Full Judgment Text
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CASE NO.:
Appeal (civil) 8 of 2008
PETITIONER:
Bhagwan Dass & Anr.
RESPONDENT:
Punjab State Electricity Board
DATE OF JUDGMENT: 04/01/2008
BENCH:
G.P.Mathur & Aftab Alam
JUDGMENT:
J U D G M E N T
[Arising out of SLP) No.26357/2005]
AFTAB ALAM,J.
Leave granted.
This case highlights the highly insensitive and apathetic
attitude harboured by some of us, living a normal healthy life,
towards those unfortunate fellowmen who fell victim to some
incapacitating disability. The facts of the case reveal that
officers of the Punjab State Electricity Board were quite aware
of the statutory rights of appellant No.1 and their corresponding
obligation yet they denied him his lawful dues by means that
can only be called disingenuous.
The facts of the case are brief and are all taken from the
(Reply) Affidavit filed on behalf of the Punjab State Electricity
Board and its officers (the respondents in the appeal).
Appellant No.1 joined the respondent Board on July 19, 1977,
on ad-hoc/work-charged basis. His services were regularized as
an Assistant Lineman on June 16, 1981. While in service he
became totally blind on January 17, 1994 and a certificate to
that effect was issued by the civil surgeon, Faridkot.
Here, it may be noted that the rights of an employee who
acquires a disability during his service are protected and
safeguarded by Section 47 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995. Section 47 reads as follows :
\02347. Non-discrimination in Government
employments \026 (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
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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.\024
It may further be noted that the import of Section 47 of the Act
was considered by this court in Kunal Singh vs. Union of India
& Anr. [2003 (4) SCC 524] and in paragraph 9 of the decision
it was observed and held as follows :
\023Chapter 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 \023disability\024 and \023person with
disability\024. 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 \023no
establishment shall dispense with, or reduce in
rank, an employee who acquires a disability
during his service\024. The section further provides
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; 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 employee 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 during service.\024
(Emphasis added)
After the Act came into force with effect from December
7, 1996 (vide S.O.107(E) dated 7th February, 1996), the
Government of Punjab, Department of Personnel and
Administrative Reforms, issued a letter dated September 24,
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1996 directing all the heads of departments to comply with
Section 47 of the Act. The Punjab State Electricity Board too
adopted the Government letter under its Circular No.6/97, dated
February 17, 1997.
In view of Section 47 of the Act and the Circulars issued
by the State Government and the Board it is clear that
notwithstanding the disability acquired by the appellant the
Board was legally bound to continue him in service. But on
behalf of the respondent it is stated that the disabled employee
himself wanted to retire from service and, therefore, the
provisions of Section 47 had no application to his case. Here it
needs to be made clear that at no stage any plea was raised that
since the appellant was declared completely blind on January
17, 1994 he was not covered by the provisions of the Act that
come into force on February 7, 1996. Such plea can not be
raised because on February 7, 1996 when the Act came into
force the appellant was undeniably in service and his contract of
employment with the Board was subsisting. His case was,
therefore, squarely covered by the provisions of the Act.
Coming now to the reason assigned by the Board to deny
him the protection of Section 47 of the Act, it is stated on
behalf of the respondents that he remained absent from duty
without any sanctioned leave from January 18, 1994 to March
21, 1997. He was directed by the Executive Engineer to resume
duties vide Memo No.412, dated March 16, 1994 and Memo
No.6411, dated August 4, 1994. He, however, failed to report
for duty and on September 13, 1994, a charge sheet was issued
initiating disciplinary proceedings against him for gross
misconduct under regulation 8 of the Punjab State Electricity
Board Employees Punishment & Appeal Regulation 1971.
The matter appears to have lain dormant for sometime
and then it is stated that the appellant by his letter dated July 17,
1996 requested the Board to retire him from service. As a
matter of fact by this letter the appellant sought to explain his
absence from duty and requested that his wife might be
employed in his place. But it was made the basis for denying
the appellant his lawful dues. Since the whole case of the
respondents is based on this letter it would be appropriate to
reproduce it in full :
\023Sir,
I explain as under the subject cited unnatural
happening which I met,
When I was returning home after performing
my duty on 17-1-94 then vision of my eyes
lessened suddenly. I got treatment from far and
near for eye-sight/lessening of vision of my eyes.
But I became completely blind. Now I cannot
perform my hard work duty. I want to retire from
service. I may be retired and my wife may be
provided with suitable job against me. Yourself
will be genesis to me.\024
(Emphasis added)
At this stage some internal correspondences took place between
the officers of the Board over the question how to deal with the
appellant. On July 10, 1997, the Senior Executive Engineer
(OP) Division, Malout wrote to the Deputy Chief Engineer,
Operation Circle, Muktsar, asking for instructions in the matter.
Paragraphs 2, 3 and 4 of the letter are relevant and are
reproduced below :
\0232) As per report of Medical Board the official is
unfit for duty, he cannot perform any duty.
3) But as per instructions contained in Punjab
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Government Memo No.17/16/94-5 PP-1/6546
adopted by PSEB vide its Circular No.6/97 the
official/officer it (sic is) not to be retired from
service who become disable during service.
4) The official has represented that he may be
retired from duty and his wife be provided with
suitable job.\024
The Senior Executive Engineer received the reply from the
Secretary of the Board vide letter dated February 17, 1998 in
which he was advised as follows :
\023It is advisable to retire the official as per rules
and regulations of the Board if the employee is not
otherwise interested in taking the benefit of
Board\022s Circular No.6/97.
For the purpose of clarification as to whether
employee is entitled to the benefits, otherwise
admissible under rules/regulations of the Board in
preference to Benefits admissible under Circular
No.6/97, if he so desires, can be obtained from the
Office concerned which issued said circular.\024
Later on, the charge-sheet issued against the appellant was
withdrawn by the Senior Executive Engineer vide Office Order
No.14, dated January 13, 1999 and the appellant was asked to
submit leave application for the period of absence.
Next in series is a letter, dated November 15, 1999, from
the Director/IR, PSEB, Patiala to the Senior Executive
Engineer, (OP) Division, Malout. In this letter it was stated as
follows :
\023As per cited subject it is made clear that
employee who is blind shall not be retired as per
instructions of the Board. But is (sic. if) such
employee himself make request for retirement then
he can be given retirement on medical ground.\024
Finally, the Senior Executive Engineer, issued Office Order
No.559, dated December 14, 1999, by which the appellant was
relieved from service with effect from March 21, 1997 (the date
of issuance of Medical Certificate) as per Rule 5.11 of Civil
Services Rules-Vol.II.
It appears that the appellant protested against the action
of the Board in relieving him from service and made
representations. The representations, it seems, were forwarded
to the superior authorities and the Board\022s decision was
communicated to the Senior Executive Engineer vide letter
dated February 18, 2000 from the Director/IR, PSEB, Patiala.
The contents of the letter are as follows :
\023With regard to cited subject it is made clear that
there are instructions of the Board on which blind
employee is not liable to be retired. But in the case
of Shri Bhagwan Dass ALM advice of retirement
was given as he himself made request for his
retirement on Medical Ground. So the case of this
employee is not likely considered for his rejoining
of duty.\024
The appellant then filed an affidavit before the concerned
officers. A copy of the affidavit is at Annexure R-12 to the
respondents\022 affidavit. In the affidavit he pathetically pleaded
that he had no knowledge about the Rules of the Electricity
Board and represented for retirement unknowingly. He further
stated that when he came to know that there was no need for
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retirement for those who were disabled during service he again
represented that he might not be retired and might be retained in
service as per the instructions of the department. The affidavit
did not evoke any response but the severance was completed by
making payment of his terminal dues.
The disabled employee then approached the Punjab &
Haryana High Court in Civil Writ Petition No.12534 of 2004
seeking relief in terms of section 47 of the Act and the Circulars
issued by the State Government and the Board in its
furtherance. In the writ petition he was joined by his son,
appellant No.2, and an alternative relief was sought for
employment of his son in his place. Unfortunately, before the
High Court it was the second relief that came into focus and the
High Court dismissed the writ petition by a brief order referring
to the decision of this Court in Umesh Nagpal vs. State of
Haryana [1994 (3) SCT 174]. In the High Court order there is
no mention of Section 47 of the Act and the disabled
employees\022 claim/right on that basis. Against that order this
appeal is preferred in which the disabled employee agitates his
rights on the basis of Section 47 of the Act.
From the materials brought before the court by none
other than the respondent-Board it is manifest that
notwithstanding the clear and definite legislative mandate some
officers of the Board took the view that it was not right to
continue a blind, useless man on the Board\022s rolls and to pay
him monthly salary in return of no service. They accordingly
persuaded each other that the appellant had himself asked for
retirement from service and, therefore, he was not entitled to the
protection of the Act. The only material on the basis of which
the officers of the Board took the stand that the appellant had
himself made a request for retirement on medical grounds was
his letter dated July 17, 1996. The letter was written when a
charge sheet was issued to him and in the letter he was trying to
explain his absence from duty. In this letter he requested to be
retired but at the same time asked that his wife should be given
a suitable job in his place. In our view it is impossible to read
that letter as a voluntary offer for retirement.
Appellant No.1 was a Class IV employee, a Lineman. He
completely lost his vision. He was not aware of any protection
that the law afforded him and apparently believed that the
blindness would cause him to lose his job, the source of
livelihood of his family. The enormous mental pressure under
which he would have been at that time is not difficult to
imagine. In those circumstances it was the duty of the superior
officers to explain to him the correct legal position and to tell
him about his legal rights. Instead of doing that they threw him
out of service by picking up a sentence from his letter,
completely out of context. The action of the concerned officers
of the Board, to our mind, was deprecatable.
We understand that the concerned officers were acting in
what they believed to be the best interests of the Board. Still
under the old mind-set it would appear to them just not right
that the Board should spend good money on someone who was
no longer of any use. But they were quite wrong, seen from
any angle. From the narrow point of view the officers were
duty bound to follow the law and it was not open to them to
allow their bias to defeat the lawful rights of the disabled
employee. From the larger point of view the officers failed to
realise that the disabled too are equal citizens of the country and
have as much share in its resources as any other citizen. The
denial of their rights would not only be unjust and unfair to
them and their families but would create larger and graver
problems for the society at large. What the law permits to them
is no charity or largess but their right as equal citizens of the
country.
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In light of the discussions made above, the action of the
Board in terminating the service of the disabled employee
(appellant No.1) with effect from March 21, 1997 must be held
to be bad and illegal. In view of the provisions of Section 47 of
the Act, the appellant must be deemed to be in service and he
would be entitled to all service benefits including annual
increments and promotions etc. till the date of his retirement.
The amount of terminal benefits paid to him should be adjusted
against the amount of his salary from March 22, 1997 till date.
If any balance remains, that should be adjusted in easy monthly
installments from his future salary. The appellant shall
continue in service till his date of superannuation according to
the service records. He should be reinstated and all due
payments, after adjustments as directed, should be made to him
within six weeks from the date of presentation of a copy of the
judgment before the Secretary of the Board.
In the result the appeal is allowed with costs quantified at
Rs.5,000/-.