On Wednesday, the High Court of Bombay said that every employee who acquires a disability during the course of his employment is entitled to be shifted to another suitable post, irrespective the percentage of his disability.
On Wednesday, a Single-Judge Bench of Justice Milind Jadhav rejected argument advanced on behalf Brihanmumbai Electric Supply & Transport (BEST) undertaking that it was not bound to accommodate a bus conductor Sadashiv Gaikwad on another suitable post, after he acquired disability of a lower limb since the percentage of his disability was less than 40 per cent.
The Judge also rejected BEST’s contention that Gaikwad wasn't entitled to the benefit of shifting to another suitable post after his accident, as contemplated under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995, & that the civic undertaking was justified in terminating his services.
Justice Jadhav held that for alleging the benefit of section 47 a person doesn't have to be certified as a “person with a disability” - a person with 40℅ or more disability.
The Judge clarified that section 47 envisages that if an employee acquires a disability during the course of his employment & becomes unsuitable for the post held by him, the employee should accommodate him on another suitable post, with same service benefits, & if no other suitable post is available, he should be posted on a supernumerary post till the time such a post becomes available.
“That is the mandate of section 47,” said the Judge. “There is nothing to suggest that for applying this mandate, the employee must be shown to be a ‘person with disability’ within the meaning of section 2(t), that is to say, a person suffering from not less than 40 per cent of any disability as certified by a medical authority.”
High Court said the interpretation sought to put by BEST on section 47 could not be accepted, as it would lead to an absurdity, in as much as, such reading of the benevolent provision would allow employers to terminate services of employees, if the percentage of disability acquired by them is less than 40℅.
The Court said, “That would be a travesty of justice & no sensible legislature could have ever intended such result".
Gaikwad was appointed as a bus conductor in Sept 1993 & was attached to Malvani depot. On May 3, 2011, he met with an accident in Pune district & suffered a serious injury to his left knee. After lengthy treatment, when he went to resume duty in Jan 2012, for some period he was accommodated on other posts with light duties, but eventually his services were terminated on Sept 1, 2015, on the ground that it was not possible to accommodate him anymore further on any post having light duty.
In between, the bus conductor was referred by his employer to various public hospitals in the city, one of which evaluated the percentage of his disability at 17 per cent & was also refused disability certificate as the disability was less than 40 percent.
Gaikwad then moved an appeal before the commissioner & competent authority for welfare of persons with disabilities, who on October 8, 2018 ordered his employer to reinstate him in service, pay him back wages & accommodate him on a suitable post. BEST had then approached High Court challenging the Oct 2018 order.
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