Delhi High Court

Shri Pawan Kumar vs Delhi Transport Corporation on 16 January, 2015

Author: I. S. Mehta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                   Judgment delivered on: January 16, 2015

%       W.P .(C) No. 4261/2013


        SHRI PAWAN KUMAR                                         ..... Petitioner
                     Through:             Mr. Vijay Sharma, Advocate

                           versus

        DELHI TRANSPORT CORPORATION                   .....Respondent
                     Through: Ms. Latika Chaudhary, for Ms. Avnish
                              Ahlawat, Advocate

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE I.S.MEHTA

                                    JUDGMENT

I. S. MEHTA, J.

1. Aggrieved from the order of the Central Administrative Tribunal,

Principal Bench, New Delhi dated 24.09.2012 in O.A. No. 566 of 2012,

the petitioner has preferred the present writ petition under Articles 226

and 227 of the Constitution of India for setting aside the aforesaid order

and for issuing necessary directions to the respondent.

2. The brief facts of the case are that the petitioner Pawan Kumar s/o Shri

Sultan Singh was employed as a Driver with the respondent i.e. Delhi

Transport Corporation vide appointment letter bearing No. PLD-

III/DSSSB/Driver/2008/3697 dated 23.12.2008 in the Pay band of Rs.

5200-20200 + grade pay of Rs. 2000 and other allowances initially on

probation for a period of two years. On 11.03.2009, during the period of

probation, the petitioner suffered an injury when a fire-cracker hit his

right eye which left him visually handicapped by 30% as is exhibited by

the certificate dated 16.05.2009 issued by Dr. Rajendra Prasad Centre for

Ophthalmic Sciences. The petitioner was thereafter asked by the

respondent not to resume duties after 17.04.2009 after his medical

examination was conducted at the direction of the respondent.

3. Subsequently, the petitioner filed an O.A. No. 566/2012 before the

Central Administrative Tribunal, Principal Bench, New Delhi seeking

issuance of a direction to recruit him in the alternative suitable post with

continuity in service in the pay scale, allowances and other benefits of

Driver. The Ld. CAT vide order dated 24/09/2012 declined to give any

relief to the petitioner and dismissed his OA.

Hence, the present writ-petition by the petitioner.

4. The basis of the relief sought in the present writ petition is under the

provisions of "The Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995" (hereinafter

referred to as `the Act'). Mr. Vijay Sharma, learned counsel for the

petitioner argued that the petitioner acquired the injury/disability for no

fault of his, during the period in which he was on probation as a Driver

employed with the respondent and is entitled to benefit under Section 47

of the Act and deserves to be given an alternative post in the same pay

scale with the respondent along with the back wages, seniority and other

service benefits.

5. On the other hand, the learned counsel for the respondent Ms. Latika

Chaudhary has drawn our attention to Section 2(t) of Act and pointed out

that requirement under section 2(t) for disability is 40% and since the

petitioner has not suffered 40% disability, he cannot be given alternative

employment under Section 47. Section 47 of the Act is reproduced

hereinunder:

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.

(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 povisions of this section. (underlining supplied)

Section 2, the definition clause of the Act defines a "person with disability" in clause (t) as follows:

"Sec 2(t) -"person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority".

Section 2, the definition clause of the Act defines the term "disability" in clause

(i) as follows:

"Disability" means-

i) blindness;

ii) low vision;

iii) leprosy-cured;

iv) hearing impairment;

v) loco motor disability;

vi) mental retardation;

vii) mental illness;

6. The petitioner is seeking relief under the Act. The said Act is based on

the "Proclamation on the Full Participation and Equality of the People

with Disabilities in the Asian and Pacific Region" adopted in the year

1992 at Beijing, to which India is one of the signatory States. The

Parliament of India, in order to implement the said Proclamation, passed

the aforementioned Act in 1995. The present Act is a beneficial

legislation enacted for the benefit of disabled persons and to afford them

adequate opportunities and participation in employment especially in the

services of the Government Establishments.

7. It was argued by the learned counsel for the respondent that the Act has to

be read as a whole and Section 2(t) specifically provides that a "person

with disability" means a person suffering from at least 40% disability. In

the present case, it is an admitted fact that the petitioner suffers from 30%

disability and it was argued on behalf of the respondent that the

provisions of Section 47 are not applicable to the present facts and

circumstances of the case.

We have heard the learned counsel for the parties.

8. The bare perusal of Section 47 shows that Section 47 (1) pertains to "an

employee who acquires a disability during his service" and does not deal

with a "person with disability". The definition given under Section 2(t)

does not deal with the disability which is acquired by an employee during

the period of service/employment. Rather, it deals with persons suffering

from at least 40% disability entitling them to the post, which are reserved

for disabled persons u/s 33 of the Act.

9. On the other hand, a person, who acquires a disability during his service

which renders him unsuitable for the post that he was holding, is still

entitled to the benefit of Section 47 even though his disability is less than

40%. The meaning of the term "disability" under Section 47 shall be

ascertained from Section 2(i).

10. It is apparent from the available records that the petitioner as a result of

the accident was declared medically unfit to continue working as a driver

with the respondent. He acquired a disability of "low vision" which

rendered him unsuitable for the post that he was holding with the

respondent. So far as it relates to acquisition of a disability, the present

case is covered under the provisions of Section 47 of the aforesaid Act.

Reliance may be placed on Kunal Singh vs. Union of India (UOI) and

Anr., AIR 2003 SC 1623, wherein the Apex Court made the following

observation:

"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 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."

11.The sole ground on which The Ld. Central Administrative Tribunal denied relief to the petitioner was that being a probationer, "he could not be continued in service till retirement as probationer or confirmed employee". It is an undisputed fact that the petitioner acquired 30% handicap during the probation period. The accident resulting in the handicap occurred on 11.03.2009 during the probation period. It was argued by the respondent that the petitioner is not entitled to the benefit of Section 47 as he was on probation at the time of acquisition of the disability. Clause 8 of the appointment letter dated 23.12.2008 reads as under:

"8. His appointment is purely temporary. He shall be on probation for a period of 2 years from the date of appointment. During the period of his probation, his services shall be liable to be terminated at any time without notice and without assigning any reason thereof. He shall be considered as having completed the period of probation satisfactorily only when a notification to this effect is issued by the competent authority."

However, Section 47 does not make any distinction between the nature of

services it protects. Relief cannot be denied to the petitioner on the ground

that he was still undergoing the probation period at the time of acquisition

of the disability. In this regard, the Bombay High Court in Union of India

Vs. Pramod Sadashiv Thakre, 2012 (2) ALLMR 468, upheld this view

in the following terms:

"It was, however, urged by Mr. Sundaram, learned counsel for the petitioners, that the respondent's services cannot be protected by Section 47 of the Act since the respondent was a temporary employee on probation. Section 47 of the Act, reproduced above, protects the services of an employee and makes no distinction between the nature of the services it protects. The purpose and intention of the provisions is to protect an employee from unemployment on the ground that he has incurred disability. Parliament has in its wisdom accommodated the possibility that an employee may not be able to discharge the duties of office prescribed for him and to that effect a provision has been made that an employee shall be employed in some other post with same benefits."

12.Moreover, it is immaterial as to whether the injury was caused to the

petitioner in the course of his employment as a driver or otherwise. This

Court in the case of Shri. Sunil Kumar v. Delhi Transport

Corporation & Anr., 120 (2005) DLT 499, made the following

observations:

"...decisions of Courts have held that it is wholly immaterial where the injury is caused while on duty or at any other time. The Disabilities Act is a beneficial enactment. No person will welcome an injury to his person."

In Delhi Transport Corporation vs Rajbir Singh, 100 (2002) DLT 111, a Division Bench of this Court made the following observations:

"26. What was emphasized in the said paragraph was that those were already in employment should not be uprooted when they incurred disability. It would not mean that such disability must occur during the course of employment which expression finds place in certain statutes, as for example, Workmen Compensation Act.

27. The purport and object of statute like Workmen Compensation Act are totally different and distinct from the said Act. They seek to achieve different purposes. Whereas Workmen Compensation Act provides for grant of compensation, in terms of the provisions of the said Act, service of disabled is sought to be secured.."

13. There is no plea taken by the respondent that the petitioner has indulged

in any misconduct as a driver during the period of probation till the time

of injury. Therefore, in our opinion, it is a fit case where the petitioner

should be given benefit u/s 47(1). Section 47 of the Act is a mandatory

provision casting a duty upon the employer not to dispense with or

reduce in rank an employee during the period of his employment with

the establishment. It has been so held in the Kunal Singh's case (Supra)

in the following terms:

"11....The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply"

In the same case, the Division Bench of the Apex Court also made the

following observations:

"9. ...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."

As such, the respondent is directed to act as per the provisions under

Section 47(1) i.e. by giving him an alternative post with the same pay

scale, continuity of service, and other service benefits with the

respondent and work in accordance with his capabilities be assigned by

the respondent within a period of six weeks from today. Since the

petitioner was on probation and had not yet completed the period of

probation of two years, therefore, the petitioner be put on probation as

per the applicable rules on the alternative post for the remaining period

of probation under the respondent who shall further deal as per the rules.

However, the petitioner has not worked as an employee of the

respondent since the day on which he acquired the disability and is

therefore not entitled to 100% back-wages. Petitioner being a young man

was able enough to undertake any other work/employment in accordance

with his abilities after the accident. Bearing this in mind, we are of the

opinion that granting him 50 % of his back-wages will meet the ends of

justice. Accordingly, the respondent is hereby directed to pay 50% of his

back wages with due increments within a period of eight weeks from

today. In the event of non-payment within eight weeks, the DTC is liable

to pay interest on that amount @ 9% p.a. till date of payment.