IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/02/2006
Coram
The Honourable Mr.Justice N.PAUL VASANTHAKUMAR
Writ petition No.27016 of 2005
S.Rajendran ... Petitioner
-Vs-
1. The Deputy Commissioner of Police,
Crime & Traffic,
Madurai City, Madurai 1.
2. The Commissioner of Police,
Madurai City, Madurai 1. ... Respondents
This Writ petition came to be numbered by way of transfer of
O.A.No.6445 of 2001 from the file of Tamil Nadu Administrative Tribunal with a
prayer to call for the records of the first respondent in his proceedings made
in CPO/No.243/2001, C.No.K2/03165/2000, dated 5.2.2001 as confirmed by the
second respondent in his proceedings made in C.No.K2/03165/2001 dated
30.5.2001 and quash the same as null and void, illegal and invalid and
consequently reinstate the petitioner in service with all service and monetary
benefits together with arrears of salary from February, 2001.
For Petitioner : Mr.A.Amalraj
For Respondents : Mrs.D.Malarvizhi,
Government Advocate
:O R D E R
In this writ petition, petitioner challenges the order of the first
respondent dated 5.2.2001, confirmed by the second respondent by order dated
30.5.2001, by which the petitioner was medically invalidated from service.
2. The brief facts of the case as stated in the affidavit are as
follows,
(a) The petitioner was appointed as Constable Grade-II on
15.7.1975 and initially posted at Armed Reserve Madurai South and in the year
1 985 he was transferred to Local Police. He was promoted as Grade-I Police
Constable in the year 1988 and from the year 1992 he was serving at
B1-Vilakkuthoon Police Station, Madurai. Whileso, on 21.9.1994, when the
petitioner was returning in his two-wheeler after completing his duty, a lorry
came in a rash and negligent manner and dashed against the petitioner, as a
result of which the petitioner sustained multiple injuries. Petitioner was
admitted in a private hospital and underwent treatment as inpatient for nearly
two months. Due to the accident, petitioner’s left fore-foot was amputated
and hence he went on medical leave from 22.9.1994 to January, 1995 and the
medical leave was also sanctioned by the Department. After expiry of the
leave period, petitioner returned back to duty by submitting medical fitness
certificate and he was posted at Crime Record Bureau. It is stated by the
petitioner that thereafter he continuously discharged his routine duty
regularly without any complaint and considering his sincere and dedicated
services, he was promoted as Head Constable on 13.11 .1998.
(b) It is the further case of the petitioner that he was directed
to appear before the Medical Board on 30.1.2001 at 8.00 a.m., and accordingly
petitioner appeared before the Resident Medical Officer and four Doctors, who
examined him and according to the petitioner, he was found fit for duty by the
Medical Board, but copy of the report was not furnished to him. Thereafter,
the first respondent by proceedings dated 5.2.2001 issued the impugned order
invalidating the petitioner from service without assigning any reason.
Petitioner challenged the said order in appeal before the second respondent,
who dismissed the appeal on 30.5.2001 by a non-speaking order and directed the
petitioner to sign his pension papers. The case of the petitioner is, even
assuming the Medical Board found that the petitioner is unable to discharge
his regular duties, he should have been given alternate employment and hence
the invalidation of the petitioner from service is unsustainable.
3. The second respondent filed counter affidavit stating that as
per the report of the Medical Board, petitioner’s name was struck off from the
Police strength of Madurai City Police with effect from 8.2.20 01 and the
petitioner applied for pension on 25.9.2001 and the same was sanctioned on
23.10.2001. It is further stated that the report of the Medical Board need
not be furnished to the petitioner as he himself appeared before the Medical
Board and only based on the report of the Medical Board, petitioner was
invalidated from service. It is also stated in the counter affidavit that in
Police Department, which is service oriented department, one is expected to
keep good health and physic as warranted by duty and therefore, there is no
illegality in the impugned order.
4. Mr.A.Amalraj, learned counsel appearing for the petitioner
argued that the impugned orders of the respondents are contrary to the
provisions of the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 as the said Act is fully
applicable to the respondent Department and the benefit under the said Act
shall be given to the deserving persons as held in the decision of the Supreme
Court reported in 2003 (2) Supreme 102 (Kunal Singh v. Union of India &
Another). The learned counsel also placed reliance on the very recent
decision of this Court reported in 2006 (1) CTC 124 (P.Thangamarimuthu v.
Tamil Nadu State Transport Corporation, Madurai (Division-I)) and prayed for
setting aside impugned order of the respondents and reinstate the petitioner
with back wages with continuity of service from February, 2001.
5. The learned Government Advocate argued that in view of the
report submitted by the Medical Board, petitioner was invalidated and there is
no illegality in the impugned orders and the same do not call for any
interference.
6. I have considered the rival submissions made by the learned
counsel for the petitioner as well as the learned Government Advocate.
7.(a) In the decision reported in 2003 (2) Supreme 102 (Kunal Singh
v. Union of India & Another) the Honourable Supreme Court held that if a
person has acquired disability by injury during his service and if not found
suitable for the post of constable he was holding, he should be shifted to
some other post with same pay-scale and service benefits but he cannot be
invalidated on this ground from service. The Court further held that Section
47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995, casts a statutory obligation on the
employer to protect an employee acquiring disability during service.
Paragraph 9 of the judgment is relevant and the same is extracted hereunder,
“9. Chapter VI of the Act deals with employment relating to
persons with disabilities, who are yet to secure employment. Section 47,
which falls in Chapter VIII, deals with an employee, who is already in service
and acquires a disability during his service. It must be borne in mind that
Section 2 of the Act has given distinct and different definitions of
“disability” and “person with disability”. It is well settled that in the
same enactment if two distinct definitions are given defining a
word/expression, they must be understood accordingly in terms of the
definition. It must be remembered that person does not acquire or suffer
disability by choice. An employee, who acquires disability during his
service, is sought to be protected under Section 47 of the Act specifically.
Such employee, acquiring disability, if not protected, would not only suffer
himself but possibly all those who depend on him would also suffer. The very
frame and contents of Section 47 clearly indicate its mandatory nature. The
very opening part of Section reads “no establishment shall dispense with, or
reduce in rank, an employee who acquires a disability during his service”.
The Section further provides that if an employee after acquiring disability is
not suitable for the post he was holding, could be shifted to some other post
with the same pay scale and service benefits; if it is not possible to adjust
the employee against any post he will be kept on a supernumerary post until a
suitable post is available or he attains the age of superannuation, whichever
is earlier. Added to this no promotion shall be denied to a person merely on
the ground of his disability as is evident from sub-section (2) of Section 47.
Section 47 contains a clear directive that the employer shall not dispense
with or reduce in rank an employee who acquires a disability during the
service. In construing a provision of social beneficial enactment that too
dealing with disabled persons intended to give them equal opportunities,
protection of rights and full participation, the view that advances the object
of the Act and serves its purpose must be preferred to the one which obstructs
the object and paralyses the purpose of the Act. Language of Section 47 is
plain and certain casting statutory obligation on the employer to protect an
employee acquiring disability during service.”
(b) A Division Bench of this Court in the decision reported in
2004 WLR 398 (Metropolitan Transport Corporation v. The Presiding Officer,
Principal Labour Court & Another) upheld the order of the learned single
Judge, cancelling the order of medical invalidation. In paragraphs 5 to 7 of
the Judgment the Division Bench held as under,
“5. Counsel for the appellant sought to rely on a Government Order
of the year 1981 which directs that the persons who are found medically unfit
to continue to work on account of inter alia, of disability acquired during
the course of employment should be treated only as a fresh recruits. It was
therefore, claimed that the Government Order should be allowed to be
implemented and the employees be treated as a fresh recruit.
6. We see no substance in this contention. That Government Order
on which reliance was placed was made at a time when Parliament had not
legislated with reference to persons who suffer from disabilities. Parliament
having taken note of the plight of the disabled either born disabled or
those who acquired it later, has legislated a special enactment for their
benefit “The Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 “.
7. That Act was enacted in the year 1995. Most of the agencies
of the Government as also public at large appear to have remained quite
ignorant of it’s beneficial provisions and not enough care has been taken by
those concerned to ensure the benefits conferred by that Act are in fact
extended to those entitled thereto.”
(c) In an another Division Bench decision reported in 2005 (2) L.W
5 65 (Metropolitan Transport Corporation Ltd., Chennai-2 v. K.
Ravichandran), this Court held that the language of section 3(1) of the
Workmen’s Compensation Act is different from that of section 47(1) of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995. In paragraphs 9 and 10, the Division Bench held
thus,
“9. Thus, the language of Section 3(1) of the Workmen’s
Compensation Act is very different from that of Section 47(1) of the 1995 Act.
We cannot import notions of the Workmen’s Compensation Act, 1923 into the 1995
Act which is a totally different Act.
10. It may be mentioned that the 1995 Act is a piece of welfare
legislation and hence it has to be liberally construed giving a purposive
interpretation. The object of the Act obviously is to fulfill the mandate of
the Diretive Principles of State Policy in Part IV of the Constitution. Hence
full effect must be given to this objective. In our opinion, the words “who
acquires a disability during his service” means that the disability should be
acquired while in employment, and it is not necessary that it should be
acquired while performing his work. It is also not necessary that the
employment should be the cause of disability.”
(d) This Court in 2006 (1) CTC 124 (P.Thangamarimuthu v. Tamil
Nadu State Transport Corporation, Madurai (Division-I)) quashed a similar
medical invalidation order passed against a Conductor of the Tamil Nadu State
Transport Corporation by applying the provisions contained in Section 47 of
the Act and held that it is a beneficial legislation passed in favour of the
disabled persons and the same cannot be narrowly interpreted.
8. Section 47 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as
under,
“Section 47. Non-discrimination in Government employment.- (1) No
establishment shall dispense with, or reduce in rank, an employee who acquires
a disability during his service:
Provided that, if an employee, after acquiring disability is not
suitable for the post he was holding, could be shifted to some other post with
the same pay scale and service benefits.
Provided further that if it is not possible to adjust the employee
against any post, he may be kept on a supernumerary post until a suitable post
is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground
of his disability:
Provided that the appropriate government may, having regard to the
type of work carried on in any establishment, by notification and subject to
such conditions, if any, as may be specified in such notification, exempt any
establishment from the provisions of this section.”
A bare reading of the above section clearly mandates the department to
accommodate the disabled employee either by retaining him in the said post or
shifting to some other post with same scale of pay and service benefits and if
alternate suitable post is not available, the concerned employee shall be kept
on a supernumerary post until a suitable post is available or he attains the
age of superannuation, whichever is earlier, and he shall not be denied
promotion merely on the ground of his disability. As per the proviso the
appropriate Government may issue notification specifying certain conditions
and exempting any establishment from the provisions of the section.
9. In this case, admittedly no Government notification is issued
to contend that the beneficial provision under Section 47 of the 1995 Act is
not applicable to the Police Department. The case considered by the
Honourable Supreme Court in the decision reported in 2003 (2) Supreme 102
(cited supra) deals with the service of a Constable of Special Service Bureau
and in the said case the Supreme Court granted relief to the Constable, which
is also a disciplined force. Therefore, the impugned order passed by the
respondents are totally in violation of Section 47 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 and against the decisions referred above.
10. Therefore I am of the view that the impugned orders are
unsustainable and the same are liable to be set aside and accordingly set
aside. The petitioner shall be reinstated into service within a period of two
weeks from the date of receipt of copy of this order. Petitioner is entitled
to get all backwages. The pension paid to him from the date of his medical
invalidation till the date of reinstatement shall be adjusted from the
backwages to be paid to him.
The writ petition is allowed with the above directions. No costs.
vr
To
1. The Deputy Commissioner of Police,
Crime & Traffic, Madurai City, Madurai 1.
2. The Commissioner of Police,
Madurai City, Madurai 1.