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2011 DIGILAW 1377 (BOM)

Dhammadip Bhaurao Mankar v. Union of India

2011-11-15

B.P.DHARMADHIKARI, P.D.KODE

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Judgment : (DHARMADHIKARI, J.) 1] As the matter pertains to provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, (1995), we have heard the matter finally by making “Rule” returnable forthwith. This Act is referred to as 1995 Act hereinafter. 2] This Court has on 01.07.2011 and thereafter on 12.07.2011 passed two orders in the matter. 3] Short contention of Shri S. D. Thakur counsel for the petitioner is, petitioner had suffered disability while in employment and therefore his case needs to be viewed in the light of provisions of Section 47 of above mentioned 1995 Act and the reliance upon provisions of Section 2(t) for that purpose or then on percentage of disability suffered by petitioner is totally irrelevant. He is relying upon the judgment of Hon’ble Apex Court in KunalSingh Vs. union of India and Another AIR 2003Supreme Court 1623 for said purpose. 4] Shri Mehadia states that provisions of 1995 Act are applicable to “persons with disability” and hence the percentage of disability suffered by petitioner is relevant to find out his entitlement. Section 47 according to him therefore needs to be construed in the light of provisions of Section 2 (t) and as extent of disability suffered by petitioner is only 30%, provisions of Section 47 are not applicable in his case. He is relying upon Circular dated 10.09.2004 issued by respondent no.2 in this respect and he points out that as alternate job is accordingly provided to petitioner he is being paid initial wages of the category in which he has been deployed after that disability. He further states that judgment of Hon’ble Apex Court does not make any distinction in this respect and it cannot be held that the extent of disability is found irrelevant by Apex Court. 5] With the assistance of the learned counsel we have perused the record. The fact that petitioner suffered disability while in service is not in dispute. Even extent of his disability i.e. 30% is not in dispute. 6] Provisions of above mentioned 1995 Act in Section 2(i) define “disability”. Percentage of disability is not stipulated in this provision. Section 2(t) defines “persons with disability” and legislature has chosen to specify that it means a person suffering from not less than forty percent of any “disability” as certified by a medical authority. 6] Provisions of above mentioned 1995 Act in Section 2(i) define “disability”. Percentage of disability is not stipulated in this provision. Section 2(t) defines “persons with disability” and legislature has chosen to specify that it means a person suffering from not less than forty percent of any “disability” as certified by a medical authority. 7] In this background, we have perused other provisions in the 1995 Act, Chapter VI deals with employment and Section 32 requires appropriate Government to identify the posts which can be reserved for “persons with disability”. The provisions of Section 33 prescribe a particular percentage of reservation for such “persons with disability”. Section 34 which deals with Special Employment Exchange contemplates furnishing of such information or return by employer in relation to vacancies and appointments made of “persons with disability”. Section 36 contemplates carrying forward of such vacancies when such “person with disability” is not available. Section 38 contemplates a scheme for ensuring employment of persons having disabilities. It is, therefore, obvious that when recruitment is to be effected, the legislature has used phrase “person with disability” and hence at that time importance is given to the extent of disability. Situation regulated is when a person already disabled is required to be extended employment. Such person is entering the service for the first time. 8] As against this when provisions of Section 47 are looked into, it speaks of an employee who acquires disability during his service. Section 47 does not treat such employee and does not refer to him any where as “person with disability”. Thus employee already in service acquiring disability on account of his employment has been treated distinctly by legislature. It is because of this position only that his service conditions appear to have been protected. The legislature has stated that if on account of such disability, he is not suitable for the post which he was earlier holding, employer can shift him to some other post, “with same pay scale and service benefits”. The difficulty faced by employer in undertaking such exercise is also foreseen by law and proviso to this Sub Section contemplates a case where it is not possible for employer to adjust the employee against any post. The difficulty faced by employer in undertaking such exercise is also foreseen by law and proviso to this Sub Section contemplates a case where it is not possible for employer to adjust the employee against any post. The legislature has prescribed that in that case such employee should be kept on a supernumerary post until a suitable post is available or then the employee who acquired disability attains the age of superannuation. Thus provisions made by legislature are by way of exception to normal law and therefore show emphasis upon its intention to protect service i.e. pay scale and service benefits of person who acquired disability while in employment. It is also evident from Sub Section (2) of Section 47 which stipulates that promotion cannot be denied to such a person merely on the ground of his disability. Sub Section (2) permits appropriate Government to grant exception from this requirement but then present respondent no. 2 has not claimed any exemption. 9] It is, therefore, apparent from scheme of above mentioned 1995 Act that the person who acquires disability while in employment has not been treated as “person with disability” and provisions of Section 2(t) are therefore irrelevant in his case. 10] In the judgment of Apex Court in KunalSingh Vs. Union of India (supra) Hon’ble Apex Court in para 7 has noted that under Section 2 “disability”, and “person with disability” are separately defined and they are distinct concepts. 11] We do not see any reason to take different view as petitioner has suffered only 30% disability. He is beneficiary of welfare provision in Section 47. In this situation Writ Petition deserves to be allowed. Accordingly we quash and set aside the impugned communication dated 9/23rd March 2010. At this stage, Shri Mehadia learned counsel states that surviving dispute is about payment of arrears of salary as petitioner is already accommodated in terms of Section 47 of the 1995 Act. Therefore, we direct respondent no.2 to release to petitioner difference of salary payable to him on this count within a period of six months from today. Amount of Rs. 1,00,000/(Rupees One Lac) already in deposit with the Registry of this Court is allowed to be withdrawn by the petitioner. The amount so withdrawn shall be adjusted against the amount found due and payable to petitioner. Petition is thus allowed. No costs.