Peep Baksh vs Regional Manager U.P.S.R.T.C. ...
2011 Latest Caselaw 2089 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED  ON 19.05.2011
 
DELIVERED ON 27.05.2011
 

 
CIVIL MISC. WRIT PETITION NO. 6626 OF 2004
 
---

Peer Baksha S/o Rajjad, R/o Mohalla Keerampur Fatehpur, District Fatehpur.

----Petitioner

Versus

Regional Manager, Uttar Pradesh Road Transport Corporation, Kanpur Region, Kanpur & others.

----Respondents

Hon'ble Prakash Krishna,J

1. The petitioner was appointed on 2nd December, 1977 as driver in the Uttar Pradesh Road Transport Corporation, by means of the present writ petition has challenged the order dated 29.11.2003 discharging him from service.

2. The facts are few and not in dispute. From inception of the service till he was finally discharged by the impugned order 29.11.2003 there is absolutely nothing against the work and conduct of the petitioner. The petitioner has been discharged for medical reasons. In the year 1999 he was medically examined. The doctor gave a report to the Assistant Regional Manager, Uttar Pradesh Road Transport Corporation that the petitioner is not medically fit to drive the Bus as he is a patient of asthmatic bronchitis C Lt. shoulder Jt. injury. However, the doctor further suggested that he may be given an alternative job instead of driving vehicles. The said report has been annexed as annexure-1 to the writ petition.

3. In the light of the medical report, the petitioner was shifted to workshop for doing other duties like greasing. He was again medically examined on 21.05.2002 and thereafter the impugned discharge order dated 29.11.2003 was passed. In between a further development took place.

4. It appears that the Corporation decided that the workers who are disabled may not be posted at their original Depot and therefore, the order dated 5.06.2003 proposing transfer of the petitioner to another Depot outside the district was passed and in this regard, option with regard to three places was asked for. The petitioner along with other persons being aggrieved by the said order/action of the Corporation approached this Court by filing a writ petition. The petitioner filed Writ Petition No. 34068 of 2003, which was disposed of in terms of the judgment delivered in Writ Petition No. 32349 of 2003 by the order dated 08.08.2003. The petitioner represented that he should not be transferred to another Depot. According to the petitioner, the request of the petitioner was not well received by the Corporation and its Officials became annoyed and this led passing of the impugned discharge order by offering retrenchment benefit under Section 6-N of the U.P. Industrial Dispute Act, 1947.

5. In the counter affidavit as well as in the impugned order, the stand taken by the respondents is that the petitioner was discharged from the service after becoming medically unfit for the post of driver. He was initially allotted some lighter work. The disease suffered by the petitioner does not come within the meaning of "disability" under the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Act, 1995") as such he is not entitled to get the benefit of Section 47 of the said Act.

6. Heard the learned counsel for the parties.

7. At the very out set, it may be stated that while entertaining the writ petition, this Court on 19th February, 2004 stayed the operation of the impugned order dated 29.11.2003. The said order remained in operation throughout. In the meantime, the petitioner attained the age of superannuation. In this background, the writ petition was disposed of earlier by the judgment dated 1st February, 2008 by providing that the petitioner be treated as an employee till he retired on 31st January, 2007 and be paid retrial benefit etc. by ignoring the impugned order dated 29.11.2003.

8. The matter was carried in intra court appeal being Special Appeal No. 825 of 2008. A Division Bench of this Court by its judgment dated 16.07.2008 has allowed the appeal and set aside the judgment of the learned Single Judge and restored the matter back for fresh decision on merits.

9. Learned counsel for the petitioner submitted that the impugned order was passed as the petitioner had challenged proposed transfer from one depot to another. The petitioner has discharged the work of greasing till the date of his retirement and therefore, the impugned order dated 29.11.2003 be set aside.

10. Learned counsel for the respondents, on the other hand, submits that the petitioner was medically found unfit for the post of driver. Intially, he was adjusted by providing him some alternative job in the depot. The disability of the petitioner is of such nature which does not come within the definition of "disability" as defined under the under the Act, 1995. The respondent Corporation has taken policy decision to offer an alternative employment by shifting to some other depot with the same pay-scale and service benefits only to such employees whose disability falls within the four corners of disabilities as defined under Section 2(i) of the Act, 1995.

11. Considered the respective submissions of the learned counsel for the parties and perused the record.

12. As noticed herein above, the only ground on which the impugned order is founded is the medical report, finding that the petitioner is unfit for the post of driver. There cannot be any dispute that if a doctor finds that the person is medically unfit for a particular job, his opinion deserved due weight. No attempt was made before this Court to establish that the "disability" of the petitioner is of such nature which falls in section 2(i) of the Act, 1995.

13. The petitioner was found unfit in the medical report dated 03.04.1999 as he was suffering with asthmatic bronchitis C Lt. shoulder Jt. Injury. The doctor advised that he may be given some alternative job. The attention of the Court was invited towards the Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service, Regulations, 1981, Regulation-17 in particular. The said Regulation is reproduced below:

"17. Physical fitness.--(1) No candidate shall be appointed to a post in the service unless he be in good mental and bodily health and free from any physical defect likely to interfere with the performance of duties. Before a candidate is finally approved for appointment, he shall be required to produce a medical certificate of fitness, in the form prescribed in annexure ''D' from the Chief Medical Officer or any other Medical Officer, nominated or approved by the Corporation.

(2) A person, appointed to the post of driver will be required to undergo medical test, particularly vision test, every year or at such intervals as may be prescribed by the General Manager from time to time.

(3) The service of a person who fails to pass the fitness test, referred to in the sub-regulation (2), may be dispensed with :

Provided that the persons, whose services are so dispensed with may, in the discretion of the Corporation, be offered alternative job."

14. A driver of the Corporation is required to undergo medical test, particularly the vision test, every year or at such intervals as may be prescribed by the General Manager from time to time and if any person who fails to pass the fitness test, the services of any such person may be dispensed with. The proviso enables the Corporation at its discretion to offer alternative job.

15. The question which boils down is whether the stand taken by the respondent Corporation that in view of the fact that the disability of the petitioner does not fall within the definition of "disability" as defined under the Act, 1995, no discretion is left to the Corporation but to dispense with services of such disabled persons.

16. The Act, 1995 was passed in the light of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. The said Proclamation was accepted on principle by India being a signatory thereto. To discharge the said obligation, the Act, 1995 was passed, as its introduction states. The idea of the said enactment is to provide jobs to the persons suffering with disabilities. A brief survey of the provisions of the said Act would show that in the definition clauses various terms used in the said Act including "disabilities" have been defined. Section 47 of the Act, 1995, which has been relied in reply, by the learned counsel for the respondents is reproduced below:

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.

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."

17. The stand taken by the respondents is that services of employee who acquires disability during his service shall not be dispensed with, or reduced in rank. The word "disability" has been defined in Section 2(i) of the Act, 1995. The same is reproduced below:

"2(i) "disability" means--

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness;"

18. The principal argument of the respondents is that as the disability suffered by the petitioner does not fall in any of the clauses of the word "disability" as defined in Section 2(i) of the Act, 1995, Section 47 thereto cannot be pressed into service. On a careful consideration of the matter, it is difficult to agree with him.

19. The centre theme of Section 47 of the Act is to protect the service of such employees who have acquired disability during service. It does not follow that the service of such employee has to be dispensed with, whose "disability" does not come within the meaning of "disability" as defined in Section 2(i) of the Act, 1995. The aim and object of enactment of Section 47 of the Act is to provide protection to such employees who have suffered disability to the extent of blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation, mental illness.

20. The opening phrase of Section 2 reads "unless the context otherwise requires" purposive construction to definition clause has to be adopted. The court should not only look at the words but also look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to convey by the use of words under such circumstances.

21. When a word has been defined in the interpretation clause, prima facie that definition governs whenever that word is used in the body of the statute. But where the context makes the definition given in the interpretation clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are therefore normally enacted subject to the qualification― 'unless there is anything repugnant in the subject or context', or 'unless the context otherwise requires'. (See: Indian City Properties Ltd. v. Municipal Commissioner of Greater Bombay, (2005) 6 SCC 417.)

22. In Reserve Bank of India v. Peerless Corp., JT 1987 (1) SC 246, the Supreme Court has observed as follows:

"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression "Prize Chit" in Srinivasa and we find no reason to depart from the Court's construction."

23. In Union of India v. Filip Tiago De Gama, JT 1989 (4) Sc 529, the Supreme Court has observed as follows:

"16. The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. "Words are certainly not crystals, transparent and unchanged" as Mr Justice Holmes has wisely and properly warned. (Towne v. Eisner [245 US 428,425 (1918)]) Learned Hand, J., was equally emphatic when he said: "Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them." (Lenigh Valley Coal Co. v. Yensavage [218 FR 547, 553])."

24. In Anwar Hasan Khan Vs. Mohd. Shafi and others, 2001 (9) SC 84, the Supreme Court has observed as follows:

"8. It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a "dead letter" is not harmonious construction."

25. The Apex Court in case of Kunal Singh v. Union of India and another, AIR 2003 SC 1623, has held that the very frame and contents of Section 47 clearly indicate its mandatory nature. It contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. The following observations therefrom is relevant and reproduced below:

"The very frame and contents of Section 47 clearly indicate its mandatory nature. It 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. The plea that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted."

26. As stated above, the Act, 1995 is welfare legislation and also remedial in nature. It is useful to reproduce a passage from the book of Justice G.P. Singh, title Principles of Statutory Interpretation, Tenth Edition:

"Every modern legislation is actuated with some policy and speaking broadly has some beneficial object behind it. But then there are legislations which are directed to cure some immediate mischief and bring into effect some type of social reform by ameliorating the condition of certain class of persons who according to present-day notions may not have been fairly treated in the past."

27. The remedial statute receives liberal construction. In such statutes, the doubt is resolved in favour of the class of persons for whose benefit the stature is enacted. In construing a remedial statute the courts ought to give to it "the widest operation which its language will permit. They have only to see that the particular case is within the mischief to be remedied and falls within the language of the enactment." The words of such a statute must be so construed as "to give the most complete remedy which the phraseology will permit, so as "to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved." In the field of labour and welfare legislation which have to be broadly and liberally construed the Court ought to be more concerned with the colour the content and the context of the statute rather than with its literal import and it must have due regard to the Directive Principles of State Policy (Part IV of the Constitution) and any international convention on the subject and a teleological approach and social perspective must play upon the interpretative process.

28. Keeping in view that the Act, 1995 is piece of welfare legislation for the benefit of such employees who have suffered disability during service, it would appropriate to hold that the word "disability" mentioned in Section 47 should be interpreted broadly and liberally. In other words, it will include any such disability though not included in the definition of Section 2(i) of the Act, 1995 but because of which the employee is vitiated with discharge or reduction in service, Section 47 will come into play to protect the interest of such an employee by offering alternative job and if it is not possible to adjust the employee against any post, he will be kept on supernumerary post until a suitable post is available or he attains the age of his superannuation whichever is earlier.

29. The intention of enactment of the Act, 1995 is not to restrict only those categories or persons mentioned in Section 2(i) alone to be entitled to the benefits under the Act on purposive interpretation of Section 2(i), it is reasonable to hold in other words that the definition of "disability" under Section 2(i) of the Act, 1995 is not exhaustive.

30. This is one aspect of the matter. There is another aspect also. If Service Rules or Regulations provide to such person an alternative job which he can perform, his service shall not be dispensed with or he will not be reduced in rank. Importantly, proviso to Regulation-17 (already reproduced) confers discretion on the Corporation to offer alternative job. Proviso to Regulation-17 and Section 47 of the Act go hand in hand. There is no conflict or head on collusion. The aim and object of both the provisions is the same i.e. to provide protective umbrella to such a disabled employee who has suffered disability in the service, by offering alternative job.

31. It is also apt to note Section 72 of the Act, which reads as follows:

"72. Act to be in addition to and not in derogation of any other law.― The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities."

32. This section clearly demonstrates that the Act, 1995 has been enacted in addition to and not in derogation any other law. The Apex Court in the case of Kunal Singh (supra) has held that the fact that the employee is getting invalidity pension is no ground to deny the protection, mandatorily made available to such employees under Section 47 of the Act, 1995.

33. The impugned order is founded on the premises that the disability suffered by the petitioner does not fall within the purview of disability as defined under the Act, 1995.

34. The observations that there is no alternative job in the Corporation is linked with the earlier part of its order i.e. the petitioner is not a disabled person within the meaning of "disability" as defined in Section 2(i) of the Act, 1995. There is no denying of the fact that the petitioner was offered alternative job by posting in the depot, which was accepted by him. He continued on the said post till he attained the age of superannuation. There is no suggestion in the counter affidavit that there was no job of greasing the buses in the depot. It follows that there was an alternative job for the petitioner which was offered and accepted by him. He continued on such post till he attained the age of superannuation.

35. Viewed as above, there is sufficient force in the writ petition. The writ petition, therefore, succeeds and is allowed. The impugned order dated 29.11.2003 is hereby, quashed. Resultantly, the petitioner is treated in service till the date of age of his superannuation. Learned counsel for the petitioner submitted that the retrenchment benefit and other consequential benefits which were given through the impugned order, subsequently adjusted in the salary of the petitioner. This fact can be verified from the record and no decision is required in the present writ petition. The respondents will pay the post retiral benefit as admissible to the petitioner treating him as a superannuated employee in accordance with the law preferably within a period of two months from the date of production of certified copy of this order.

36. The writ petition succeeds and is allowed with cost of Rs.5000/- payable by the respondents jointly to the petitioner.

(Prakash Krishna,J)

Date: 27.05.2011

MK/