{"id":152538,"date":"2006-02-16T00:00:00","date_gmt":"2006-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-rajendran-vs-the-deputy-commissioner-of-police-on-16-february-2006"},"modified":"2018-02-17T02:27:09","modified_gmt":"2018-02-16T20:57:09","slug":"s-rajendran-vs-the-deputy-commissioner-of-police-on-16-february-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-rajendran-vs-the-deputy-commissioner-of-police-on-16-february-2006","title":{"rendered":"S.Rajendran vs The Deputy Commissioner Of Police on 16 February, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Rajendran vs The Deputy Commissioner Of Police on 16 February, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 16\/02\/2006\n\nCoram\n\nThe Honourable Mr.Justice N.PAUL VASANTHAKUMAR\n\nWrit petition No.27016 of 2005\n\nS.Rajendran                    ...             Petitioner\n\n-Vs-\n\n1.     The Deputy Commissioner of Police,\n        Crime & Traffic,\n        Madurai City, Madurai 1.\n\n2.      The Commissioner of Police,\n        Madurai City, Madurai  1.       ...                     Respondents\n\n        This Writ  petition  came  to  be  numbered  by  way  of  transfer  of\nO.A.No.6445 of 2001 from the file of Tamil Nadu Administrative Tribunal with a\nprayer to call for the records of the first respondent in his proceedings made\nin  CPO\/No.243\/2001,  C.No.K2\/03165\/2000,  dated  5.2.2001 as confirmed by the\nsecond  respondent  in  his  proceedings  made  in  C.No.K2\/03165\/2001   dated\n30.5.2001  and  quash  the  same  as  null  and  void, illegal and invalid and\nconsequently reinstate the petitioner in service with all service and monetary\nbenefits together with arrears of salary from February, 2001.\n\nFor Petitioner :       Mr.A.Amalraj\n\nFor Respondents        :       Mrs.D.Malarvizhi,\n                        Government Advocate\n\n:O R D E R\n<\/pre>\n
        In  this  writ  petition, petitioner challenges the order of the first
\nrespondent dated 5.2.2001, confirmed by the second respondent by  order  dated
\n30.5.2001, by which the petitioner was medically invalidated from service.\n<\/p>\n
        2.      The brief facts of the case as stated in the affidavit are  as
\nfollows,\n<\/p>\n
        (a)     The   petitioner   was  appointed  as  Constable  Grade-II  on
\n15.7.1975 and initially posted at Armed Reserve Madurai South and in the  year
\n1 985  he  was transferred to Local Police.  He was promoted as Grade-I Police
\nConstable in the  year  1988  and  from  the  year  1992  he  was  serving  at
\nB1-Vilakkuthoon Police  Station,  Madurai.    Whileso,  on 21.9.1994, when the
\npetitioner was returning in his two-wheeler after completing his duty, a lorry
\ncame in a rash and negligent manner and dashed against the  petitioner,  as  a
\nresult of  which  the  petitioner sustained multiple injuries.  Petitioner was
\nadmitted in a private hospital and underwent treatment as inpatient for nearly
\ntwo months.  Due to the accident, petitioner’s left  fore-foot  was  amputated
\nand  hence  he  went  on medical leave from 22.9.1994 to January, 1995 and the
\nmedical leave was also sanctioned by the Department.    After  expiry  of  the
\nleave  period,  petitioner returned back to duty by submitting medical fitness
\ncertificate and he was posted at Crime Record Bureau.  It  is  stated  by  the
\npetitioner  that  thereafter  he  continuously  discharged  his  routine  duty
\nregularly without any complaint and  considering  his  sincere  and  dedicated
\nservices, he was promoted as Head Constable on 13.11 .1998.\n<\/p>\n
        (b)     It  is the further case of the petitioner that he was directed
\nto appear before the Medical Board on 30.1.2001 at 8.00 a.m., and  accordingly
\npetitioner  appeared before the Resident Medical Officer and four Doctors, who
\nexamined him and according to the petitioner, he was found fit for duty by the
\nMedical Board, but copy of the report was not furnished to him.    Thereafter,
\nthe  first  respondent by proceedings dated 5.2.2001 issued the impugned order
\ninvalidating  the  petitioner  from  service  without  assigning  any  reason.
\nPetitioner  challenged  the said order in appeal before the second respondent,
\nwho dismissed the appeal on 30.5.2001 by a non-speaking order and directed the
\npetitioner to sign his pension papers.  The case of the  petitioner  is,  even
\nassuming  the  Medical  Board found that the petitioner is unable to discharge
\nhis regular duties, he should have been given alternate employment  and  hence
\nthe invalidation of the petitioner from service is unsustainable.\n<\/p>\n
        3.      The  second respondent filed counter affidavit stating that as
\nper the report of the Medical Board, petitioner’s name was struck off from the
\nPolice strength of Madurai City Police with effect  from  8.2.20  01  and  the
\npetitioner  applied  for  pension  on 25.9.2001 and the same was sanctioned on
\n23.10.2001.  It is further stated that the report of the  Medical  Board  need
\nnot  be  furnished to the petitioner as he himself appeared before the Medical
\nBoard and only based on the  report  of  the  Medical  Board,  petitioner  was
\ninvalidated from  service.  It is also stated in the counter affidavit that in
\nPolice Department, which is service oriented department, one  is  expected  to
\nkeep  good  health  and physic as warranted by duty and therefore, there is no
\nillegality in the impugned order.\n<\/p>\n
        4.      Mr.A.Amalraj, learned counsel  appearing  for  the  petitioner
\nargued  that  the  impugned  orders  of  the  respondents  are contrary to the
\nprovisions of the Persons with Disabilities (Equal  Opportunities,  Protection
\nof  Rights  and  Full  Participation)  Act,  1995  as  the  said  Act is fully
\napplicable to the respondent Department and the benefit  under  the  said  Act
\nshall be given to the deserving persons as held in the decision of the Supreme
\nCourt reported  in  2003  (2)  Supreme  102  (Kunal Singh v.  Union of India &
\nAnother).  The learned  counsel  also  placed  reliance  on  the  very  recent
\ndecision  of  this  Court  reported  in 2006 (1) CTC 124 (P.Thangamarimuthu v.
\nTamil Nadu State Transport Corporation, Madurai (Division-I)) and<\/a>  prayed  for
\nsetting  aside  impugned order of the respondents and reinstate the petitioner
\nwith back wages with continuity of service from February, 2001.\n<\/p>\n
        5.      The learned Government Advocate argued that  in  view  of  the
\nreport submitted by the Medical Board, petitioner was invalidated and there is
\nno  illegality  in  the  impugned  orders  and  the  same  do not call for any
\ninterference.\n<\/p>\n
        6.      I have considered the rival submissions made  by  the  learned
\ncounsel for the petitioner as well as the learned Government Advocate.\n<\/p>\n
        7.(a)   In  the decision reported in 2003 (2) Supreme 102 (Kunal Singh
\nv.  Union of India & Another) the Honourable Supreme  Court  held  that  if  a
\nperson  has  acquired disability by injury during his service and if not found
\nsuitable for the post of constable he was holding, he  should  be  shifted  to
\nsome  other  post  with  same  pay-scale and service benefits but he cannot be
\ninvalidated on this ground from service.  The Court further held that  Section
\n47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights
\nand  Full  Participation)  Act,  1995,  casts  a  statutory  obligation on the
\nemployer  to  protect  an  employee  acquiring  disability   during   service.
\nParagraph 9 of the judgment is relevant and the same is extracted hereunder,
\n        “9.     Chapter  VI  of  the  Act  deals  with  employment relating to
\npersons with disabilities, who are yet to  secure  employment.    Section  47,
\nwhich falls in Chapter VIII, deals with an employee, who is already in service
\nand acquires  a  disability during his service.  It must be borne in mind that
\nSection 2  of  the  Act  has  given  distinct  and  different  definitions  of
\n“disability” and  “person  with  disability”.   It is well settled that in the
\nsame  enactment  if  two   distinct   definitions   are   given   defining   a
\nword\/expression,   they  must  be  understood  accordingly  in  terms  of  the
\ndefinition.  It must be remembered that person  does  not  acquire  or  suffer
\ndisability by  choice.    An  employee,  who  acquires  disability  during his
\nservice, is sought to be protected under Section 47 of the  Act  specifically.
\nSuch  employee,  acquiring disability, if not protected, would not only suffer
\nhimself but possibly all those who depend on him would also suffer.  The  very
\nframe and  contents  of Section 47 clearly indicate its mandatory nature.  The
\nvery opening part of Section reads “no establishment shall dispense  with,  or
\nreduce  in  rank,  an  employee who acquires a disability during his service”.
\nThe Section further provides that if an employee after acquiring disability is
\nnot suitable for the post he was holding, could be shifted to some other  post
\nwith  the same pay scale and service benefits; if it is not possible to adjust
\nthe employee against any post he will be kept on a supernumerary post until  a
\nsuitable  post is available or he attains the age of superannuation, whichever
\nis earlier.  Added to this no promotion shall be denied to a person merely  on
\nthe ground of his disability as is evident from sub-section (2) of Section 47.
\nSection  47  contains  a  clear directive that the employer shall not dispense
\nwith or reduce in rank an  employee  who  acquires  a  disability  during  the
\nservice.   In  construing  a provision of social beneficial enactment that too
\ndealing with disabled persons  intended  to  give  them  equal  opportunities,
\nprotection of rights and full participation, the view that advances the object
\nof the Act and serves its purpose must be preferred to the one which obstructs
\nthe object  and  paralyses  the purpose of the Act.  Language of Section 47 is
\nplain and certain casting statutory obligation on the employer to  protect  an
\nemployee acquiring disability during service.”\n<\/p>\n
        (b)     A  Division  Bench  of  this Court in the decision reported in
\n2004 WLR 398 (Metropolitan Transport Corporation v.   The  Presiding  Officer,
\nPrincipal  Labour  Court  &  Another)<\/a>  upheld  the order of the learned single
\nJudge, cancelling the order of medical invalidation.  In paragraphs 5 to 7  of
\nthe Judgment the Division Bench held as under,
\n        “5.     Counsel for the appellant sought to rely on a Government Order
\nof  the year 1981 which directs that the persons who are found medically unfit
\nto continue to work on account of inter alia, of  disability  acquired  during
\nthe course  of  employment should be treated only as a fresh recruits.  It was
\ntherefore,  claimed  that  the  Government  Order  should  be  allowed  to  be
\nimplemented and the employees be treated as a fresh recruit.\n<\/p>\n
        6.      We see no substance in this contention.  That Government Order
\non  which  reliance  was  placed  was  made  at a time when Parliament had not
\nlegislated with reference to persons who suffer from disabilities.  Parliament
\nhaving taken note of the plight of the disabled    either  born  disabled  or
\nthose  who  acquired  it  later,  has legislated a special enactment for their
\nbenefit  “The Persons with Disabilities (Equal Opportunities,  Protection  of
\nRights and Full Participation) Act, 1995 “.\n<\/p>\n
        7.      That Act  was  enacted in the year 1995.  Most of the agencies
\nof the Government as also public  at  large  appear  to  have  remained  quite
\nignorant  of  it’s beneficial provisions and not enough care has been taken by
\nthose concerned to ensure the benefits conferred  by  that  Act  are  in  fact
\nextended to those entitled thereto.”\n<\/p>\n
        (c)     In an another Division Bench decision reported in 2005 (2) L.W
\n5 65   (Metropolitan   Transport   Corporation   Ltd.,   Chennai-2   v.     K.
\nRavichandran),<\/a> this Court held that  the  language  of  section  3(1)  of  the
\nWorkmen’s  Compensation  Act  is  different  from that of section 47(1) of the
\nPersons with Disabilities (Equal Opportunities, Protection of Rights and  Full
\nParticipation) Act,  1995.    In  paragraphs 9 and 10, the Division Bench held
\nthus,
\n        “9.     Thus,  the  language  of  Section  3(1)   of   the   Workmen’s
\nCompensation Act is very different from that of Section 47(1) of the 1995 Act.
\nWe cannot import notions of the Workmen’s Compensation Act, 1923 into the 1995
\nAct which is a totally different Act.\n<\/p>\n
        10.     It  may  be  mentioned that the 1995 Act is a piece of welfare
\nlegislation and hence it has to be  liberally  construed  giving  a  purposive
\ninterpretation.   The object of the Act obviously is to fulfill the mandate of
\nthe Diretive Principles of State Policy in Part IV of the Constitution.  Hence
\nfull effect must be given to this objective.  In our opinion, the  words  “who
\nacquires  a disability during his service” means that the disability should be
\nacquired while in employment, and it  is  not  necessary  that  it  should  be
\nacquired while  performing  his  work.    It  is  also  not necessary that the
\nemployment should be the cause of disability.”\n<\/p>\n
        (d)     This Court in 2006 (1) CTC 124 (P.Thangamarimuthu  v.    Tamil
\nNadu  State  Transport  Corporation,  Madurai  (Division-I))<\/a> quashed a similar
\nmedical invalidation order passed against a Conductor of the Tamil Nadu  State
\nTransport  Corporation  by  applying the provisions contained in Section 47 of
\nthe Act and held that it is a beneficial legislation passed in favour  of  the
\ndisabled persons and the same cannot be narrowly interpreted.\n<\/p>\n
        8.      Section   47   of   the   Persons   with  Disabilities  (Equal
\nOpportunities, Protection of Rights and Full Participation) Act, 1995 reads as
\nunder,
\n        “Section 47.  Non-discrimination in  Government  employment.-  (1)  No
\nestablishment shall dispense with, or reduce in rank, an employee who acquires
\na disability during his service:\n<\/p>\n
        Provided  that,  if  an  employee,  after  acquiring disability is not
\nsuitable for the post he was holding, could be shifted to some other post with
\nthe same pay scale and service benefits.\n<\/p>\n
        Provided further that if it is not possible  to  adjust  the  employee
\nagainst any post, he may be kept on a supernumerary post until a suitable post
\nis available or he attains the age of superannuation, whichever is earlier.\n<\/p>\n
        (2)     No  promotion shall be denied to a person merely on the ground
\nof his disability:\n<\/p>\n
        Provided that the appropriate government may,  having  regard  to  the
\ntype  of  work carried on in any establishment, by notification and subject to
\nsuch conditions, if any, as may be specified in such notification, exempt  any
\nestablishment from the provisions of this section.”\n<\/p>\n
A  bare  reading  of  the  above  section  clearly  mandates the department to
\naccommodate the disabled employee either by retaining him in the said post  or
\nshifting to some other post with same scale of pay and service benefits and if
\nalternate suitable post is not available, the concerned employee shall be kept
\non  a  supernumerary post until a suitable post is available or he attains the
\nage of superannuation, whichever is  earlier,  and  he  shall  not  be  denied
\npromotion merely  on  the  ground  of  his disability.  As per the proviso the
\nappropriate Government may issue notification  specifying  certain  conditions
\nand exempting any establishment from the provisions of the section.\n<\/p>\n
        9.      In  this case, admittedly no Government notification is issued
\nto contend that the beneficial provision under Section 47 of the 1995  Act  is
\nnot applicable  to  the  Police  Department.    The  case  considered  by  the
\nHonourable Supreme Court in the decision reported  in  2003  (2)  Supreme  102
\n(cited  supra) deals with the service of a Constable of Special Service Bureau
\nand in the said case the Supreme Court granted relief to the Constable,  which
\nis also  a  disciplined  force.    Therefore, the impugned order passed by the
\nrespondents are totally in  violation  of  Section  47  of  the  Persons  with
\nDisabilities   (Equal   Opportunities,   Protection   of   Rights   and   Full
\nParticipation) Act, 1995 and against the decisions referred above.\n<\/p>\n
        10.     Therefore I am of  the  view  that  the  impugned  orders  are
\nunsustainable  and  the  same  are  liable to be set aside and accordingly set
\naside.  The petitioner shall be reinstated into service within a period of two
\nweeks from the date of receipt of copy of this order.  Petitioner is  entitled
\nto get  all  backwages.   The pension paid to him from the date of his medical
\ninvalidation till the  date  of  reinstatement  shall  be  adjusted  from  the
\nbackwages to be paid to him.\n<\/p>\n
        The writ petition is allowed with the above directions.  No costs.\n<\/p>\n
vr<\/p>\n
To\n<\/p>\n
1.      The Deputy Commissioner of Police,
\n        Crime & Traffic, Madurai City, Madurai  1.\n<\/p>\n
2.      The Commissioner of Police,
\n        Madurai City, Madurai  1.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Rajendran vs The Deputy Commissioner Of Police on 16 February, 2006 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-152538","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Rajendran vs The Deputy Commissioner Of Police on 16 February, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-rajendran-vs-the-deputy-commissioner-of-police-on-16-february-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Rajendran vs The Deputy Commissioner Of Police on 16 February, 2006 - 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