sub-rule (1) of this rule and even beyond that may be granted as per relevant rule(s).
3. Amendment in Rule 20(2) is being carried out on the above lines.

4. Insofar as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller and Auditor, General of India.”

It is therefore, submitted that at the highest, if the petitioner was on leave his leave can be extended to the extent permissible under Sub-rule (1) and leave may be granted even after that as per relevant provisions. It is therefore, submitted that it is not mandatory upon the petitioners to grant further leave and as advised, the petitioner can claim invalid pension.

It is also contended on behalf of the respondents relying on the judgment in the case of Kendriya Vidyalaya Sanghatan v. Subhash Sharma, (2002)4 SCC 145 that the petitioner’s case would be covered by the provisions of the Administrative Tribunals Act, 1985 and the petitioner should have first approached the Tribunal before approaching this Court. As he has alternative efficacious remedy, this Court should not entertain the present petition.

5. We may first deal with the contention as raised by the respondents namely that the Court should not exercise its extra-ordinary jurisdiction in view of the Administrative Tribunals Act, 1985. We may point out that the petitioner has not approached this Court on the ground that his condition of service have been violated. The petitioner is before this Court contending that the respondents have failed to comply with the mandatory requirements of Section 47 of the Disabilities Act. Once that be the case, it is contended there is no question of petitioner being asked to move the Central Administrative Tribunal. It is therefore, clear that what the petitioner is claiming is not merely under the conditions of services. The petitioner is claiming a right conferred on a Disabled Person while in service under the provisions of the Disabilities Protection Act, 1995. Even otherwise, it will be difficult for us considering the state of the petitioner insofar as medical report is concerned to ask him to approach the Central Administrative Tribunal and considering that he claims a statutory right and not mere enforcement of a condition of service. On behalf of the petitioner, learned counsel has placed reliance on the judgment of the Apex Court in Public Services Tribunal Bar Association v. State of U.P. and Anr., . It is pointed out that in the instant case what the petitioner is ventilating is an inaction on the part of the respondents to fulfil their statutory obligations. The Apex Court dealing with the same contention has observed as under:

“We agree with the view taken by the High Court that unless a clarification is made by the Legislature in the Act, clarifying that an order would include an “omission” or “inaction” on the part of the authority, the “inaction” on the part of authority can be challenged in High Court by filing the writ petition under Article 226 of the Constitution of India. It cannot be said that the public servant is left without a remedy to challenge any omission or inaction on the part of the authority. Inaction by itself is an independent cause of action and the High Court can effectively deal with the same.”
It is therefore, clear that in the case of omission or inaction the jurisdiction under Article 226 can be exercised. It is true that in the process we may have to consider the service rules. That would not mean that the jurisdiction of this Court would be excluded. The jurisdiction to correct the omission or inaction, would amount to an act of failure to exercise jurisdiction. The objection therefore, as raised on behalf of the respondent is rejected.

6. We may now come to the provisions of the Disabilities Act. Under Section 2(i) of the Disabilities Act, “disability” means locomotor disability. Under Section 2(o), “locomotor disability” means disability of the bones, joints or muscles, leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. Under Section 2(t) “persons with disability” means a person suffering from not less than forty percent of any disability as certified by a medical authority. In the instant case, letter of respondent themselves would indicate that the petitioner suffers from 100% disability. It is in these circumstances that we have to consider whether Section 47 would be attracted to the facts of the present case. Section 47 reads as under :

“47. Non-discrimination in Government employments.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquired 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.”

A plain reading therefore, of sub-section (1) of Section 47, would mean that services of the disabled person cannot be dispensed with during his service. An establishment has been defined to mean a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government. The respondents therefore, are an establishment within the meaning of Section 2(a) of the Act. In case of person with disability in terms of the second proviso to Section 47, 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 till he attains the age of superannuation whichever is earlier. The intention of the legislation is therefore, writ large in the proviso that the person in employment in an establishment if he suffers from disability during his employment cannot be discharged. Such person should either be given an alternate job which he is capable of or has to be kept on a supernumerary post until the age of superannuation, whichever is earlier. Such an issue had earlier come up before a learned Division Bench of the Delhi High Court in the case of Delhi Transport Corporation v. Rajbir Singh (Supra). A learned Single Judge of the Delhi High Court had held in respect of the employee in service who had met with an accident when the said person was declared medically unfit, that he had to be given benefit under Section 47 of the Persons with Disabilities Act. The Appellate Bench of the Delhi High Court on the consideration of the various provisions and rules came to the conclusion that the person in service who suffers disability would be entitled to protection under Section 47 of the Persons with Disabilities Act.

In our opinion, the matter is no longer res Integra considering the judgment of the Apex Court in Kunal Singh v. Union of India, . Before the Apex Court also it was contended that a person can avail the benefit of invalid pension. That was negatived by the Apex Court on the ground that the Disabilities Act is a special legislation and overrides the provisions of the Central Civil Services Pension Rules. We may gainfully reproduce Paragraph 9 of the said judgment:

“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, 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 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 an employee after acquiring disability is not suitable of 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 is 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 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 during service.”
That must answer the issue in favour of the petitioner.

7. Another contention raised on behalf of the respondent was placing reliance on Office Memorandum dated 19-1-2004 whereby Rule 20(2) of Central Civil Services Rules is sought to be amended. Relying on the said rule it is sought to be contended that the petitioner herein would be entitled to invalid pension. The issue before us would be whether considering Section 47 those rules would be contrary to Section 47 of the Persons with Disabilities Act, 1995. The office memorandum itself is clear that it has been issued taking into consideration the provisions of Section 47. It is in that context that we will have to read Rule (b) of Rule 20(2). What that would mean is that in the first instance the person with disability if on leave the period of leave should be extended and thereafter should be granted leave to the extent permissible under rule (1) and even beyond that may be granted as per relevant rules. The word “may” considering the mandatory requirement of Section 47 will have to be read as “shall” as Section 47 was referred to in the said office memorandum. If it is not so read, it would be ultra vires Section 47. It is a rule of interpretation that whether primary legislation or subordinate legislation Courts must first, by interpretative process avoid striking down the said rule. If the word may in rule (b) is read as “shall” then there is no need to strike down the said rule. So read it will also be in conformity with Section 47 and the object with which Section 47 has been enacted by Parliament. We are therefore, of the opinion that even considering Rule 20(2), respondents were duty bound to continue the petitioner on leave till such time as he stands superannuated and pay him wages and salaries accordingly, as in the instant case, the Board has held to be hundred percent incapacitated.

It is contended that this would cause unnecessary burden on the public exchequer. We are not called upon to answer the same. Parliament considering a class of persons in establishments, considering the state of their health and financial hardship that would be followed on account of disability has chosen to protect their livelihood. Courts must give effect to that object with which the law was enacted by Parliament. The executive cannot and should not be allowed to complain on that count as it is their duty to give effect to the mandate of law.

8. The petitioner was asked to forgo his earned leave when he was physically incapacitated. That could not have been done. The petitioner during the period of his disability had to use his earned leave which otherwise he would have been entitled to avail of on his retirement or otherwise. The question is whether the petitioner can be denied his right to earned leave considering Section 47 of the Disabilities Act. Once person is disabled, the disabled person is entitled to the benefits under Law. The question therefore, of such disabled person forgoing his earned leave would not arise. The section does not contemplate such situation. Any rule made must be in conformity with the said section. The rule therefore to the extent when it provides that the petitioner should be granted leave can only be leave other than earned leave which he was entitled to. We are therefore, of the opinion that even though the petitioner has availed of the earned leave that was beyond his control. That will not preclude the petitioner from contending that the respondents cannot deny to him his earned leave. We are of the opinion that the petitioner as long as section stands as it is, will be entitled to the benefit of earned leave.

For aforesaid reasons, petition has to be allowed.

9. Rule made absolute in terms of Prayer Clause (a), (b) and (c) with a further direction that the petitioner will also be entitled to the benefit of the earned leave before he was declared as disabled and the same be treated as not availed off by the petitioner.

Parties to act on copy of this order authenticated by the Personal Secretary of this Court.