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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 07.05.2025
+ LPA 36/2025
CANARA BANK & ORS. .....Appellants
Through: Mr. Puneet Taneja, Sr. Adv.
with Mr. Manmohan Singh
Narula, Mr. Amit Yadav and
Mr. Anil Kumar, Advs.
versus
RAJ KUMAR WADHERA & ORS. .....Respondents
Through: Mr. Udian Sharma, Ms. Aarzoo
Aneja, Mr. Akshaya
Jebakumar, Mr. Manav Mitra,
Mr. Sahil Saraswat and
Ms. Harsha Sadhwani Advs. for
R-1.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (ORAL)
1. For the reasons stated in the application and with the consent of
learned counsel for the respondents, the delay of 14 days in filing the
appeal is condoned.
2. The application stands disposed of.
LPA 36/2025 & CM APPL. 2420/2025
3. This appeal has been filed by the appellants, challenging the
Judgment dated 08.10.2024 passed by the learned Single Judge in
W.P.(C) No. 12359/2021, titled Raj Kumar Wadhera v. Canara Bank
& Ors., disposing of the writ petition filed by the respondent no. 1
herein with the following direction:
"11. Accordingly, this writ petition is disposed
of holding that there is no infirmity with the
impugned order dated 30.07.2021 passed by
the Commissioner Disability as also holding
that Petitioner cannot be declared as a Person
with Disability under the 1995 and/or the 2016
Acts. Insofar as an amount of Rs.9,01,327/- is
concerned, the same shall be credited to the
account of the Petitioner within a period of
eight weeks from the date of receipt of this
order. It will, however, be open to the Bank to
take recourse to appropriate legal remedies to
initiate action for the alleged unauthorized
leave, if so advised and take action as per
law."
4. Giving a brief background in which the present appeal arises,
the respondent no. 1 joined the Syndicate Bank, which later merged
with the appellant no. 1, as a Clerk at the Delhi Regional Office under
the general category on 05.11.1984.
5. Thereafter, in the year 1994, he was admitted to the All India
Institute of Medical Sciences (hereinafter referred to as, 'AIIMS'),
where he was later diagnosed with a rare cardiopulmonary disease,
namely Eisenmenger Syndrome.
6. In view of the said condition, AIIMS issued a Disability
Certificate dated 22.02.2017 to the respondent no. 1, which reads as
under:
"Disability Certificate
This is the reference to the request dated 24th
April 2016 by Mr. Raj Kumar Wadhera 53
yrs/male son of Lt. Sh. V.P. Wadhera, to the
office of Medical Superintendent, AIIMS, New
Delhi, regarding issuance of the disability
certificate. Mr. Raj Kumar Wadhera is
registered in Cardiology OPD via UHID
no.101653064 & CV No. 2012/014/20494. He
is suffering from Atrio-Ventricular-Septal
defect with severe pulmonary hypertension. He
is presently in NYHA class III. On clinical
examination he has feature of severe
pulmonary hypertension and is not in Heart
Failure. A recent echocardiography shows
normal ventricular function His resting
arterial saturation is 83%. His clinical
condition is inoperable and he is on medical
therapy with pulmonary vasodilators.
As per the recommendations from the
committee for assessment of disability the
issuance of disability certificate for cardiac
patients at CTC, AIIMS dated 24th April 2016,
he falls under the category of congenital
heart disease disability class 3a (40%-59%).
The validity of this disability certificate is for a
period of two years from the date of issue."
7. Thereafter, AIIMS issued another Disability Certificate dated
31.10.2019 to the respondent no. 1, which is reproduced herein below:
"Sub: Certificate to the Person with
Disabilities
This is in reference to the request dated
03/06/2019 by Mr. Raj Kumar Wadhera 56
yrs/male son of Lt. Sh. V.P. Wadhera to the
office of Medical Superintendent, AIIMS, New
Delhi regarding issuance of the disability
certificate. Mr. Raj Kumar Wadhera is
registered in Cardiology OPD via UHID
No.101653064 & CV No. 20494/12. He is
suffering from Atrio-Ventricular-Septal Defect
(AVSD) with severe pulmonary hypertension.
He is presently in NYHA class III. On clinical
examination he has feature of severe
pulmonary hypertension and is not in Heart
failure. A recent echocardiography shows mild
LV dysfunction (EF 45-50%). His resting
arterial saturation is 70%. His clinical
condition is inoperable and he is on medical
therapy with pulmonary vasodilators.
As per the recommendations from the
committee for assessment of disability the
issuance of disability certificate for cardiac
patients at CTC, AIMS dated 24th April 2016,
he falls under the category of congenital heart
disease disability class 3a (40%-59%).
The validity of this disability certificate is for a
period of two years from the date of issue."
8. Due to his aforementioned medical condition and the outbreak
of the COVID-19 Pandemic, it was the case of the respondent no. 1
that he could not join his duties for a period starting from 16.04.2020
to 30.09.2021. In the meantime, the appellant issued various notices to
the respondent no. 1, calling upon him to join the duty failing which
an action under Regulation 19 (1) of the Canara Bank (Officers')
Service Regulations, 1979 (hereinafter referred to as, 'the
Regulations') shall be taken against him.
9. The plea of the respondent no. 1 that he was covered under the
provisions of the Right of Persons with Disabilities Act, 2016,
(hereinafter referred to as, 'Disability Act') was also rejected by the
appellants vide the communication dated 31.03.2021.
10. Aggrieved thereby, the respondent no. 1 approached the
respondent no. 2 for the issuance of the Disability Certificate,
however, the same was rejected by the respondent no. 2 by an Order
dated 30.07.2021, which reads as under:
"Case No: 12685/1023/2021
Complainant: Shri Raj Kumar Wadhera
E-mail: <[email protected]>
Respondent: The Managing Director & Chief
Executive Officer
Head Office, Canara Bank,
Jeevan Prakash Building
113-I, JC Road, Bengaluru,
Karnataka - 560002
E-mail: <[email protected]>
Complaint: Congenital heart disease
disability class 3a (40%-59%)
GIST of the Complaint:
Complainant vide complaint dated
31.03.2021 submitted that he is working as a
Manager in E-Syndicate Bank and recently his
Bank has been merged with Canara Bank. He
further submitted that in 2017, AIIMS had
issued a disability certificate of 40%-59% to
him (Congenital heart disease disability class
3a (40% - 59%)). He alleged that his
department 'Syndicate Bank' did not
incorporate this certificate in his HR profile
for two years in spite of repeated requests to
them.
2. The matter was taken up with the
Respondent vide letter dated 07.04.2021 under
Section 75 of the RPwD Act, 2016.
3. General Manager, Canara Bank vide letter
dated 03.07.2021 inter-alia submitted that as
per the certificate issued by AIIMS, Cardio-
Neuro Centre, New Delhi - he is suffering
from Atrio-Ventricular Sepal Defect with
severe pulmonary hypertension and said
disability is not classified under Specified
Disability categories in the RPwD Act, 2016.
4. Complainant vide rejoinder dated
08.07.2021 inter-alia submitted that Bank is
challenging the authority of Medical Board
constituted by AIIMS and taking decision
without referring his case to Medical Board of
Canara Bank.
Observation/ Recommendations:
5. After perusal of documents available on
record, the Court is in view that disability as
mentioned in the disability certificate is not
covered under the Rights of Persons with
Disabilities Act, 2016. Therefore, no
intervention of this Court is warranted in the
matter.
6. Case is disposed off."
11. Consequently, the respondent no. 1 filed the abovementioned
Writ Petition, challenging the above order passed by the respondent
no. 2, and seeking a declaration that the respondent no. 1 be treated as
a 'person with disability'.
12. In the meantime, as the appellants had deducted an amount of
Rs. 9,01,327/- from the dues owned to the respondent no. 1, the
respondent no. 1 also prayed for a refund of the said amount along
with interest, as well as for the credit of 220 days' leave in his leave
account.
13. As noted hereinabove, the learned Single Judge, by placing
reliance on the decision of the Supreme Court in Nawal Kishore
Sharma v. Union of India and Others, (2021) 4 SCC 487, partially
allowed the writ petition vide the Impugned Order; the challenge by
the respondent no. 1 to the Order dated 30.07.2021 passed by the
respondent no. 2 was rejected, however, at the same time, the learned
Single Judge, finding that the recovery of Rs. 9,01,327/- had been
made by the appellants from the respondent no. 1 without issuing any
show cause notice or granting him an opportunity of being heard,
directed that the said amount be refunded back to the respondent no. 1,
within a period of eight weeks from the passing of the Impugned
Order; and liberty was granted to the appellants to take recourse to an
appropriate legal remedy to initiate action in respect of the alleged
unauthorised leave of the respondent no. 1, if so advised, in
accordance with law.
14. As far as the finding of the learned Single Judge that the
respondent no. 1 cannot be declared as a 'person with disability' under
the Disability Act of 1995 or even the 2016 Act, is concerned, the
respondent no. 1 has filed an appeal, being LPA No. 297/2025. We
shall, therefore, not consider the said issue in the present appeal and
leave the question open to be determined in the said appeal filed by
the respondent no. 1.
15. Inasmuch as the direction of the learned Single Judge for
refunding the amount of Rs. 9,01,327/- to the respondent no. 1, which
is under challenge in the present appeal is concerned, the learned
senior counsel for the appellants submits that before making the
recovery of the said amount, various notices were issued to the
respondent no. 1, warning him that in case he does not join the
service, appropriate action for recovery under Regulation 19(1) of the
Regulations shall be taken against him. He submits that despite such
warnings, the respondent no. 1 did not join the service, therefore, the
recovery was made from the respondent no. 1 on 09/10.01.2021.
16. The learned senior counsel for the appellants has also drawn
reference to the decision of the Supreme Court in Col. B. J. Akkara
(Retd.) v. Government of India & Ors, (2006) 11 SCC 709, to
contend that as the amount had been wrongly paid to the respondent
no. 1, the same was rightly recovered from him.
17. We have perused the notices which have been placed on record
by the appellants along with the present appeal in support of the above
submissions.
18. Upon query of this Court, the learned senior counsel for the
appellants was unable to draw our attention to a single notice that was
issued to the respondent no. 1 prior to the actual recovery being made.
We also find that the said notices were issued, merely calling upon the
respondent no. 1 to join the service, failing which, an action in
accordance with law shall be taken against him. These notices did not
put him to notice that any recovery shall be made from him.
19. In any case, no enquiry was held against the respondent no. 1
for his alleged unauthorised absence.
20. Furthermore, the effect of his medical condition was certainly
not looked into while determining whether he can be declared as being
on unauthorised leave.
21. We are not impressed with the plea of the learned senior
counsel for the appellants that the amount has been wrongly paid to
the respondent no. 1, and therefore, the same was rightly recovered
from him. The recovery cannot be effected without issuing a notice or
without giving an opportunity of being heard to the respondent no. 1.
22. In our view, therefore, the learned Single Judge has rightly
directed that the amount of Rs. 9,01,327/- be refunded to the
respondent no. 1.
23. We, accordingly, find no merit in the present appeal. The same
is dismissed with costs of Rs. 25,000/- to be paid by the appellants to
the respondent no. 1. The pending application also stands disposed of
as infructuous.
24. At this stage, we have been informed that pursuant to the
direction of this Court vide Order dated 15.01.2025, the appellants
have deposited a sum of Rs. 9,01,327/- with the Registry of this Court.
The said amount is directed to be released to the respondent no. 1
along with interest accrued thereon.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
MAY 7, 2025
p/SM/DG
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