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Gujarat High Court · body

2013 DIGILAW 161 (GUJ)

SHANKERBHAI GANESHBHAI CHAUDHARY v. PRINCIPAL

2013-03-14

C.L.SONI

body2013
JUDGMENT : 1. The petitioner has moved this petition under Article 226 of the Constitution of India for direction to the respondents to treat the service of the petitioner to be continued service and to pay him back wages. 2. The following are the facts noticed from the petition. 2.1 The petitioner joined as Assistant Teacher (P.T.) in Shri N. K. T. Jalaram Vidyalaya and K. K. Pandit Higher Secondary School represented through its principal – respondent No.1 on 05.01.1990. He continuously served up to 10.02.2003. On 10.02.2003, the petitioner suffered paralytic attack and was admitted in the hospital. He was issued certificate dated 15.11.2006 by President, Standing Medical Board, Civil Hospital, Ahmedabad declaring him to be completely and permanently incapacitated for further service of any kind in the department to which he belongs. The said certificate is produced at Annexure – B. It is the case of the petitioner that pursuant to the said certificate, the petitioner was compelled to retire by the school when the petitioner was under treatment. It is further case of the petitioner that after the petitioner was discharged from hospital, he requested the respondents to reinstate him in service, but all his efforts failed. He, therefore, approached the Court of Commissioner for Handicapped Persons (hereafter be referred to as “the Court of Commissioner”). The Court of Commissioner, after hearing the respondents came to the conclusion that the petitioner acquired disability and has become physically handicapped during his service period. Therefore, under the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter be referred to as “the Act”), the Court of Commissioner directed the respondents to give benefits available to the petitioner and to give him the work and duty in consonance with disability acquired by him. The Court of Commissioner further directed that date from which the salary of the petitioner was stopped, he will be paid his salary from the said date and his services shall be treated as continuous service. The respondents were further directed to sanction all bills of the petitioner of his treatment and to grant special leave to the petitioner for the purpose of the treatment. The respondents were also directed to credit all his leaves from 19.03.2004 in his account except the medical leave. The respondents were further directed to sanction all bills of the petitioner of his treatment and to grant special leave to the petitioner for the purpose of the treatment. The respondents were also directed to credit all his leaves from 19.03.2004 in his account except the medical leave. The petitioner was also permitted to select the place of service so as to enable him to stay with his family. The above order was passed by the Court of Commissioner on 25.02.2008. 3. Since the above said order was not complied with, the petitioner had filed Contempt Petition before this Court being Misc. Civil Application No.393 of 2009. In the said petition, the father of the petitioner had produced the copy of the communication dated 23.03.2009 addressed by the school to the District Education Officer, Himmatnagar intimating that the petitioner has been reinstated in service. In view of the said communication, the Court disposed of the Contempt Petition. 4. When the Contempt Petition was disposed of, the order of the Court of Commissioner as regards reinstatement was satisfied but other benefits available to the petitioner under the provisions of the Act as also as per the order of the Court of Commissioner remained to be paid to the petitioner and, therefore, the petitioner through his advocate issued legal notice dated 19.04.2010 calling upon the school to treat the service of the petitioner as continuous service and to pay him back wages. Since the petitioner was not given rest of the benefits, in due compliance with the order of the Court of Commissioner, the petitioner has filed this petition under Article 226 of the Constitution of India for directions as stated above. 5. This petition is opposed only by the respondent No.2 – District Education Officer, Sabarkantha. It is required to be noted that the respondent No.2 and other respondents in the present petition were parties before the Court of Commissioner and after hearing all the parties, the Court of Commissioner passed the above-said order by exercising the power under Section 47 of the Act. None of the respondents including the respondent No.2, has challenged the order of the Court of Commissioner. 6. None of the respondents including the respondent No.2, has challenged the order of the Court of Commissioner. 6. The petition is opposed by the respondent No.2 only on the ground that the petitioner is not the Government employee and the Act is not applicable to the private grantable trust and, therefore, the decision rendered by the Court of Commissioner is not applicable. It is further stated that if any payment is required to be made, it is to be made by the respondent No.1 and not by the State Government. It is further stated in the affidavit that the petitioner was not present on duty from 31.08.2005 to 30.03.2009 and, therefore, he is not entitled to get salary for the said period. The petitioner has filed rejoinder affidavit and stated that the order passed by the Court of Commissioner as regards the benefits of continuity of service and backwages has remain unchallenged and, therefore, it is duty of the respondents to comply with such order. 7. Heard learned advocates for the parties. 8. Learned advocate Mr.G. M. Joshi with learned advocate Mr.K. R. Chaudhari for the petitioner submitted that the provisions of Section 47 of the Act mandate that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. He pointed out that Standing Medical Board found the petitioner to have completely and permanently incapacitated for further service in consequence of (Rt.) Residual Hemiplagia + Aphesis and once the Court of Commissioner has exercised power under the provisions of the Act which has remained unchallenged, the order passed by the Court of Commissioner needs to be complied with in its entirety. He submitted that the respondent No.1, where the petitioner was serving, is an aided Education Institution and, therefore, the respondent No.1 and Government both are responsible to comply with the provisions of the Act as also the order passed by the competent authority under the Act. He submitted that since the provisions of the Act equally apply to the aided institution, respondent No.2 is not justified in opposing the petition. He submitted that when the legislature mandates all establishment which would include the aided institution not to dispense with an employee who acquired disability during his service and to give him all benefits, the respondents can not act contrary to it. He submitted that when the legislature mandates all establishment which would include the aided institution not to dispense with an employee who acquired disability during his service and to give him all benefits, the respondents can not act contrary to it. He, thus, urged to allow this petition and to grant prayers contained in paragraph No.14 of the petition. 9. As against the above arguments, learned AGP Mr.Ronak Raval for the respondents submitted that the respondent No.1 is not the Government school and, therefore, it is only for the respondent No.1 – school to give benefits of continuity of service and backwages to the petitioner. Learned AGP submitted that though the Court of Commissioner passed order for giving benefits under the provisions of the Act, but since such benefits are to be given by the school, the respondent No.2 has filed affidavit to point out that it is for the respondent No.1 – school to give benefits to the petitioner under the order passed by the Court of Commissioner. 10. Under the Act, when there is a clear mandate to all establishments covered by the Act not to dispense with its employees who acquire disability in service and to give them all benefits flowing from such service, non giving of benefits as required under the Act as also as per the order passed by the competent authority under the Act, would render the very purpose and object of the Act frustrated. 11. As held by the Hon’ble Supreme Court in the case of Dalco Engineering Private Limited Vs. Satish Prabhakar Padhye and others, reported in (2010) 4 SCC 378 , the education institutions receiving aid from the government are covered within the definition of the ‘Establishment’. In fact, there was no objection on the part of the respondents before the Court of Commissioner that the petitioner was not entitled to any relief under the Act on the ground that the institution where he is serving is not covered under the Act. Even apart from this, the order of the Court of Commissioner has become final because the same has not challenged by any of the respondents. Therefore, it is not open for the respondent No.2 to oppose the petition for grant of the benefits under the Act now on the ground that the petitioner is not a government employee and that the Act is not applicable to private grantable trust. Therefore, it is not open for the respondent No.2 to oppose the petition for grant of the benefits under the Act now on the ground that the petitioner is not a government employee and that the Act is not applicable to private grantable trust. The respondent No.1 being aided Education Institution of which the petitioner is an employee is very much governed by the Act and, therefore, the petitioner is entitled to full benefits as per the order passed by the Court of Commissioner. All the respondents are, therefore, under obligation to comply with the directions issued by the Court of Commissioner in the case of the petitioner. Therefore, the petition is required to be allowed. 12. Hence, the petition is allowed. The respondents are hereby directed to treat the service of the petitioner as continuous service right from the date he was discontinued from service i.e. from 10.02.2003 to the date of his reinstatement in the school and to confer all consequential benefits to the petitioner available on the basis of such continuous service. The respondents are further directed to pay back wages to the petitioner for the said period within a period of three months from the date of the receipt of the writ of this order. For this purpose, if the respondent No.1 – school is required to prepare and submit requisite bills it shall do so within a period of three weeks from the date of receipt of the copy of this judgment. The respondents No.2 and 3, on receipt of such bills, shall sanction and pay the amounts under the said bills to the petitioner within the aforesaid period as directed. Rule is made absolute accordingly.