Delhi High Court
The Oriental Insurance Company ... vs The Chief Commissioner & Anr. on 10 March, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 7844/2013 & CM Nos. 16648/2013 (stay) &
9014/2014
% 10th March, 2015
THE ORIENTAL INSURANCE COMPANY LTD. .... Petitioner
Through: Mr. Rahul Ranjan Verma, Adv.
versus
THE CHIEF COMMISSIONER & ANR. ..... Respondents
Through: Ruchir Mishra, Adv. for R-1.
Mr. V.M.Handa, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Article 226 of the Constitution of
India, petitioner/employer questions the order passed by the Chief
Commissioner for Persons with Disabilities dated 20.9.2013 whereby the
Chief Commissioner passed the following directions:-
"11. In the light of above, the respondent is directed to shift
the complainant to some other post that carries the same pay
scale and service benefits as the Development Officer
(Marketing) which the complainant is holding at present, if
he needed to be shifted. The complainant must not be shifted
WPC 7844/2013 Page 1 of 6
to the post of Assistant which carries a lower pay scale than
the Development Officer (Marketing). If it is not possible for
the respondent to adjust the complainant against any post
which carries the same scale and the service benefits as
attached to the post of Development Officer (Marketing),
then the respondent is directed to keep the complainant on a
supernumerary post until a suitable post is available or he
attains the age of superannuation whichever is earlier."
2. Counsel for the petitioner relies upon a recent judgment of the
Supreme Court in the case of State Bank of Patiala & Ors. Vs. Vinesh
Kumar Bhasin (2010) 4 SCC 368 in which the Supreme Court has held that
the Chief Commissioner acting under the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 has no
power to issue various directions in the nature of a judgment or injunction
etc. The Supreme Court in the case of Vinesh Kumar Bhasin (supra) has
relied upon the earlier judgment of the Supreme Court in the case of All
India Indian Overseas Bank SC and ST Employees' Welfare Assn. and
Ors. Vs. Union of India and Ors. (1996) 6 SCC 606 wherein the Supreme
Court has said that a Commission's power is restricted as per the particular
provision and the Commission cannot act like a court and start passing
judgments, issuing injunctions etc. The relevant paras of the judgment in the
case of Vinesh Kumar Bhasin (supra) read as under:-
WPC 7844/2013 Page 2 of 6
"13. Prima facie neither Section 47 nor any other
provision of the Disabilities Act was attracted. But, the Chief
Commissioner chose to issue a show-cause notice on the
complaint and also issued an ex parte direction not to give
effect to the order of retirement. He overlooked and ignored
the fact that the retirement from service was on completion of
the prescribed period of service as per the service regulations,
which was clearly mentioned in the letter of retirement dated
17-11-2006; and that when an employee was retired in
accordance with the regulations, no interim order can be issued
to continue him in service beyond the age of retirement.
14. The Chief Commissioner also overlooked and
ignored the fact that as an authority functioning under the
Disabilities Act, he has no power or jurisdiction to issue a
direction to the employer not to retire an employee. In fact,
under the Scheme of the Disabilities Act, the Chief
Commissioner (or the Commissioner) has no power to grant
any interim direction.
15. The functions of the Chief Commissioner are set out
in Sections 58 and 59 of the Act. Section 58 provides that the
Chief Commissioner shall have the following functions:
"58. (a) coordinate the work of the Commissioners;
(b) monitor the utilisation of funds disbursed by the
Central Government;
(c) take steps to safeguard the rights and facilities
made available to persons with disabilities;
(d) submit reports to the Central Government on
the implementation of the Act at such intervals as
the Government may prescribe."
WPC 7844/2013 Page 3 of 6
16. Section 59 provides that without prejudice to the
provisions of Section 58, the Commissioner may of his own
motion or on the application of any aggrieved person or
otherwise look into complaints and take up the matter with the
appropriate authorities, any matters relating to (a) deprivation
of rights of persons with disabilities; and (b) non-
implementation of laws, rules, bye-laws, regulations, executive
orders, guidelines or instructions made or issued by the
appropriate Governments and the local authorities for the
welfare and protection of rights of persons with disabilities.
The Commissioners appointed by the State Governments also
have similar powers under Section 61 and 62.
17. Section 63 provides that the Chief Commissioner
and the Commissioners shall, for the purpose of discharging
their functions under this Act, have the same powers as are
vested in a court under the Code of Civil Procedure while
trying a suit, in regard to the following matters:
"63.(a) summoning and enforcing the attendance
for witnesses;
(b) requiring the discovery and production of any
document;
(c) requisitioning any public record or copy thereof
from any court or officer;
(d) receiving evidence on affidavits; and
(e) issuing commissions for the examination of
witnesses or documents."
Rule 42 of the Persons with Disabilities (Equal opportunities,
Protection of Rights and Full Participation) Rules, 1996 lays
WPC 7844/2013 Page 4 of 6
down the procedure to be followed by the Chief
Commissioner.
18. It is evident from the said provisions, that neither the
Chief Commissioner nor any Commissioner functioning under
the Disabilities Act has power to issue any mandatory or
prohibitory injunction or other interim directions. The fact that
the Disabilities Act clothes them with certain powers of a civil
court for discharge of their functions (which include power to
look into complaints), does not enable them to assume the
other powers of a civil court which are not vested in them by
the provisions of the Disabilities Act. In All India Indian
Overseas Bank SC and ST Employees' Welfare Association v.
Union of India : 1996 (6) SCC 606 this Court, dealing with
Article 338(8) of the Constitution of India (similar to
Section 63 of the Disabilities Act), observed as follows:(SCC
pp.609 & 611, paras 5 & 10)
"5. It can be seen from a plain
reading of Clause (8) that the Commission has the
power of the civil court for the purpose of
conducting an investigation contemplated in Sub-
clause (a) and an inquiry into a complaint referred
to in Sub-clause (b) of Clause (5) of Article338 of
the Constitution
* * *
10. .... All the procedural powers of a civil court
are given to the Commission for the purpose of
investigating and inquiring into these matters and that too
for that limited purpose only. The powers of a civil court
of granting injunctions, temporary or permanent, do no
inhere in the Commission nor can such a power be
WPC 7844/2013 Page 5 of 6
inferred or derived from a reading of Clause (8) of
Article 338 of the Constitution."
19. The order of the Chief Commissioner, not to
implement the order of retirement was illegal and without
jurisdiction." (emphasis added)
3. Therefore, in view of the settled law laid down in the judgment in the
case of Vinesh Kumar Bhasin (supra), the respondent no.1 herein being the
Chief Commissioner for Persons with Disabilities had no power to pass the
impugned order by passing directions which have been reproduced above.
4. In view of the above, the writ petition is allowed and the impugned
order of the Chief Commissioner for Persons with Disabilities dated
20.9.2013 is set aside. No costs.
MARCH 10, 2015 VALMIKI J. MEHTA, J.
ib
