Bombay High Court
Kiran Dadarao Sable vs The State Of Maharashtra And ... on 8 March, 2016
Bench: R.M. Borde
1 WP NO.11246 of 2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11246 OF 2015
WITH
CIVIL APPLICATION NO.2755 OF 2016
Kiran s/o Dadarao Sable,
Age 24 years, Occu: Service,
Through his next friend
Dadarao s/o Narayan Sable,
R/o. Jayakwadi Colony, Yantriki Vibhag,
Nagar Road, Beed, Taluka &
District Beed.
...PETITIONER
VERSUS
1. The State of Maharashtra
Through Chief Secretary,
Mantralaya, Mumbai 400 032
2. Maharashtra State Electricity
Distribution Company Limited,
Through its Chief Engineer,
Prakashgad Bandra (E), Mumbai.
3. Executive Engineer,
O & M Division, MSEDCL,
33 KV Sub-Station Area,
Opp. Yeshwantrao Chavan College,
Beed Road, Ambajogai,
Taluka Ambajogai, District Beed.
4. Assistant Engineer,
MSEDCL, Sub-Station, Majalgaon,
District Beed.
...RESPONDENTS
...
Mr. S.G.Chapalgaonkar, Adv., for the petitioner.
Mr. S.B.Pulkundwar, AGP for respondent no.1.
Mr. Uday S.Malte, Adv., for respondent nos.3 & 4.
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2 WP NO.11246 of 2015
CORAM: R.M.BORDE
AND
P.R.BORA, JJ.
Date: March 8th, 2016
***
JUDGMENT: (Per P.R.Bora, J.)
1. Heard. Rule. Rule made returnable and heard
forthwith with the consent of learned Counsel for the parties.
2. By filing the present petition, the petitioner has
challenged order dated 10th November, 2015, passed by
respondent no.3, whereby services of the petitioner have been
terminated retrospectively w.e.f. 4th March, 2015, on the
ground that, petitioner has been permanently held invalid on
medical grounds to serve with respondent no.3.
3. Initially, the petition was filed seeking directions
against the respondents to continue the services of the
petitioner in view of provisions of Section 47 of the Persons with
Disabilities ( Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995. According to the petitioner, till the
date of filing of the present petition, the order dated 10th
November, 2015, was not served upon him. The petitioner
3 WP NO.11246 of 2015
has alleged that, after issuance of the notice in the present
petition, a back-dated order has been passed by respondent
no.3, terminating the services of the petitioner as mentioned
here-in-above.
4. As averred in the petition, the petitioner was
appointed by respondent no.3 on the post of Assistant
Technician ( VIDYUT SAHAYYAK) vide appointment order dated
18.5.2013.
In pursuance of the aforesaid order, the petitioner
was posted in the Sub Division at Majalgaon, at village Talkhed
vide Office order dated 5th of June, 2013, and on the same day
the petitioner resumed the duty at the said place. Petitioner
was allotted the work of repairing faults in the electricity
supply. On 27.11.2013, when petitioner was removing fault
occurred at 11 KV at village Shahpur in the field of one Shri
Sandipan Chalak, the petitioner sustained heavey shock,
causing injuries to his both the hands as well as to the legs and
other parts of the body. Inspite of timely medical help
provided to the petitioner, he lost his both the hands from
shoulder and also suffered severe injury to his legs. Petitioner
was required to be hospitalized from 27.11.2013 to 21.1.2014.
Even thereafter, till 23rd January, 2015, the petitioner was
under constant medical treatment and, therefore, could not
4 WP NO.11246 of 2015
resume to the work. After 23rd January, 2015, the petitioner
attempted to resume his duties, however, he was not allowed
to join the duties. Petitioner was referred to the Civil Surgeon
at Beed for medical examination and for certification whether
he was fit to resume the duties or otherwise. Vide medical
certificate dated 4th March, 2015, the Civil Surgeon, Beed,
certified the petitioner to be fit for the work which can be
carried by lower limbs and by verbal communications.
However, neither work was provided to the petitioner by
respondent nos.3 and 4 nor he was paid his salary of the said
period.
5. As stated in the petition, the petitioner was
constantly making correspondence with the respondents for his
continuation in service and for providing him the work which
may be performed by him and also to pay the salary of the
relevant period. Since the request so made by the petitioner
and the representations so made by him were not considered
by the respondents, the petitioner filed the present petition.
As stated here-in-above, during the pendency of the present
petition, the order of terminating the services of the petitioner
came to be served upon him. Petitioner, therefore, brought
on record the said subsequent event by amending the petition
5 WP NO.11246 of 2015
with leave of the Court and also made an additional prayer to
hold and declare the communication dated 10.11.2015 as illegal
and ineffective.
6. Shri Shrikrishna s/o Ramchandra Kulkarni,
Executive Engineer, MSEDCL, O & M Division, Ambejogai,
District Beed, has filed affidavit in reply on behalf of respondent
nos.3 and 4. It is the contention of respondent nos. 3 and 4
that since the appointment of the petitioner was on temporary
basis, he cannot claim the benefits available for permanent
employees. It is further contended that the petitioner has
already been awarded compensation of Rs.7,96,932/-. It is
further contended that having regard to the fact that the
petitioner has been declared as permanently unfit, he has been
terminated as per Regulation 17, Note No.1 (2). Respondent
nos. 3 and 4 have, therefore, prayed for dismissal of the
petition.
7. Shri S.G.Chapalgaonkar, learned Counsel appearing
for the petitioner, invited our attention to the provisions of
Section 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
(hereinafter referred to as `the Act of 1995'). Learned
6 WP NO.11246 of 2015
Counsel submitted that, in view of the aforesaid provision, the
order dated 10th November, 2015, whereby the respondents
have terminated the services of the petitioner, cannot be
sustained. In order to support his contention, learned Counsel
placed his reliance on the judgment of the Honourable Apex
Court in the case of Kunal Singh V. Union of India and
another ( AIR 2003 Supreme Court 1623).
8. Shri Uday Malte, learned Counsel appearing for
respondent nos. 3 and 4, sought to canvass that the services of
the petitioner are governed by the Maharashtra State Electricity
Distribution Company Limited Employees Service Regulations,
2005. Learned Counsel submitted that, since the said
Regulations are framed in exercise of the power conferred by
the Government of Maharashtra vide notification dated
4.6.2005 under Electricity Act, 2003, possess the statutory
force. Learned Counsel further submitted that, as
contemplated under Regulation 17, Note No.1 (2), the services
of the petitioner have been terminated by respondent nos. 3
and 4. Learned Counsel also referred to Regulation No.24 of
the said Regulations and relying upon the aforesaid Regulations
submitted that, no illegality has been committed by respondent
nos. 3 and 4 in terminating the services of the petitioner vide
order dated 10th November, 2015.
7 WP NO.11246 of 2015
9. We have carefully considered the submissions
advanced on behalf of learned Counsel appearing for the
respective parties. We have also perused the documents
placed on record by the parties. It is not in dispute that the
petitioner acquired the disability during the course of his
employment. An employee who acquires disability during his
service is entitled to be protected under Section 47 of the Act of
1995.
We deem it appropriate to reproduce Section 47 of the
Act of 1995, which reads thus:
"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."
10. In the judgment relied upon by the petitioner in the
8 WP NO.11246 of 2015
case of Kunal Singh V. Union of India and another
(Supra), the Honourable Apex Court has dealt with the
entitlement for the benefit of Section 47 of the Act of 1995.
Similar objections, as are raised by respondent nos. 3 and 4 in
the present petition, were raised in the said petition before the
Honourable Apex Court, however, all such objections are turned
down by the Honourable Apex Court. In the matter before the
Honourable Supreme Court, the provisions of Central Civil
Services Pension Rules, 1972 were pressed into service, taking
a plea that, the said Rules will prevail, and the provisions of
Section 47 of the Act of 1995 may not be applicable. The
Honourable Apex Court has, however, held that, as the Act of
1995 is a special Legislation dealing with persons with
disabilities to provide equal opportunities, protection of rights
and full participation to them, doctrine of generalia specialibus
non derogant would apply. The Honourable Apex Court has
further held that, Central Civil Services (Pension) Rules cannot
override Section 47 of the Act of 1995.
11. In the instant case also, respondent nos. 3 and 4
have raised a plea that the services of the petitioner are
governed by the Maharashtra State Electricity Distribution
Company Limited Employees Service Regulations, 2005, and
9 WP NO.11246 of 2015
the provisions made under Section 47 of the Act of 1995 would
not be applicable.
12. In view of the law laid down by the Honourable
Apex Court in the judgment cited supra, the contentions raised
as above by respondent nos. 3 and 4 is liable to be rejected.
Section 47 of the Act of 1995 contains a clear directive that the
employer shall not dispense with or reduce in rank an employee
who acquires disability during the service. As held by the
Honourable Apex Court in the case of Kunal Singh V. Union
of India and another, cited supra, 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 advanced 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. The Honourable Apex Court has further observed
that, language of Section 47 is plain, and casts certain
statutory obligation on the employer to protect an employee
acquiring disability during service.
13. Considering the provisions of Section 47 of the Act
10 WP NO.11246 of 2015
of 1995, and the law laid down by the Honourable Apex Court,
in the case of Kunal Singh V. Union of India and another,
cited supra, the order dated 10th November, 2015, impugned
in the present petition, cannot be sustained and deserves to be
quashed, and is accordingly quashed and set aside.
Respondent nos. 3 and 4 are directed to continue the
services of the petitioner with protection of pay and
consequential benefits as per the provisions of Section 47 of the
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995.
Writ Petition is allowed in above terms. Rule made
absolute. No order as to costs.
14. Respondent nos. 3 and 4 were permitted to file their
affidavit in reply, subject to deposit of costs of Rs.10,000/-.
Respondent nos. 3 and 4 have filed Civil Application
No.2755/2016 with a prayer to recall the said order.
Respondent nos. 3 and 4 have deposited the costs of
Rs.10,000/-. Since despite due opportunities, respondent
nos. 3 and 4 did not file their affidavit in reply, the Court was
constrained to pass the aforesaid order imposing costs of
Rs.10,000/- on respondent nos. 3 and 4. In such
11 WP NO.11246 of 2015
circumstances, we do not find any reason to recall the said
order. Learned Counsel appearing for respondent nos. 3 and
4, thereupon, graciously submitted that the cost amount so
deposited by respondent nos. 3 and 4 may be diverted to the
Library of the High Court Bar Association, at Aurangabad. We
accept the request so made by the learned Counsel and direct
that the cost amount be diverted to the to the Library of the
High Court Bar Association at Aurangabad. Civil Application
stands disposed of.
(P.R.BORA) (R.M.BORDE)
JUDGE JUDGE
...
AGP/11246-15WP
