How to ascertain effect of permanent disability on the actual earning capacity?

Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,

(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 

{Para 12}

13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.

19. There is no dispute that the Appellant suffered from disablement of permanent nature. The disablement has incapacitated her from doing the work which she was capable of doing. The said work was of that of a laborer. Therefore, the Commissioner for Workmen's Compensation was wrong in holding that the disability of the Appellant will have to be treated as 20% disability as the work of an Appellant involves lifting heavy weights and the Appellant has been rendered incapable from doing such work due to her disability. Hence, the case of the Appellant will be covered by the definition of 'total disablement', therefore, being 100% disabled.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9069 of 2022 

Decided On: 09.12.2022

Chandramma  Vs.  Manager, Regional Office, NCC Limited and Ors.

Hon'ble Judges/Coram:

Krishna Murari and S. Ravindra Bhat, JJ.

Author: Krishna Murari, J.

Citation: MANU/SC/1596/2022,(2023)2 SCC 144

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Supreme Court: Testimony Of Disabled Victim or Witness Cannot Be Considered Weak Or Inferior

 In the High Court, the defense sought to cast doubt on the testimony of the prosecutrix by arguing that she would have been unable to identify the accused due to her disability. While the above plea was not pressed by the appellant in this Court, we would like to take this opportunity to affirm the conclusion of the Sessions Judge and to clarify the position of law on this point.

{Para 42}

43 There have been instances where the testimony of a disabled prosecutrix has not been considered seriously and treated at an equal footing as that of their able-bodied counterparts. One such instance is the judgment of this Court in Mange v. State of Haryana (1979) 4 SCC 349., where the testimony of a thirteen year-old girl who was deaf and mute was not recorded and the conviction was confirmed on the account of an eye witness and supported by medical evidence. This Court in affirming the conviction noted that the non-examination of the prosecutrix was not a major infirmity in the prosecution’s case “apart from being a child witness, she was also deaf and dumb and no useful purpose would have been served by examining her.” We are of the considered view that presumptions of such nature which construe disability as an incapacity to participate in the legal process reflect not only an inadequate understanding of how disability operates but may also result in a miscarriage of justice through a devaluation of crucial testimonies given by persons with disabilities. The legal personhood of persons with disabilities cannot be premised on societal stereotypes of their supposed “inferiority”, which is an affront to their dignity and a negation of the principle of equality.

44 A survey and analysis of High Court judgments by Saptarshi Mandal indicates that the testimony of the disabled witnesses is devalued by not recording the testimony of the prosecutrix at all; or recording it without adherence to correct legal procedure, thereby rendering it ineffectual; dismissal of the testimony for its lack of intelligibility or for not being supported by the condition of her body.{ Mandal, Disabled Women Testimony in Rape Trials, supra n. 23, p. 6.}

45 This kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts. As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness’ disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness. In the case at hand, for instance, PW2’s blindness meant that she had no visual contact with the world. Her primary mode of identifying those around her, therefore, is by the sound of their voice. And so PW2’s testimony is entitled to equal weight as that of a prosecutrix who would have been able to visually identify the appellant.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 452 of 2021

Patan Jamal Vali  Vs  The State of Andhra Pradesh 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: April 27, 2021

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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

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Whether an employer can terminate the services of the employee if he acquires a disability during his service?

 The proviso to section 47 of The Disabilities Act 1995 referred earlier says 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. The certificate of disability issued by the board in the Solapur hospital as referred earlier shows that petitioner suffered 10% physical disability. Considering said disability and the fact that he was unable to work as a driver and as suggested by the Civil Surgeon, Osmanabad and the board at Solapur he was required to be given other posts or other work in the light of proviso to section 47 of The Disabilities Act, 1995, but instead respondent No. 3 terminated services of the petitioner by the impugned order without considering his request to provide him alternate work made in his application (Exh. 'B') dated 08-03-2010 and without hearing him or without any enquiry. Thus, termination of the petitioner was without any fault on his part. Therefore, we hold that the impugned order is not sustainable being in violation of section 47 of The Disabilities Act, 1995. Thus, as the termination of the petitioner is illegal and is liable to be set aside, he is entitled to financial/monetary benefits of his termination period i.e. from the date of his termination till the date of his retirement on superannuation as well as retiral benefits including pension.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6939 of 2017

Decided On: 01.10.2019

Shaikh Salim Shaikh Amir Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and S.M. Gavhane, JJ.

Citation: MANU/MH/3149/2019

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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.

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Whether ACP benefit given to government servant can be recovered if he could not work on promotional post due to physical disability?

We find that benefit of ACP was given to petitioner in view of service conditions to avoid stagnation. After the petitioner declined promotion, respondents rightly ordered its withdrawal. This withdrawal was not given effect to immediately though order to that effect was passed on 18.12.2006. Petitioner has retired almost 11 years thereafter. After retirement, that order is sought to be given effect to. Here provisions of Section 47(2) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also need to be kept in mind. Petitioner could not function on promotional post because of his disability. That disability could not have been used to deny him at least the benefit of ACP. Recovery as proposed is, therefore, unsustainable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 7133 of 2017

Decided On: 25.09.2018

 Gulab Ganpatrao Hole Vs. The Chief Executive Officer, Amravati and Ors.

Hon'ble Judges/Coram:

B.P. Dharmadhikari and M.G. Giratkar, JJ.

Citation: 2019(2) MHLJ 209

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Whether salary can be paid to physically handicapped employee even if she does not attend duty?

Now back to the case: As has been extracted, the medical

report is unambiguous; in fact, it reads distressingly. With loss of


bowl control and faecal incontinence--and further always to be

attended to--the employee has precious little to offer to her

employer as her contribution in the workplace. Prone to infections

and potential to spread them, the employee poses danger to herself

and to others as well. The employer seems to have understood that

keeping an employee on the rolls, as if she had been in service,

must mean that she should perform the ritual of attending office.

We are afraid it is misplaced, if not perverse. We cannot, however,

hide our surprise at the vigour with which, the giant of an

employer, the Railways, has pursued the matter against a woman

who has already been beaten by fate to her wheel chair for life.

      67. We do not deny that the employer may have been spurred

by a sense of duty, but a generous spirit of accommodation might

have been much appreciated. Lest the employer's insistence on the

employee's physical presence under impossible--and perilous--

circumstances should be taken as a display of official hubris. Let



us not forget every disabled person is not a Stephen Hawkins to

contribute, still.

       68. Here is a conflict, as it seems, between the employee's

constitutional right--right to dignity and privacy--and the

employer's right--right to compel an employee to discharge the

allotted functions. Need we say, it is the constitutional right that

prevails? Nevertheless, we hasten to add, it may be a constitutional

canon but needs the facts to justify it. Here, the facts, we think,

justify this conclusion.

       69. We may end our disposition with a quote that puts the

issue in perspective: "Dignity is as essential to human life as water,

food, and oxygen. The stubborn retention of it, even in the face of

extreme physical hardship, can hold a woman's soul in her body

long past the point at which the body should have surrendered it."34




34 Laura Hillenbrand, Unbroken: A World War II Story of Survival, Resilience, and Redemption (2010,
  Random House) [Gender changed to contextualize]



Result:

      70. Under these circumstances, we hold that the learned

Tribunal has rendered Ext.P10 order in consonance with the

principle of law calling for no interference. In the facts and

circumstances, we dismiss the Original Petition as devoid of merit.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT:

           MR.JUSTICE P.R.RAMACHANDRA MENON
                                             &
              MR. JUSTICE DAMA SESHADRI NAIDU

          3RD DAY OF OCTOBER 2016

                              OP (CAT).No. 182 of 2016 (Z)
                           

        UNION OF INDIA,
           Vs

                FANCY BABU,
             

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Whether Court can give opinion regarding physical disability of witness without any assistance of scientific report?

 Admittedly, plaintiff No.1, who claims to be the son of
Dubraj through his first wife, has not come to the witness box to
testify his pleadings. As revealed from the impugned judgment, he 
was present in Court and the Court on examination found him to be
hard of hearing and thus incompetent to lead evidence. DWs. 2 and
3 have also deposed that the plaintiff No.1 is little hard of hearing
though not totally deaf. No material is available on record to show
that he was sent for any scientific examination to reach at a
conclusion that he was deaf. The Court is not competent to opine
with regard to the physical disability of a witness without any
assistance of scientific report, more particularly when the witnesses
of the defendants deposed that he was little hard of hearing and not
totally deaf. It further reveals from the impugned judgment that
learned counsel for the defendants raised such an objection and
submitted that the gesture, posture and demeanor of the witness
was only intended to avoid cross-examination by the defendants.
Admittedly, there is no document available on record to show that
the plaintiff No.1 was totally deaf and is not competent to lead
evidence. It is also not the case of the plaintiffs that the plaintiff No.1
was completely deaf and was not able to adduce any evidence nor
any documentary evidence was produced to the effect. The opinion of
the trial Court looking at the demeanor of the plaintiff No.1 was
preliminary one and is not conclusive. The plaintiff No.1 is a vital
witness to testify his relationship with Dubraj as plaintiff No.2 is not
competent enough to lead evidence to that effect. Admittedly, the
plaintiff No.2 has no personal knowledge about the relationship of
plaintiff No.1, if any, with Dubraj. Thus, the learned trial Court
ought not have dealt with such an important issue so lightly in
absence of any scientific report to the effect that the plaintiff No.1
was completely deaf. Thus, this Court draws an adverse inference
against the plaintiffs under Section 114 of the Evidence Act, 1872 for
non-examination of plaintiff No.1.
HIGH COURT OF ORISSA: CUTTACK
 F.A. NO. 174 OF 1988

Hema Majhi V Dubraj Majhi 
 Date of Judgment: 20.04.2016

P R E S E N T:
 SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)477 Orissa

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Supreme Court: An employee, who acquires disability during his service, is protected by law

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.

Recently, the Supreme Court in Kunal Singh v. Union of India held that Section 47 must be interpreted liberally so that the object and purport of the Act viz. equal opportunities to the PWDs, protection of their rights and full participation is advanced. The Court, noted that an employee who is a PWD during employment, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. 

Supreme Court of India

Kunal Singh vs Union Of India & Anr on 13 February, 2003

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