Tuesday, 27 April 2021

Whether an employee should get alternative work and back wages if he acquires a physical disability during his service?

 Further, this arbitrary imposition under Clause 11 is in the teeth of the provisos to Sub Section (4) of Section 20 of the 2016 Act which read as under :

“Provided that, if an employee after acquiring disability is

not suitable for the post he was holding, shall 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.”

{Para 17}

18. The above provisos mandate that the Petitioners ought to be shifted to an alternative post with MSRTC with the same pay scale and service benefits and if it is not possible for MSRTC to adjust the Petitioners against any post immediately, they have to be kept on supernumerary posts until suitable posts are available or they attain the age of superannuation, whichever is earlier. This is a mandate under the 2016 Act and a statutory right granted to the Petitioners. This right cannot be violated by Clause 11 of the Impugned Circular. MSRTC has no right and is in fact prohibited from treating the intervening period between the medical examination and a decision thereon as leave without pay. The very idea of restoring an employee to a position with the same pay scale and service benefits which he or she held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the action of termination taken by the employer.

19.  In our opinion, the Petitioners’ reinstatement by MSRTC entitles the Petitioners to claim back wages in their entirety. The denial of back wages to the Petitioners who have suffered due

to their disability would amount to indirectly punishing the Petitioners concerned and rewarding MSRTC by relieving them of their obligation to pay back wages. This would be wholly inequitable and unjust. This would be in contravention of the 2016 Act, as also in contravention of the Constitution of India. As a result, we are of the considered opinion that Clause 11 of the Impugned Circular is ultra vires the 2016 Act, as also violative of Article 14 of the Constitution of India. Therefore, we hereby quash and set-aside Clause 11 of the Impugned Circular.

20. Keeping in line with the mandate of Section 20 of the 2016 Act, we order and direct MSRTC to provide each one of the Petitioners with alternative posts having the same pay scale and service benefits as their earlier position.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 9762 OF 2019

Vikas Khanderao Keng, Vs The State of Maharashtra

CORAM: S.J. KATHAWALLA &

R.I.CHAGLA, JJ.

Dated : 16th JULY, 2020

Citation: 2021(2) MHLJ 131


JUDGMENT : ( PER S.J. KATHAWALLA, J.) :

1. These 14 Writ Petitions have been filed by 14 drivers of the Maharashtra

State Road Transport Corporation (“MSRTC”) whose services were discontinued by

MSRTC on the ground that they had been diagnosed with ‘colour blindness’. It is the

Petitioners’ grievance that subsequent to their discontinuance, they have neither been

provided with alternative jobs nor have they received any salaries for the last more

than 02 years, i.e. since 26th April, 2018.

2. The facts leading to the filing of the Petitions, are as under :

2.1. The Petitioners were appointed as drivers with MSRTC.

2.2. On 21st December, 2017, Respondent No.3 issued a letter to Bapaye Hospital

directing a routine check-up of the Petitioners.

2.3. Pursuant to the aforesaid check-up, Bapaye Hospital issued reports

recording that the Petitioners are diagnosed with Colour Vision Defect.

2.4. Following the above Reports issued by Bapaye Hospital, Respondent No.4

issued letters in 2018 to the Petitioners directing them to appear before J.J. Hospital

for a further eye examination.

2.5. Thereafter, tests were conducted at J.J. Hospital and reports came to be

issued.

2.6. In the Reports issued by J.J. Hospital, the Petitioners were once again stated

to be diagnosed with Colour Vision Defect along with a further statement that the

Petitioners’ are unfit to perform services with MSRTC as drivers.

2.7. All of the above led to various letters being issued by the Respondents to the

Petitioners terminating their services as a result of the Petitioners having been

diagnosed with colour blindness.

2.8. Following their termination, various letters were addressed by the

Petitioners to the Respondents requesting that they be provided with alternative

employment within MSRTC. The Petitioners pleaded that they have carried out their

services until date with an unblemished record and that their families depend upon the

Petitioners for their livelihood. The Petitioners further recorded that they have no

other source of income barring their employment by MSRTC.

2.9. The aforesaid requests for alternative service / employment came to be

rejected by MSRTC, which placed reliance upon a Circular dated 29th July, 2016

issued by MSRTC (“2016 Impugned Circular”). Under the 2016 Impugned

Circular, once a driver has been declared unfit by reason of colour blindness, such

driver is not entitled to an alternative service or job with MSRTC.

2.10. The 2016 Impugned Circular was therefore assailed by the Petitioners in the

Writ Petitions. It was the Petitioners’ case that the 2016 Impugned Circular was

unconstitutional and violated the Petitioners’ rights under the Constitution of India,

whilst also being ultra vires the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 ("1995 Act") and the Rights of

Persons with Disabilities Act, 2016 ("2016 Act").


2.11. During the pendency of these Writ Petitions, recognizing the defect in the

2016 Impugned Circular, MSRTC, by an Office Order dated 7th October, 2019,

constituted a Committee to submit a report and prescribe guidelines for compliance

with the provisions of Section 47 of the 1995 Act.

2.12. During the pendency of the Writ Petitions, on 25th November, 2019, whilst

noting that MSRTC had taken sufficient time in formulating its new guidelines, this

Court passed the following Order :

“1. The above 13 Writ Petitions are filed by the drivers of the

Maharashtra State Road Transport Corporation ( for short

“MSRTC”) whose services have been discontinued by the

MSRTC on the ground that they are suffering from colour

blindness and are neither given any alternate jobs nor any

payment towards salary since 26th April, 2018. It appears that

MSRTC is taking its own time in forming guidelines with

regard to offering alternate jobs to these drivers. In view thereof,

these employee's have no income since 26th April,2018 because of

which they are unable to take care of themselves as well as the

members of their respective families.

2. The Respondent MSRTC needs to be sensitive towards the

problems faced by these drivers and their dependents by offering

alternate jobs to them and start paying them their monthly salary

to enable them to take care of their family members including old

parents and their children who are still attending schools/colleges.

The Managing Director of the MSRTC shall himself file his

affidavit on 2nd December, 2019 and inform the Court as to what

steps MSRTC has decided to take in the matter and as to when

these drivers shall get alternate jobs / their monthly salary. The

Divisional Controller shall remain present in this Court on 2nd

December, 2019 so that an amicable arrangement can be worked

out.

3. Stand over to 2nd December, 2019, High on Board.”.

2.13. On 2nd December, 2019, the following Order came to be passed :

“1. The learned Advocate appearing for the MSRTC states that

he has spoken to Mr. Ranjit Singh Deol, Vice Chairman and

Managing Director of MSRTC and Mr. Deol has asked him to

convey his undertaking to this Court that the report will be

finalized by the Committee and placed before the Board of

Directors of MSRTC within a period of four weeks from today

and no further extension will be sought on any ground

whatsoever. The undertaking is accepted.

2. The learned Advocate appearing for the Petitioners states

that Mr. Kailas Sudam Kale – Petitioner in Writ Petition (L)

No.23225 of 2019 has made an application to MSRTC to allow

him to withdraw 50% of his provident fund amount since the

marriage of his daughter is fixed on 11th December, 2019. The

said application shall be sympathetically considered by the

MSRTC and the decision shall be conveyed to Mr. Kailas S.

Kale on or before 5th December, 2019. If the Application of Mr.

Kale is allowed, the amount shall be forthwith paid to him i.e.

by 6th December, 2019.

3. Stand over to 3rd January, 2020.”


2.14. Again on 10th January 2020, the following Order was passed :

“xxx

2. Thereafter, on 2nd December, 2019 an Undertaking was

given to the Court on behalf of the MSRTC that the Committee,

which is formed to look into the issues pertaining to problems

faced by the employee of the MSRTC will be placed before the

Board of Directors within a period of four weeks. The Report was

filed with the Managing Director of MSRTC on 19th December,

2019. The Transport Minister is the Chairman of the Board of

the MSRTC. It is submitted that since the Government is

recently formed in the State, the Board shall now take a call on

the report submitted to the Board. We therefore direct the Board

of Directors of the MSRTC to consider the report and convey its

decision to this Court within a period of four weeks from today.

3. A copy of this order shall be forthwith served to the Minister of

Transport who is the Chairman of the Board of MSRTC.

4. Stand over to 31st January, 2020”.

2.15. As recorded hereinabove, the Committee constituted by MSRTC

submitted / filed its Report with the Managing Director of MSRTC on 19th December,

2019 (“MSRTC Report”). Based upon the said Report, MSRTC issued a Circular

on 23rd January 2020 (“Impugned Circular”) superseding the 2016 Impugned

Circular.


2.16. The Impugned Circular broadly provides as under :

a. Disabilities are of two categories, viz. (i) colour blindness and; (ii) being  medically unfit.

b. The Impugned Circular provides for the procedure for conducting tests

to identify the category of colour blindness. The Impugned Circular additionally

provides whether or not the person diagnosed with a particular category of colour

blindness is fit to continue and carry out his task as a driver with MSRTC.

c. The guidelines further provide that after such examination, a person

who can continue and a person who is not eligible to continue to work as a driver,

would be accommodated by MSRTC in another position viz. a labourer, peon, guesthouse

attendant, cook etc.

d. Clause 11 of the Impugned Circular and the one which is germane to

these Writ Petitions, provides that after an employee is diagnosed with a disability, the

matter would be examined and until such examination is complete and a decision is

taken about the fitness of the employee or his alternate employment, the intervening

period would be treated as leave without pay and the earned leave on the earlier job

would be carried forward to the new job.

2.17. Considering that the scope of the Writ Petitions had expanded as a result

of the Impugned Circular, at the hearing of the Petitions on 31st January, 2020, this

Court passed the following Order :


“The Learned Advocate appearing for the Petitioners states

that he has instructions to impugn only clause 11 of the new

Circular dated 23rd January, 2020. He is therefore allowed to

amend the above Writ Petitions to that extent within a period of

two weeks from today. The tests of all the fourteen Petitioners

shall be carried out within a period of two weeks from today, as

per the Circular dated 23rd January, 2020. Stand over to 14th

February, 2020.”

2.18. Pursuant to the aforesaid liberty granted by this Court, the Writ Petitions

came to be amended to incorporate a challenge to Clause 11 of the Impugned Circular,

inter alia on the ground that Clause 11 of the Impugned Circular is ultra vires Section

20 of the 2016 Act.

3. Appearing for the Petitioners, Ld. Advocate Mr. K.N. Shermale

submitted that the Impugned Circular is (i) unconstitutional and violative of Articles

14, 15 and 21 of the Constitution of India; and (ii) ultra vires the provisions of the 2016

Act and particularly Section 20 thereof (Section 47 of the 1995 Act). Therefore,

according to Mr. Shermale, the Petitioners are entitled to a writ ordering and declaring

that Clause 11 of the Impugned Circular is arbitrary and illegal. Further, that MSRTC

ought to be ordered and directed to pay back wages to the Petitioners from the date

their services were terminated until such time that the Petitioners are provided with

alternative jobs by MSRTC in compliance with the 2016 Act.


4. Appearing for MSRTC, Mr. Nitesh Bhutekar submitted that under

Clause No.4 of the 2016 Impugned Circular, once a driver has been declared unfit by

reason of colour blindness, such driver is not entitled to an alternative service or job

with MSRTC. Therefore, the Petitioners’ services were terminated by MSRTC. He

further submitted that in or around 2019, it became necessary for MSRTC to frame a

policy which is without ambiguity and vagueness, on the basis of which policy,

MSRTC can take decisions with respect to the disabled employees whilst safeguarding

the interests of MSRTC. That on 7th October, 2019, a committee was constituted to

suggest a proper procedure to be followed by MSRTC in respect of the disabled

employees mainly to implement Section 47 of the 1995 Act (Section 20 of the 2016

Act). During the pendency of the Writ Petitions, MSRTC came out with the

Impugned Circular, pursuant to which the Writ Petitions were amended to assail

Clause 11 of the Impugned Circular.

5. It is noted that MSRTC has not filed an additional Affidavit in Reply to

the amended Writ Petitions to deal with the challenge to Clause 11 of the Impugned

Circular.

6. Dr. Milind Sathe, the Learned Senior Advocate appearing as amicuscuriae

took this Court through the 1995 Act and the 2016 Act. He also took us through

various decisions of the Supreme Court of India, this Court, the Delhi High Court,

the Madras High Court and the Allahabad High Court, which Courts have had the

occasion to consider the aforesaid legislations. On the basis of the law laid down in


these decisions and in the facts of the present matter, Dr. Sathe put forth the following

submissions :

6.1. Clause 11 of the Impugned Circular is ultra vires the 2016 Act as well as

violative of Articles 14, 15 and 21 of the Constitution of India.

6.2. The orders of termination of services of the Petitioners are liable to be

set aside.

6.3. MSRTC ought to be directed to reinstate the Petitioners in service with

alternate jobs, as indicated in the Disability Certificates issued to the Petitioners,

within a period of 4 weeks.

6.4. MSRTC ought to be directed to pay back wages from the date of

discontinuation of services of the Petitioners as drivers, till they resume as employees

of MSRTC on the new / alternate jobs.

7. Prior to dealing with the legality and/or validity of the Impugned

Circular, we propose to first deal with the legal framework relevant to the present

matter. This would be the 2016 Act and the 1995 Act. Firstly, it is pertinent to note

that prior to the enactment of the 2016 Act, the issue of providing equal opportunities

and protection of rights to persons with disabilities was covered under the 1995 Act.

Section 47 of the 1995 Act under Chapter VII with the heading “non-discrimination”,

provided that there shall be no discrimination in Government employment. Section 47

reads thus :


"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.”

8. On 13th December, 2006, the United Nations General Assembly adopted

a Convention on "Rights of Persons with Disabilities". India is a signatory to this

Convention which it ratified on 1st October 2007. Realizing the requirement to protect

the rights of the persons with disabilities and India’s commitment to the Convention

of the United Nations General Assembly, the Legislature repealed the 1995 Act and

brought in the 2016 Act to give effect to the United Nations Convention on the Rights

of Persons with Disabilities and for matters connected therewith or incidental thereto.

9. Considering the scope of these Writ Petitions, we deem it appropriate to

reproduce the Preamble of the 2016 Act, which reads thus :

“An Act to give effect to the United Nations Convention

on the Rights of Persons with Disabilities and for

matters connected therewith or incidental thereto.

Whereas the United Nations General Assembly adopted

its Convention on the Rights of Persons with Disabilities

on the 13th day of December, 2006;

And whereas the aforesaid Convention lays down the

following principles for empowerment of persons with

disabilities,

(a) respect for inherent dignity, individual autonomy

including the freedom to make one's own choices, and

independence of persons;

(b) non-discrimination;

(c) full and effective participation and inclusion in

society;

(d) respect for difference and acceptance of persons with

disabilities as part of human diversity and humanity;

(e) equality of opportunity;

( f ) accessibility;

(g) equality between men and women;

(h) respect for the evolving capacities of children with


disabilities and respect for the right of children with

disabilities to preserve their identities;

And whereas India is a signatory to the said

Convention;

And whereas India ratified the said Convention on the

1st day of October, 2007;

And whereas it is considered necessary to implement the

Convention aforesaid.

Be it enacted by Parliament in the Sixty-seventh Year of

the Republic of India as follows:”

As can be discerned from the aforesaid Preamble, the 2016 Act is a beneficial

Legislation that prioritizes and recognizes the benefits provided for under the 2016

Act. As compared to the 1995 Act, the 2016 Act confers higher benefits and provides

for additional categories of disability that it seeks to protect. In addition, it emphasises

the right to equality of opportunity, access to justice and various other rights such as

free education, etc. In our opinion, the interpretation and construction of any

provisions of the 2016 Act would therefore have to be in aid of and in furtherance of

this legislative intent.

10. In order to assess the scope and intent of the 2016 Act, it would also be

necessary to reproduce the following definitions and provisions from the 2016 Act :

"2(k) ‘Government establishment' means a

corporation established by or under a Central Act or

State Act or an authority or a body owned or controlled


or aided by the Government or a local authority or a

Government company as defined in section 2 of the

Companies Act, 2013 and includes a Department of the

Government."

"2(r) 'Person with benchmark disability' means a

person with not less than forty per cent of a specified

disability where specified disability has not been defined

in measurable terms and includes a person with

disability where specified disability has been defined in

measurable terms, as certified by the certifying

authority."

“2(s) 'Person with disability' means a person with

long term physical, mental, intellectual or sensory

impairment which, in interaction with barriers, hinders

his full and effective participation in society equally

with others."

"2(t) 'Person with disability having high support

needs' means a person with benchmark disability

certified under clause (a) of sub-section (2) of section 58

who needs high support"

"2( y) 'Reasonable accommodation' means necessary

and appropriate modification and adjustments, without

imposing a disproportionate or undue burden in a

particular case, to ensure to persons with disabilities the

enjoyment or exercise of rights equally with others."

"2(za) 'Rehabilitation' refers to a process aimed at

enabling persons with disabilities to attain and

maintain optimal, physical, sensory, intellectual,


psychological environmental or social function levels."

"20. Non-discrimination in employment.- (1) No

Government establishment shall discriminate

against any person with disability in any matter

relating to employment:

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, exempt any establishment from the

provisions of this section.

(2) Every Government establishment shall provide

reasonable accommodation and appropriate barrier

free and conducive environment to employees with

disability.

(3) No promotion shall be denied to a person merely

on the ground of disability.

(4) No Government establishment shall dispense

with or reduce in rank, an employee who acquires a

disability during his or her service:

Provided that, if an employee after acquiring

disability is not suitable for the post he was

holding, shall 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.

(5) The appropriate Government may frame policies for

posting and transfer of employees with disabilities. "

(emphasis supplied)

As can be seen from the aforesaid provisions, a person diagnosed with a disability

cannot be subjected to discrimination, if such disability was acquired during the course

of employment. If a person suffers from disability acquired during the course of

employment, the Government establishment is required to provide reasonable

accommodation and also an appropriate barrier free and conducive environment to the

employee. The person diagnosed with a disability shall not be denied any promotion

merely on the ground of such disability, nor shall the services of such a person be

dispensed with, or he be reduced in rank on account of such disability. On acquiring

such disability, if the person is considered to be unsuitable for the job he was employed

for, such person is to be employed/absorbed in any other post and if no such post is

available, he is to be kept on supernumerary post, until a suitable post is made

available or until he attains the age of superannuation, whichever is earlier.

11. The 1995 Act as well as the 2016 Act have been discussed and analysed

in a series of decisions of the Hon’ble Supreme Court of India, as well as in the

decisions of the various High Courts.

i. In the case of Nandkumar Narayanrao Godhmare V/s. State of

Maharashtra & Ors.1, the Appellant was handicapped because of colour blindness.

Though he was selected by the Public Service Commission his appointment was not

made on account of his handicap. He approached the Maharashtra Administrative

Tribunal (‘MAT’) by filing Original Application No. 884 of 1993, which was disposed

off against him by a Judgment and Order dated 20 th February, 1994. In the Civil

Appeal filed by him, the Hon’ble Supreme Court granted him relief by directing the

Respondents to provide him with an alternative post. The Order of the Hon’ble

Supreme Court is reproduced hereunder :

“1. Leave granted.

2. Admittedly, the appellant is handicapped because of colourblindness.

He was admittedly selected by the Public Service

Commission but appointment could not be made on account of

his handicap. When the matter came up on 27-3-1995, this

Court, while issuing notice, passed order as follows :

“Petitioner should also give the nature of the duties he has to

perform and whether his colour-blindness would interfere with

the discharge of his duties. Respondents also would state in this

behalf of their stand. If it is needed, they can also send the

petitioner for medical examination by an expert Government

Ophthalmologist or Board.”

Despite the order, the Government took no action in that behalf.

On the other hand, the appellant had filed on 2-5-1995 an

affidavit detailing that as per the information he had secured,

there were 35 posts in the Department and only five posts

1 (1995) 6 Supreme Court Cases 720


required perfect vision without colour-blindness. Those five posts

are mentioned in the affidavit. In other posts, colour-blindness

was not an impediment for him to be appointed.

3. Under these circumstances, we deem it just and proper that

the Government should consider the case of the appellant to be

appointed to any of the posts of Agricultural Officer of Class II

Service other than the 5 posts mentioned by him in his affidavit.

The appellant should enclose a copy of this affidavit filed before

us to the Department concerned for considering his case.

Appointment should be made within two months from the date

of the receipt of this order.

4. The appeal is allowed. No costs.”

ii. In the case of Kunal Singh V/s. Union of India & Anr.2 , the Appellant

was recruited as a constable in the Special Service Bureau (‘SSB’). When he was on

duty, he suffered an injury in his left leg which had to be amputated on account of

gangrene, which had developed from the injury. By an Order dated 20th November,

1998, he was invalidated from service by the Respondents on the basis of the report of

the Medical Board, Kullu, under which he was declared permanently incapacitated for

further service. He therefore filed the Writ Petition before the High Court of H.P. at

Shimla, challenging the validity and correctness of the said Order. The said Writ

Petition was dismissed by the High Court by its Judgment and Order dated 21st April,

1999, holding that he had been permanently invalidated on the basis of the medical

2 (2003) 4 Supreme Court Cases 524


opinion and as such there was no scope for him to continue any further in service of

any kind in SSB. The Appellant impugned the Judgment and Order of the High Court

by filing Civil Appeal No. 1789 of 2000 before the Hon’ble Supreme Court. The said

Civil Appeal was allowed by the Hon’ble Supreme Court on 13th February, 2003 with a

direction to the Respondent employer to give reliefs to the Appellant in terms of

Section 47 of the 1995 Act. The relevant extracts of paragraphs 9 and 12 of the

Judgment and Order dated 13th February, 2003 are reproduced hereunder :

“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 the 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 a 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.

12. Merely because under Rule 38 of the CCS (Pension) Rules,

1972, the appellant got invalidity pension is no ground to deny

the protection mandatorily made available to the appellant

under Section 47 of the Act. Once it is held that the appellant

has acquired disability during his service and if found not

suitable for the post he was holding, he could be shifted to some

other post with same pay scale and service benefits; if it was not

possible to adjust him against any post, he could be kept on a

supernumerary post until a suitable post was available or he

attains the age of superannuation, whichever is earlier. It

appears no such efforts were made by the respondents. They have

proceeded to hold that he was permanently incapacitated to

continue in service without considering the effect of other

provisions of Section 47 of the Act.”

iii. In the case of Anil Kumar Mahajan V/s. Union of India & Ors.3, the

Appellant, an IAS Officer, was appointed in the service of Government of Bihar on 12th

3 (2013) 7 Supreme Court Cases 243


July, 1977. From 17th February, 1988 to 20th February, 1988, whilst he was posted as

Additional Secretary – cum – Editor of the State Gazetteer, Bihar at Patna, he was

placed under suspension and thereafter by an Order dated 24th February, 1988, his

suspension was continued till further orders. The Order of suspension was revoked

only on 24th February, 1990. He had moved the Central Administrative Tribunal,

Patna Bench in Original Application No. 288 of 1991 and Original Application No. 238

of 1991, seeking various reliefs, which were granted in his favour, by orders dated 22nd

June, 1992 and 10th October, 1992 respectively. He was again placed under suspension

on 20th May, 1993 and subjected to departmental enquiry by the Member, Board of

Revenue and Enquiry Officer, who framed charges against him. In the departmental

enquiry, an allegation was made that the Appellant was mentally sick. Allegations of

indiscipline, being irresponsible and misbehaviour were also made against him. The

finding given in the enquiry which went on for about 11 years, was that the Appellant

was insane and an Order of compulsory retirement was passed on 15th October, 2007.

The Appellant filed a Writ Petition before the Delhi High Court, which was dismissed

as withdrawn by his Advocate. The Appellant had also preferred an application being

OA No. 2784 of 2008 before the Central Administrative Tribunal, Principal Bench,

New Delhi, wherein he challenged the departmental proceedings. No reliefs were

granted therein in favour of the Appellant. In the SLP filed by the Appellant before

the Hon’ble Supreme Court, the Supreme Court whilst analyzing the various

provisions of the 1995 Act, more particularly Section 47, interalia held that there is

prohibition imposed under Section 47 to dispense with, or reduce in rank, an

employee who acquires a disability during his service. The Hon’ble Supreme Court

also held that even if it is presumed that the Appellant had become insane, as held by

the Enquiry Officer, mental illness being one of the disabilities under Section 2(i) of

the 1995 Act, under Section 47 it was not open to the Respondents to dispense with, or

reduce in rank, the Appellant who acquired a disability during his service. Since at the

time of hearing the matter before the Hon’ble Supreme Court in the year 2013, the

Appellant was superannuated from service (i.e. on 31st July, 2012), the Hon’ble

Supreme Court observed that there was no question of reinstatement of the Appellant.

However, the Hon’ble Supreme Court proceeded to set aside the Order of compulsory

retirement of the Appellant dated 15th October, 2007, passed by the Respondent; the

Order dated 22nd December, 2008 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in O.A. No. 2784 of 2008 and the Order dated 20th April,

2010 passed by the High Court of Delhi, and remitted the case to the Respondents,

with a direction to treat the Appellant as continued in service till the date of his

superannuation and to pay him his full salary minus the subsistence allowance already

received for the period from the date of initiation of departmental proceedings till the

date of compulsory retirement. Further, the Respondents were directed to pay to the

Appellant his full salary from the date of compulsory retirement till the date of

superannuation in view of the first and second provisos to Section 47 of the 1995 Act.

Paragraphs 20, 21 and 22 of the said decision are relevant and reproduced hereunder :

“20. The appellant was appointed in the service of the

respondents as an IAS Officer and joined in the year 1977. He

served for 30 years till the order of his compulsory retirement

was issued on 15-10-2007. It is not the case of the respondents

that the appellant was insane and in spite of that he was

appointed as an IAS Officer in 1977. Therefore, even if it is

presumed that the appellant became insane, as held by the

enquiry officer, mental illness being one of the disabilities under

Section 2(i) of the 1995 Act, under Section 47 it was not open to

the respondents to dispense with, or reduce in rank of the

appellant, who acquired a disability during his service. If the

appellant, after acquiring disability was not suitable for the post

he was holding, should have been shifted to some other post with

the same pay scale and service benefits. Further, if it was not

possible to adjust the appellant against any post, the respondents

ought to have kept the appellant on a supernumerary post until

a suitable post is available or, until the appellant attained the

age of superannuation whichever was earlier.

21. In view of the aforesaid finding, we are of the view that it

was not open to the authorities to dispense with the service of the

appellant or to compulsorily retire him from service. The High

Court also failed to notice the relevant facts and without going

into the merits allowed the counsel to withdraw the writ petition

merely on the basis of the finding of the enquiry officer. In fact

the High Court ought to have referred the matter to a Medical

Board to find out whether the appellant was insane and if so

found, in that case instead of dismissing the case as withdrawn,

the matter should have been decided on merits by appointing an


advocate as amicus curiae.

22. It is informed at the Bar that in normal course the appellant

would have superannuated from service on 31-7-2012. In that

view of the matter, now there is no question of reinstatement of

the appellant though he may be entitled for consequential

benefits including arrears of pay. Having regard to the facts and

finding given above, we have no other option but to set aside the

order of compulsory retirement of the appellant dated 15-10-

2007 passed by the respondents; the order dated 22-12-2008

passed by the Central Administrative Tribunal, Principal

Bench, New Delhi in OA No. 2784 of 2008 and the impugned

order dated 20-4-2010 passed by the High Court of Delhi in

Anil Kumar Mahajan v. Union of India [Anil Kumar

Mahajan v. Union of India, WP (C) No. 2622 of 2010, decided

on 20-4-2010 (Del)] and the case is remitted to the respondents

with a direction to treat the appellant as continued in the service

till the date of his superannuation. The appellant shall be paid

full salary minus the subsistence allowance already received for

the period from the date of initiation of departmental proceeding

on the ground that he was suffering from mental illness till the

date of compulsory retirement. The appellant shall also be

provided with full salary from the date of compulsory retirement

till the date of superannuation in view of the first and second

provisos to Section 47 of the 1995 Act. If the appellant has

already been superannuated, he will also be entitled to full

retiral benefits counting the total period in service. The benefits

shall be paid to the appellant within three months, else the

respondents will be liable to pay interest at the rate of 6% per

annum from the date the amount was due, till the actual

payment.”

iv. In the case of Vishnu s/o. Shahurao Bangar V/s. The Divisional

Controller & Ors.4 the Petitioner, a Bus Conductor, was on duty when he met with an

accident and lost both his legs. By communication dated 24th January, 2008, the

MSRTC Management concluded that the Petitioner was unfit to perform his duties

and his service was terminated. Thereafter, the MSRTC issued a letter dated 2nd

February, 2009 stating that the Petitioner would be considered to be on leave without

pay from 25th January, 2008 to 13th January, 2009 and he would be re-employed by the

said Order to work as a Peon. The Petitioner was considered to be in employment only

with effect from 14th February, 2009. The Petitioner approached the Labour Court

interalia contending that he was not paid his wages from 24th January, 2008 till 13th

January, 2009, on the ground that the said period was treated as leave without pay.

The Labour Court by its Judgment dated 26th December, 2018 held that the claim of

the Petitioner was not maintainable, as there was no pre-existing right and there was

no pre-adjudication. The Petitioner impugned the Judgment passed by the Labour

Court before this Court at its Aurangabad Bench, when the Advocate for the MSTRC

strenuously submitted on instructions that the MSTRC had issued a Circular dated

10th September, 2008, clause (3) of which provides that an employee who had suffered

disability would be deemed to be on leave without wages for the period during which

4 Writ Petition No. 3772 of 2019


he was out of employment. The Learned Single Judge whilst recording the insensitive

conduct of the MSRTC towards its employee and his anguish qua the Circular of

MSRTC dated 10th September, 2008, interalia directed the MSRTC to pay to the

Petitioner wages due to him for the period 24th January, 2008 to 13th January, 2009.

Paragraphs 3, 7, 11, 12, 13, 14 and 15 are relevant and reproduced hereunder :

“3. This case is an example of the MSRTC showing

insensitivity and apathy towards an employee, who has suffered

an accident while on duty, arising out of and in the course of his

employment, squarely covered by the Employee's Compensation

Act, 1923, the Rights of Persons with Disabilities Act, 2016 and

the Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995 (1 of 1996).

7. The Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 (1 of

1996) defines a disability u/s 2(t), by which a person, who is

suffering from a disability not less than 40% shall be considered

eligible for an alternate employment. The provisions of the said

Act clearly indicate that an employee, as like this petitioner,

should have been immediately granted alternate employment,

the date on which he had reported for duties after being

discharged from the hospital and declared to be fit to undertake

an alternate suitable employment. This being the law and an

obligation on the part of the MSRTC, could have been

considered by the Labour Court purely for calculating the nonpayment

of wages.

11. It is, therefore, obvious that the Management has refused to

give work to the petitioner

for the period 24/01/2008 till 13/01/2009 and he was deemed

to have been reinstated on 14/01/2009. He would be entitled for

his last drawn wage as would have been payable to him as a Bus

Conductor, had he been in employment in January 2008.

Under the 1996 Act, his last pay has to be protected. This also

was lost sight of by the Labour Court.

12.In view of the above, this petition is partly allowed.

Application (IDA) No.2/2012 is partly allowed. The

respondent/Corporation is liable to pay an amount of

Rs.2,74,534/- by way of compensation for the period

11/11/2002 up to 24/01/2008, by adjusting the amounts which

have already been paid to the petitioner. This amount shall be

paid within 8 (eight) weeks from today.

13. In so far as his termination from 24/01/2008 and

subsequent re-employment is concerned, it would presume that

there is continuity of service and he is entitled to his salary as

was payable to him in January 2008. The

respondent/Corporation shall therefore calculate his salary from

24/01/2008 till 13/01/2009 and shall pay the said amount

within 8 weeks from today, failing which, the Vice Chairman

and Managing Director, Mumbai/respondent No.2 shall pay

interest @ 6% from January 2009 till the amount is paid, from

his own salary account, since he is the sanctioning authority.

14. Before I part with this matter, I am recording my anguish

about the Corporation having relied upon a circular dated

10/9/2008. The policy devised by the Corporation, concerning

the unfortunate employees who have suffered disabilities on

account of the act of nature or by way of an accident and for

which they cannot be held personally liable, demonstrates

insensitivity on the part of the Corporation. I can understand a

case wherein an employee is a drunkard or is addicted to vices

and on account of his own conduct, has invited illness. He can

be treated differently without showing any sympathy. However,

the employees who have suffered disabilities for no fault on their

part or have suffered an accident leading to disabilities, will

have to be treated with more sensitivity and a human touch.

15. Considering the above, the learned Registrar (Judicial) of

this Court is directed to place a copy of this judgment before the

Hon'ble Cabinet Minister for Transport in the State of

Maharashtra, who is ex-officio Chairman of the MSRTC, to

adopt steps to ensure that the said policy is properly devised in

order to take care of such employees, who have suffered accidents

and disabilities, more so, keeping in view the Rights of Persons

with Disabilities Act, 2016.”

v. In the case of Union of India and Ors. V/s. Pramod Sadashiv Thakre5,

the Respondent was appointed as Civil Mechanical Transport Driver by the

Petitioner – employer, after being found fit by the Authority on the basis of a medical

certificate issued by the Civil Surgeon. On 29th August, 2005, his services were

terminated on the ground that he was found to be suffering from colour blindness.

Aggrieved by the said Order, the Respondent approached the Central Administrative

Tribunal. The Tribunal vide its Order dated 24th February, 2011, held that the

5 2012 (1) Mh. L.J. ) 738

impugned order of termination passed by the Petitioner – employer is in violation of

the provisions of the Section 47 of the 1995 Act. The Petitioners impugned the Order

of the Tribunal before this Court at its Nagpur Bench. It was argued before the Court

by the Learned Advocate appearing for the Petitioners, that the services of the

Respondent cannot be said to be protected by Section 47 of the 1995 Act, since that

Section protects only a person who has acquired disability during the course of his

employment. It was submitted that the Respondent’s colour blindness is congenital,

as colour blindness is, and must have been there even when the Respondent was

initially appointed. This Court rejected the aforesaid contention of the Advocate

appearing for the Petitioners and held that the Respondent incurred disability during

the course of his employment and his services are liable to be protected and dismissed

the Writ Petition. Paragraphs 5 and 6 of the Judgment dated 19th October, 2011 are

relevant and reproduced hereunder :

“5. We have no doubt that if the respondent was Colour Blind

from birth and continued to be so when he was employed, he

could not have been said to be a person who acquired any

disability in the course of his employment. However, in the

present case, there is no evidence to that effect. In the first place,

no medical evidence is placed on record to establish that colour

blindness can only be congenital and cannot be acquired.

Secondly, there is no evidence that the respondent was Colour

Blind when he was employed. On the other hand, the petitioners

accepted the respondent's fitness by relying on the certificate

granted to him by Civil Surgeon, Nagpur who certified him as

normal. The certificate that he was normal must be taken to

refer to every functional aspect of the respondent including his

eyesight. We are informed that the petitioners do not and in any

case did not insist for a proforma in which medical fitness

entries to be recorded and do not appear to have referred back

the respondent's case for considering whether his vision was

normal or he is Colour Blind neither did the petitioners

administer any test to the respondent for determining whether

he is Colour Blind. The petitioners can hardly claim to have

established that the respondent was Colour Blind from birth

and, therefore, also Colour Blind on the date of employment.

We are, therefore, of the view that respondent is entitled to

protection by the Act. It was, however, urged by Mr. Sundaram,

learned counsel for the petitioners, that the respondent's services

cannot be protected by section 47 of the Act since the respondent

was a temporary employee on probation. Section 47 of the Act,

reproduced above, protects the services of an employee and

makes no distinction between the nature of the services it

protects. The purpose and intention of the provisions is to protect

an employee from unemployment on the ground that he has

incurred disability. Parliament has in its wisdom accommodated

the possibility that an employee may not be able to discharge the

duties of office prescribed for him and to that effect a provision

has been made that an employee shall be employed in some other

post with same benefits.

6. In the circumstances, we are of the view that the respondent

incurred disability during the course of his employment and his


services are liable to be protected. The order of termination,

which is made only on the ground that the respondent has been

found to be Colour Blind is rightly quashed and set aside by the

Central Administrative Tribunal.

We Find no merit in the petition. The same is, therefore,

dismissed.”

vi. In the case of Arvind S/o. Shankarrao Khodke V/s. The Regional Director

of Municipal Administration, Nagpur Division, Nagpur6, the Petitioner was qualified

for appointment to the post of Assistant Teacher and was appointed as such by the

Respondent Municipal Council on 2nd August, 1985. The Petitioner had a fall on 19th

October, 2002 and suffered brain injury. He resumed service on 2nd May, 2003, after

he was declared ‘fit’ by the Medical Board. Thereafter, on two occasions he was

declared ‘medically fit’ to perform his duties. The Petitioner was thereafter

suspended from service by an Order dated 19th - 25th April, 2005 and was again

referred to the Medical Board. The Medical Board in October-November, 2005

certified that the Petitioner was not fit to carry out his duties as Assistant Teacher but

was fit to carry out duties of a clerical nature. Thereupon the Petitioner was

compulsorily retired from service by an Order dated 2nd December, 2005. After his

suspension and before he was compulsorily retired, the Petitioner had filed a revision

Application before the Regional Director of the Municipal Administration. The

Revision filed by the Petitioner was dismissed. The Petitioner challenged the order of

dismissal passed by the Regional Director of the Municipal Administration and the

6 Judgment dated 10th January, 2017 passed in Writ Petition No. 3496 of 2007

Order dated 2nd December, 2005, whereby he was compulsorily retired before this

Court at its Nagpur Bench. This Court after referring to the provisions of Section 47

of the 1995 Act, set aside the Order of compulsory retirement and directed the

Municipal Council to reinstate the Petitioner in service and grant him an alternate job

which he could effectively attend. This Court also made it clear that if the

Respondent Municipal Council had no vacancy, the Petitioner shall be adjusted

against a post which may be supernumerary, until a suitable post is available or till he

attains the age of superannuation, in terms of the second proviso to Section 47 (1) of

the 1995 Act. However, the Court declined to accept the submission made on behalf

of the Petitioner that the Petitioner would be entitled to the entire arrears of salary and

other monetary benefits for the period during which he was out of service, on the

ground that the Petitioner had at no point of time requested any of the authorities to

permit him to perform a clerical job and to protect the pay / wages of the Petitioner.

The following are the relevant extracts from the said Judgment :

“5………..Though the petitioner was not 'fit' for doing the job of

Assistant Teacher, according to the opinion of the Medical Board,

the petitioner was 'fit' to perform the duties of clerical nature.

The Municipal Council was obliged, in view of the provisions of

Section 47 of the Act to give an alternate job to the petitioner and

protect his pay scale. Instead of complying with the provisions of

section 47 of the Act, the Municipal Council illegally dispensed

with the services of the petitioner solely on the ground that the

petitioner was not 'fit' for performing his duties as an Assistant

Teacher. It is rightly submitted on behalf of the petitioner that the

services of an employee cannot be dispensed with, and if an

employee is not suitable for performance of the duties of the post

that he is holding after acquiring the disability, he should be

shifted to some other post with the same pay scale and service

benefits. Instead of asking the petitioner to perform the duties of a

clerk or any other job which the petitioner could have performed,

the Chief Officer of the Municipal Council illegally terminated

the services of the petitioner by passing the order of compulsory

retirement. Unfortunately, the petitioner did not canvass before

the Regional Director of Municipal Administration that he was

entitled to remain in service, if not as an Assistant Teacher on

some other post, in view of the provisions of section 47 of the Act.

The provisions of the Act were not brought to the notice of the

authority and hence without considering the provisions of the

Act, the authority dismissed the revision filed by the petitioner by

considering the other submissions made on behalf of the parties.

6. Though in the circumstances of the case, a direction to the

respondent - Municipal Council to reinstate the petitioner on

some other post would be necessary, we are not inclined to accept

the submission made on behalf of the petitioner that the

petitioner would be entitled to the entire arrears of salary and the

other monetary benefits for the period during which he was out of

service. On a reading of the documents annexed to the petition

and the affidavit-in-reply, we find that it was not the case of the

petitioner at any point of time before any of the Authorities that

the petitioner should be permitted by the Municipal Council to

perform a clerical job and the pay of the petitioner should be


protected. This was not the case canvassed by the petitioner even

before the Regional Director of Municipal Administration and

for the first time in this writ petition, the petitioner has relied on

the provisions of section 47 of the Act for protection of his services.

Had the petitioner referred to the provisions of section 47 of the

Act and had asked the respondent-Municipal Council to absorb

the petitioner on some other post or job, which the petitioner could

have performed and protect his pay, the Municipal Council may

have applied its mind to the said provisions and the submission of

the petitioner. However, this was not done. In fact, in some of the

communications, it is the case of the petitioner that the petitioner

was 'fit' to perform his job as an Assistant Teacher and his

services should not be dispensed with. Admittedly the petitioner

has not worked for a period of more than ten years and

considering the weak financial condition of the Municipal

Council, where even the salary of the regular employees is not

paid regularly, it would not be proper to direct the Municipal

Council to pay the entire arrears of salary to the petitioner. In the

circumstances of the case and in the interest of justice, in our

view, the Municipal Council could be directed to pay 50% of the

arrears of salary and the other monetary benefits to the petitioner

for the period during which he was out of service.

7. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The impugned orders are quashed and set aside. The

Municipal Council is directed to reinstate the petitioner in service

within two weeks and grant him an alternate job on which he can

effectively work. If the respondent-Municipal Council does not

have a vacancy, the respondent-Municipal Council should adjust

the petitioner against a post, which may be supernumerary, until

a suitable post is available or till he attains the age of

superannuation in terms of the second proviso to section 47 (1) of

the Act. It is needless to mention that the petitioner would be

entitled to the regular salary on the expiry of period of fifteen

days even if he is not reinstated. The petitioner would be entitled

to only 50% of the arrears of salary. The Municipal Council is

directed to pay the arrears of salary to the petitioner within ten

weeks. The pension paid to the petitioner should be adjusted

towards the amount payable to the petitioner towards the arrears

of salary. Rule is made absolute in the aforesaid terms with no

order as to costs.”

vii. In the case of Managing Director, UPSRTC V/s. Suresh Singh7, the

Allahabad High Court whilst dealing with the interplay between the 1995 Act and the

2016 Act and the contractual obligations between employers and employees, held as

under :

“32.Therefore, according to us, all contracts entered into

between the parties, including the present contract, are, in the

first place, law governing the rights and obligations between

them. However, that law is always subject to any modification

or alteration that may be made by the statutory law. Thus, once

the legislature stepped in and provided certain protections to all

employees of ‘establishment’, that too on fundamental and

cherished Constitutional principle of equality irrespective of

7 2019 SCC Online All 4538


their status as permanent or temporary employees or contract

employees etc., the private contract between the parties stood

modified to that extent, by operation of law. No plea/objection as

to re-writing of the contract may be sustained as may result in

defeating that statutory law. For that reason, we respectfully

disagree with the view taken by the Delhi High Court in the

above noted decisions.

33.Thus, for reasons given above, the ‘Old Act’ and the ‘New

Act’ apply to the benefit of all classes of employees in an

‘establishment’. However, while giving effect to the provisions of

those enactments, the equality may be enforced and established

between two employees - one with physical disability and

another without, both belonging to same ‘class of service’. The

equality sought may never transcend the otherwise pre-existing

valid ‘class categorization’ or ‘status’ of the employee

concerned, neither to his benefit not to his prejudice.

34.Thus, in the case of the ‘petitioner-employee’ having suffered

physical disability during his engagement by the ‘corporation’,

the non-discrimination clause introduced and enforced, first by

‘Old Act’ and now by the ‘New Act’, modified the contractual

obligation of the ‘corporation’ under the contract pre-existing

between the parties so as to oblige the latter to continue to engage

the ‘petitioner-employee’ and to not dispense with his services as

a contract employee for the surviving contract period. In other

words, even as a contract employee, the ‘petitioner-employee’

continued to be an employee of the ‘corporation’ and the benefit

of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 and The


Rights of Persons with Disabilities Act, 2016, enured to him

keeping intact his status as a contract employee.

35.Consequently, the present appeal is partly allowed with an

observation that the ‘corporation’ shall pass a fresh order, in

accordance with the directions issued by the learned Single

Judge, within a period of one month from today treating the

petitioner-employee Suresh Singh to be an existing contract

employee. He may accordingly be assigned such other job on

contract basis, for such period, as may be available with the

‘corporation’ in view of his 40% permanent physical disability.

The ‘corporation’ would pass a reasoned and speaking order in

that regard, within a period of two months from today.

36.Appeal allowed in part.”

viii. In G. Muthu V/s. MTNSTC (Madhurai) Limited8, the Appellant had joined

the service of the Respondent as a Driver on 26th August, 1993. His services were

regularized from 24th July, 1994. Thereafter, he was promoted as Senior Driver. The

Respondent by its Order dated 4th February, 2002 directed the Appellant to appear

before the Regional Medical Board, Madurai, to ascertain whether he is fit to work as a

driver. He appeared before the Medical Board on 19th February, 2002. The Medical

Board examined his physical fitness and submitted its report dated 19th February,

2002, wherein it was stated that since he has colour blindness he is unfit to work as a

driver. Based upon the report of the Medical Board, the Respondent issued him a

show cause notice dated 7th March, 2002 calling upon him to submit his explanation as

8 2007 (1) L.W. 146

to why he should not be discharged from the post of driver on medical ground. He

submitted his explanation on 7th March, 2002, wherein he requested the Respondent

to provide suitable alternative employment with continuity of service and pay

protection. The Respondent by its Order dated 26th March, 2020 discharged him

from service on medical grounds. He submitted his representation to the Respondent

on 26th March, 2002 requesting the Respondent to sympathetically consider his case

for suitable alternative employment. Since there was no response from the

Respondent, he once again submitted a representation on 30th August, 2004 stating

that his discharge from the service is contrary to the provisions of the 1995 Act. Since

the Appellant did not receive any response from the Respondent, the Appellant, in the

year 2004, challenged the Order of the Respondent dated 26th March, 2002, before the

Single Judge of the Madras High Court, which challenge was rejected by an Order

dated 6th January, 2005 on the sole ground of latches. The Appellant filed an Appeal

before the Division Bench of the Madras High Court. Before the Appeal Court, the

Learned Counsel for the Respondent vehemently argued that the Appellant had not

properly explained the delay in the matter. The Learned Counsel for the Respondent

also contended that the Parliament has chosen only seven illnesses under the category

of disability under Section 2(i) of the Act and hence the intention of the Parliament is

that a person with any disability cannot claim benefit under the Disability Act, but only

the persons affected with illnesses enumerated in Section 2(i) of the Act can claim

disability and protection under the Act. The Division Bench of the Madras High

Court rejected the submissions made by the Respondent and allowed the Appeal.

Paragraphs 14, 15, 19, 21, 22, 26 and 27 of the Judgment are relevant and therefore

reproduced hereunder :

“14. Having heard the learned counsel for the appellant as well

as the respondent on the above referred to contentions, namely,

as regards the distinctive application of S. 47 de hors the

definition of “disability” as found in S. 2(i), we find force in the

submission of the learned counsel for the appellant. As pointed

out by the learned counsel for the appellant, the law makers

have used a different set of expressions in S. 47, which deals

with an employee who “acquires a disability” in contradistinction

to the expression “with disability” which has been

used in the various provisions falling under Chaps, IV to VII of

the Act. On a close reading of such provisions contained in

Chaps. IV to VII, we could discern that the benefits which are

conferred under those provisions are to be made available to

persons who already suffer a disability. In other words, the two

categories, namely, a person “with a disability” is always

distinguishable from a person who later on “acquires a

disability”. Viewed in that respect, it will have to be held that

the expression “disability” used in S. 47 of the Act can, by no

stretch of imagination, be equated with a case of a person “with

the disability”. Once the said distinction as between S. 47 and

the various other provisions of the Act, in particular the

provisions falling under Chaps. IV to VII, is understood, then

the stand of the appellant can be better appreciated. A close

reading of S. 47 of the Act would show that the benefit granted

under the said provision was to be conferred on a serving

employee in an establishment who acquires a “disability”

during such service. When such “disability” was acquired by

him during his service, the Parliament thought it fit to ensure

that his service is not in any way affected because of acquisition

of such a “disability” and with that view, directed that he

should be shifted to some other post with the same pay-scale and

service benefits and in the event of such alternate post not being

available, to create a supernumerary post until a suitable post is

available or till he attains the age of superannuation. Subsection

(2) of S. 47 goes one step further and stipulates that no

promotion should also be denied to a person merely on the

ground of his disability. A further reading of the last proviso to

S. 47 disclose that it is for the appropriate Government to take

note of the type of work carried on in any establishment and

issue a notification exempting such establishment from the

provisions of the said S. 47, subject to such conditions if any.

Therefore, unless and otherwise such a specific notification

exempting an establishment depending upon the nature and

type of work of that establishment is issued, no other

establishment covered by the provisions of the Act can take a

different stand.

15. Having regard to the special features contained in the said

S. 47, providing for such a special benefit to an existing

employee in an establishment when he acquires a “disability” as

held by us earlier, the application and implementation of the

said provision will have to be ensured independent of various

other benefits provided under the various other provisions

falling under Chaps. IV to VII of the Act whicn are meant for

persons “with disability”. Having regard to the said distinctive

features contained in S. 47 of the Act, as compared to the other

provisions, we are of the considered opinion that the context in

which the benefit has been conferred under S. 47 stands apart

from the context of all other provisions where various other

benefits have been conferred. In other words, we are of the firm

view that the opening set of expressions contained in the

definition clause, namely S. 2, which denotes “unless the context

otherwise requires” squarely gets attracted to S. 47 and

therefore the definition of “disability” as defined under S. 2(i)

cannot be blindly applied to the term “disability” which has

been used in S. 47 of the Act. In other words, the term

“disability” used in S. 47 can draw support not only in respect

of the defined “disabilities” as contained in S. 2(i) of the Act

but will also encompass such other “disabilities” which would

disable a person from performing the work which he held

immediately prior to acquisition of such “disability” and

thereby entitle him to avail the benefits conferred under the said

provision for having acquired such a “disability.”

19. Therefore, as argued by the learned counsel for the

appellant, while the provisions contained in Chaps. IV to VII of

the Act deals with “persons with disability” S. 47 alone deals

with “an employee who acquires a disability during his service”.

The said provision clearly says that no establishment shall

dispense with or reduce in rank, an employee who acquires a

disability during his service which means that the person who is

employed in an establishment when he acquires a disability, his

services cannot be dispensed with or there should be any

reduction in rank. Further, the proviso to the said section clearly

states that if he is not suitable for the post he could be shifted to

some other post with the same scale of pay and benefits. If it is

not possible, he could be kept on a supernumerary post until a

post is available or he attains the age of superannuation

whichever is earlier. The said provision further states that no

promotion shall be denied to any person merely on the ground of

his disability. Thus, if we apply S. 47 of the said Act, the order

of discharge passed by the respondent, dated 26 March, 2002,

has no leg to stand.

21. Thus, according to the learned counsel for the appellant, if

there is any anomaly or injustice, then the Court has to look into

the purpose for which the statute has been brought and should

try to give a meaning, which would adhere to the purpose of the

statute. We find full force in the submission of the learned

counsel for the appellant. The object which S. 47 of the Act

purports to achieve is that appropriate provision should be made

for the employees employed in the establishments who acquire a

disability during their service. While having this in mind, in

construing the material provisions of such an Act, if two views

are reasonably possible, the Courts should prefer the view which

helps the achievement of the object. If the words used in the

provisions of the Act are capable of a narrow or broad

construction, each construction is being reasonably possible, and

it appears that the broad construction would help the

furtherance of the object, then it would be necessary to prefer

such construction. The other circumstance which has to be borne

in mind in interpreting the provisions of the Act is that the

interpretation should not concentrate on the word used therein.

In construing the relevant provisions of the Act what the Courts

have to ask themselves is, “is the object for which the Act has

been introduced, achieved?” Thus, the interpretation shall fit in

with the object for which the Act has been introduced and it

should be considered in the light of the object intended to be

achieved.

22. Welfare legislations are meant to ensure benefits to the

needy. They should be interpreted in such a way so that the

purpose of the legislation is allowed to be achieved. Even

assuming that there is any ambiguity in the provisions of the

Act, in view of the object underlying the Act, it requires a

reasonable interpretation of S. 2(i) of the said Act so as to make

it applicable to the case on hand. The legislative purpose must be

noted and the statute must be read as a whole.

26. After analysing the entire provisions of the Act and also

various decisions cited above, we feel that the Court cannot shut

its eyes if a person knocks at its door claiming relief under the

Act. In a welfare State like India, benefits of benevolent

legislation cannot be denied on the ground of mere hypertechnicalities.

When the law makers have conferred certain

privileges on a class of persons, like in this case to a disabled

person, the duty is cast upon the judiciary to oversee that the

authorities or the persons to whom such a power is conferred,

enforce the same in letter and spirit for which such enactment

has been made. In the present case on hand, the appellant has

been discharged on the ground of “colour blindness” without

providing alternative job as per S. 47 of the Act, which is

unjustified and unreasonable. Hence, the order of the

respondent dated 26 March, 2002 discharging the appellant on

medical grounds has no leg to stand. The appellant is entitled to

the protection under S. 47 of the Act. He should have been given

a suitable alternative employment with pay protection, instead

of discharging him from service on the ground of “colour

blindness.” Viewed from any angle, the order of the learned

Single Judge dismissing the writ petition on the mere ground of

laches without considering the claim of the appellant on merits

is liable to be set aside.

27. In fine, the writ appeal is allowed setting aside the order of

the learned Single Judge in W.P. No. 70 of 2005, dated 6

January, 2005, thereby we set aside the order of the respondent,

dated 26 March, 2002, discharging the appellant from service

on medical grounds. During the pendency of the writ appeal, by

an interim order, dated 29 April, 2005, the appellant was given

employment as helper based on G.O. Ms. No. 746, Transport

Department, dated 2 July, 1981. Since we have held that the

appellant is entitled for the benefit of alternate employment as

provided under S. 47 of the Act, we direct the respondent to

provide such alternate employment to the appellant from the

date of his discharge with pay protection, continuity of service,

back-wages and all other attendant benefits for which he is

legally entitled to. No costs.

Writ appeal allowed. ”

12. As can be seen from the aforesaid decisions, the provisions of the 1995

Act as well as the 2016 Act have been interpreted and applied in a beneficial manner

from time to time in a series of decisions delivered by the Supreme Court of India

and the various High Courts.

13. When we apply the aforesaid principles laid down by the various Courts

to the present lis, we note that the Petitioners have admittedly acquired their

disability, viz. colour blindness during the course of their employment. As a result,

the Petitioners are now entitled to alternate jobs as "reasonable accommodation"

under Section 20 of the 2016 Act. This position has been accepted by MSRTC

whilst issuing the Impugned Circular. Further, the record reflects that the

Petitioners’ services were terminated between April 2018 to June 2018 and since

then neither have the Petitioners been employed elsewhere, nor have they received

any wages and/or compensation. We are cognizant of the fact that many of the

Petitioners before us have dependants and children who may be going to school, etc.

This is in addition to the Petitioners’ daily requirement for sustenance. As

repeatedly held by the Courts from time to time, whilst construing a provision of a

social and beneficial enactment, such as the 2016 Act, that intends to provide

disabled persons with equal opportunities, protection of rights and full

participation, the Court must adopt a view that advances the intent and object of

the legislation and a view which serves its purpose must be preferred as opposed to

one which obstructs and paralyses the intent, object and purpose of such Act. In our

view, a socio-economic legislation such as the 2016 Act, ought to be interpreted

liberally. Courts ought to adopt different yardsticks and measures for interpreting

socio-economic statutes, as compared to penal or taxing statutes.

14. After having considered the provisions of the 1995 Act and the 2016 Act

in detail, we are of the considered view that the language of Section 20 is plain and

certain, and casts statutory obligations on the employer to protect an employee

acquiring disability during service.

15. Keeping in line with this construction of a beneficial legislation and also

keeping in mind the unequivocal and express provisions of Section 20 of the 2016

Act, we deem it only legal, humane and just that the Petitioners be granted alternate

jobs as also back wages from the date their services were discontinued.

16. In so far as Clause 11 of the Impugned Circular is concerned, as stated

hereinabove, Clause 11 provides that after an employee is diagnosed with a

disability, the matter would be examined and until such examination is complete

and a decision is taken about the fitness of the employee or his alternate

employment, the period would be treated as leave without pay and the earned leave

on the earlier job would be carried forward to the new job. We find that this

imposition is unjust and violates the Petitioners’ fundamental rights on various

levels. Firstly, it is clearly arbitrary and violative of Article 14 of the Constitution, in

as much as the Act mandates the State establishments to shift the employee

acquiring the disability during service to another suitable post, if he cannot be


continued in the post originally held by him; the Act does not envisage any time lag

for shifting him to such other post ; and in any event, if the employer establishment

takes time to decide on such alternative employment, the employee cannot be made

to suffer. Clause 11 of the Impugned Circular leaves it to the employer

establishment i.e. MSRTC to decide on the alternative employment at its own

sweet will and at its own leisure, leaving the employee to suffer deprivation of wages

for no fault of his.

17. Further, this arbitrary imposition under Clause 11 is in the teeth of the provisos to Sub Section (4) of Section 20 of the 2016 Act which read as under :

“Provided that, if an employee after acquiring disability is

not suitable for the post he was holding, shall 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.”

18. The above provisos mandate that the Petitioners ought to be shifted to

an alternative post with MSRTC with the same pay scale and service benefits and if

it is not possible for MSRTC to adjust the Petitioners against any post immediately,

they have to be kept on supernumerary posts until suitable posts are available or

they attain the age of superannuation, whichever is earlier. This is a mandate under

the 2016 Act and a statutory right granted to the Petitioners. This right cannot be

violated by Clause 11 of the Impugned Circular. MSRTC has no right and is in fact

prohibited from treating the intervening period between the medical examination

and a decision thereon as leave without pay. The very idea of restoring an employee

to a position with the same pay scale and service benefits which he or she held

before dismissal or removal or termination of service implies that the employee will

be put in the same position in which he would have been but for the action of

termination taken by the employer.

19. The financial, emotional and mental injuries suffered by the bus drivers

before us today cannot simply be measured in terms of money. As a result of the

discontinuance of their services by MSRTC, the Petitioners’ lost their source of

income with immediate effect. As a result, not only have the Petitioners suffered

economically but so have their respective families, who have been deprived of their

source of sustenance. This would include deprivation of nutritious food, education

as also general advancement in life. These sufferings will continue till the date

MSRTC provides the Petitioners with alternative positions. In our opinion, the

Petitioners’ reinstatement by MSRTC entitles the Petitioners to claim back wages

in their entirety. The denial of back wages to the Petitioners who have suffered due

to their disability would amount to indirectly punishing the Petitioners concerned

and rewarding MSRTC by relieving them of their obligation to pay back wages. This

would be wholly inequitable and unjust. This would be in contravention of the 2016

Act, as also in contravention of the Constitution of India. As a result, we are of the

considered opinion that Clause 11 of the Impugned Circular is ultra vires the 2016

Act, as also violative of Article 14 of the Constitution of India. Therefore, we

hereby quash and set-aside Clause 11 of the Impugned Circular.

20. Keeping in line with the mandate of Section 20 of the 2016 Act, we order

and direct MSRTC to provide each one of the Petitioners with alternative posts

having the same pay scale and service benefits as their earlier position. This exercise

must be completed within a period of 4 weeks from the date of this Order.

21. As a result of the aforesaid decision, we order and direct MSRTC to pay

back wages to each of the Petitioners from the date that their respective services

were discontinued until the date that they have been provided with an alternative

position in compliance with Section 20 of the 2016 Act. These wages must be

credited to the Petitioners’ accounts within a period of 6 weeks from the date of

pronouncement and uploading of this Order. However, whilst computing the

amount of back wages to be paid to the Petitioners, we grant liberty to MSRTC to

ascertain whether or not any of the Petitioners were otherwise employed during this

intervening period and if so, MSRTC would be at liberty to deduct the amount of

wages that the Petitioners may have earned from their alternative employment

whilst paying out the back wages. In the event MSRTC wishes to undertake this

exercise, such exercise should be completed within a period of 4 weeks from the

date of pronouncement and uploading of this order.

22. The Writ Petitions are disposed of accordingly. We appreciate the

assistance rendered by Dr. Sathe as Amicus Curiae in the matter.

23. Whilst parting, we anticipate that the Impugned Circular albeit in the

absence of Clause 11 which we have struck down hereinabove, may still give rise to

grievances suffered by various other persons employed by MSRTC who may be

diagnosed with disabilities in the future. In order to prevent their suffering, we

propose the following measures which could be taken into consideration when

MSRTC implements the Impugned Circular:

i. Upon an employee acquiring a disability, the medical examination and

disability certification ought to be completed within a period of 4 weeks of such

disability coming to the notice of MSRTC;

ii. Within 4 weeks from the aforesaid medical examination and disability

certification, the employee shall be provided with an alternative position with

MSRTC in accordance with Section 20 of the 2016 Act;

iii. The time elapsed in conducting the medical examination, certifying the

disability and providing an alternative position shall be treated as part of the

persons’ employment and the employee shall be paid back wages for this entire

period expeditiously;

iv. MSRTC will be at liberty to test the veracity or otherwise of disability

certificates that may be furnished. However, this exercise of ascertaining the

truthfulness of these disability certificates must in any event be completed within a

period of 2 weeks from the date of submission of such disability certificates. In the

event that MSRTC fails to find any fault with the said disability certificates, the

principles enumerated hereinabove ought to apply.

24. MSRTC will have to implement these guidelines in their entirety,

keeping in mind the intent, objective and spirit of the 2016 Act.

(R.I.CHAGLA, J.) (S.J.KATHAWALLA, J.)

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