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CASE NO.: Appeal (civil)  8 of 2008

PETITIONER: Bhagwan Dass & Anr.

RESPONDENT: Punjab State Electricity Board

DATE OF JUDGMENT: 04/01/2008

BENCH: G.P.Mathur & Aftab Alam

JUDGMENT: J U D G M E N T

[Arising out of SLP) No.26357/2005]

AFTAB ALAM,J.

       Leave granted.

       This case highlights the highly insensitive and apathetic  attitude harboured by some of us, living a normal healthy life,  towards those unfortunate fellowmen who fell victim to some  incapacitating disability.  The facts of the case reveal that  officers of the Punjab State Electricity Board were quite aware  of the statutory rights of appellant No.1 and their corresponding  obligation yet they denied him his lawful dues by means that  can only be called disingenuous.       The facts of the case are brief and are all taken from the  (Reply) Affidavit filed on behalf of the Punjab State Electricity  Board and its officers (the respondents in the appeal).    Appellant No.1 joined the respondent Board on July 19, 1977,  on ad-hoc/work-charged basis.  His services were regularized as  an Assistant Lineman on June 16, 1981.  While in service he  became totally blind on January 17, 1994 and a certificate to  that effect was issued by the civil surgeon, Faridkot.        Here, it may be noted that the rights of an employee who  acquires a 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.  Section 47 reads as follows : \02347. Non-discrimination in Government  employments \026 (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

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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.\024

It may further be noted that the import of Section 47 of the Act  was considered by this court in Kunal Singh vs. Union of India  & Anr. [2003 (4) SCC 524] and in paragraph 9 of the decision  it was observed and held as follows : \023Chapter VI of the Act deals with employment  relating to persons with disabilities, who are yet to  secure employment.  Section 47, which falls in  Chapter VIII, deals with an employee, who is  already in service and acquires a disability during  his service.  It must be borne in mind that Section  2 of the Act has given distinct and different  definitions of \023disability\024 and \023person with  disability\024.  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 a person does not  acquire or suffer disability by choice.  An  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 the section reads \023no  establishment shall dispense with, or reduce in  rank, an employee who acquires a disability  during his service\024.  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 employee shall not dispense with  or reduce in rank an employee who acquires a  disability during the service. In construing a  provision of a 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.\024 (Emphasis added)                   After the Act came into force with effect from December  7, 1996 (vide S.O.107(E) dated 7th February, 1996), the  Government of Punjab, Department of Personnel and  Administrative Reforms, issued a letter dated September 24,

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1996 directing all the heads of departments to comply with  Section 47 of the Act.  The Punjab State Electricity Board too  adopted the Government letter under its Circular No.6/97, dated  February 17, 1997.         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  come into force on February 7, 1996.  Such plea can not 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.      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 respondents 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 & Appeal Regulation 1971.         The matter appears to have lain dormant for sometime  and then it is stated that the appellant by his letter dated July 17,  1996 requested the Board to retire him from service.  As a  matter of fact by this letter the appellant sought to explain his  absence from duty and requested that his wife might be  employed in his place.  But it was made the basis for denying  the appellant his lawful dues.  Since the whole case of the  respondents is based on this letter it would be appropriate to  reproduce it in full : \023Sir,         I explain as under the subject cited unnatural  happening which I met,

    When I was returning home after performing  my duty on 17-1-94 then vision of my eyes  lessened suddenly.   I got treatment from far and  near for eye-sight/lessening of vision of my eyes.   But I became completely blind.  Now I cannot  perform my hard work duty.  I want to retire from  service.  I may be retired and my wife may be  provided with suitable job against me.  Yourself  will be genesis to me.\024                                         (Emphasis added)                  At this stage some internal correspondences took place between  the officers of the Board over the question how to deal with the  appellant.  On July 10, 1997, the Senior Executive Engineer  (OP) Division, Malout wrote to the Deputy Chief Engineer,  Operation Circle, Muktsar, asking for instructions in the matter.   Paragraphs 2, 3 and 4 of the letter are relevant and are  reproduced below : \0232) As per report of Medical Board the official is  unfit for duty, he cannot perform any duty.

3) But as per instructions contained in Punjab

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Government Memo No.17/16/94-5 PP-1/6546  adopted by PSEB vide its Circular No.6/97 the  official/officer it (sic is) not to be retired from  service who become disable during service.       

4) The official has represented that he may be  retired from duty and his wife be provided with  suitable job.\024

The Senior Executive Engineer received the reply from the  Secretary of the Board vide letter dated February 17, 1998 in  which he was advised as follows : \023It is advisable to retire the official as per rules  and regulations of the Board if the employee is not  otherwise interested in taking the benefit of  Board\022s Circular No.6/97.

For the purpose of clarification as to whether  employee is entitled to the benefits, otherwise  admissible under rules/regulations of the Board in  preference to Benefits admissible under Circular  No.6/97, if he so desires, can be obtained from the  Office concerned which issued said circular.\024

Later on, the charge-sheet issued against the appellant was  withdrawn by the Senior Executive Engineer vide Office Order  No.14, dated January 13, 1999 and the appellant was asked to   submit leave application for the period of absence.        Next in series is a letter, dated November 15, 1999, from  the Director/IR, PSEB, Patiala to the Senior Executive  Engineer, (OP) Division, Malout.  In this letter it was stated as  follows : \023As per cited subject it is made clear that  employee who is blind shall not be retired as per  instructions of the Board.  But is (sic. if) such  employee himself make request for retirement then  he can be given retirement on medical ground.\024

Finally, the Senior Executive Engineer, issued Office Order  No.559, dated December 14, 1999, by which the appellant was  relieved from service with effect from March 21, 1997 (the date  of issuance of Medical Certificate) as per Rule 5.11 of Civil  Services Rules-Vol.II.        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\022s 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 : \023With 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 Shri Bhagwan Dass ALM advice of retirement  was given as he himself made request for his  retirement on Medical Ground.  So the case of this  employee is not likely considered for his rejoining  of duty.\024         The appellant then filed an affidavit before the concerned  officers.  A copy of the affidavit is at Annexure R-12 to the  respondents\022 affidavit.  In the affidavit he pathetically pleaded  that he had no knowledge about the Rules of the Electricity  Board and represented for retirement unknowingly.  He further  stated that when he came to know that there was no need for

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retirement for those who were disabled during service he again  represented that he might not be retired and might be retained in  service as per the instructions of the department.  The affidavit  did not evoke any response but the severance was completed by  making payment of his terminal dues.         The disabled employee then 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.   In the writ petition he was joined by his son,  appellant No.2, and an alternative relief was sought for  employment of his son in his place.  Unfortunately, before the  High Court it was the second relief that came into focus and the  High Court dismissed the writ petition by a brief order referring  to the decision of this Court in Umesh Nagpal vs. State of  Haryana [1994 (3) SCT 174].  In the High Court order there is  no mention of Section 47 of the Act and the disabled  employees\022 claim/right on that basis.  Against that order this  appeal is preferred in which the disabled employee agitates his  rights on the basis of Section 47 of the Act.                 From the materials brought before the court by none  other than the respondent-Board it is manifest that  notwithstanding the clear and definite legislative mandate some  officers of the Board took the view that it was not right to  continue a blind, useless man on the Board\022s rolls and to pay  him monthly salary in return of no service.  They accordingly  persuaded each other that the appellant had himself asked for  retirement from service and, therefore, he was not entitled to the  protection of the Act.  The only material on the basis of which  the officers of the Board took the stand that the appellant had  himself made a request for retirement on medical grounds was  his letter dated July 17, 1996.  The letter was written when a  charge sheet was issued to him and in the letter he was trying to  explain his absence from duty.  In this letter he requested to be  retired but at the same time asked that his wife should be given  a suitable job in his place.  In our view it is impossible to read  that letter as a voluntary offer for retirement.           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.       

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       In light of the discussions made above, the action of the  Board in terminating the service of the disabled employee  (appellant No.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  installments 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.        In the result the appeal is allowed with costs quantified at  Rs.5,000/-.