Bhagwan
Dass & Anr. Vs. Punjab State Electricity Board [2008] Insc 3 (4 January 2008)
G.P.Mathur
& Aftab Alam
[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 :
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. 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 :
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 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. (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, 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 :
Sir,
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. (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 :
2) 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 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. 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
:
It
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
Boards 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. 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 :
As
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. 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 Boards 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 :
With
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. The appellant then filed an
affidavit before the concerned officers. A copy of the affidavit is at Annexure
R-12 to the respondents 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 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 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 Boards 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.
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/-.
Back
Pages: 1 2
