The petitioner, he joined the service in APSRTC on 1.10.1983 and while he was working as Driver in Banswada Depot on 2.7.1996 he commenced his duty at 1-30 p.m., and completed on the next day i.e., 3.7.1996 at 11.30 a.m. On account of the Naxal bund, he was forced to stay at Banswada on 3.7.1996 and immediately thereafter, on information that his father was serious and was admitted in hospital at Bodhan, he left Banswada by RTC Bus No. AEZ-4900. Due to his misfortune, the bus in which he was travelling, met with an accident, on account of which he was seriously injured and subsequently his right leg was amputated in the Osmania General Hospital. According to him, he was treated as inpatient in Osmania Hospital till 15.2.1997. Subsequently, he was referred to Tarnaka Hospital by APSRTC authorities. The Medical Officer of Taranaka Hospital issued Medical Certificate dated 7.3.1997 opining that he is unfit for Al category driver due to amputation of his leg. Basing on the said certificate, the 1st respondent i.e., the Depot Manager, APSRTC by his proceedings dated 10.3.1997 kept him under forced leave until further orders and subsequently the 1st respondent by proceedings dated 17-4-1998 retired him from service on medical ground with effect from 17.4.1998. The grievance of the petitioner is that though he is not fit to hold the post of A-1 category (driver), the APSRTC authorities ought to have accommodated him in some other post in the depot by providing alternative employment, instead the respondents have chosen to retire him voluntarily, which is not only illegal and unjust but also it deprived him of his bread.
3. A counter-affidavit has been filed by the respondents stating that the petitioner at the relevant point of time was not on duty as he has completed his duty by 11.30 a.m., on 3.7.1996, whereas the accident took place at 9.30 p.m., on 3.7.1996. Had the accident occurred during the course of service, the respondents are under obligation to provide him alternate employment. As per the Medical Certificate, the petitioner is not fit to work as driver and the order retiring him voluntarily from service is not illegal.
The learned Counsel appearing for the petitioner has drawn my attention to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (for short 'the Act'). According to him, the word 'during his service' used under Section 47 does not mean that at the relevant point of time when the accident occurred the employee shall be in service. It is sufficient if it is established that he is working with the organization and he is in service it automatically attracts Section 47 of the Act.
6. On the contrary, the learned Standing Counsel for respondents vehemently opposed the said submissions stating that the word "during his service" shall be interpreted in such a manner that the employee shall be in service at the time when the accident occurred and in such case only he is entitled for alternative employment but not in each and every case. The learned Counsel farther submits that may be it is a fact that he was working as a driver with the APSRTC but it does not mean that he is entitled for alternate accommodation, although a major accident occurred and the petitioner's leg was amputated.
7. In the light of the aforesaid submissions, it is necessary to extract Section 47 of the Act.
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 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.
8. The above provision of law is an enabling provision to provide alternate employment in the event an employee acquiring some disability during the course of service. The word "during his service" in my considered view shall not be interpreted in a narrow compass that at the relevant point of time the employee shall be in actual service. It is suffice if the employee is on the rolls of the organization when he met with an accident at the relevant point of time. The organization has a duty to create alternate employment as per Section 47 of the Act. In fact, Section 47 of the Act makes it clear 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. The contention of the learned Standing Counsel for the respondents that though the petitioner retired from service on medical grounds, his name still exists in the list of unfit drivers entitled for alternative post of cleaner is not tenable. This view of mine is fortified by catena of decisions of the Apex Court as well as this Court. The Apex Court in Kunal Singh v. Union of India,
"(9) Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, when falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be born in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. Ah employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."
(10) The argument of the learned Counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant, as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired "disability" within the meaning of Section 2(i) of the Act and not a person with disability.
(12) Merely because under Rule 38 of CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatory made available to the appellant under Section 47of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale" and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provision of Section 47 of the Act.
9. Similar view was taken by a learned Single Judge of this Court
"(10) The 1st respondent Company is a company established as well as owned by the Government and it is not in dispute as to the application of the provisions to the 1st respondent establishment. Further, from the provisions of Section 47 it is also clear that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service. If an employee after acquiring the disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. It is also provided 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. Further, under Sub-section (2), no promotion shall be denied to a person merely on the ground of disability. Under the proviso to said Section, however, the Government is empowered to grant exemption by notification subject to such conditions, if any, to any establishment from the provision of this Act. But, it is not the case of the 1st respondent Company that it was given any exemption, though in the counter it was stated that the 1st respondent Company has applied to the State Government for grant of exemption. As long as no such exemption was granted to the 1st respondent Company it is under an obligation to comply the provisions of the Act.
(12) A perusal of the provisions of the Act does not contemplate that in order to get the benefit of the provisions of the Act that any authority notified under the Act has to certify. On the other hand, the Memo filed by the learned Counsel for the 1st respondent shows that even in the case of recruitment the certificates issued by the Medical Officers have to be taken into consideration and whenever there is a dispute as to the genuineness of the claim then only the issue has to be referred to the State Appellate Medical Board Authority. In the present case, admittedly, the Medical Board of the 1st respondent Company, after conducting necessary tests and verifications, declared that both the petitioners are medically unfit, to carry on the job, which they were carrying on as on the date of the accident. When once the Officers of the respondent Company declared that the petitioners became disabled as a result of the injuries suffered by them, basing on which their services were terminated, it is not open to the 1st respondent Company to contend that they are not disabled and it should be certified by the medical authorities notified by the State Government under the provisions of the Act."
10. In the light of the foregoing discussion, coupled with the precedents, this Court has no hesitation to hold that the petitioner was in service at the relevant point of time i.e., on the date when the accident took place and accordingly he is entitled to the benefits provided for under Section 47 of the Act.
11. Accordingly the writ petition is allowed and the impugned order dated 17.4.1998 is hereby set aside and the respondents are directed to strictly adhere to Section 47 of the Act and provide alternate employment to which he is suitable. This exercise shall be done within a period of two months from the date of receipt of a copy of this order. It is made clear that the petitioner is entitled to all consequential benefits to which he is entitled as per law. No Costs.
3. A counter-affidavit has been filed by the respondents stating that the petitioner at the relevant point of time was not on duty as he has completed his duty by 11.30 a.m., on 3.7.1996, whereas the accident took place at 9.30 p.m., on 3.7.1996. Had the accident occurred during the course of service, the respondents are under obligation to provide him alternate employment. As per the Medical Certificate, the petitioner is not fit to work as driver and the order retiring him voluntarily from service is not illegal.
The learned Counsel appearing for the petitioner has drawn my attention to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (for short 'the Act'). According to him, the word 'during his service' used under Section 47 does not mean that at the relevant point of time when the accident occurred the employee shall be in service. It is sufficient if it is established that he is working with the organization and he is in service it automatically attracts Section 47 of the Act.
6. On the contrary, the learned Standing Counsel for respondents vehemently opposed the said submissions stating that the word "during his service" shall be interpreted in such a manner that the employee shall be in service at the time when the accident occurred and in such case only he is entitled for alternative employment but not in each and every case. The learned Counsel farther submits that may be it is a fact that he was working as a driver with the APSRTC but it does not mean that he is entitled for alternate accommodation, although a major accident occurred and the petitioner's leg was amputated.
7. In the light of the aforesaid submissions, it is necessary to extract Section 47 of the Act.
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 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.
8. The above provision of law is an enabling provision to provide alternate employment in the event an employee acquiring some disability during the course of service. The word "during his service" in my considered view shall not be interpreted in a narrow compass that at the relevant point of time the employee shall be in actual service. It is suffice if the employee is on the rolls of the organization when he met with an accident at the relevant point of time. The organization has a duty to create alternate employment as per Section 47 of the Act. In fact, Section 47 of the Act makes it clear 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. The contention of the learned Standing Counsel for the respondents that though the petitioner retired from service on medical grounds, his name still exists in the list of unfit drivers entitled for alternative post of cleaner is not tenable. This view of mine is fortified by catena of decisions of the Apex Court as well as this Court. The Apex Court in Kunal Singh v. Union of India,
"(9) Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, when falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be born in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. Ah employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."
(10) The argument of the learned Counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant, as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired "disability" within the meaning of Section 2(i) of the Act and not a person with disability.
(12) Merely because under Rule 38 of CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatory made available to the appellant under Section 47of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale" and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provision of Section 47 of the Act.
9. Similar view was taken by a learned Single Judge of this Court
"(10) The 1st respondent Company is a company established as well as owned by the Government and it is not in dispute as to the application of the provisions to the 1st respondent establishment. Further, from the provisions of Section 47 it is also clear that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service. If an employee after acquiring the disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. It is also provided 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. Further, under Sub-section (2), no promotion shall be denied to a person merely on the ground of disability. Under the proviso to said Section, however, the Government is empowered to grant exemption by notification subject to such conditions, if any, to any establishment from the provision of this Act. But, it is not the case of the 1st respondent Company that it was given any exemption, though in the counter it was stated that the 1st respondent Company has applied to the State Government for grant of exemption. As long as no such exemption was granted to the 1st respondent Company it is under an obligation to comply the provisions of the Act.
(12) A perusal of the provisions of the Act does not contemplate that in order to get the benefit of the provisions of the Act that any authority notified under the Act has to certify. On the other hand, the Memo filed by the learned Counsel for the 1st respondent shows that even in the case of recruitment the certificates issued by the Medical Officers have to be taken into consideration and whenever there is a dispute as to the genuineness of the claim then only the issue has to be referred to the State Appellate Medical Board Authority. In the present case, admittedly, the Medical Board of the 1st respondent Company, after conducting necessary tests and verifications, declared that both the petitioners are medically unfit, to carry on the job, which they were carrying on as on the date of the accident. When once the Officers of the respondent Company declared that the petitioners became disabled as a result of the injuries suffered by them, basing on which their services were terminated, it is not open to the 1st respondent Company to contend that they are not disabled and it should be certified by the medical authorities notified by the State Government under the provisions of the Act."
10. In the light of the foregoing discussion, coupled with the precedents, this Court has no hesitation to hold that the petitioner was in service at the relevant point of time i.e., on the date when the accident took place and accordingly he is entitled to the benefits provided for under Section 47 of the Act.
11. Accordingly the writ petition is allowed and the impugned order dated 17.4.1998 is hereby set aside and the respondents are directed to strictly adhere to Section 47 of the Act and provide alternate employment to which he is suitable. This exercise shall be done within a period of two months from the date of receipt of a copy of this order. It is made clear that the petitioner is entitled to all consequential benefits to which he is entitled as per law. No Costs.
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