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2013 DIGILAW 1136 (ALL)

Dev Prakash v. State of U. P. and Others

2013-04-15

SHABIHUL HASNAIN

body2013
Shabihul Hasnain, J.;— Heard Sri Sunil Kumar Mishra learned counsel for the petitioner and learned Standing Counsel for the opposite parties. The petitioner has prayed for a writ of certiorari for quashing the impugned order dated 11.3.2008 passed by opposite party no. 2, as contained in Annexure no. 1 to the writ petition. The services of the petitioner have been dispensed with vide order dated 11.3.2008 passed by the Commandant, 11th Batallion, P.A.C., Sitapur, the opposite party no. 2 . The facts necessary for adjudication of this case are as follows. The petitioner had been recruited as Constable in 2nd Batallion, P.A.C. Sitapur on 11.10.1984. Subsequently, in the year 1990 he was transferred to 47th Batallion P.A.C., Bareilly. Unfortunately on 23.11.1992 the petitioner sustained serious injuries in a road accident while he was in service. The petitioner was referred to the Medical College, Lucknow on 25.11.1993 for treatment. It has been stated that the petitioner salary was stopped on 29.9.1993. The petitioner was required to send medical papers vide letter dated 31.5.1993 which is contained in Annexure no. 2 to the writ petition. Annexure no. 3 of the writ petition shows that his case has been recommended by the then Commandant on 1.9.1994 to the Deputy Inspector of General, P.A.C. informing him that the last medical certificate sent by the petitioner is dated 10.6.1994. It has also been admitted in this letter that the salary of the petitioner has been stopped w.e.f. 24.9.1993. In the same breath the Commandant has accepted the fact that family members of the petitioner were praying for payment of salary but the same was neither paid nor any decision was taken about the status to the petitioner. No decision was taken about his leave. The counsel for the petitioner has argued that stoppage of salary at this critical juncture forced the petitioner to penury and stopped him from getting the medical aid which was his right under the service rules and right to live under the Constitution of India. The petitioner was neither suspended not declared to be on leave without pay nor the services were dispensed with. He was simply forgotten by the opposite parties. The petitioner was neither suspended not declared to be on leave without pay nor the services were dispensed with. He was simply forgotten by the opposite parties. Counsel for the petitioner has argued that even if he is considered on leave without information then too the opposite parties were under statutory duty to have passed some order after a passage of five years as required under the fundamental rules. The opposite parties have taken a decision to dispense with the services of the petitioner in the year 2008 while the accident took place in 1992. Petitioner's services have been dispensed without inquiryThere is no explanation as to in what capacity the opposite parties treated the petitioner since 1993 to 11.3.2008. Even the Deputy Inspector General of Police did not take any action and the petitioner remained on the rolls of the department. It is difficult to imagine as to as to what was the status of the petitioner and his relationship to the department. A person cannot remain on leave without information for almost 15 years which have passed from 24.9.1993 to 2008. It is also relevant to mention here that the petitioner who is said to be not reporting on duty was transferred on 25.9.1998 from 37th Batallion P.A.C. to 11th Batallion, P.A.C., Sitapur and has been relieved in pursuance of the same in absentia. Vide Annexure no. 4 a letter has been sent to the petitioner on 24.4.2001 stating therein that he has not reported for duty on the transferred post. On 4.5.2001 vide Annexure no. 5 the Commandant, 11th Batallion, P.A.C. Sitapur sent the petitioner for examination at the medical board level. Annexure no. 6 is a report of the Chief Medical Officer in reply to the directions issued on 4.5.2001. By this examination report the C.M.O. has recommended that the petitioner can be given some light duty which he will be able to perform. The petitioner has relied upon Rule 47 under Chapter 8 of The Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( hereinafter referred to as the Disabilities Act). For convenience Rule 47 of the aforesaid Disabilities Act is being quoted here below : "47. The petitioner has relied upon Rule 47 under Chapter 8 of The Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( hereinafter referred to as the Disabilities Act). For convenience Rule 47 of the aforesaid Disabilities Act is being quoted here below : "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 within 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." The petitioner has submitted Annexure nos. 7,8, and 9 to the opposite parties that the petitioner has neither been given any light duty nor he is being allowed to join on the post nor he is being paid any salary to the extent that daughter of the petitioner died for want of treatment which could not be undertaken because of the lack of finance. For fifteen years the opposite parties kept the person in abnormal conditions and finally vide Annexure no. 1 have come to the conclusion that his services should be dispensed with. The petitioner has relied upon a judgment reported in (2010) 4 UPLBEC 3036 ( Union of India and others vs. Jagdish Narain Verma and another). In paragraph nos. 16 and 17 of the aforesaid judgment their Lordships have observed as below : "16. The PWD Act, 1995 guarantee to a person, who develops disability as defined in the Act, from being put off the employment. He has to be offered an alternate / sheltered jot. In paragraph nos. 16 and 17 of the aforesaid judgment their Lordships have observed as below : "16. The PWD Act, 1995 guarantee to a person, who develops disability as defined in the Act, from being put off the employment. He has to be offered an alternate / sheltered jot. If such a post is not found, he has to be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. 17. The right of a disabled person to receive sympathetic consideration to continue in employment on acquiring disability during the course of his tenure, has been replaced by a statutory right by PWD Act, 1995, to continue in employment until an alternate / sheltered appointment is given. This statutory right is not subject to any discretion and cannot be defeated on the prejudice of the employer unless the establishment has exempted any particular category of work. The applicant's valuable right guaranteed under Section 47 of PWD Act, 1995 was violated when he was terminated from service on account of acquiring disability after his appointment." Petitioner has further relied on the judgment reported in (2008) 1 Supreme Court Cases 579 ( Bhagwan Dass and another vs. Punjab State Electricity Board). In para no. 19 of the judgment their Lordships have observed as under : "We understand that the officers concerned were acting in what they believed to be the best interest of the Board. Still under the old mindset it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty-bound to follow the law and it was not open to them to allow their bias to defeat the lawful fights of the disabled employee. From the larger point of view the officers failed to realizes that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country." Considering all the facts and circumstances, the court comes to the conclusion that the order dated 11.3.2008 passed by opposite party no. 2, as contained in Annexure no. 1 to the writ petition, was totally illegal, arbitrary and passed without application of mind. Counsel for the petitioner has forcefully argued that the petitioner could have been compulsorily retired. At least he would have got certain benefits but dismissal was totally unwarranted. It is a very rare case where apathy of the department not only denied medical treatment to the petitioner for lack of finances but his daughter also died for want of money and medical help. Impugned order dated 11.3.2008 is hereby quashed. The petitioner should be reinstated and a post should be searched out for him to suit his disability which comes under the category of light duty and the petitioner should be placed on that post forthwith. He shall also be paid 50% of the wages for the period wherein he was not allowed to join and work. _____________