Bombay High Court
Dnyaneshwar Lavhaji Kalukhe vs Director (Human Resource ) Msedc Ltd. ... on 10 October, 2025
Author: M.S. Karnik
Bench: M.S. Karnik, N.R. Borkar
2025:BHC-AS:44011-DB WP-1671-2024.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed CIVIL APPELLATE JURISDICTION
URMILA by URMILA
PRAMOD
PRAMOD INGALE
INGALE Date:
2025.10.10
17:39:50 +0530 WRIT PETITION NO.1671 OF 2024
a/w
INTERIM APPLICATION [STAMP] NO.470 OF 2025
IN
WRIT PETITION NO.1671 OF 2024
Mr. Dnyaneshwar Lavhaji Kalukhe ]
Age : 44 years, Occupation : nil, ]
Residing in Room No.3103, Patbandhare Vasahat, ]
Krishna Nagar, Satara. ] Petitioner
Versus
1. Director (Human Resource) ]
Maharashtra State Electricity Distribution ]
Company Ltd. ]
Having Office Address at - "Prakashgadh", ]
Station Road, Bandra (East), Mumbai - 51. ]
2. Assistant General Manager (Human Resources) ]
Maharashtra State Electricity Distribution ]
Company Ltd.
Having Office Address at - "Prakashgadh", ]
Station Road, Bandra (East), Mumbai - 51. ]
3. Superintendent Engineer, Satara Circle ]
Maharashtra State Electricity Distribution ]
Company Ltd.
Having Office Address at - Administrative ]
Building, 'Vidyut Bhavan', First Floor, ]
Krishnanagar, Satara, 415003. ]
4. The State of Maharashtra ]
Through the Principal Secretary (Energy) ]
to the Government of Maharashtra ]
[Notice to be served through the Government ]
Pleader (High Court) Appellate Side, Mumbai.] ] Respondents
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.....
Mr. Sumant Deshpande, for Petitioner.
Mr. Prashant Chawan, Senior Advocate a/w Ms. Reshmarani Nathani and
Ms. Niharika Singh i/b Little & Co., for Respondents No.1 to 3.
Ms. Ashwini A. Purav, A.G.P, for Respondent No.4 - State.
.....
CORAM : M.S. KARNIK &
N.R. BORKAR, JJ.
RESERVED ON : 15th JULY, 2025.
PRONOUNCED ON : 10th OCTOBER, 2025.
UPLOADED ON : 10th OCTOBER, 2025.
JUDGMENT:
[PER M.S. KARNIK, J.]:
1. Jurisdiction of this Court under Article 226 of the Constitution of
India is invoked by the petitioner, challenging termination of petitioner's
service vide order dated 6th April, 2023 passed by respondent No. 2.
2. Facts of the case in brief are that the petitioner was appointed as
Junior Clerk temporarily in the Maharashtra State Electricity Distribution
Company Limited (for short "MSEDCL") with effect from 27 th August,
2003. The petitioner was made permanent on 30 th August, 2004. On
17th April, 2018, when the petitioner was about to leave the Office, he
suddenly felt uneasy. He was admitted in Satara Diagnostic Hospital at
Satara for treatment. The petitioner was diagnosed with a serious brain
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disease. The petitioner had to be admitted in Sahyadri Hospital in Pune
on 18th April, 2018. The petitioner was operated in Sahyadri Hospital at
Pune and was eventually discharged on 05th June, 2018.
3. The petitioner exhausted all his leave. The petitioner obtained a
fitness certificate from the doctor who was treating him, for making an
application to the respondents on 26 th November, 2019 to allow him to
join duty. Instead of allowing the petitioner to join duty, the petitioner
was asked to subject himself to medical examination by Civil Surgeon,
Satara. The Civil Surgeon, Satara sent his report dated 13 th January, 2021
to the Superintendent Engineer of the respondents. The petitioner made
an application on 19th January, 2021 to respondent No.3 to allow him to
join the duty.
4. Respondent No.3 thereupon instructed the petitioner to get
himself medically examined by the Standing Medical Board, Government
Hospital, Sangli. Respondent No.3 also sent a letter dated 12 th March,
2021 to the Standing Medical Board, Government Hospital, Sangli
requesting them to do a medical examination of the petitioner. The
petitioner, therefore, again went through a medical examination by the
Standing Medical Board, Sangli on 5 th and 6th April, 2021. The Standing
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Medical Board issued a medical certificate dated 23 rd April, 2021,
declaring the petitioner "FIT FOR DUTY for light work" with review
after one year.
5. Respondent No.3 wrote a letter dated 31 st May, 2021 to the Chief
Engineer, Baramati requesting him for creation of a supernumerary post
as per section 47 (1) of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995
(hereinafter referred to as "The Disabilities Act, 1995"). Instead of
permitting the petitioner to join duty based on the medical certificate
issued by the Standing Medical Board, the petitioner was yet again asked
by respondent No.2 to appear for medical examination by the Medical
Advisor of MSEDCL Dr. S. Jayaram, vide letter dated 30 th September,
2021. Dr. Jayaram certified that the petitioner had no complaints and
that he was "clinically satisfactory at present" and that "he is fit for light
duty not involving verbal communication". Despite the medical
certificate of Dr. S. Jayaram, certifying the petitioner fit for light duty,
respondent No.3 wrote a letter to the Standing Medical Board,
Government Medical College, Sangli requesting and specifically
instructing them to re-examine the petitioner to determine whether the
petitioner can perform tasks such as communication, writing and reading.
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6. The Standing Medical Board medically examined the petitioner on
18th April, 2022 and 19th April, 2022. The Medical Board certified on
29th June, 2022 that the petitioner is "UNFIT FOR DUTY" due to
inability to communicate with verbal commands due to cerebrovascular
accident. Respondent No.2, vide order dated 6 th April, 2023,
communicated to the petitioner that he has been terminated from service
on medical grounds with effect from 29th June, 2022.
7. The petitioner yet again subjected himself to medical examination
at the District Civil Hospital, Satara, which issued him a Disability
Certificate dated 10th November, 2023. The petitioner was diagnosed
with Speech and Language Disability, which is a specified disability as per
the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to
as "the Disabilities Act, 2016")
8. Mr. Chawan, learned Senior Advocate for the respondents Nos.1 to
3 invited our attention to the affidavit-in-reply filed on behalf of the
respondent Nos.1 to 3. It is submitted that in terms of the policy of the
respondents, the petitioner was advised to be examined by the concerned
Doctor and Medical Board. The respondents have terminated the service
of the petitioner vide a letter dated 6 th April, 2023 with effect from 29th
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June, 2022 as per the provisions of the MSEDCL Employees Service
Regulation, 2005 which reads thus;
"Note : 1:-
(ii) in case such an employee is declared
permanently medically unfit to continue in the service
of the Company, his services shall be terminated after
giving him notice as prescribed under Regulation
No.24 hereinafter.
24. The services of an employee of the Company
are liable to be terminated by the Competent
Authority, with a notice in writing or with salary in
lieu of the notice period as prescribed below..."
9. It is submitted that the petitioner had already received the benefit
of disability while being promoted from the post of Lower Division Clerk
to Upper Division Clerk. Mr. Chawan submitted that the petitioner was
diagnosed with speech and language disability in addition to pre-existing
hearing disability. After considering all the factors and the certificate
dated 29th June, 2022 issued by Standing Medical Board, Miraj, it was
observed by MSEDCL that the petitioner is unfit and, therefore, services
of the petitioner were terminated. It is submitted that this action on the
part of the respondents No.1 to 3 is not unreasonable and arbitrary. It is
the submission of the learned Senior Advocate for the respondents No.1
to 3 that if the health condition of an employee comes in the way of
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efficient discharge of his duties, then the provisions of the Disabilities
Act, 2016 may not be attracted.
10. Heard. Perused the materials on record. The present case is
governed by the provisions of the Disabilities Act, 2016 . This Court, in
Vikas s/o Khanderao Keng vs. State of Maharashtra and others 1 had an
occasion to consider the relevant provisions of the Disabilities Act, 2016,
which are equally relevant in the present case. For ease of reference,
relevant portion of the order which deals with relevant provisions is
quoted;
"7. Prior to dealing with the legality and/or validity of the
Impugned Circular, we propose to first deal with the legal
framework relevant to the present matter. This would be
the 2016 Act and the 1995 Act. Firstly, it is pertinent to
note that prior to the enactment of the 2016 Act, the
issue of providing equal opportunities and protection of
rights to persons with disabilities was covered under the
1995 Act. Section 47 of the 1995 Act under Chapter VII
with the heading "non-discrimination", provided that
there shall be no discrimination in Government
employment. Section 47 reads thus :
"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.
1 2021 (2) Mh. L.J.131
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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."
8. On 13th December, 2006, the United Nations
General Assembly adopted a Convention on "Rights of
Persons with Disabilities". India is a signatory to this
Convention which it ratified on 1st October 2007.
Realizing the requirement to protect the rights of the
persons with disabilities and India's commitment to the
Convention of the United Nations General Assembly, the
Legislature repealed the 1995 Act and brought in the
2016 Act to give effect to the United Nations Convention
on the Rights of Persons with Disabilities and for matters
connected therewith or incidental thereto.
9. Considering the scope of these Writ Petitions, we
deem it appropriate to reproduce the Preamble of the
2016 Act, which reads thus :
"An Act to give effect to the United Nations
Convention on the Rights of Persons with Disabilities
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and for matters connected therewith or incidental
thereto.
Whereas the United Nations General Assembly
adopted its Convention on the Rights of Persons with
Disabilities on the 13th day of December, 2006;
And whereas the aforesaid Convention lays down
the following principles for empowerment of persons
with disabilities,
(a) respect for inherent dignity, individual
autonomy including the freedom to make one's own
choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and
inclusion in society;
(d) respect for difference and acceptance of
persons with disabilities as part of human diversity
and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of
children with disabilities and respect for the right of
children with disabilities to preserve their identities;
And whereas India is a signatory to the said
Convention;
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And whereas India ratified the said Convention
on the 1st day of October, 2007;
And whereas it is considered necessary to
implement the Convention aforesaid.
Be it enacted by Parliament in the Sixty-seventh
Year of the Republic of India as follows:"
As can be discerned from the aforesaid Preamble,
the 2016 Act is a beneficial Legislation that
prioritizes and recognizes the benefits provided for
under the 2016 Act. As compared to the 1995 Act,
the 2016 Act confers higher benefits and provides
for additional categories of disability that it seeks to
protect. In addition, it emphasises the right to
equality of opportunity, access to justice and
various other rights such as free education, etc. In
our opinion, the interpretation and construction of
any provisions of the 2016 Act would therefore
have to be in aid of and in furtherance of this
legislative intent".
11. In the context of the present case, a reference to the definitions
which are relevant needs to be made, which read thus;
"2. Definitions._
(c) "barrier" means any factor including
communicational, cultural, economic, environmental,
institutional, political, social, attitudinal or structural
factors which hampers the full and effective
participation of persons with disabilities in society;
(h) "discrimination" in relation to disability, means any
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distinction, exclusion, restriction on the basis of
disability which is the purpose or effect of impairing or
nullifying the recognition, enjoyment or exercise on an
equal basis with others of all human rights and
fundamental freedoms in the political, economic,
social, cultural, civil or any other field and includes all
forms of discrimination and denial of reasonable
accommodation;
(k) "Government establishment" means a corporation
established by or under a Central Act 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 2 of the Companies Act,
2013 (18 of 2013) and includes a Department of the
Government;
(r) "person with benchmark disability" means a person
with not less than forty per cent. of a specified
disability where specified disability has not been
defined in measurable terms and includes a person
with disability where specified disability has been
defined in measurable terms, as certified by the
certifying authority;
(s) "person with disability" means a person with long
term physical, mental, intellectual or sensory
impairment which, in interaction with barriers, hinders
his full and effective participation in society equally
with others;
(zc) "specified disability" means the disabilities as
specified in the Schedule;
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12. The disability certificate issued by District Civil Hospital, Satara
dated 10th November, 2023 reveals that the petitioner is;
(A) a case of Speech and Language Disability
(B) The diagnosis in his case is Global aphasia (Speech disability)
(C) He has 93% (in figure) Ninety Three percent (in words)
Permanent Disability in relation to his mouth as per the guidelines
(Guidelines for the purpose of assessing the extent of specified
disability in a person included under the Disabilities Act, 2016.
13. Chapter II of the Disabilities Act, 2016 deals with Rights and
Entitlements. Section 3 (1) ordains that the appropriate Government shall
ensure that the persons with disabilities enjoy the right to equality, life
with dignity and respect for his or her integrity equally with others. Sub-
section (2) provides that the appropriate Government shall take steps to
utilise the capacity of persons with disabilities by providing appropriate
environment. Section 20 of Chapter IV is a provision dealing with Non-
discrimination in employment. Sub-section (1) therein provides that no
Government establishment shall discriminate against any person with
disability in any matter relating to employment. Sub-section (2) imposes
an obligation on the Government establishment to provide reasonable
accommodation and appropriate barrier free and conducive environment
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to employees with disability. Sub-section (3) ordains that no promotion
shall be denied to a person merely on the ground of disability. Having
regard to the scheme of this welfare legislation, the respondents could well
have avoided subjecting the petitioner to multiple medical examinations.
We refrain from saying anything more. Suffice it to observe that the
respondents may consider at the earliest framing guidelines/policy while
subjecting persons with disabilities to medical examination so as to ensure
that such a procedure does not become an ordeal for him/her but is meant
to solely ascertain the degree of disability.
14. In fact, it is the stand of the respondents that the petitioner has
already got the benefit of disability while being promoted from the post of
Lower Division Clerk to Upper Division Clerk. Sub-section (4) provides
that no Government establishment shall dispense with or reduce in rank
of an employee who acquires a disability during his or her service. Proviso
to sub-section (4) says that if an employee after acquiring disability is not
suitable for the post he was holding, shall be shifted to some other post
with the same pay scale and service benefits. The scope of this beneficial
legislation is so wide that the second proviso to sub-section (4) of section
20 stipulates that if it is not possible to adjust the employee
against any post, he may be kept on a supernumerary post until
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a suitable post is available or he attains the age of superannuation,
whichever is earlier.
15. Though not relevant in this context, such is the obligation imposed
by the Disabilities Act, 2016 on the appropriate Government that sub-
section (5) provides that the appropriate Government may frame policies
for posting and transfer of employees with disabilities. Section 21 is also
relevant, which provides equal opportunity policy. Sub-section (1)
provides that every establishment shall notify equal opportunity policy,
detailing measures proposed to be taken by it in pursuance of the
provisions of this Chapter in the manner as may be prescribed by the
Central Government. It is thus seen that "Rights- Based Approach" in the
form of the Disabilities Act, 2016 treats the lives of the persons with
disabilities as that of another human being.
16. The stand of the respondents that the illness of the petitioner
adversely affects efficient working of the establishment and, therefore, the
respondents are entitled to terminate his services is anathema to the
benevolent object for which the Disabilities Act, 2016 is enacted. Such a
stand of the respondents cannot be countenanced as the same is in the
teeth of the provisions of sub-section (4) of Section 20 (1) of the
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Disabilities Act, 2016.
17. We, therefore, have no hesitation in directing the respondents that
if it is not possible to adjust the petitioner against any post, he be kept on
supernumerary post until a suitable post is available or till he attains age
of superannuation, whichever is earlier.
18. Though not in the context of the Disabilities Act, 2016, a reference
to the decision of the Hon'ble Supreme Court in Kunal Singh Vs. Union
of India and another2 is significant which provides much needed
guidance. In that case, Their Lordships were considering the provisions of
section 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995. In paragraphs 9
and 10 it is observed thus;
"9. 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
2 (2003) 4 SCC 524
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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 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 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.
10. The argument of the learned counsel for the
respondent on the basis of definition given in Section
2(t) of the Act that benefit of Section 47 is not available
to the appellant as he has suffered permanent invalidity
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cannot be accepted. Because, the appellant was an
employee, who has acquired 'disability' within the
meaning of Section 2(i) of the Act and not a person with
disability".
19. The respondents did make an attempt to justify the order of
termination on the strength of the Regulation 17 of the MSEDCL
Employees Service Regulation 2005 which reads thus;
17.
"Note : 1:-
(ii) in case such an employee is declared
permanently medically unfit to continue in the service
of the Company, his services shall be terminated after
giving him notice as prescribed under Regulation
No.24 hereinafter.
24. The services of an employee of the Company
are liable to be terminated by the Competent
Authority, with a notice in writing or with salary in
lieu of the notice period as prescribed below..."
20. In our considered opinion, we have no hesitation in saying that if
the petitioner is governed by the provisions of the Disabilities Act, 2016,
the Central legislation shall obviously prevail over the regulations framed
by the MSEDCL. On this ground also, the impugned order deserves to
be quashed and set aside.
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21. The Writ Petition is allowed in terms of prayer clauses (a) and (b).
22. As observed earlier, if it is not possible to adjust the petitioner
against any post, he may be kept on supernumerary post until a suitable
post is available or until he attains age of superannuation, whichever is
earlier.
23. The petitioner to be reinstated in service as well as the arrears of
salary be paid to the petitioner within a period of four weeks from today.
If the arrears are not paid within four weeks, the same shall carry interest
at the rate of 9% per annum till realisation.
24. The petition is disposed of in the aforesaid terms. No order as to
costs.
25. In view of disposal of the petition, Interim Application also stands
disposed of.
[N.R. BORKAR. J.] [M.S. KARNIK, J.]
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