Siya Ram vs State Of U.P. And Others
2019 Latest Caselaw 1076 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 18							Reserved
 

 
Case :- WRIT - A No. - 72799 of 2010
 

 
Petitioner :- Siya Ram
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- K. Ajit,Anshul Nigam
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Prakash Padia,J.

1. Heard Shri Ashok Kumar Nigam, the learned counsel for the petitioner and learned Standing Counsel for respondents.

2. The petitioner has preferred the present writ petition, challenging the order dated 31.5.1999 passed by the third respondent, namely Officer Incharge, Collectorate, Rampur, (Annexure-3 to the writ petition), to the extent of reducing pay-scale of the petitioner from Driver to Class-IV employee. A further prayer was made to issue a mandamus commanding the respondents to provide the arrear of salary to the petitioner for the period from 31.5.1999 till date.

3. Few facts need to be mentioned for disposal of this writ petition are that the petitioner was initially appointed on the post of Peon, vide order dated 3.9.1984. Subsequently, on the recommendation of the Departmental Selection Committee, he was appointed as Jeep Driver on 21.12.1988. The aforesaid order of the petitioner is a fresh appointment and not a promotion from the post of Peon. After one year, the service of the petitioner was regularized. While discharging his duties as Driver, the petitioner met with an accident. The aforesaid accident of the petitioner was taken place during the course of his employment. The petitioner suffered serious fetal injuries. Due to the aforesaid, the petitioner was not able to join his duty for more than 1 year and 3 months and for the aforesaid period, he was remained on medical leave. Ultimately, after the petitioner recovered from the injury, he got himself medically examined by the doctor and submitted his joining report along with fitness certificate before the District Magistrate. Subsequently, the petitioner was also examined by the Medical Board for the purpose of ascertain as to whether he could drive the vehicle or not. The Medical Board has submitted his recommendation/report on 18.5.1999 recommending that the petitioner was not capable of discharging the duties of driver, however, normal official works could be taken from him. On the basis of that report, the petitioner was reverted from the post of Driver to Class IV employee and also reduction in the pay scale as was being paid to the petitioner as Driver. From the date of his joining, i.e., May 1999, the petitioner was discharging his duties regularly.

4. It is submitted by the counsel for the petitioner that from 26.12.1988 to 28.12.1998, almost 10 years the petitioner worked as Driver and he was paid his salary in the scale of Driver, but wholly illegally, at the time of re-joining, the salary of the petitioner was reduced from the salary of Driver, which is a Class-III post, to the Class IV post. In this background of the matter, the petitioner submitted representations to the authorities and since no action was taken, the petitioner has preferred the present writ petition.

5. It is contended by the counsel for the petitioner that the petitioner is entitled for the benefits provided in the Act, namely, The Persons With Disabilities (Equal Opportunities, Protect of Right and Full Participation) Act, 1995 (hereinafter referred as 'the act'). It is contended by the counsel for the petitioner that at the time of his re-joining, the petitioner has absolutely no information regarding the provisions of the Act of 1995. He came to know regarding the aforesaid provision for the first time on 30.10.2010 and immediately thereafter he approached this Court and filed the present writ petition.

6. Learned counsel for the petitioner placed reliance upon section 47 of the Act of 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."

7. Counsel for the petitioner relied upon the following cases:-

(a) Kunal Singh Vs. Union of India and another reported in (2003) 4 SCC 524

(b) Bhagwan Das Vs. Punjab State Electricity Board, reported in (2008) 1 SCC 579

(c) Harjinder Singh Vs. Punjab State Warehousing Corporation reported in (2010) 3 SCC 192

(d) Munna Lal Sharma Vs. State of U.P., reported in 2015(1) UPLBEC 402

(e) M. Venkateswarlu Vs. Andhra Pradesh State Road Transport Corporation and Ors. reported in 2016 (5) ALD 272 .

8. In the counter affidavit, reliance has been placed by the counsel for the respondents. In paragraph 4 of the counter affidavit it is contended by the counsel for the respondents that the petitioner himself wrote a letter to the department that since he is not fit to discharge his duties of the Jeep Driver, so the respondents may take official work from him. In the letter written by the petitioner which is appended as Annexure-2 to the counter affidavit it is contended by the petitioner that he is not able to drive any vehicle, and as such, he should be reverted to his original post. The letter is quoted hereinbelow:-

lsok esa]

ftykf/kdkjh]

jkeiqjA

egksn;A

uez fuosnu bl izdkj gS fd izkFkhZ orZeku esa okgu pkyd ds in ij dk;Zjr gSA esjk fnukdWa 28&2&98 dks ,DlhMsUV gks x;k FkkA ,DlhMsaV esa esjk ,d gkFk [kjkc gks x;k gSA vij fu0 fpfdRlk LokLFk ,oa ifjokj dY;k.k] eqjknkokn eaMy eqjknkokn ¿esfMdy cksMZÀ }kjk esjh tkWp dh] tkWp esa eq>s okgu pkyd ;ksX; ugha ik;k gSA eSa prqFkZ Js.kh ds in ij fu;qDr Fkk] prqFkZ Js.kh ls okgu pkyd ds in ij fu;qfDr gqbZ FkhA vc esa okgu pykus ;ksX; gwWA ,slh fLFkfr esa eq>sa ewy in ij ifjofrZr dj fn;k tk;A vki esjs o esjs ifjokj ds lkFk U;k; gksxkA

vkidh vfr Ñik gksxhA

fnukWd 28&5&99

izkFkhZ

fl;kjke

okgu pkyd

dysDVsV jkeiqjA

9. In the rejoinder affidavit, a reply has been given in response to paragraph 4 of the counter affidavit, stating therein that once a particular pay scale has been assigned to the post of Driver, the petitioner cannot be granted salary which is lower than the salary, which the petitioner was getting before his reversion. It is further contended that in so far as the letter dated 26.5.1999 is concerned, the same will not come into play against the petitioner for the reason being that the respondents were in a bargaining position and the petitioner cannot be bargain. In that situation, the petitioner was compelled to join Class IV post.

10. Learned counsel for the petitioner relied upon a judgement of the Supreme Court in the case of Central Inland Water Transport Corporation Vs Brojo Nath Ganguly & Anr reported in AIR 86 SC 1571 in which it is clearly stated that any contract or undertaking given which is in violation of Article 23 of the Constitution of India is illegal. Learned counsel for the petitioner further contended that even if the petitioner is allowed to discharge the duty of Class IV employee even then his salary is saved and same cannot be reduced.

11. Heard counsel for the parties.

12. In the case of Kunal Singh (supra) the Court held that :-

"For proper appreciation of the rival submissions of the learned counsel for the parties, it is useful and necessary to notice few definitions as contained in Section 2 and Section 47 of the Act.

4. "2. Definitions In this Act, unless the context otherwise requires, -

(a) - (d)..............................

(e) "Cerebral palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the prenatal, perinatal or infant period of development;

(f) - (h).............................

(i) "disability" means-

(i) to (iv).......................

(v) locomotor disability;

(vi) - (vii).....................

(j) ..................................

(k) "establishment" means 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;

(l) - (n).............................

(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."

(p) - (s)..............................

(t) "persons with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;

(u) - (v)..............................

(w) "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;

"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."

6. Short question that arises for consideration in this appeal is whether the appellant is entitled to the benefit of Section 47 of the Act.

7. From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from (i) blindness or low vision;

(ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service.

13. From perusal of the same it is clear that for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. In this case the Supreme Court relied upon a meeting called as 'Meet to Launch the Asian and Pacific Decades of Disabled Persons'. The paragraph 8 is quoted below:-

8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of Succour to the disabled persons."

14. In the case of Bhagwan Das (supra) in paragraphs 18 to 21 it was held that :-

"18. 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.

19. 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.

20. 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.

21. 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."

15. In the case of Harjinder Singh (supra) the Supreme Court held that the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39 (a) to (e), 43 and 43-A of the Constitution of India. The paragraph 17 of the aforesaid judgement is quoted below:-

"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State"- - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."

16. In the case of Munna Lal Sharma (supra) in paragraph 6 it was held that :-

"In Bhagwan Dass (Supra) observations made in Kunal Singh Vs. Union of India, (2003) 4 SCC 524 has been relied upon. While interpreting import of section 47 of PWD Act, 1995 it was held that there cannot be any discrimination in Government employments and no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. Sub-Section (2) of Section 47 of PWD Act, 1995, further provides that no promotion shall be denied to a person merely on the ground of his disability."

17. The petitioner was appointed as Jeep Driver by way of a fresh appointment and not by way of promotion. It is settled law that a person cannot be reverted from the post of his original joining, as has been done in the present case. Apart from the same, the petitioner is entitled for the benefit of Section 47 of the Act of 1995. It is clearly provided under section 47 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 benefit.

18. The case of the petitioner is fully covered by the first proviso of section 47 of the Act of 1995. In the case of Bhagwan Das also, a ground was taken by the employer that the appellant had himself asked for retirement from service and therefore, he was not entitled to the protection of the Act. The Supreme Court was pleased to hold in paragraph 19 of the aforesaid judgment that the appellant being a Class IV employee as completely loss his vision, he was not aware of any protection that the law afforded him and apparently belief that the blindness would cause him to loss his job, the source of livelihood to family.

19. In the case of M. Venkateswarlu (supra) the Court held that :-

42. It is thus beyond pale of doubt that the provisions of Section 47 of the Act are attracted if a serving employee acquires disability, irrespective of degree of disability and even if such disability is not covered by definition clauses in Section 2. The respondent corporations are bound by the said mandate and the United Nations Convention.

45. In Narendra Kumar Chandla vs. State of Haryana and others, (1994) 4 SCC 460, Supreme Court held that Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge his duties. This case was also decided prior to Act 1 of 1996.

46. Thus, even before the Act 1 of 1996 was notified, Supreme Court was of the opinion that having regard to the constitutional mandate an employer cannot through the employee to hindrance on account of disability suffered by him during the course of the employment, which disability is directly attributable to the nature of the employment."

20. In the case of M. Venkateswarlu (supra) it was also held that Section 47 of the Act emphatic about the need to provide another job of same status. The paragraphs 56, 57 and 58 of the aforesaid case is quoted hereinbelow:-

"56. Section 47 of the Act emphatic about the need to provide another job of same status. It also emphasis that in case alternative job of same status cannot be provided, at least pay protection should be given. It is beyond pale of doubt that corporation evolved its own scheme to provide alternate job and pay protection. Even otherwise it is imperative to provide alternate job and pay protection.

57. A person who acquired disability while in employment and declared as unfit to work as driver and capable of doing any other job with equal competence cannot be denied right to work with dignity, honor and self respect. He cannot be denied at least protection of pay he was drawing though post offered to him is lower than he was holding.

58. Accepting a post lower than he was holding itself amounts to sacrificing his self respect, though financial constraints compel them to take the job offered. If an employee is declared as unfit to perform the duties of the post of Driver on the ground that he acquired disability while in employment, he must be treated with dignity and respect he deserves. Employee has every right to command such respect from employer. It is the responsibility of employer to provide alternate job of equal status and emoluments. If it is not feasible to provide alternative job of same status, it is incumbent on employer to at least to provide him pay protection hitherto drawn by him. The corporations accept the necessity to grant pay protection but err in drifting at the stage of granting pay protection. This appears to be more because of lack of understanding of pay protection and on the assumption that since person is now holding the post of Conductor, Shramik, Record Keeper, etc., he shall draw the pay and increment of that post only. While assessing so, corporations forget the status of such employee previously held and their policy to provide alternative job and pay protection. Thus, the error is more in the process of enforcement of the policy which is generating litigation. The problem appears to be that the authorities of the corporations are treating the alternative job as fresh job in a lower post and not as continuous employment, whereas, it is continuation of employment but in a different post. Thus, employee is entitled to pay protection in all respects."

21. In the light of the discussions made above, the action of the respondents providing joining to the petitioner as Class IV employee is against the norms fixed by the Parliament under section 47 of the Act of 1995. The action on the part of the respondents is held to be bad and illegal. The order dated 31.5.1999 passed by the respondent no.3/Officer Incharge, Collectorate, Rampur is set aside. The petitioner must be deemed to have in service and would be entitled to all service benefits including the annual increment and promotion etc. from the date of his re-joining on Class IV post, till date. The petitioner is also entitled for the difference of salary paid to him and the actual salary of Driver, for which the petitioner became entitled. The difference of salary be paid to the petitioner within six weeks from the presentation of the certified copy of this order before the authority concerned.

22. In the result, the writ petition is allowed. No order as to cost.

Order Date :- 13.3.2019

Pramod Tripathi