RSA No.123 of 2009 [ 1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.123 of 2009
Date of Decision: 11-09-2009
Om Parkash ......Appellant
Versus
State of Haryana and others .....Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Rajiv Sharma, Advocate, for the appellant.
Shri Kulvir Narwal, Additional AG, Punjab.
HEMANT GUPTA, J. (Oral).
The plaintiff is in second appeal aggrieved against the
judgment and decree passed by the Courts below, whereby his suit
challenging his retirement vide order dated 9.5.2003 under Rules 5.11
and 5.18 of the Punjab Civil Services Rules, Volume-II, was dismissed.
The plaintiff joined as conductor with the defendants in the
year 1982. He suffered problem in his eyes in the year 2001, when he
was working in the Hisar Depot of the Haryana Roadways. On his
request, the plaintiff was medically examined by the Civil Surgeon,
RSA No.123 of 2009 [ 2]
Hisar, who referred him to the Post Graduate Institute of Medical
Sciences, Rohtak. The Medical Board in its report dated 28.4.2003
opined that the plaintiff is not fit to serve as a conductor. On the basis
of such report, the plaintiff was relieved vide order dated 9.5.2003.
Subsequently, a request of the plaintiff for giving appointment to his
dependent family member, was declined on 21.12.2004. Aggrieved, the
plaintiff filed the present suit for declaration, which has been dismissed
by the Courts below.
I have heard learned counsel for the parties on the
following substantial question of law:-
“Whether in terms of Section 47 of the Persons with
Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995, the
defendants are bound to engage the plaintiff on an
alternative suitable post or to pay the pay and
allowances attached to the post in terms thereof?
Learned counsel for the appellant has referred to Bhagwan
Dass and another v. Punjab State Electricity Board (2008) 1 Supreme
Court Cases 579, wherein the petitioner sought retirement and also
requested for suitable job for his wife. Though the petitioner was
retired but his wife was not given employment. The Hon’ble supreme
Court held to the following effect:-
“17. From the materials brought before the Court by
none other than the respondent-Board, it is manifest
that notwithstanding the clear and definite legislative
mandate some officers of the Board took the view
that it was not right to continue a blind, useless man
RSA No.123 of 2009 [ 3]on the Board’s rolls and to pay him monthly salary in
return of no service. They accordingly persuaded
each other that the appellant had himself asked for
retirement from service and therefore, he was not
entitled to the protection of the Act. The only material
on the basis of which the officers of the Board took
the stand that the appellant had himself made a
request for retirement on medical grounds was his
letter dated 17.7.1996. The letter was written when a
charge-sheet was issued to him and in the letter he
was trying to explain his absence from duty. In his
letter he requested to be retired but at the same time
asked that his wife should be given a suitable job in
his place. In our view it is impossible to read that
letter as a voluntary offer for retirement.
18. Appellant 1 was a Class IV employee, a
lineman. He completely lost his vision. He was not
aware of any protection that the law afforded him and
apparently believed that the blindness would cause
him to lose his job, the source of livelihood of his
family. The enormous mental pressure under which
he would have been at that time is not difficult to
imagine. In those circumstances it was the duty of the
superior officers to explain to him the correct legal
position and to tell him about his legal rights. Instead
of doing that they threw him out of service by picking
up a sentence from his letter, completely out of
context. The action of the officers concerned of the
Board, to our mind, was deprecable.”
In Makhan Singh, Ex. Driver, Punjab Roadways, Nangal v.
State of Punjab and others, 2006(3) PLR 47, this Court while
RSA No.123 of 2009 [ 4]
considering the earlier judgment of the Hon’ble supreme Court in
Kunal Singh v. Union of India, AIR 2003 S.C. 1623, held that the
provisions of Section 47 of the Act are mandatory. It contemplates that
no establishment shall dispense with, or reduce in rank, an employee
who acquires a disability during his service. In view of the said
mandate, the order of premature retirement was set set aside and the
respondents were directed to extend to the petitioner all the benefits of
Section 47 of the Act.
Learned counsel for the respondents has raised an argument
that in terms of Section 2(t) of the Act, the plaintiff cannot be said to be
suffering from disability so as to attract the provisions of Section 47 of
the Act, as the Medical Board has not certified that the disability
suffered by the appellant is not less than 40%.
The said argument is not tenable for the reason that the
Medical Board has opined that the plaintiff is not fit for carrying on the
duties of conductor. With that report of the Medical Board, the plaintiff
cannot be discharged from service, but it is for the respondents to find
out alternative a suitable post for him. It is for the respondents to assess
the extent of disability of the plaintiff. Still further, it is the
respondents, who have failed to prove that the disability of the
appellant is less than 40% so to deny him the benefit of the Act.
In view of the above, the judgment and decree passed by
the Courts below cannot be sustained being totally contrary to the
mandate of Section 47 of the Act and various judgments of the Hon’ble
RSA No.123 of 2009 [ 5]
Supreme Court and this Court, as referred to above.
Consequently, the present appeal is allowed. The judgment
and decree passed by the Courts below are set aside. The suit of the
plaintiff is decreed with a direction to the defendants to appoint the
plaintiff on a suitable post keeping in view his disability and physical
condition or to create a supernumerary post till such date, the plaintiff
attains the age of supernnuation. The arrears of salary payable to the
appellant shall be adjustable with the amount of pensionary benefits
paid to the appellant.
(HEMANT GUPTA)
JUDGE
11-09-2009
ds