Thursday, 13 August 2020

Bombay HC: Employee should not be removed from employment if he acquires a disability during his service

The Supreme Court in the case of Kunal Singh vs.
Union of India (supra) was concerned with a case where an
employee suffered from 'locomotor disability' falling within
Section 2(i)(v), but did not have a certificate of a person with
disability under Section 2(t). The Court in that case succinctly
explained the difference between the expressions “disability”
under Section 2 (i) and “person with disability” under Section
2(t), particularly in the context of Section 47 in paragraph Nos.7,
9 and 10 of the judgment, which reads thus :-
“7. From the facts, which are not in dispute, it is clear that
the disability suffered by the appellant is covered by Section
2(i)(v)read with Section 2(o) of the Act. It is also not in
dispute that this disability was acquired by the appellant
during his service. Under Section 2 "disability" and "person
with disability" are separately defined and they are distinct.
We may also notice some provisions in Chapter VI of the Act
relating to employment. Section 32 deals with identification
of posts which can be reserved for persons with disabilities.

Section 33 speaks of reservation of such percentage of
vacancies not less than 3%for persons or class of persons
with disability of which 1% each shall be reserved for
persons suffering from (i) blindness or low vision; (ii) hearing
impairment and (iii) locomotor disability or cerebral palsy.
Section 38 requires the appropriate Governments and local
authorities to formulate schemes for ensuring employment
of persons with disabilities. Section 47 is included in Chapter
VIII of the Act. Chapter VI deals with employment relating to
persons with disabilities including identification of posts and
reservation of vacancies for such persons. Under this
Chapter, reservation of vacancies for persons with
disabilities is made for initial appointments. Section 47 in
Chapter VIII deals with an employee of an establishment
who acquires a disability during his service.
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.
10. The argument of the learned counsel for the
respondent on the basis of definition given in Section 2(t) of
the Act that benefit of Section 47 is not available to the
appellant as he has suffered permanent invalidity cannot be
accepted. Because, the appellant was an employee, who has
acquired 'disability' within the meaning of Section 2(i) of the
Act and not a person with disability.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10254 OF 2019

Brihan Mumbai Electric Supply and Transport Undertaking 
 Vs  Sadashiv Dnyandeo Gaikwad 

CORAM : MILIND N. JADHAV, J.

PRONOUNCED ON : 12th August, 2020.



1. Rule. Rule made returnable forthwith. Heard finally
by consent of the parties.
2. This petition has been filed by the petitioner under
Articles 226 and 227 of the Constitution of India to challenge the
validity and propriety of the judgment and order dated
08.10.2018 (though the order has been signed and dated as on
11.10.2018) passed by the Commissioner and Competent
Authority, Welfare of Persons with Disabilities in Appeal No.5 of
2016 under the provisions of The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (hereinafter referred to as the 'said Act'. The petitioner
(employer) is a statutory undertaking of the Mumbai Municipal
Corporation of Greater Mumbai and a public utility service.
3. Respondent No.1 (employee) has filed Civil
Application No.2166 of 2019 for seeking various reliefs in
compliance with the impugned order dated 08.10.2018.

4. Briefly, the facts pertaining to the case are as under:
(a) Respondent No.1 was appointed as bus conductor on
11.09.1993 at Malvani Bus Depot, Mumbai and had
since then been working with Brihan Mumbai Electric
Supply and Transport Undertaking (herein after
referred to as "BEST").
(b) On 03.05.2011, respondent No.1 met with an
accident with his motor cycle while travelling to his
native place in Pune resulting in serious injury to his
left knee / leg. Respondent No.1 was initially
admitted to Bhagali Hopsital at Pune and operated
upon in the said hospital. Three metal plates were
implanted in his left leg knee. Later on, two more
operations were conducted on his left knee / leg at
the same hospital.
(c) Thereafter respondent No.1 went to resume his
duties at Malwani Bus Depot whereupon he was

initially referred to the doctors at Mumbai Central Bus
Depot, Mumbai and thereafter further referred to KEM
Hospital, Parel, Mumbai for further medical
examination / treatment and guidance.
(d) On 18.01.2012, the doctors at KEM Hospital, Mumbai
conducted surgery / operation on his left knee and
removed one implanted steel plate. Thereafter on
22.02.2012, the second implanted steel plate was
also removed by conducting another surgery /
operation.
(e) On 12.06.2012, respondent No.1 had to undergo a
third surgery / operation at KEM Hospital whereby
titanium screws were fitted into his left leg knee on a
permanent basis. Respondent No.1 was kept under
observation in KEM Hospital, Parel, Mumbai and was
discharged on 05.07.2012.
(f) The Medical Officer - Incharge of KEM Hospital, Parel,

Mumbai issued medical certificate dated 12.10.2012,
inter alia, stating that respondent No.1 was having
multi ligament tear of knee and hence 41% total
permanent disability. It was opined by the doctors
that respondent No.1 was unfit for conductor's job
permanently but fit for sedentary / office job only.
(g) After the aforesaid trauma and surgeries, armed with
the disability certificate issued by KEM Hospital,
Parel, Mumbai, respondent No.1 reported back to
Malwani Bus Depot, Mumbai but was once again
referred to the doctors at Mumbai Central Bus Depot
and thereafter to undergo further medical
examination, treatment and guidance at Lokmanya
Tilak Memorial Hospital, Sion, Mumbai.
(h) On 12.01.2012, the doctors at Lokmanya Tilak
Memorial Hospital, Sion, Mumbai examined
respondent No.1. Respondent No.1 was thereafter
repeatedly called to Lokmanya Tilak Memorial

Hospital, Sion, Mumbai for physical check up but no
medical test or medical treatment was given or
conducted by the said Hospital. On 03.12.2012, the
doctors of Lokmanya Tilak Memorial Hospital, Sion,
Mumbai issued certificate dated 03.12.2012, inter
alia, certifying that respondent No.1 was suffering
from left leg knee multi ligament injury and it was
stated that he was permanently unfit for the job of
conductor and fit for sedentary / office job only.
(i) Thereafter respondent No. 1 reported to Malwani Bus
Depot, Mumbai but was again referred to the doctors
at Mumbai Central Bus Depot and thereafter to
respondent No.3 i.e. All India Institute of Physical
Medicine and Rehabilitation at Mahalaxmi, Mumbai
for further medical check up, treatment and
guidance. After conducting various examinations,
physiotherapy and physical therapies between
19.12.2012 and 12.04.2013, the respondent No.3 i.e.
All India Institute of Physical Medicine and

Rehabilitation at Mahalaxmi, Mumbai issued a
detailed report to Respondent No.1 about his
condition, therapies conducted and being medically
unfit.
(j) Thereafter, respondent No.1 was referred by the
doctors at Mumbai Central Bus Depot to report to the
respondent No.4 i.e. Standing Medical Board of Sir J.J.
Group of Hospitals for further treatment and advice
on 27.07.2013. The doctors of the Standing Medical
Board of Sir. J.J. Group of Hospitals checked the
respondent No.1 externally over a period of about
five months and carried out pathological tests i.e
urine test, blood test, eye test, chest test, HIV test
etc. and issued medical disability certificate dated
19.12.2013 to respondent No.1, inter alia, opining
17% disability and stating that respondent No.1 was
unfit for conductor's job but fit for light duty.
(k) On 03.03.2014, respondent No.1 was referred to

Respondent No.3 i.e. All India Institute of Physical
Medicine & Rehabilitation for issuance of disability
certificate i.e. percentage of permanent disability as
per Government Circular dated 31.12.2012.
(l) Respondent No.3 issued Intimation of Rejection of
Application for Disability Certificate in Form V on
examination by the Board on 11.07.2014 stating that
it was not possible to issue Disability Certificate as
disability is < 40%.
(m) Respondent No.1 thereafter, by his application
requested the petitioner to give him light duty as
there was no source of income for him and he was
facing hardship. In the meanwhile, the Deputy
Medical Officer of the petitioner vide letter dated
09.04.2014 awarded light duty to the respondent
No.1 for a period of sixteen months i.e upto
08.05.2015 on the pass counter to issue travellers'
passes to passengers.

(n) On 01.09.2015, the Deputy Chief Manager, Traffic
rejected respondent No.1's further application for
light duty and issued termination letter, thereby
permanently terminating the services of respondent
No.1.
(o) Being aggrieved, respondent No.1 filed Civil Writ
Petition No.10601 of 2015 in this Court wherein the
following order came to be passed:
"1. Writ Petition is disposed of opining that this
Court is not entertaining the matter, invoking
its writ jurisdiction under Article 226 of the
Constitution of India since there is an
Authority to consider the cause raised in this
Writ Petition i.e. Commissioner. The Persons
with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act
1995 (for short, the said Act) under section 62
provides for the same. The Petitioner is at
liberty to approach the Commissioner, the
authority who can look into the grievances
raised in the Writ Petition by the Writ
Petitioner and the same shall be disposed of
in accordance with procedure, within three
months from today."
(p) Thereafter respondent No.1 filed Statutory Appeal
No.5/2016 before the Appropriate Authority. The

Appropriate Authority by order dated 17.04.2017
partly allowed the appeal of respondent No.1 and
directed the petitioner to reinstate respondent No.1
forthwith along with back wages and allowances.
Respondent No.1 thereafter repeatedly made several
requests by addressing letters to the petitioner to
comply with and implement the order but the
petitioner did not take any action.
(q) The petitioner, thereafter, belatedly filed Writ Petition
No.4454 of 2018 in this Court to challenge the order
dated 17.04.2017. The said petition came to be
disposed of on 11.04.2018 with the following
directions, inter alia, remanding the case of
respondent No.1 to the respondent No.2 i.e.
Commissioner and Competent Authority, Welfare of
Persons with Disabilities Act:-
"Learned counsel for the respondent No. 1
states that his client has no objection if the
impugned order passed by the respondent No. 2 is
set aside and if the matter is remanded back to the
learned Commissioner and Competent Authority,
Welfare of Persons with Disabilities for hearing and

final disposal and for passing a fresh order in
accordance with law in the proceedings in Appeal
5 of 2016. Statement is accepted.
2. I therefore pass the following order :-
(i) The impugned order dated 17th April 2017 is
accordingly set aside.
(ii) The complaint filed by the respondent No. 1
is restored before the authority. The said
proceedings in Appeal 5 of 2016 shall be
decided without being influenced by the
observations made and conclusion drawn in
the impugned order dated 17th April 2017.
(iii) The question as to whether the parties will
be governed by the provisions of the
Persons with Disabilities Act, 1995 or
whether the Rights of Persons with
Disabilities Act, 2016 is kept open. Such
issue shall be decided by the authority.
(iv) The complaint shall be disposed of
expeditiously and not later than four months
from the date of the next meeting.
(v) Parties to appear before the authority on
25th April 2018 at 3.00 p.m.
(vi) Writ petition is disposed of in aforesaid
terms.
(vii) Their shall be no order as to costs.
(viii) Parties as well as the authority to act on the
authenticated copy of this order.
(r) After according an opportunity of hearing, respondent
No.2, Competent authority passed order dated
08.10.2018 partly allowing the appeal of respondent
No.1 and directing the petitioner to reinstate

respondent No.1 along with back wages and
allowances.
(s) Respondent No.1 sought his reinstatement by letter
dated 07.03.2019 but the petitioner did not reinstate
respondent No.1 and instead credited the amount of
Rs.4,32,903/- in the bank account of respondent
No.1. Respondent No.1 immediately issued a cheque
of Rs.4,32,903/- in the name of BEST Undertaking to
return the aforesaid amount but the petitioner did not
accept the same and returned the same back to
respondent No.1.
(t) Thereafter, petitioner filed the present petition on
13.06.2019 i.e after a period of eight months in this
Court to challenge the validity and legality of the
order dated 08.10.2018 passed by respondent No.2
i.e. Commissioner and Competent Authority, Welfare
of Persons with Disabilities (Respondent No. 2).

5. Respondent No.1 has taken out Civil Application No.
2166 of 2019 in the present writ petition for the following
reliefs:-
"(a) Pending the hearing and final disposal of this Writ Petition
that this Hon'ble Court be pleased to direct the
respondents / Org. petitioners herein above to award a
Light Duty to the applicant / orig. as the applicant / orig.
respondent No. 1 is ready and willing to do job; or direct
the respondents / orig. petitioners herein above to start
the monthly salary to the applicant / orig. respondent No.
1;
(b) that interim and / or ad-interim reliefs in terms of prayer
clause (a) may be granted;
(c) that the Writ Petition filed by the respondents / Orig.
petitioners herein above deserves to be dismissed with
cost in the interest of justice;
(d) Any other and further reliefs as the nature and
circumstances of the present case may require be
granted in the interest of justice."
6. Mr. Naphade, learned counsel for the petitioner
submitted that the core issue relating to the lis between the
parties is the degree of disability of respondent No.1 in order to
be eligible and entitled for any concession or benefits under the
said Act. He submitted that on 01.06.2001, Union of India
through the Ministry of Social Justice and Empowerment issued
notification containing guidelines for evaluation of various

disabilities. He submitted that under the said guidelines, the
minimum degree of disability should be 40% for the purpose of
seeking entitlement and benefit under the said Act. He
defended the order dated 11.07.2014 paned by respondent No.3
and termination letter dated 01.09.2015 in as much as the same
had been passed after due consideration of the fact that the
disability of respondent No.1 was less than 40% and in
accordance with the aforesaid guidelines. Mr. Naphade relied
upon the administrative order bearing No.317 dated 02.02.2005
issued by the petitioner, inter alia, for the purpose of strict
implementation of the provisions of the said Act for the purpose
of providing alternate employment to traffic / outdoor staff i.e
bus conductors / bus drivers. He submitted that for the purpose
of availing alternate employment under the aforesaid
administrative order, the employee was required to suffer a
disability of 40% or more. He submitted that respondent No. 1
was awarded light duty in the interregnum to enable him to
produce the disability certificate which he was not able to
produce. Mr. Naphade further relied upon departmental circular
dated 19.10.2016 which stated that the petitioner undertaking

had decided to pay compensation to employees whose services
were terminated. He submitted that Section 2(t) of the said Act,
defined a person with disability as a person suffering from
disability of not less than 40% and thus, if a person is to be
categorized as disabled, a minimum of 40% disability as
mandated by the said Act had to be there. He emphasized on
the medical report dated 19.12.2013 issued by respondent No.4
which stated that respondent No. 1 suffered from 17% disability
and therefore contended that he was not entitled to any benefit
under the said Act.
7. Mr. Naphade next submitted that the provisions of
Section 80(b) of the Rights of Persons with Disabilities Act, 2016
did not empower the respondent No.2 i.e. the Commissioner to
grant reinstatement and therefore the impugned order was
incorrect to that extent. He submitted that the impugned order
failed to consider the fact that Sections 80 and 82 of the above
Act were only recommendatory in nature and did not confer any
power upon the Commissioner to pass binding orders. He
submitted that respondent No.2 i.e. the Commissioner while

passing the impugned order exceeded his jurisdiction as
conferred upon him by the aforesaid provisions. Mr. Naphade
has also fairly argued and invited my attention to the Medical
history, reports and certificates issued by KEM Hospital and
Lokmanya Tilak Memorial Hospital certifying the status and
disability percentage of respondent No.1.
8. In support of his above submissions, Mr. Naphade has
refered to and relied upon the following judgments:-
(i) Vaishali Walmik Bagul Vs.
Secretary, Prerna Trust, Aurangabad & Ors.
2013(5) Mh. L.J. 221;
(ii) State Bank of Patiala & Ors. Vs.
Vinesh Kumar Bhasin.
(2010) 4 SCC 368;
(iii) Asha T. Dongare Vs.
T.S.K. Reddy & Anr.
unreported judgment dated 12.2.2016 in Contempt
Petition
No. 264 of 2015;
(iv) Geetaben Ratilal Patel Vs.
District Primary Education Officer.
(2013) 7 SCC 182;
(v) The General Manager of BEST Undertaking Vs.
Mohammad Ramjan M. Shahaban & Anr.
Unreported judgment dated 27.3.2018 in OS Writ
Petition
No. 2900 of 2017;

(vi) The Shipping Corporation of India Vs.
Haripada Shaileshwar Chaterjee.
2016 SCC OnLine Bom 9562;
(vii) Collector, Bilaspur Vs.
Ajit P. Jogi & Ors.
(2011) 10 SCC 357.
9. PER CONTRA, Mr. J.P. Kharge, learned counsel appearing
for respondent No.1 in the Writ Petition and Applicant in the Civil
Application submitted that the disability of respondent No.1 as
certified by the doctors at KEM Hospital, Parel and Lokmanya
Tilak Memorial Hospital, Sion has been certified as being in
excess of 40%. He, therefore, submitted that prima facie, if the
disability of respondent No.1 was 41% permanent disability as
certified, the applicability of the provisions, administrative order
and notification issued by the petitioner undertaking will not
apply to the respondent No.1's case. He submitted that the
Medical Officers in-Charge of KEM Hospital, Parel, Mumbai have
issued medical disability certificate in Form "A" under the
Workmen's Compensation Act on 12.10.2012 certifying 41%
total permanent disability. He submitted that Lokmanya Tilak
Memorial Hospital, Sion has also issued certificate dated
05.08.2013, inter alia, certifying permanent disability of

respondent No.1. He submitted that both the aforesaid
certificates were issued after following due process of law and
after undergoing medical examination of respondent No.1 for a
considerable period of time at the two hospitals on the
recommendation of the petitioner. He submitted that both the
hospitals / doctors were leading Municipal hospitals in the city of
Mumbai in as much as respondent No.1 was examined by the
panel of doctors from these hospitals and there was no reason
to impugn or disbelieve or undermine the certificates and
opinion issued by the aforesaid two hospitals. He submitted
that as against the above status of respondent No.1, respondent
No.3 i.e. All India Institute of Physical Medicine and
Rehabilitation at Mahalaxmi, Mumbai has rejected the
application for issuance of disability certificate on the ground
that disability of respondent No.1 is less than 40% relying solely
upon the certificate of disability issued by the respondent No.4
i.e. Medical Board of Sir J.J. Group of Hospitals which certified
that the respondent No. 1 had 17% disability. He submitted that
the certificate issued by the Medical Board of Sir J.J. Group of
Hospitals did not assign any reason or details for certifying 17%

disability, nor were any tests conducted during the span of 5
months between July 2013 to December 2013, when respondent
No. 1 was referred to the said Hospital for the third time by the
petitioner. He supported the order dated 08.10.2018 and
submitted that the same has been passed in accordance with
law in the facts and circumstances of the respondent No.1’s –
case.
10. In support of his submissions, Mr. Kharge has refererd
to and relied on the following judgments:-
(i) Kunal Singh Vs.
Union of India & Anr.
(2003) 4 SCC 524;
(ii) Geetaben R. Patel Vs.
District Primary Education Officer
(2013) 7 SCC 182;
(iii) Sahebrao Baliram Ambhore Vs.
The Chairman & Manager Bombay
Electric Supply & Transport Undertaking & Ors.
Order dated 14.8.2015 in Civil WP 6485 of 2015;
(iv) The General Manager of BEST Undertaking Vs.
Mohammad Ramjan M. Shahaban & Anr
unreported judgment dated 27.3.2018 in OS Writ
Petition No. 2900 of 2017
11. At the outset, it is important to assimilate and note

the relevant provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 as also its object and reasons.
12. The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act was enacted in
1995 to meet the following object and reasons:
(i) to spell out the responsibility of the State towards
the prevention of disabilities, protection of rights,
provision of medical care, education, training,
employment and rehabilitation of persons with
disabilities;
(ii) to create barrier free environment for persons with
disabilities;
iii) to remove any discrimination against persons with
disabilities in the sharing of development benefits, visà-
vis non-disabled persons;
iv) to counteract any situation of the abuse and the
exploitation of persons with disabilities;
v) to lay down a strategy for comprehensive
development of programmes and services and
equalization of opportunities for persons with

disabilities; and
vi) to make special provision of the integration of
persons with disabilities into the social
mainstream.
13. Section 47 of the said Act which deals with nondiscrimination
in Government employment reads as follows:
“47 - Non-discrimination in Government
employments - (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.”
14. The appointment, function and duties of the Chief
Commissioner and Commissioners for Persons with Disabilities
have been laid down under Chapter XII of the Act.
(i) In Section 58(c) of the Act it is stated that the Chief
Commissioner shall take steps to safeguard the rights and
facilities made available to persons with disabilities.
(ii) The Commissioner is empowered under S ection 62 of
the said Act to look into the complaints in respect to matters
relating to deprivation of rights of persons with disabilities.
Section 62 reads thus:-
“62 - Commissioner to look into complaints with respect
to matters relating to deprivation of rights of persons
with disabilities.- Without prejudice to the provisions of
section 61 the Commissioner may of his own motion or
on the application of any aggrieved person or otherwise
look into complaints with respect to matters relating to--
(a) deprivation of rights of persons with disabilities;
(b) non-implementation of laws, rules, bye-laws,

regulations, executive orders, guidelines or instructions
made or issued by the appropriate Governments and the
local authorities for the welfare and protection of rights
of persons with disabilities, and take up the matter with
the appropriate authorities.”
15. The provisions of Sections 47 and 62 of the Act, when
read together, empower the Commissioner, to look into
complaints with respect to matters relating to deprivation of
rights of persons with disabilities and non-implementation of
laws, rules, bye-laws, regulations, executive orders, guidelines
or instructions issued by the appropriate Governments or local
authorities and to take up the matter with the appropriate
authorities for the welfare and protection of rights of persons
with disabilities including matter relating to dispensation with
service or reduction in rank. The power of the Commissioner “to
look into the complaints with respect to matters relating to
deprivation of rights” as provided under Section 62 of the Act is
not an empty formality and the Commissioner is required to
apply his mind on the question raised by the complainant to find
out the truth behind the complaint. If so necessary, the
Commissioner may suo motu inquire into the matter and/or
after giving notice, hear the concerned parties and after going

through the records may decide the complaint. If it comes to the
notice of the Commissioner that a person with disability has
been deprived of his rights or that the authorities have flouted
any law, rule, guideline, instruction, etc. issued by the
appropriate Government or local authorities, the Commissioner
is required to take up the matter with the appropriate authority
to ensure restoration of rights of such disabled person and/or to
implement the law, rule, guideline, instruction if not followed. A
complaint may be made by any disabled person himself or any
person on behalf of disabled persons or by any person in the
interest of disabled persons.
16. In the present case, it is important to note that at the
behest of the petitioner, respondent No.1 was made to run from
pillar to post for an invariably long period of time to undergo
medical examination / test for determining his suitability /
disability quotient with three leading hospitals in Mumbai, viz;
KEM Hospital, Lokmanya Tilak Memorial Hospital and Sir. J.J.
Hospital. If one sees the amount of time which has been spent
by respondent No.1 in under going the visits and medical tests
physiotherapy, rehabilitation therapy etc. in these three

hospitals over a period of several years then the certificates
issued by these hospitals will have to be scrutinised minutely
and considered.
17. On perusal of the certificates issued by the first two
hospitals i.e. KEM Hospital and Lokmanya Tilak Memorial
Hospital, it is seen that the said certificates have been issued
after a detailed analysis, scrutiny, quarantining and effective
check up of respondent No.1 by the said Hospitals. Admittedly
the entire medical history of injury, progress, operations carried
out, rehabilitation therapy, physio therapy, disability quotient
and remarks etc. pertaining to respondent No.1 have been
placed on record by both the hospitals concluding and
confirming that due to the disability of respondent No.1 he was
unable and unfit to do the job of a Bus Conductor and fit for any
other sedentary job. Incidentally, KEM Hospital has also
operated upon the respondent No.1. It has issued a disability
certificate certifying the disability of the respondent No.1 as
being 41% disability with detailed reasons. Keeping that in mind
alternative employment was offered to respondent No.1 for over

a period of 15 months in a sedentary position / job before his
termination by petitioner. Therefore once the petitioner had
come to this decision on the basis of the medical disability
certificates issued by the aforesaid two leading hospitals, there
was virtually no reason to recommend the petitioner for a third
opinion to respondent No.4 i.e. Sir J.J. Group of Hospitals. It is
further important to note that Sir J.J. Group of Hospitals did not
conduct any specific medical test on respondent No.1 in order to
ascertain his disability quotient in terms of and under the
provisions of the said act. No specific tests to determine the
disability quotient of respondent No.1 were carried out by
respondent No.4 i.e. Sir J.J. Group of Hospitals. In this
background the certificate issued by respondent No.4 i.e. Sir J.J.
Group of Hospital is required to be examined carefully. The said
certificate merely on the face of the certificate in ‘hand writing’
states that the disability quotient of the respondent No. 1 is
17%. There is no analysis, scrutiny and above all no reasons
given by the medical board to arrive at the above finding that
disability of the respondent No.1 is 17%, especially when the
said hospital had the benefit of the entire case history and

certificates issued by KEM Hospital and Lokmanya Tilak
Memorial Hospital before itself. Based on the disability certified
by respondent No.4 in its medical certificate the petitioner has
taken the decision of terminating the employment of respondent
No.1 as being not entitled for alternative employment since his
disability was less than 40% and the respondent No.1 was
unable to procure the disability certificate from respondent
No.3. This on the face on record is highly arbitrary and is not
supported by any material evidence coming from the analysis
made by respondent No.4. From the documents on record I find
that respondent No.1 was also operated by KEM Hospital and
had undergone extensive rehabilitation therapy and physio
therapy in the said hospital. Further the entire medical case
history of respondent No.1 has been placed on record before me
and the same cannot be ignored and doubted. This medical
history given by KEM hospital has ultimately resulted in the
issuance of the disability certificate certifying the disability of
respondent No.1 as 41%.

18. The basis of challenge to the impugned order in the
present petition is two-fold. Firstly, it is submitted that the
Commissioner has no power under Section 62, whilst looking
into any complaint relating to deprivation of rights of persons
with disabilities, to pass a mandatory direction in the nature of
the impugned order. It is submitted that all that the
Commissioner can do under Section 62 of the Disabilities Act is
to take up the matter with the appropriate authority, namely, in
this case, the employer (i.e. the Petitioner). Secondly, it is
submitted that the respondent No.1’s application for issuance of
disability certificate for the purposes of claiming benefit by a
person with disability has been rejected by respondent No.3.
Petitioner has submitted that intimation of rejection of
application seeking disability certificate in Form V (under Rule 4)
was communicated to Respondent No.1 by the authority. A
certificate issued by the Dean, Member Secretary and Member
of Social Justice and Special Assistance Department, Public
Health Department, Directorate of Medical Education and
Research is referred to in this behalf by the petitioner. It is
submitted that application seeking disability certificate, thus,

being rejected by the authority, Respondent No.1 was not
entitled to be reckoned as a person with disability and the
Commissioner, accordingly, had no power to enquire into his
complaint.
19. Firstly, the argument that the Commissioner simply
has to take up the matter with the appropriate authority,
whatever that means, and can pass no direction, has no
substance at all. If all that is meant to be done by the
Commissioner for persons with disabilities under Section 62 of
the Act is to correspond or take up the issue with the
appropriate authority, i.e. to say, the employer as in this case,
then he is an authority with no effective role or purpose. It is
difficult to understand in that case the reason for conferring
extensive powers of the civil court on the Commissioner for the
purposes of discharging his functions under Section 61 and 62
of the said Act. If at the end of the day, all that he is expected to
do is to correspond or enquire with the authority, there is no
need to confer such elaborate procedural powers on him. The
only reasonable meaning that can be ascribed to the expression

“take up the matter with the appropriate authorities ” is that, in
an appropriate case, the Commissioner can issue suitable
instructions to the concerned authorities, i.e. to say, in case of
an employment related dispute to the employer, for redressing
the grievance of the employee who may be a person with
disability or who may have acquired disability during service.
The power may be to “take up the matter with the appropriate
authority”, but then the matter itself must be taken up with a
view to redress the grievance and do so effectively. If such
redressal involves implementation of any particular measure, or
taking any particular step provided in the Act, the authority, in
an appropriate case, can certainly be asked to follow the
mandate of the statute or take the particular step as may be
required thereunder.
20. The Supreme Court in the case of Geetaben Ratilal
Patel vs. District Primary Education Officer (supra) considered
the scope, proper exercise and power of the Commissioner to
look into complaints with respect to matters relating to
deprivation of rights of disabled persons. That was a case

where the appellant before the court had acquired during her
service a mental illness, which was certified as between 40% to
70%. The appellant was dismissed from service. She thereafter
filed an application before the Commissioner under Section 62
of the Disabilities Act. The Commissioner set aside the order of
dismissal holding the same to be void, since the appellant was
suffering from 40% to 70% mental disability at the time of her
dismissal and had to be accommodated in a suitable alternative
post as per Section 47 of the Act. The Commissioner directed
the employer to accommodate her in an appropriate post to be
created for her. In a challenge to the Commissioner's order, a
learned Single Judge of the Gujarat High Court held the
dismissal to be justified. This order was affirmed by a Division
Bench of that Court. The appellant challenged both orders
before the Supreme Court. The employer argued before the
Supreme Court that under Section 62 of the Disabilities Act, the
Commissioner was not competent to declare the order of
dismissal as void. The Court negatived this contention and held
as follows in paragraph No.20 of the judgment, which reads
thus:-

"20. The provisions of Sections 47 and 62 of the Act,when
read together, empower the Commissioner, to look into the
complaint with respect to the matters relating to deprivation
of rights of persons with disabilities and non-implementation
of laws, rules, bye-laws,regulations, executive orders,
guidelines or instructions issued by the appropriate
Governments or local authorities and to take up the matter
with the appropriate authorities for the welfare and
protection of rights of persons with disabilities including
matter relating to dispensation with service or reduction in
rank. The power of the Commissioner "to look into the
complaints with respect to the matters relating to
deprivation of rights" as provided under Section 62 of the Act
is not an empty formality and the Commissioner is required
to apply his mind on the question raised by the complainant
to find out the truth behind the complaint. If so necessary,
the Commissioner may suo motu inquire into the matter and/
or after giving notice,hearing the parties concerned and
going through the records may decide the complaint. If it
comes to the notice of the Commissioner that a person with
disability has been deprived of his rights or that the
authorities have flouted any law, rule, guideline, instruction,
etc. issued by the appropriate Government or local
authorities, the Commissioner is required to take up the
matter with the appropriate authority to ensure restoration
of rights of such disabled person and/or to implement the
law, rule, guideline, instruction if not followed. A complaint
may be made by any disabled person himself or any person
on behalf of disabled persons or by any person in the interest
of disabled persons. Thus the issue as involved is decided
affirmatively in favour of the appellant and against the
respondent."

21. Learned Counsel for the Petitioner relied on the case
of Vaishali Walmik Bagul vs. Secretary, Prerna Trust, Aurangabad
(supra). Learned Counsel submitted that the provisions of the
said Act do not confer power to issue directions on the
Commissioner. The Division Bench in that case was concerned
with the case of appointment of a person to a post. The person
had applied to the post citing his disability as one of the reasons
for recommending himself for appointment. The application was
rejected, and instead, some other person was issued
appointment letter. This was challenged by the applicant before
the Commissioner. The Commissioner, by his order, directed
the employer to appoint the applicant on the post advertised. It
is in the context of these facts that the Division Bench held that
the direction issued exceeded the functions of the
Commissioner under the provisions of Section 61 and 62 of the
Act. This decision of the Division Bench cannot be cited to
thwart an action on the part of the Commissioner of directing
the employer to comply with the mandate of Section 47 of the
Act. Hence this judgment does not support the case and
submissions advanced by the petitioner.

22. Learned Counsel for the Petitioner then relied on the
case of The Shipping Corporation of India vs. Shri. Haripada
Shaileshwar Chaterjee (supra) . Relying on this judgment,
learned Counsel submitted that the Commissioner has no power
to set aside an order of termination. In Shipping Corporation of
India's case, the service of complainant, who worked with the
Shipping Corporation as pantry officer, were terminated on
account of his permanent unfitness and he was awarded a
severance package. The order was challenged by the
complainant before the Commissioner under the said Act and,
on that application, the Commissioner set aside the termination
order and directed the Corporation to reinstate him with full
back wages and benefits. A learned Single Judge of this Court
held that the Commissioner had no such power. The learned
Judge observed that a bare reading of Section 62 of the Act
showed that the Commissioner had power to investigate and
take up the matter with the appropriate authorities; the Act did
not permit the Commissioner to pass an order in the form of a
mandatory direction. The learned Judge, with utmost respect,

failed to notice the law laid down by the Supreme Court in
Geetaben Ratilal Mehta's case (supra). The observations of the
learned Judge that the Commissioner has no power to pass a
mandatory direction under Section 62 of the Disabilities Act are,
in the face of the law laid down by the Supreme Court in that
case is clearly per incurium and do not bind me.
23. The contention of the Petitioner that Respondent No.1
is not entitled to be shifted to another post or that the
Commissioner had no power to pass such order for the reason
that the first Respondent's application for disability certificate
was rejected by the respondent No.3, also has no substance and
deserves to be rejected. In the first place, the so called
disability certificate issued by respondent No.4 and relied upon
by the petitioner leaves much to be desired. Further, it appears
that merely based upon the above certificate, rejection of the
application of respondent No.1 seeking disability certificate by
respondent No.3 is incorrect and not justified. According to the
mandate of the Disability Rules and, particularly, Rules 4 and 5,
what is expected of the medical authority in case of rejection of

a certificate is “to explain the reasons for rejection and to
convey the reasons in writing.” Conveying of reasons for
rejecting the application for disability certificate is the essence
of this provision. The so called medical certificate issued by
respondent No.4 and rejection letter by respondent No.3 does
everything but this. The rejection letter states that the
application for disability is rejected but leaves the reasons for
such rejection blank. A certificate such as this has no merit and
deserves to be discarded outrightly. But a more fundamental
point is that for claiming benefit of Section 47 a person does not
have to be certified as a “person with disability” under Section
2(t) of the said Act. The argument of learned Counsel for the
petitioner is that under Section 2(t), a 'person with disability' is
a person suffering from not less than forty percent of any
disability as certified by a medical authority; respondent No.1
did not suffer from forty percent or more disability (he suffered
from 17% disability as certified by respondent No.4) and
therefore respondent No.1 could not, in the premises claim
benefit of Section 47. This argument envisages that 'acquisition
of disability' within the meaning of Section 47 of the Disabilities

Act is the same as 'being a person with disability'. The two
expressions “disability” and “person with disability” are
separately defined. If, however, after obtaining such disability a
person is found to be 'not suitable for the post he was holding',
he could be shifted to some other post with the same pay scale
and service benefits and if that is not possible, he may be kept
on a supernumerary post until a suitable post is available or he
attains the age of superannuation, whichever is earlier. That is
the mandate of Section 47. There is nothing to suggest that for
applying this mandate, the employee must be shown to be a
'person with disability' within the meaning of Section 2(t), that is
to say,a person suffering from not less than forty per cent of any
disability as certified by a medical authority. In fact, such
interpretation would lead to an absurdity. One may in that case
actually end up suggesting that an employee can be dispensed
with, or reduced in rank, if he suffers from less than forty per
cent of any disability, but not if he suffers from forty per cent or
more disability. In other words, after acquiring less than forty
per cent disability, if an employee is not found suitable for the
post he is holding, he can be terminated and need not be shifted

to other suitable post, but if he acquires more than forty per
cent disability, he must be so shifted and cannot be terminated.
That would be a travesty of justice and no sensible legislature
could have ever intended such result.
24. The Supreme Court in the case of Kunal Singh vs.
Union of India (supra) was concerned with a case where an
employee suffered from 'locomotor disability' falling within
Section 2(i)(v), but did not have a certificate of a person with
disability under Section 2(t). The Court in that case succinctly
explained the difference between the expressions “disability”
under Section 2 (i) and “person with disability” under Section
2(t), particularly in the context of Section 47 in paragraph Nos.7,
9 and 10 of the judgment, which reads thus :-
“7. From the facts, which are not in dispute, it is clear that
the disability suffered by the appellant is covered by Section
2(i)(v)read with Section 2(o) of the Act. It is also not in
dispute that this disability was acquired by the appellant
during his service. Under Section 2 "disability" and "person
with disability" are separately defined and they are distinct.
We may also notice some provisions in Chapter VI of the Act
relating to employment. Section 32 deals with identification
of posts which can be reserved for persons with disabilities.

Section 33 speaks of reservation of such percentage of
vacancies not less than 3%for persons or class of persons
with disability of which 1% each shall be reserved for
persons suffering from (i) blindness or low vision; (ii) hearing
impairment and (iii) locomotor disability or cerebral palsy.
Section 38 requires the appropriate Governments and local
authorities to formulate schemes for ensuring employment
of persons with disabilities. Section 47 is included in Chapter
VIII of the Act. Chapter VI deals with employment relating to
persons with disabilities including identification of posts and
reservation of vacancies for such persons. Under this
Chapter, reservation of vacancies for persons with
disabilities is made for initial appointments. Section 47 in
Chapter VIII deals with an employee of an establishment
who acquires a disability during his service.
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.
10. The argument of the learned counsel for the
respondent on the basis of definition given in Section 2(t) of
the Act that benefit of Section 47 is not available to the
appellant as he has suffered permanent invalidity cannot be
accepted. Because, the appellant was an employee, who has
acquired 'disability' within the meaning of Section 2(i) of the
Act and not a person with disability.”
25. In passing and while determining and concluding the

present case, I wish to state and record that the existing Act,
namely, Persons with Disabilities (Equal Opportunities Protection
of Rights and Full Participation) Act, 1995 has now been
replaced and substituted by the Rights of Persons with
Disabilities Act, 2016, a disability legislation passed by the
Indian Parliament to fulfill its obligation to the United Nations
Convention on the Rights of Persons with Disabilities, which
India ratified in the year 2007. The scope of disabilities has
been widened by the 2016 Act. In the remand order dated
11.04.2018 passed in the earlier Writ Petition No.4454 of 2018
concerning the petitioner this Hon’ble Court had held in clause
(iii) as under :-
(iii) The question as to whether the parties will be governed
by the provisions of the Persons with Disabilities Act, 1995
or whether the Rights of Persons with Disabilities Act, 2016
is kept open. Such issue shall be decided by the authority.”
The respondent No.2 Competent Authority has dealt
with the parimateria provisions of the 1995 Act and the 2016
Act and has given correct reasons in its decision while passing
the order dated 08.10.2018 impugned in the petition.

26. In view of the aforesaid discussion and decisions
namely the decision of the Apex Court in the case of Geetaben
R. Patel (supra) which holds the field, it is clear that respondent
No.1 has acquired disability during the course of his service and
the same has been certified by two leading hospitals, viz; KEM
Hospital and Lokmanya Tilak Memorial Hospital. The petitioner
has accepted the certificates and reports of these hospitals and
having acted upon them has also given alternate employment
to the respondent No.1 only to be terminated thereafter. The
disability quotient of the respondent No.1 in any case is proved
on the basis of the certificates to be more than 40% i.e. as per
the certificate issued by KEM Hospital, which needs to be
accepted. There was no justification to refer the respondent
No.1 for a third opinion to respondent No.4, when at the behest
of the petitioner he was already referred to two leading
hospitals and both the hospitals had submitted their detailed
reports to the petitioner. The respondent No.1 and his family
members have during the said references to the three hospitals
have suffered immensely for a long period of time. Therefore,

there is no infirmity in the impugned order passed by the
Commissioner and the findings recorded in clauses 1 to 11 of
the impugned order are upheld.
27. For the reasons stated herein above, the following
order is passed :
(a) Writ petition No.10254 of 2019 is rejected;
(b) The order dated 08.10.2018 (though signed and
dated as on 11.10.2018) passed by the respondent No.2
i.e. Commissioner and Competent Authority under Sections
62 and 63 of the said Act is confirmed;
(c) The directions given in clause (b) of the
operative part of the impugned order after paragraph
No.11, be implemented within a period of four months from
the date of receipt of an authenticated copy of this
judgment;
(d) Petitioner is directed to pay costs of Rs.50,000/-
to the respondent No.1 i.e. Sadashiv Dnyandeo Gaikwad

within a period of four weeks from the date of receipt of a
copy of this judgment and file a copy of the receipt of
payment with the Registry of this Court;
(e) Liberty granted to respondent No.1 to take
appropriate steps in law, if available to protect his interest.
(f) Civil Application No.2166 of 2019 stands
disposed of;
(g) Parties to act on an authenticated copy of this
judgment.
(h) This judgment will be digitally signed by the
Private Secretary of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this
judgment.
(MILIND N. JADHAV, J.)

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