High Court Punjab-Haryana High Court

Om Parkash vs State Of Haryana And Others on 11 September, 2009

Punjab-Haryana High Court
Om Parkash vs State Of Haryana And Others on 11 September, 2009
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