K. Chandru, J.@mdashThe Petitioner has come forward to file the present writ petition seeking for a direction to the Respondent State owned transport corporation to comply with Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 (for short Disabilities Act) and to grant same scale of pay and other service benefits.
2. The writ petition was admitted on October 22, 2009. On notice from this Court, the Respondent has filed a counter affidavit, 5 dated April 30, 2010, to which the Petitioner has filed a rejoinder dated April 30, 2010.
3. The case of the Petitioner was that he joined as a driver in the Respondent transport corporation on January 28, 1982. While he was on duty on May 5, 1995 in the route No. 76B, his bus met with an accident. The Petitioner was also injured in the incident. He had to undergo necessary treatment from May 5, 1995 to November 15, 1995. His case was referred to the Medical Board. The Medical Board by its report dated May 14, 1997 found that the Petitioner was not fit to work as a driver. Thereafter, the Petitioner was given a show cause notice as to why he should not be discharged from duty on grounds of medical unfitness. After receiving the Petitioner''s explanation, he was discharged from duty on July 31, 1997. The Petitioner gave his representation that he should be given an alternate job. By an order, dated November 6, 1997, the Petitioner was given an appointment as a Junior Clerk as a fresh entrant in terms of G.O. Ms. No. 746, Transport Department, dated July 2, 1981.
4. The Petitioner claimed that at that time, he was not aware of the provisions of the Disabilities Act. Thereafter, he sent several representations. But, however, representations, dated August 23, 2007 and May 18, 2008 alone were enclosed in the typed set. The Petitioner claimed that in a similar circumstance, this Court granted a direction to comply with Section 47 of the Disabilities Act. But, in the counter affidavit, it was claimed that the Petitioner was given employment commensurate with his educational qualification i.e. Junior Clerk in the scale applicable to the post of driver and he had continued to get emoluments. He also accepted his alternate employment and has been in service from November 12, 1997. The Petitioner has filed the petition after a decade and it should not be entertained by this Court.
5. In the reply affidavit, the Petitioner placed reliance upon the judgment of the Supreme Court in
"6. In view of Section 47 of the Act and the circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the Appellant the Board was legally bound to continue him in service. But on behalf of the Respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the Appellant was declared completely blind on January 17, 1994 he was not covered by the provisions of the Act that came into force on February 7, 1996. Such plea cannot be raised because on February 7, 1996 when the Act came into force the Appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act.
7. Coming now to the reason assigned by the Board to deny him the protection of Section 47 of the Act, it is stated on behalf of the Respondent that he remained absent from duty without any sanctioned leave from January 18, 1994 to March 21, 1997. He was directed by the Executive Engineer to resume duties vide Memo No. 412 dated March 16, 1994 and Memo No. 6411 dated August 4, 1994. He, however, failed to report for duty and on September 13, 1994, a charge-sheet was issued initiating disciplinary proceedings against him for gross misconduct under Regulation 8 of the Punjab State Electricity Board Employees (Punishment and Appeal) Regulations, 1971.
14. It appears that the Appellant protested against the action of the Board in relieving him from service and made representations. The representations, it seems, were forwarded to the superior authorities and the Board''s decision was communicated to the senior Executive Engineer vide letter dated February 18, 2000 from the Director/IR, PSEB, Patiala. The contents of the letter are as follows:
"With regard to cited subject it is made clear that there are instructions of the Board on which blind employee is not liable to be retired. But in the case of Bhagwan Dass, ALM advice of retirement was given as he himself made request for his retirement on medical grounds. So the case of this employee is not likely considered for his rejoining of duty."
18. Appellant 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 officers concerned of the Board, to our mind, was deprecable."
6. The relief granted by the Supreme Court in paragrpahs 19 and 20 reads as follows
"79. We understand that the officers concerned were acting in what they believed to be the best interests 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 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 largesse but their right as equal citizens of the country.
20. In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (Appellant 1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the Appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions, etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly instalments from his future salary. The Appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, 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."
7. Though Mr. T. Chandraksekaran, learned Counsel for the Respondent attempted to refer to a decision passed by this Court where relief was denied on grounds of delay, but in the light of the Supreme Court''s decision cited above, there is no escape for the Respondent from complying with the statutory provisions of the Disabilities Act.
8. In the light of the above, the writ petition will stand allowed. The Respondent is directed to comply with the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 and grant necessary relief to the Petitioner in accordance with law within a period of 12 (Twelve) weeks from the date of receipt of copy of this order. No costs.
