The provisions of Section 47 of the Act of 1995 seek to protect
the pay scale and service conditions of a person who acquires disability during
the course of employment. It is the statutory duty of an employer to extend
the benefit of the provisions of Section 47 of the Act of 1995 to an employee
who suffers disability. It is not in dispute that on account of the physical
condition of each petitioner, he was brought down from Category IV to
Category I resulting in reduction in wages. In such situation, as held by this
Court in Dhammadip Bhaurao Mankar and Anil Damodar Bansod (supra), the
present petitioners are also entitled to the benefit of the welfare provisions of
Section 47 of the Act of 1995.
WRIT PETITION NO.250 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Jayram S/o. Dubbar Ram,
// VERSUS //
The Union of India,
CORAM : SMT. VASANTI A. NAIK AND
A.S.CHANDURKAR, JJ.
DATED : OCTOBER 07, 2013.
Citation; 2014(4) AllMR 132 Bom
2. RULE. Rule made returnable forthwith by consent of the parties.
3. Since common questions arise in these writ petitions, the same
are being decided by this common judgment.
The challenge in the present writ petitions is to the action of the
4.
1.
respondents of placing the petitioners in lower category in view of they
becoming unfit for discharging their duties. A direction is also sought for
payment of the difference in wages consequent to such reversion on the basis
of the provisions of the Persons With Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to
as “the Act of 1995”). According to the petitioners, they have suffered
disability during the course of employment on account of the nature of the job.
On account of such disability, they have been placed in a lower category in a
manner contrary to Section 47 of the Act of 1995. According to the learned
counsel for the petitioners, in view of the provisions of Section 47 of the the
Act of 1995 each of the petitioner is entitled to the protection of service
conditions in view of the aforesaid Section and also difference in wages from
the date of the impugned orders. The placing in the lower category is in view
of the disability suffered during the course of employment. For this purpose
the learned counsel for the petitioners has placed reliance upon decisions of
this Court in the matter of Dhammadip Bhaurao Mankar Vs. Union of India,
reported in 2011(3) CLR 976 as well as judgment of this Court dated 1 st
August, 2012 in Writ Petition No. 1551 of 2012 (Anil Damodar Bansod Vs.
Union of India & oth.)
5.
Mr. Mehadia, the learned counsel appearing for the respondents
has opposed the petitions. He submitted that the petitioners were given
alternate job as per the policy of the respondents. He has submitted that the
petitioners in Writ Petition Nos.1830/2013, 3739/2013, 4431/2013,
4434/2013, 4437/2013 and 4808/2013 have not been diligent in approaching
this Court for seeking the aforesaid relief. It is submitted that placement of
said petitioners in lower category has taken place in the years 2003, 2008 and
2009 and hence, the relief as prayed may not be granted by this Court under
Article 226 of the Constitution of India on account of delay and laches. He
has placed reliance on the judgments of the Hon'ble Supreme Court in the case
of Shiv Dass Vs. Union of India, reported in (2007) 9 SCC 274 and State of M.P
.
Vs. Yogendra Shrivastava, reported in (2010)12 SCC 538 and submitted that
the petitioners are not entitled for any discretionary relief on account of their
inaction for so many years.
6.
We have heard the respective counsel and also perused the
judgments of this Court, reported in 2011(3) CLR 976 as well as in Writ
Petition No.1551 of 2012 (supra). The benefit therein has been extended to the
pay difference of wages to the petitioners therein.
7.
petitioners under Section 47 of the Act of 1995. There is also a direction to
The provisions of Section 47 of the Act of 1995 seek to protect
the pay scale and service conditions of a person who acquires disability during
the course of employment. It is the statutory duty of an employer to extend
the benefit of the provisions of Section 47 of the Act of 1995 to an employee
who suffers disability. It is not in dispute that on account of the physical
condition of each petitioner, he was brought down from Category IV to
Category I resulting in reduction in wages. In such situation, as held by this
Court in Dhammadip Bhaurao Mankar and Anil Damodar Bansod (supra), the
present petitioners are also entitled to the benefit of the welfare provisions of
Section 47 of the Act of 1995.
8.
We, however, find that in some of the writ petitions the action of
reduction in category has been taken in the year 2003, 2008 and 2009.
Though the placement of the respective petitioners in the lower category has
taken place more than 34 years ago and in one case prior to 9 years, the said
petitioners have approached this Court only in the year 2013. There is no
explanation furnished by said petitioners for the delay caused in seeking said
relief. Considering the law laid down by the Hon'ble Supreme Court in Shiv
Dass and State of M.P (supra), the discretion in the matter of grant of
.
monetary relief to the petitioners in such cases will have to be exercised
judicially and reasonably. Even considering the welfare provisions of Section
47 of the Act of 1995 under which the petitioners are entitled for relief, the
plea of delay and laches raised by the respondents cannot be over looked.
Hence, the writ petitions in which the reduction in category has occurred in
2003, 2008 and 2009 the relief can be restricted for a period of three years
preceding filing of the writ petition. The interest of justice will be served if the
relief is moulded accordingly. Hence, the following order.
The Writ Petitions are partly allowed.
ii. We direct the respondents to treat each of the petitioners entitled
i.
for benefit under Section 47 of the Persons With Disabilities
(Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995 from the date of passing of the respective impugned
orders. This would protect the services rendered by the
petitioners for all these years.
iii.
However, insofar as the monetary relief in the form of difference
in wages is concerned, we grant relief to the petitioners in Writ
Petition Nos. 250/2013, 1830/2013, 3739/2013, 4431/2013,
4434/2013, 4437/2013, 4808/2013 and 4809/2013 only to the
extent of the period of three years preceding the filing of the
respective writ petitions. The petitioners in Writ Petition Nos.
3598/2013 and 4807/2013 would be entitled to the difference in
wages from the date of the order of reduction in category.
The respondents are directed to take aforesaid necessary action
within a period of three months from today.
iv.
Rule stands disposed of accordingly, in the aforesaid terms, with
no order as to costs.
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