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2006 DIGILAW 710 (CAL)

P. K. RAY ALIAS PRAVAT KR. ROY v. UNION OF INDIA

2006-11-16

TAPEN SEN

body2006
Before Mr. Justice Tapen Sen, J. ( 1 ) IN this writ petition, the petitioner has prayed for an order commanding upon the respondents to allow him to continue in service on a post which is less labourious than the one on which he was posted prior to the accident. ( 2 ) THE fact, in brief, is that on 17. 2. 96, while discharging; his duties and driving a Bus carrying night shift duty personnel of the Central Industrial security Force from Nagon Control Room to Shihsena, a truck/ lorry being driven in rash and negligent manner, dashed against the Bus and as a consequence thereof, the petitioner sustained severe injuries. After a prolonged treatment, the Medical Board declared him fit but gave an opinion to the effect that he was fit only for less laborious nature of jobs. ( 3 ) THE petitioner, after complete recovery, wanted to resume duties but the Commandant passed an Order on 3. 3. 2000 stating inter alia therein that he would retire on invalid pension with effect from 5. 4. 2000. ( 4 ) BEING aggrieved, the petitioner filed a writ petition before this court which was registered as W. P. No. 4095 (W) of 2000 and by an order dated 28. 6. 2002, as stated in Paragraph-6 of this Writ Petition, the same was disposed of directing the Deputy Inspector General, Central industrial Security Force, Eastern Zone to consider the representation filed by the petitioner after having him examined by a Medical Review Board and in case the representation was rejected, the authorities were directed to give/assign reasons. Although the petitioner has stated in Paragraph-6 infra that he would show the certified copy of the Order dated 28. 6. 02 passed in the aforementioned case, but, during the course of hearing, the learned Counsel for the petitioner was unable to produce the said Order. This Court therefore, has proceeded strictly on the basis of the statements made in the writ petition and accordingly, gives liberty to the respondents to file appropriate application in the event any of these pleadings are found to be incorrect. ( 5 ) IT is further stated that the petitioner, pursuant to the Order of this court, appeared before the Medical Board on 23. 9. ( 5 ) IT is further stated that the petitioner, pursuant to the Order of this court, appeared before the Medical Board on 23. 9. 02 and after examination, the said Board, inter alia, gave their opinion stating that the petitioner was fit for "further service of less laborious character than that which he had been doing. " ( 6 ) IT is the further case of the petitioner that thereafter on 05. 12. 02, the Deputy Inspector General ,cisf NEZ HQRS Kolkata passed an Order vide Annexure -P/1 and which has also been quoted in Paragraph-8. Upon a perusal thereof, it appears that the petitioner was offered the job of a "follower" subject to passing of a trade test but, the petitioner refused to accept the same on the ground that it was lower in rank. Consequently, the respondent No. 3 refused to interfere with the Order dated 3. 3. 2000 and rejected the representation filed pursuant to the Order dated 28. 6. 2002 passed by this Court. ( 7 ) IT is against the aforesaid order that the petitioner has filed this writ petition praying for quashing of the same and also praying that an order be passed upon the respondents to allow him to continue in service on a post which is less laborious in nature than the one on which he worked prior to the accident. ( 8 ) AN affidavit-in-opposition has been filed in this case on behalf of the respondent Nos. (1) to (4 ). Mrs. Archana Sen Gupta, learned Counsel appearing for the respondents, has cut short a lengthy opposition and has straightway drawn attention of this Court to Paragraph-4 (H) at page 8 thereof in respect of the submission that the petitioner was offered the post of a "follower" subject to his passing of the Trade Test but since he refused to accept the same, the concerned authority therefore rightly passed the impugned Order dated 5. 12. 02. According to Mrs. Sen Gupta, since the authority rightly passed the Order, no interference should therefore be made by this Court. ( 9 ) THIS Court however is not impressed by the reasoning adopted by the concerned authority nor by the submissions made by the learned counsel appearing for the respondents. 12. 02. According to Mrs. Sen Gupta, since the authority rightly passed the Order, no interference should therefore be made by this Court. ( 9 ) THIS Court however is not impressed by the reasoning adopted by the concerned authority nor by the submissions made by the learned counsel appearing for the respondents. ( 10 ) SECTION 47 of "the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995, (hereinafter referred to as the Disability Act) clearly lays down under the 1 st Proviso appended thereto, that if an employee acquires disability and is not suitable for the post he was holding he "could be shifted to other post with the same pay scale and service benefits. " ( 11 ) IF it is not so possible, then the 2nd Proviso lays down that he "may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. " In fact the legislature has gone to the extent of providing under sub-section (2) thereof that no promotion can be denied to a person merely on the ground of his disability. Section 47 reads as follows: - "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. Section. " ( 12 ) LET it be recorded that the aforementioned provision was relied upon by the learned Counsel for the petitioner after notice to the learned counsel for the respondents. ( 13 ) UPON a perusal of the facts pleaded in this case, it is evident that the petitioner became incapacitated while discharging his duties on 17. 2. 96 and that too, for no fault of his own. The Disability Act came into existence on and from 7. 2. ( 13 ) UPON a perusal of the facts pleaded in this case, it is evident that the petitioner became incapacitated while discharging his duties on 17. 2. 96 and that too, for no fault of his own. The Disability Act came into existence on and from 7. 2. 96 vide S. O. No. 107 (E) dated 7th February, 1996, as is evident from the Bare Act produced by the learned Counsel for the petitioner. This was prior to the accident. ( 14 ) CONSEQUENTLY, the petitioner is fully covered under the provisions of Section 47 of the said Act and he must therefore be given the benefit in terms contemplated therein. ( 15 ) THIS Court is also of the view that the petitioner rightly refused to work on a lower post. In this context, the Post of a "follower" is a "post" as defined in Rule 4 (xii) of the CISF Rules, 2001 and it includes Cook, kahar etc. According to the learned Counsel, the petitioner was holding the post of a "head Constable" before the accident which is defined under rule 4 (x) of the CISF Rules, 2001. Relevant portions of the said Rule are as follows: - "4. Composition of the Force: - The Supervisory Officers and enrolled members of the Force shall be classified in accordance with the ranks in the following categories, namely: - (x) Head Constable (Driver, Executive (Ministerial), Fire and armourer, (xii) Followers (Cook, Kahar, Sweeper, Mochi, Barber, carpenter, Tailor, Dhobi, Charge Mechanic, Motor Pump Attendant, switch Board Attendant and Painter ). Each of the above categories of ranks other than the ranks mentioned at item No (xii) shall be the immediate superior in rank to the rank mentioned below that category". ( 16 ) IT is thus evident from the provisions of the Composition of the force under Rule 4 of the CISF Rules, 2001 quoted above, that the post that the petitioner was holding prior to the accident was higher than the post of a Follower. Under the same Rule 4 itself, it has been stated that "each of the above categories of ranks other than the ranks mentioned at item No (xii) shall be the immediate superior in rank to the rank mentioned below that category. " ( 17 ) THE petitioner was therefore absolutely justified in refusing to accept a lower post. Under the same Rule 4 itself, it has been stated that "each of the above categories of ranks other than the ranks mentioned at item No (xii) shall be the immediate superior in rank to the rank mentioned below that category. " ( 17 ) THE petitioner was therefore absolutely justified in refusing to accept a lower post. ( 18 ) FOR the foregoing reasons, this writ petition must succeed and it is accordingly allowed to do so. ( 19 ) THE impugned Order dated 5. 12. 02 is set aside and the matter is remanded to the authorities to pass a fresh Order strictly in terms of section 47 of the Disabilities Act and to offer the petitioner a job which should be of such a nature that it should not be construed to be a post lower than the post which the petitioner was holding prior to the accident. ( 20 ) SINCE the petitioner could not resume his service for no fault of his own and since the status of being idle was actually imposed upon him the principle of 'no Work No Pay' shall not apply, in the facts and circumstances of this case, upon the petitioner.