ORDER
1. The petitioner has approached this Court seeking a writ in the nature of certiorari to quash the action of the respondents to retire him on the ground that he has been declared incapacitated during service. The petitioner claims relief under Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as ‘the Act’).
2. Earned Counsel for the petitioner submitted that the petitioner was a regular employee of the respondent-Nigam and while in the employment of the respondents, at the time of changing the transformer, he suffered an electric shock on June 26, 1999. The petitioner, thereafter, remained under treatment till November 26, 1999 in the PGIMS, Rohtak, whereafter he was declared unfit and retired from service vide order dated April 7, 2000 (Annexure-P-1) w.e.f. January 19, 2000 on medical grounds as the official had been declared incapacitated for further service in the Nigam, as per Medical Certificate issued by the Special Medical Board, PGIMS, Rohtak, on January 19, 2000. Subsequently, vide order dated August 29, 2000 (Annexure P-2), the petitioner was allowed to retire from Service w.e.f. August 22, 2000 on medical grounds i.e. the petitioner having been declared incapacitated for further service with the respondents, as per the Medical Certificate issued by the Special Medical Board, PGIMS, Rohtak. The petitioner requested the respondents that his son be considered for employment in accordance with the instructions dated September 17, 1998 as also under the Policy of the State of Haryana, which was applicable to the Nigam, dated June 18, 1998 as endorsed on July 14, 1998. The said instructions/policy has been placed on record as Annexure P-3 and it stipulates that a Special Medical Board has been constituted to examine Government employees, employees of the autonomous bodies and boards under the Haryana Government, who become unfit for service in order to consider providing employment to the dependents of such employees. Claiming entitlement under the said policy, an application was made by Dharamjit son of Satbir Singh-petitioner. On the said application having been made, the Managing Director of the respondent-Nigam sought clarification from the Executive Engineer, City (Op) Division, UHBVN, Rohtak, to confirm as to how the intervening period w.e.f. January 19, 2000 to August 22, 2000 had been treated. The Executive Engineer (respondent No. 2), vide memo dated November 3, 2000, clarified that the period from January 19, 2000 to August 22, 2000 had been regularised by sanctioning special disability leave for 261 days vide memo/order No. 1002 dated September 6, 2000. It seems that, in the meantime, new rules had been framed under which the dependents of the incapacitated employees were deprived from compassionate employment and, therefore, the claim of the son of the petitioner was rejected vide order dated December 22, 2003 (Annexure P-7). It is under these circumstances that the petitioner represented vide application (Annexure P-8) to be taken back in service and further for cancellation of the order of retirement. Since the matter was not. entertained, therefore, the petitioner again made an application dated January 8, 2004, wherein it was detailed that the petitioner had met with an accident during service on June 26, 1999, in which he had been incapacitated of both hands and he was declared 100% disabled. The application of the petitioner was recommended by the Superintending Engineer ‘Op’ Circle, Rohtak to the Executive Engineer City ‘Op’ Division, Rohtak, vide Memo dated January 16, 2004. Thereafter, another representation was made by the petitioner on May 5, 2004 to the Chief Minister, Haryana which, it seems, was forwarded to the concerned officer. Vide Annexure P-12 dated June 22, 2004, the Executive Engineer City (Op) Division, Rohtak, asked the Superintending Engineer (Operations) Circle, UHBVN, Rohtak, to look into the matter and the same be reconsidered. It is the case of the petitioner that despite pursuing the matter, his prayer for taking him back in service has not been entertained and, rather, the petitioner has come to know from his own sources that his claim has been rejected.
3. The petitioner has claimed relief under the mandate contained in Section 47(1) of the Act, which reads as under:
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 any 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.
4. The earned Counsel for the petitioner has also placed reliance on a judgment of the Hon’ble Supreme Court of India titled Kunal Singh v. Union of India and Anr. wherein it has been observed as under at p. 738 of LLJ:
9…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 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.
Having observed thus, the Hon’ble Supreme Court accepted the appeal and the impugned order of termination of services of the appellant was set aside, the respondents were directed to give relief in terms of Section 47 of the Act.
5. Faced with the aforestated arguments, the only contention of the counsel for the respondents is to the effect that the petitioner was retired from service w.e.f. August 22, 2000. It has further been contended on behalf of the respondents that the petitioner was paid all benefits and because the petitioner was not in a position to serve the department, therefore, the department cannot be burdened with a person who is not able to serve on account of his being incapacitated. The factum of incapacitation during service has not been disputed. It is further not disputed by the counsel for the respondents that the petitioner was retired from service on account of his being incapacitated. There is no denial to the fact that the case of the petitioner is covered under the provisions of Section 47 of the Act.
6. No other argument has been addressed.
7. We have gone through the record with the assistance of the earned Counsel for the parties and we find that the petitioner is entitled to the benefit under Section 47(1) of the Act. The facts of the case are squarely covered by the judgment of the Hon’ble Supreme Court in Kunal Singh’s case (supra). The petitioner cannot be denied the benefit of the mandatory provisions of the Act simply on the ground that the department cannot be allowed to be burdened with the salary/remuneration of an incapacitated person. We find that the argument is de hors the provisions of the Act. We cannot allow the respondents to ignore the objective that the people with disabilities should have equal opportunities and keeping their hopes and aspirations in view, it is required that full participation and equality of people with disabilities is achieved. The Act provides some sort of succor to the disabled persons. The argument of the counsel for the respondents is totally contra to the Statement of Objects and Reasons of the Act. It was found necessary to enact a suitable legislation to spell out the responsibilities of the State towards prevention of disability, protection of rights, provision of medical care and rehabilitation of persons with disability. It has been enacted to create a barrier free environment for persons with disability and to remove any discrimination against the persons with disabilities in the sharing of development benefits vis-a-vis non-disabled persons. Further, the enactment is an attempt to make special provision for integration of persons with disabilities into the social mainstream. In the judgment rendered in Kunal Singh’s case (supra), it has been held that Section 47 of the Act casts a statutory obligation on an employer to protect an employee acquiring disability during service. We, therefore, have no hesitation in allowing the writ petition.
8. In the result, the writ petition is allowed, order of retirement dated April 7, 2000 (Annexure P-1) and order dated August 29, 2000 (Annexure P-2) are quashed and we direct the respondents to give relief to the petitioner in terms of Section 47 of the Act, within one month from the date of receipt of a copy of the order. The compensation/retiral benefits paid to the petitioner shall be refunded to the respondents or shall be adjusted/deducted from the salary payable to the petitioner.
9. There shall be no order as to costs.