Law Web: Bombay HC: Employee should not be removed from employment if he acquires a disability during his service

The Supreme Court in the case of Kunal Singh vs.

Union of India (supra) was concerned with a case where an

employee suffered from 'locomotor disability' falling within

Section 2(i)(v), but did not have a certificate of a person with

disability under Section 2(t). The Court in that case succinctly

explained the difference between the expressions “disability”

under Section 2 (i) and “person with disability” under Section

2(t), particularly in the context of Section 47 in paragraph Nos.7,

9 and 10 of the judgment, which reads thus :-

“7. From the facts, which are not in dispute, it is clear that

the disability suffered by the appellant is covered by Section

2(i)(v)read with Section 2(o) of the Act. It is also not in

dispute that this disability was acquired by the appellant

during his service. Under Section 2 "disability" and "person

with disability" are separately defined and they are distinct.

We may also notice some provisions in Chapter VI of the Act

relating to employment. Section 32 deals with identification

of posts which can be reserved for persons with disabilities.

Section 33 speaks of reservation of such percentage of

vacancies not less than 3%for persons or class of persons

with disability of which 1% each shall be reserved for

persons suffering from (i) blindness or low vision; (ii) hearing

impairment and (iii) locomotor disability or cerebral palsy.

Section 38 requires the appropriate Governments and local

authorities to formulate schemes for ensuring employment

of persons with disabilities. Section 47 is included in Chapter

VIII of the Act. Chapter VI deals with employment relating to

persons with disabilities including identification of posts and

reservation of vacancies for such persons. Under this

Chapter, reservation of vacancies for persons with

disabilities is made for initial appointments. Section 47 in

Chapter VIII deals with an employee of an establishment

who acquires a disability during his service.

9. Chapter 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

"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. 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 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.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10254 OF 2019

Brihan Mumbai Electric Supply and Transport Undertaking

Vs Sadashiv Dnyandeo Gaikwad

CORAM : MILIND N. JADHAV, J.

PRONOUNCED ON : 12th August, 2020.

1. Rule. Rule made returnable forthwith. Heard finally

by consent of the parties.

2. This petition has been filed by the petitioner under

Articles 226 and 227 of the Constitution of India to challenge the

validity and propriety of the judgment and order dated

08.10.2018 (though the order has been signed and dated as on

11.10.2018) passed by the Commissioner and Competent

Authority, Welfare of Persons with Disabilities in Appeal No.5 of

2016 under the provisions of The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995 (hereinafter referred to as the 'said Act'. The petitioner

(employer) is a statutory undertaking of the Mumbai Municipal

Corporation of Greater Mumbai and a public utility service.

3. Respondent No.1 (employee) has filed Civil

Application No.2166 of 2019 for seeking various reliefs in

compliance with the impugned order dated 08.10.2018.

4. Briefly, the facts pertaining to the case are as under:

(a) Respondent No.1 was appointed as bus conductor on

11.09.1993 at Malvani Bus Depot, Mumbai and had

since then been working with Brihan Mumbai Electric

Supply and Transport Undertaking (herein after

referred to as "BEST").

(b) On 03.05.2011, respondent No.1 met with an

accident with his motor cycle while travelling to his

native place in Pune resulting in serious injury to his

left knee / leg. Respondent No.1 was initially

admitted to Bhagali Hopsital at Pune and operated

upon in the said hospital. Three metal plates were

implanted in his left leg knee. Later on, two more

operations were conducted on his left knee / leg at

the same hospital.

duties at Malwani Bus Depot whereupon he was

initially referred to the doctors at Mumbai Central Bus

Depot, Mumbai and thereafter further referred to KEM

Hospital, Parel, Mumbai for further medical

examination / treatment and guidance.

(d) On 18.01.2012, the doctors at KEM Hospital, Mumbai

conducted surgery / operation on his left knee and

removed one implanted steel plate. Thereafter on

22.02.2012, the second implanted steel plate was

also removed by conducting another surgery /

operation.

(e) On 12.06.2012, respondent No.1 had to undergo a

third surgery / operation at KEM Hospital whereby

titanium screws were fitted into his left leg knee on a

permanent basis. Respondent No.1 was kept under

observation in KEM Hospital, Parel, Mumbai and was

discharged on 05.07.2012.

(f) The Medical Officer - Incharge of KEM Hospital, Parel,

Mumbai issued medical certificate dated 12.10.2012,

inter alia, stating that respondent No.1 was having

multi ligament tear of knee and hence 41% total

permanent disability. It was opined by the doctors

that respondent No.1 was unfit for conductor's job

permanently but fit for sedentary / office job only.

(g) After the aforesaid trauma and surgeries, armed with

the disability certificate issued by KEM Hospital,

Parel, Mumbai, respondent No.1 reported back to

Malwani Bus Depot, Mumbai but was once again

referred to the doctors at Mumbai Central Bus Depot

and thereafter to undergo further medical

examination, treatment and guidance at Lokmanya

Tilak Memorial Hospital, Sion, Mumbai.

(h) On 12.01.2012, the doctors at Lokmanya Tilak

Memorial Hospital, Sion, Mumbai examined

respondent No.1. Respondent No.1 was thereafter

repeatedly called to Lokmanya Tilak Memorial

Hospital, Sion, Mumbai for physical check up but no

medical test or medical treatment was given or

conducted by the said Hospital. On 03.12.2012, the

doctors of Lokmanya Tilak Memorial Hospital, Sion,

Mumbai issued certificate dated 03.12.2012, inter

alia, certifying that respondent No.1 was suffering

from left leg knee multi ligament injury and it was

stated that he was permanently unfit for the job of

conductor and fit for sedentary / office job only.

(i) Thereafter respondent No. 1 reported to Malwani Bus

Depot, Mumbai but was again referred to the doctors

at Mumbai Central Bus Depot and thereafter to

respondent No.3 i.e. All India Institute of Physical

Medicine and Rehabilitation at Mahalaxmi, Mumbai

for further medical check up, treatment and

guidance. After conducting various examinations,

physiotherapy and physical therapies between

19.12.2012 and 12.04.2013, the respondent No.3 i.e.

All India Institute of Physical Medicine and

Rehabilitation at Mahalaxmi, Mumbai issued a

detailed report to Respondent No.1 about his

condition, therapies conducted and being medically

unfit.

(j) Thereafter, respondent No.1 was referred by the

doctors at Mumbai Central Bus Depot to report to the

respondent No.4 i.e. Standing Medical Board of Sir J.J.

Group of Hospitals for further treatment and advice

on 27.07.2013. The doctors of the Standing Medical

Board of Sir. J.J. Group of Hospitals checked the

respondent No.1 externally over a period of about

five months and carried out pathological tests i.e

urine test, blood test, eye test, chest test, HIV test

etc. and issued medical disability certificate dated

19.12.2013 to respondent No.1, inter alia, opining

17% disability and stating that respondent No.1 was

unfit for conductor's job but fit for light duty.

(k) On 03.03.2014, respondent No.1 was referred to

Respondent No.3 i.e. All India Institute of Physical

Medicine & Rehabilitation for issuance of disability

certificate i.e. percentage of permanent disability as

per Government Circular dated 31.12.2012.

(l) Respondent No.3 issued Intimation of Rejection of

Application for Disability Certificate in Form V on

examination by the Board on 11.07.2014 stating that

it was not possible to issue Disability Certificate as

disability is < 40%.

(m) Respondent No.1 thereafter, by his application

requested the petitioner to give him light duty as

there was no source of income for him and he was

facing hardship. In the meanwhile, the Deputy

Medical Officer of the petitioner vide letter dated

09.04.2014 awarded light duty to the respondent

No.1 for a period of sixteen months i.e upto

08.05.2015 on the pass counter to issue travellers'

passes to passengers.

(n) On 01.09.2015, the Deputy Chief Manager, Traffic

rejected respondent No.1's further application for

light duty and issued termination letter, thereby

permanently terminating the services of respondent

No.1.

(o) Being aggrieved, respondent No.1 filed Civil Writ

Petition No.10601 of 2015 in this Court wherein the

following order came to be passed:

"1. Writ Petition is disposed of opining that this

Court is not entertaining the matter, invoking

its writ jurisdiction under Article 226 of the

Constitution of India since there is an

Authority to consider the cause raised in this

Writ Petition i.e. Commissioner. The Persons

with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act

1995 (for short, the said Act) under section 62

provides for the same. The Petitioner is at

liberty to approach the Commissioner, the

authority who can look into the grievances

raised in the Writ Petition by the Writ

Petitioner and the same shall be disposed of

in accordance with procedure, within three

months from today."

(p) Thereafter respondent No.1 filed Statutory Appeal

No.5/2016 before the Appropriate Authority. The

Appropriate Authority by order dated 17.04.2017

partly allowed the appeal of respondent No.1 and

directed the petitioner to reinstate respondent No.1

forthwith along with back wages and allowances.

Respondent No.1 thereafter repeatedly made several

requests by addressing letters to the petitioner to

comply with and implement the order but the

petitioner did not take any action.

(q) The petitioner, thereafter, belatedly filed Writ Petition

No.4454 of 2018 in this Court to challenge the order

dated 17.04.2017. The said petition came to be

disposed of on 11.04.2018 with the following

directions, inter alia, remanding the case of

respondent No.1 to the respondent No.2 i.e.

Commissioner and Competent Authority, Welfare of

Persons with Disabilities Act:-

"Learned counsel for the respondent No. 1

states that his client has no objection if the

impugned order passed by the respondent No. 2 is

set aside and if the matter is remanded back to the

learned Commissioner and Competent Authority,

Welfare of Persons with Disabilities for hearing and

final disposal and for passing a fresh order in

accordance with law in the proceedings in Appeal

5 of 2016. Statement is accepted.

2. I therefore pass the following order :-

(i) The impugned order dated 17th April 2017 is

accordingly set aside.

(ii) The complaint filed by the respondent No. 1

is restored before the authority. The said

proceedings in Appeal 5 of 2016 shall be

decided without being influenced by the

observations made and conclusion drawn in

the impugned order dated 17th April 2017.

(iii) The question as to whether the parties will

be governed by the provisions of the

Persons with Disabilities Act, 1995 or

whether the Rights of Persons with

Disabilities Act, 2016 is kept open. Such

issue shall be decided by the authority.

(iv) The complaint shall be disposed of

expeditiously and not later than four months

from the date of the next meeting.

(v) Parties to appear before the authority on

25th April 2018 at 3.00 p.m.

(vi) Writ petition is disposed of in aforesaid

terms.

(vii) Their shall be no order as to costs.

(viii) Parties as well as the authority to act on the

authenticated copy of this order.

(r) After according an opportunity of hearing, respondent

No.2, Competent authority passed order dated

08.10.2018 partly allowing the appeal of respondent

No.1 and directing the petitioner to reinstate

respondent No.1 along with back wages and

allowances.

(s) Respondent No.1 sought his reinstatement by letter

dated 07.03.2019 but the petitioner did not reinstate

respondent No.1 and instead credited the amount of

Rs.4,32,903/- in the bank account of respondent

No.1. Respondent No.1 immediately issued a cheque

of Rs.4,32,903/- in the name of BEST Undertaking to

return the aforesaid amount but the petitioner did not

accept the same and returned the same back to

respondent No.1.

(t) Thereafter, petitioner filed the present petition on

13.06.2019 i.e after a period of eight months in this

Court to challenge the validity and legality of the

order dated 08.10.2018 passed by respondent No.2

i.e. Commissioner and Competent Authority, Welfare

of Persons with Disabilities (Respondent No. 2).

5. Respondent No.1 has taken out Civil Application No.

2166 of 2019 in the present writ petition for the following

reliefs:-

"(a) Pending the hearing and final disposal of this Writ Petition

that this Hon'ble Court be pleased to direct the

respondents / Org. petitioners herein above to award a

Light Duty to the applicant / orig. as the applicant / orig.

respondent No. 1 is ready and willing to do job; or direct

the respondents / orig. petitioners herein above to start

the monthly salary to the applicant / orig. respondent No.

(b) that interim and / or ad-interim reliefs in terms of prayer

clause (a) may be granted;

petitioners herein above deserves to be dismissed with

cost in the interest of justice;

(d) Any other and further reliefs as the nature and

circumstances of the present case may require be

granted in the interest of justice."

6. Mr. Naphade, learned counsel for the petitioner

submitted that the core issue relating to the lis between the

parties is the degree of disability of respondent No.1 in order to

be eligible and entitled for any concession or benefits under the

said Act. He submitted that on 01.06.2001, Union of India

through the Ministry of Social Justice and Empowerment issued

notification containing guidelines for evaluation of various

disabilities. He submitted that under the said guidelines, the

minimum degree of disability should be 40% for the purpose of

seeking entitlement and benefit under the said Act. He

defended the order dated 11.07.2014 paned by respondent No.3

and termination letter dated 01.09.2015 in as much as the same

had been passed after due consideration of the fact that the

disability of respondent No.1 was less than 40% and in

accordance with the aforesaid guidelines. Mr. Naphade relied

upon the administrative order bearing No.317 dated 02.02.2005

issued by the petitioner, inter alia, for the purpose of strict

implementation of the provisions of the said Act for the purpose

of providing alternate employment to traffic / outdoor staff i.e

bus conductors / bus drivers. He submitted that for the purpose

of availing alternate employment under the aforesaid

administrative order, the employee was required to suffer a

disability of 40% or more. He submitted that respondent No. 1

was awarded light duty in the interregnum to enable him to

produce the disability certificate which he was not able to

produce. Mr. Naphade further relied upon departmental circular

dated 19.10.2016 which stated that the petitioner undertaking

had decided to pay compensation to employees whose services

were terminated. He submitted that Section 2(t) of the said Act,

defined a person with disability as a person suffering from

disability of not less than 40% and thus, if a person is to be

categorized as disabled, a minimum of 40% disability as

mandated by the said Act had to be there. He emphasized on

the medical report dated 19.12.2013 issued by respondent No.4

which stated that respondent No. 1 suffered from 17% disability

and therefore contended that he was not entitled to any benefit

under the said Act.

7. Mr. Naphade next submitted that the provisions of

Section 80(b) of the Rights of Persons with Disabilities Act, 2016

did not empower the respondent No.2 i.e. the Commissioner to

grant reinstatement and therefore the impugned order was

incorrect to that extent. He submitted that the impugned order

failed to consider the fact that Sections 80 and 82 of the above

Act were only recommendatory in nature and did not confer any

power upon the Commissioner to pass binding orders. He

submitted that respondent No.2 i.e. the Commissioner while

passing the impugned order exceeded his jurisdiction as

conferred upon him by the aforesaid provisions. Mr. Naphade

has also fairly argued and invited my attention to the Medical

history, reports and certificates issued by KEM Hospital and

Lokmanya Tilak Memorial Hospital certifying the status and

disability percentage of respondent No.1.

8. In support of his above submissions, Mr. Naphade has

refered to and relied upon the following judgments:-

(i) Vaishali Walmik Bagul Vs.

Secretary, Prerna Trust, Aurangabad & Ors.

2013(5) Mh. L.J. 221;

(ii) State Bank of Patiala & Ors. Vs.

Vinesh Kumar Bhasin.

(2010) 4 SCC 368;

(iii) Asha T. Dongare Vs.

T.S.K. Reddy & Anr.

unreported judgment dated 12.2.2016 in Contempt

Petition

No. 264 of 2015;

(iv) Geetaben Ratilal Patel Vs.

District Primary Education Officer.

(2013) 7 SCC 182;

(v) The General Manager of BEST Undertaking Vs.

Mohammad Ramjan M. Shahaban & Anr.

Unreported judgment dated 27.3.2018 in OS Writ

Petition

No. 2900 of 2017;

(vi) The Shipping Corporation of India Vs.

Haripada Shaileshwar Chaterjee.

2016 SCC OnLine Bom 9562;

(vii) Collector, Bilaspur Vs.

Ajit P. Jogi & Ors.

(2011) 10 SCC 357.

9. PER CONTRA, Mr. J.P. Kharge, learned counsel appearing

for respondent No.1 in the Writ Petition and Applicant in the Civil

Application submitted that the disability of respondent No.1 as

certified by the doctors at KEM Hospital, Parel and Lokmanya

Tilak Memorial Hospital, Sion has been certified as being in

excess of 40%. He, therefore, submitted that prima facie, if the

disability of respondent No.1 was 41% permanent disability as

certified, the applicability of the provisions, administrative order

and notification issued by the petitioner undertaking will not

apply to the respondent No.1's case. He submitted that the

Medical Officers in-Charge of KEM Hospital, Parel, Mumbai have

issued medical disability certificate in Form "A" under the

Workmen's Compensation Act on 12.10.2012 certifying 41%

total permanent disability. He submitted that Lokmanya Tilak

Memorial Hospital, Sion has also issued certificate dated

05.08.2013, inter alia, certifying permanent disability of

respondent No.1. He submitted that both the aforesaid

certificates were issued after following due process of law and

after undergoing medical examination of respondent No.1 for a

considerable period of time at the two hospitals on the

recommendation of the petitioner. He submitted that both the

hospitals / doctors were leading Municipal hospitals in the city of

Mumbai in as much as respondent No.1 was examined by the

panel of doctors from these hospitals and there was no reason

to impugn or disbelieve or undermine the certificates and

opinion issued by the aforesaid two hospitals. He submitted

that as against the above status of respondent No.1, respondent

No.3 i.e. All India Institute of Physical Medicine and

Rehabilitation at Mahalaxmi, Mumbai has rejected the

application for issuance of disability certificate on the ground

that disability of respondent No.1 is less than 40% relying solely

upon the certificate of disability issued by the respondent No.4

i.e. Medical Board of Sir J.J. Group of Hospitals which certified

that the respondent No. 1 had 17% disability. He submitted that

the certificate issued by the Medical Board of Sir J.J. Group of

Hospitals did not assign any reason or details for certifying 17%

disability, nor were any tests conducted during the span of 5

months between July 2013 to December 2013, when respondent

No. 1 was referred to the said Hospital for the third time by the

petitioner. He supported the order dated 08.10.2018 and

submitted that the same has been passed in accordance with

law in the facts and circumstances of the respondent No.1’s –

case.

10. In support of his submissions, Mr. Kharge has refererd

to and relied on the following judgments:-

(i) Kunal Singh Vs.

Union of India & Anr.

(2003) 4 SCC 524;

(ii) Geetaben R. Patel Vs.

District Primary Education Officer

(2013) 7 SCC 182;

(iii) Sahebrao Baliram Ambhore Vs.

The Chairman & Manager Bombay

Electric Supply & Transport Undertaking & Ors.

Order dated 14.8.2015 in Civil WP 6485 of 2015;

(iv) The General Manager of BEST Undertaking Vs.

Mohammad Ramjan M. Shahaban & Anr

unreported judgment dated 27.3.2018 in OS Writ

Petition No. 2900 of 2017

11. At the outset, it is important to assimilate and note

the relevant provisions of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995 as also its object and reasons.

12. The Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act was enacted in

1995 to meet the following object and reasons:

(i) to spell out the responsibility of the State towards

the prevention of disabilities, protection of rights,

provision of medical care, education, training,

employment and rehabilitation of persons with

disabilities;

(ii) to create barrier free environment for persons with

disabilities;

iii) to remove any discrimination against persons with

disabilities in the sharing of development benefits, visà-

vis non-disabled persons;

iv) to counteract any situation of the abuse and the

exploitation of persons with disabilities;

v) to lay down a strategy for comprehensive

development of programmes and services and

equalization of opportunities for persons with

disabilities; and

vi) to make special provision of the integration of

persons with disabilities into the social

mainstream.

13. Section 47 of the said Act which deals with nondiscrimination

in Government employment 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.”

14. The appointment, function and duties of the Chief

Commissioner and Commissioners for Persons with Disabilities

have been laid down under Chapter XII of the Act.

(i) In Section 58(c) of the Act it is stated that the Chief

Commissioner shall take steps to safeguard the rights and

facilities made available to persons with disabilities.

(ii) The Commissioner is empowered under S ection 62 of

the said Act to look into the complaints in respect to matters

relating to deprivation of rights of persons with disabilities.

Section 62 reads thus:-

“62 - Commissioner to look into complaints with respect

to matters relating to deprivation of rights of persons

with disabilities.- Without prejudice to the provisions of

section 61 the Commissioner may of his own motion or

on the application of any aggrieved person or otherwise

look into complaints with respect to matters relating to--

(a) deprivation of rights of persons with disabilities;

(b) non-implementation of laws, rules, bye-laws,

regulations, executive orders, guidelines or instructions

made or issued by the appropriate Governments and the

local authorities for the welfare and protection of rights

of persons with disabilities, and take up the matter with

the appropriate authorities.”

15. The provisions of Sections 47 and 62 of the Act, when

read together, empower the Commissioner, to look into

complaints with respect to matters relating to deprivation of

rights of persons with disabilities and non-implementation of

laws, rules, bye-laws, regulations, executive orders, guidelines

or instructions issued by the appropriate Governments or local

authorities and to take up the matter with the appropriate

authorities for the welfare and protection of rights of persons

with disabilities including matter relating to dispensation with

service or reduction in rank. The power of the Commissioner “to

look into the complaints with respect to matters relating to

deprivation of rights” as provided under Section 62 of the Act is

not an empty formality and the Commissioner is required to

apply his mind on the question raised by the complainant to find

out the truth behind the complaint. If so necessary, the

Commissioner may suo motu inquire into the matter and/or

after giving notice, hear the concerned parties and after going

through the records may decide the complaint. If it comes to the

notice of the Commissioner that a person with disability has

been deprived of his rights or that the authorities have flouted

any law, rule, guideline, instruction, etc. issued by the

appropriate Government or local authorities, the Commissioner

is required to take up the matter with the appropriate authority

to ensure restoration of rights of such disabled person and/or to

implement the law, rule, guideline, instruction if not followed. A

complaint may be made by any disabled person himself or any

person on behalf of disabled persons or by any person in the

interest of disabled persons.

16. In the present case, it is important to note that at the

behest of the petitioner, respondent No.1 was made to run from

pillar to post for an invariably long period of time to undergo

medical examination / test for determining his suitability /

disability quotient with three leading hospitals in Mumbai, viz;

KEM Hospital, Lokmanya Tilak Memorial Hospital and Sir. J.J.

Hospital. If one sees the amount of time which has been spent

by respondent No.1 in under going the visits and medical tests

physiotherapy, rehabilitation therapy etc. in these three

hospitals over a period of several years then the certificates

issued by these hospitals will have to be scrutinised minutely

and considered.

17. On perusal of the certificates issued by the first two

hospitals i.e. KEM Hospital and Lokmanya Tilak Memorial

Hospital, it is seen that the said certificates have been issued

after a detailed analysis, scrutiny, quarantining and effective

check up of respondent No.1 by the said Hospitals. Admittedly

the entire medical history of injury, progress, operations carried

out, rehabilitation therapy, physio therapy, disability quotient

and remarks etc. pertaining to respondent No.1 have been

placed on record by both the hospitals concluding and

confirming that due to the disability of respondent No.1 he was

unable and unfit to do the job of a Bus Conductor and fit for any

other sedentary job. Incidentally, KEM Hospital has also

operated upon the respondent No.1. It has issued a disability

certificate certifying the disability of the respondent No.1 as

being 41% disability with detailed reasons. Keeping that in mind

alternative employment was offered to respondent No.1 for over

a period of 15 months in a sedentary position / job before his

termination by petitioner. Therefore once the petitioner had

come to this decision on the basis of the medical disability

certificates issued by the aforesaid two leading hospitals, there

was virtually no reason to recommend the petitioner for a third

opinion to respondent No.4 i.e. Sir J.J. Group of Hospitals. It is

further important to note that Sir J.J. Group of Hospitals did not

conduct any specific medical test on respondent No.1 in order to

ascertain his disability quotient in terms of and under the

provisions of the said act. No specific tests to determine the

disability quotient of respondent No.1 were carried out by

respondent No.4 i.e. Sir J.J. Group of Hospitals. In this

background the certificate issued by respondent No.4 i.e. Sir J.J.

Group of Hospital is required to be examined carefully. The said

certificate merely on the face of the certificate in ‘hand writing’

states that the disability quotient of the respondent No. 1 is

17%. There is no analysis, scrutiny and above all no reasons

given by the medical board to arrive at the above finding that

disability of the respondent No.1 is 17%, especially when the

said hospital had the benefit of the entire case history and

certificates issued by KEM Hospital and Lokmanya Tilak

Memorial Hospital before itself. Based on the disability certified

by respondent No.4 in its medical certificate the petitioner has

taken the decision of terminating the employment of respondent

No.1 as being not entitled for alternative employment since his

disability was less than 40% and the respondent No.1 was

unable to procure the disability certificate from respondent

No.3. This on the face on record is highly arbitrary and is not

supported by any material evidence coming from the analysis

made by respondent No.4. From the documents on record I find

that respondent No.1 was also operated by KEM Hospital and

had undergone extensive rehabilitation therapy and physio

therapy in the said hospital. Further the entire medical case

history of respondent No.1 has been placed on record before me

and the same cannot be ignored and doubted. This medical

history given by KEM hospital has ultimately resulted in the

issuance of the disability certificate certifying the disability of

respondent No.1 as 41%.

18. The basis of challenge to the impugned order in the

present petition is two-fold. Firstly, it is submitted that the

Commissioner has no power under Section 62, whilst looking

into any complaint relating to deprivation of rights of persons

with disabilities, to pass a mandatory direction in the nature of

the impugned order. It is submitted that all that the

Commissioner can do under Section 62 of the Disabilities Act is

to take up the matter with the appropriate authority, namely, in

this case, the employer (i.e. the Petitioner). Secondly, it is

submitted that the respondent No.1’s application for issuance of

disability certificate for the purposes of claiming benefit by a

person with disability has been rejected by respondent No.3.

Petitioner has submitted that intimation of rejection of

application seeking disability certificate in Form V (under Rule 4)

was communicated to Respondent No.1 by the authority. A

certificate issued by the Dean, Member Secretary and Member

of Social Justice and Special Assistance Department, Public

Health Department, Directorate of Medical Education and

Research is referred to in this behalf by the petitioner. It is

submitted that application seeking disability certificate, thus,

being rejected by the authority, Respondent No.1 was not

entitled to be reckoned as a person with disability and the

Commissioner, accordingly, had no power to enquire into his

complaint.

19. Firstly, the argument that the Commissioner simply

has to take up the matter with the appropriate authority,

whatever that means, and can pass no direction, has no

substance at all. If all that is meant to be done by the

Commissioner for persons with disabilities under Section 62 of

the Act is to correspond or take up the issue with the

appropriate authority, i.e. to say, the employer as in this case,

then he is an authority with no effective role or purpose. It is

difficult to understand in that case the reason for conferring

extensive powers of the civil court on the Commissioner for the

purposes of discharging his functions under Section 61 and 62

of the said Act. If at the end of the day, all that he is expected to

do is to correspond or enquire with the authority, there is no

need to confer such elaborate procedural powers on him. The

only reasonable meaning that can be ascribed to the expression

“take up the matter with the appropriate authorities ” is that, in

an appropriate case, the Commissioner can issue suitable

instructions to the concerned authorities, i.e. to say, in case of

an employment related dispute to the employer, for redressing

the grievance of the employee who may be a person with

disability or who may have acquired disability during service.

The power may be to “take up the matter with the appropriate

authority”, but then the matter itself must be taken up with a

view to redress the grievance and do so effectively. If such

redressal involves implementation of any particular measure, or

taking any particular step provided in the Act, the authority, in

an appropriate case, can certainly be asked to follow the

mandate of the statute or take the particular step as may be

required thereunder.

20. The Supreme Court in the case of Geetaben Ratilal

Patel vs. District Primary Education Officer (supra) considered

the scope, proper exercise and power of the Commissioner to

look into complaints with respect to matters relating to

deprivation of rights of disabled persons. That was a case

where the appellant before the court had acquired during her

service a mental illness, which was certified as between 40% to

70%. The appellant was dismissed from service. She thereafter

filed an application before the Commissioner under Section 62

of the Disabilities Act. The Commissioner set aside the order of

dismissal holding the same to be void, since the appellant was

suffering from 40% to 70% mental disability at the time of her

dismissal and had to be accommodated in a suitable alternative

post as per Section 47 of the Act. The Commissioner directed

the employer to accommodate her in an appropriate post to be

created for her. In a challenge to the Commissioner's order, a

learned Single Judge of the Gujarat High Court held the

dismissal to be justified. This order was affirmed by a Division

Bench of that Court. The appellant challenged both orders

before the Supreme Court. The employer argued before the

Supreme Court that under Section 62 of the Disabilities Act, the

Commissioner was not competent to declare the order of

dismissal as void. The Court negatived this contention and held

as follows in paragraph No.20 of the judgment, which reads

thus:-

"20. The provisions of Sections 47 and 62 of the Act,when

read together, empower the Commissioner, to look into the

complaint with respect to the matters relating to deprivation

of rights of persons with disabilities and non-implementation

of laws, rules, bye-laws,regulations, executive orders,

guidelines or instructions issued by the appropriate

Governments or local authorities and to take up the matter

with the appropriate authorities for the welfare and

protection of rights of persons with disabilities including

matter relating to dispensation with service or reduction in

rank. The power of the Commissioner "to look into the

complaints with respect to the matters relating to

deprivation of rights" as provided under Section 62 of the Act

is not an empty formality and the Commissioner is required

to apply his mind on the question raised by the complainant

to find out the truth behind the complaint. If so necessary,

the Commissioner may suo motu inquire into the matter and/

or after giving notice,hearing the parties concerned and

going through the records may decide the complaint. If it

comes to the notice of the Commissioner that a person with

disability has been deprived of his rights or that the

authorities have flouted any law, rule, guideline, instruction,

etc. issued by the appropriate Government or local

authorities, the Commissioner is required to take up the

matter with the appropriate authority to ensure restoration

of rights of such disabled person and/or to implement the

law, rule, guideline, instruction if not followed. A complaint

may be made by any disabled person himself or any person

on behalf of disabled persons or by any person in the interest

of disabled persons. Thus the issue as involved is decided

affirmatively in favour of the appellant and against the

respondent."

21. Learned Counsel for the Petitioner relied on the case

of Vaishali Walmik Bagul vs. Secretary, Prerna Trust, Aurangabad

(supra). Learned Counsel submitted that the provisions of the

said Act do not confer power to issue directions on the

Commissioner. The Division Bench in that case was concerned

with the case of appointment of a person to a post. The person

had applied to the post citing his disability as one of the reasons

for recommending himself for appointment. The application was

rejected, and instead, some other person was issued

appointment letter. This was challenged by the applicant before

the Commissioner. The Commissioner, by his order, directed

the employer to appoint the applicant on the post advertised. It

is in the context of these facts that the Division Bench held that

the direction issued exceeded the functions of the

Commissioner under the provisions of Section 61 and 62 of the

Act. This decision of the Division Bench cannot be cited to

thwart an action on the part of the Commissioner of directing

the employer to comply with the mandate of Section 47 of the

Act. Hence this judgment does not support the case and

submissions advanced by the petitioner.

22. Learned Counsel for the Petitioner then relied on the

case of The Shipping Corporation of India vs. Shri. Haripada

Shaileshwar Chaterjee (supra) . Relying on this judgment,

learned Counsel submitted that the Commissioner has no power

to set aside an order of termination. In Shipping Corporation of

India's case, the service of complainant, who worked with the

Shipping Corporation as pantry officer, were terminated on

account of his permanent unfitness and he was awarded a

severance package. The order was challenged by the

complainant before the Commissioner under the said Act and,

on that application, the Commissioner set aside the termination

order and directed the Corporation to reinstate him with full

back wages and benefits. A learned Single Judge of this Court

held that the Commissioner had no such power. The learned

Judge observed that a bare reading of Section 62 of the Act

showed that the Commissioner had power to investigate and

take up the matter with the appropriate authorities; the Act did

not permit the Commissioner to pass an order in the form of a

mandatory direction. The learned Judge, with utmost respect,

failed to notice the law laid down by the Supreme Court in

Geetaben Ratilal Mehta's case (supra). The observations of the

learned Judge that the Commissioner has no power to pass a

mandatory direction under Section 62 of the Disabilities Act are,

in the face of the law laid down by the Supreme Court in that

case is clearly per incurium and do not bind me.

23. The contention of the Petitioner that Respondent No.1

is not entitled to be shifted to another post or that the

Commissioner had no power to pass such order for the reason

that the first Respondent's application for disability certificate

was rejected by the respondent No.3, also has no substance and

deserves to be rejected. In the first place, the so called

disability certificate issued by respondent No.4 and relied upon

by the petitioner leaves much to be desired. Further, it appears

that merely based upon the above certificate, rejection of the

application of respondent No.1 seeking disability certificate by

respondent No.3 is incorrect and not justified. According to the

mandate of the Disability Rules and, particularly, Rules 4 and 5,

what is expected of the medical authority in case of rejection of

a certificate is “to explain the reasons for rejection and to

convey the reasons in writing.” Conveying of reasons for

rejecting the application for disability certificate is the essence

of this provision. The so called medical certificate issued by

respondent No.4 and rejection letter by respondent No.3 does

everything but this. The rejection letter states that the

application for disability is rejected but leaves the reasons for

such rejection blank. A certificate such as this has no merit and

deserves to be discarded outrightly. But a more fundamental

point is that for claiming benefit of Section 47 a person does not

have to be certified as a “person with disability” under Section

2(t) of the said Act. The argument of learned Counsel for the

petitioner is that under Section 2(t), a 'person with disability' is

a person suffering from not less than forty percent of any

disability as certified by a medical authority; respondent No.1

did not suffer from forty percent or more disability (he suffered

from 17% disability as certified by respondent No.4) and

therefore respondent No.1 could not, in the premises claim

benefit of Section 47. This argument envisages that 'acquisition

of disability' within the meaning of Section 47 of the Disabilities

Act is the same as 'being a person with disability'. The two

expressions “disability” and “person with disability” are

separately defined. If, however, after obtaining such disability a

person is found to be 'not suitable for the post he was holding',

he could be shifted to some other post with the same pay scale

and service benefits and if that is not possible, he may be kept

on a supernumerary post until a suitable post is available or he

attains the age of superannuation, whichever is earlier. That is

the mandate of Section 47. There is nothing to suggest that for

applying this mandate, the employee must be shown to be a

'person with disability' within the meaning of Section 2(t), that is

to say,a person suffering from not less than forty per cent of any

disability as certified by a medical authority. In fact, such

interpretation would lead to an absurdity. One may in that case

actually end up suggesting that an employee can be dispensed

with, or reduced in rank, if he suffers from less than forty per

cent of any disability, but not if he suffers from forty per cent or

more disability. In other words, after acquiring less than forty

per cent disability, if an employee is not found suitable for the

post he is holding, he can be terminated and need not be shifted

to other suitable post, but if he acquires more than forty per

cent disability, he must be so shifted and cannot be terminated.

That would be a travesty of justice and no sensible legislature

could have ever intended such result.

24. The Supreme Court in the case of Kunal Singh vs.