No dismissal or forceful retirement for in-service disabilities

Millat Hossain

The Daily Star 15.03.2008

Employees cannot be dismissed or forced to take voluntary retirement for acquiring disabilities during his/her service. In stead, they must be shifted to posts of same class, payment and benefits and when it is not possible then they should be on supernumerary post until a suitable post is available or he attains the age of retirement, whichever is earlier. A division bench of Indian supreme Court comprising Justice J P Mathur and Justice Aftab Alam delivered this judgment in the case of Bhagwan Dass & another v Punjab State Electricity Board (Civil Appeal no. 8 of 2008)on 4th Jan 2008.

Case history

A man named Sree Bhagwan Dass joined the Punjab State Electricity Board (PSEB) on July 19, 1977, on ad-hoc/work-charged basis. He became regular in his service as an Assistant Lineman on June 16, 1981. While in service he became totally blind on January 17, 1994. Thereafter, being unable to perform his duty, he was absent from his office. As a result, after issuing notice to him for his long absence, PSEB impliedly forced him to take voluntary retirement on March 22, 1997. Subsequently, some internal correspondences took place between the officers of the Board over the question how to deal with the appellant. Being aggrieved by the decision of the PSEB in 2004 the disabled employee approached the Punjab & Haryana High Court in Civil Writ Petition No.12534 of 2004 seeking relief in terms of section 47 of the Act and the Circulars issued by the State Government and the Board in its furtherance.
Here, it may be noted that the rights of an employee who acquires disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PDA). Section 47 reads as follows:

“47. Non-discrimination in Government employments
(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.
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.”

In the petition Bhagwan Dass joined his son as petitioner no. 2, and an alternative relief was sought for the employment the son in his place. Forlornly, however, focusing on the second relief the High Court dismissed the writ petition by a brief order referring to the decision of the same court in Umesh Nagpal vs. State of Haryana [1994 (3) SCT 174]. In the order High Court mentioned neither the Section 47 of the Act nor the disabled employees claim/right on that basis.

Then, the petitioner filed this appeal before the apex court in which the disabled employee agitates his rights on the basis of Section 47 of the Act. While disposing of the appeal the learned judges said that the HCD failed to appease the directives and humanitarian spirit of S. 47 of PDA, which enumerated the claims of a disabled person. In some very touchy words and language the court condemned the act of the official of the Board, who forced the blind employee to take voluntary retirement. The Bench observed-

“Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable.

We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set 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 rights of the disabled employee. From the larger point of view the officers failed to realise 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. What the law permits to them is no charity or largess but their right as equal citizens of the country.”(Source: www.legalserviceindia.com)

Describing the Board’s decision of terminating the disabled employee as ‘bad and illegal’ the court directed that in view of the provisions of Section 47 of the Act, Bhagwan Dass must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. and shall continue in service till his date of superannuation according to the service records and all due payments, after adjustments, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.

It is extremely expected that the reverberation of this humanitarian verdict of Indian apex court be heard in our legal system. As in most of our mill-factories, workers and employees are to work in a very miserable, insecure and unhygienic working environment, they are the most vulnerable to be victim of in-service disabilities. It is frequently reported that workers are suffering from injuries or of amputation of limbs at working hours. Discontentedly enough, the wounded workers are awarded the punishment of being sacked instead of the desired commiseration and essential compensations from the office. As way to escape from these heartless practices, it is necessary to take affirmative actions for building up such type of protections or safeguard mechanisms as well as remedial measures in our country for those wretched workers.