2014 SCC OnLine Guj 14150

(BEFORE VIJAY MANOHAR SAHAI, A.C.J. AND R.P. DHOLARIA, J.)

Sunilkumar Baitha S/o Late Ram Gulam .…. Petitioner(s)

v.

Union of India & 2 .…. Respondent(s)

Girish K. Patel, Advocate for the Petitioner(s) No. 1

Special Civil Application No. 17196 of 2014

Decided on November 27, 2014

ORAL ORDER

VIJAY MANOHAR SAHAI, A.C.J.:— Rule returnable on

22.12.2014.

2. The petitioner joined the service as Constable/Washerman

(Dhobi) in Central Reserve Police Force on 7.11.2002. After

successful completion of rigorous training at Group Centre,

Gandhinagar, he was posted at Srinagar and thereafter he was

posted at Assam, Tripura, West Bengal, Gandhinagar. A notice

has been issued to the petitioner on 28.10.2014 by respondent

No. 3 to the effect that in pursuance of Medical Board's

decision dated 24.9.2014 he has been found to be medically

unfit from services. From the Medical Certificate dated

24.9.2014, it is apparent that he was incapacitated for further

service as he was suffering from hypertension since 6 years

with CVA with it and spastic hemiparesis, defective vision

(Distant and near) in both eyes, bilateral severe sensorineural

hearing impairment. From the Medical Certificate, it appears

that he is unfit to perform his duties in the Force and the

medical disability occurred while he was in service of the

respondents. The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995, particularly, Section 47 provides nondiscrimination in

Government employment. Section 47 of the said Act is

extracted below:

(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 provision of this Section.”

3. Further the Apex Court has considered the provisions of

the said Act in KUNAL SINGH v. UNION OF INDIA reported in

(2003) 4 SCC 524. In paragraph Nos. 7 to 9 of the judgement,

the Apex Court has considered the question whether Section

47 of the Act would be applicable to a case where a person has

suffered disability during his service. Paragraph Nos. 7 to 9 of

the said judgement are extracted hereinbelow:

“para 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.

8. The need for a comprehensive legislation for

safeguarding the rights of persons with disabilities and

enabling them to enjoy equal opportunities to help them to

fully participate in national life was felt for a long time. To

realize the objective that people with disabilities should have

equal opportunities and keeping their hopes and aspirations

in view of a meeting called the “Meet to Launch the Asian

and Pacific Decades of Disabled Persons” was held in Beijing

in the first week of December 1992 by the Asian and Pacific

countries to ensure “full participation and equality of people

with disabilities in the Asian and Pacific regions”. This

meeting was held by the Economic and Social Commission

for Asia and Pacific. A proc lamation was adopted in the said

meeting. India was a signatory to the said proclamation and

agreed to give effect to the same. Pursuant thereto this Act

was enacted, which came into force on 1.1.1996. The Act

provides some sort of succour to the disabled persons.

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 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 “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 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.”

4. From the perusal of the aforesaid decision of the Apex

Court, it is clear that the Act safeguards the interest of an

employee who suffers disability during his service and Section

47 of the said Act protects his rights for claiming alternative

appointment or adjustment on an alternative post in the same

Department. It further lays down that if it is not possible to

adjust the employee against any post, he would be kept on a

supernumerary post until a suitable post is available or he

attains the age of superannuation, whichever is earlier.

Provisions of this Act is applicable to CRPF Department as they

have taken on 27.7.2011 relying on Standing Order No. 4 of

2011 for Rehabilitation of Force Personnel who are disabled. In

paragraph No. 7 of the Standing Order, it was to be considered

by the DRB to recommend him for any of the tasks specified in

paragraph No. 7 of the Standing Order. Paragraph No. 7 of the

Standing Order is extracted below:

“7. - After critical examination of the persons and

assessment of his/her suitability for the job, DRB will

recommend any of the tasks for him/her as specified below:

a. Dak/Office Runner

b. Telephone Operator

c. Attendants in R/Room, Welfare Centre, School Bus,

d. Sales person in Canteen, Co-operative, Floor Mills,

e. RTO at Railway Station

f. Office Jobs viz. coy writer etc.

g. Mess Constable, Service Man,

 h. Any other specified job considered suitable from time

to time.”

5. We are, prima facie, of the opinion that after the Medical

Board found the petitioner to be unfit for further service, his

case was required to be considered by DRB for suitable job in

light of the Standing Order No. 4 of 2011 as well as the

provisions of The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995 and as no post was available, the respondents were

required to keep the petitioner on a supernumerary post till

regular post is available or he attains the age of

superannuation but this was not done by the respondents.

Therefore, the impugned notice dated 28.10.2014 issued by

respondent No. 3 at Annexure-A to the writ petition deserves to

be said and a direction is liable to be issued to the respondents

to refer the petitioner to DRB for considering him in alternative

job in light of the earlier part of this order.

6. Until further orders of this Court, the effect and operation

of notice dated 28.10.2014 issued by respondent No. 3 - Dy.

Inspector General of Police, Group Centre, CRPF, CRPF Camp,

Chiloda Road, Gandhinagar, at Annexure-A to the writ petition

shall remain stayed in view of the peculiar facts of the case as

narrated above and the petitioner shall be continued in service

and paid his salary and his case be referred to DRB for

consideration of his case for alternative suitable job as per the

Sanding Order No. 4 of 2011 dated 27.7.2011, The Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 and in light of the decision of the Apex

Court in KUNAL SINGH's case (supra). Direct service for

respondent No. 3 is permitted today. Respondent Nos. 1 and 2

to be served by RPAD Speed post.

———

In the High Court of Gujarat at Ahmedabad

(BEFORE A.S. SUPEHIA, J.)

IM Godhrawala Since Decd. Thro Tasnim I Godhrawala

v.

Gujarat Industrial Developmentcorporation and Others

R/Special Civil Application No. 13964 of 2004

Decided on April 11, 2019

Advocates who appeared in this case:

Mr. P.P. Majmudar(5284) for the Petitioner(s) No. 1

Mr. S.P. Majmudar(3456) for the Petitioner(s) No. 1

M/s. Trivedi and Gupta(949) for the Respondent(s) No. 1

Rule Served(64) for the Respondent(s) No. 1, 2

The Judgment of the Court was delivered by

A.S. SUPEHIA, J.:— The present writ petition has been filed

challenging the order dated 30.08.2001 inflicting the

punishment of removal from service on the petitioner under

Section 40(A)(8) of the GIDC (Staff) Regulations, 1963 and also

the order dated 31.08.2004 rejecting his appeal of the

petitioner. During the pendency of the writ petition, the

petitioner has passed away and he is represented through his

legal heirs.
 2. The petitioner was served with a charge-sheet on

15.04.1997 inter alia alleging that due to his negligence in

constructing Block No. 8, which resulted into its collapse and

because of collapse of the said block, financial loss was caused

to the Gujarat Industrial Development Corporation (‘the

Corporation’ for short). There were two charges leveled against

the petitioner in this regard, wherein the charge no. 2 pertains

to lack of attention pertaining to his work by the petitioner as a

Deputy Executive Engineer and thereby, he was negligent in his

duty. After holding a departmental inquiry, the Inquiry Officer

vide its report dated 04.09.2000, proved the charges against

the petitioner.

3. At the outset, learned advocate Mr. S.S. Jadeja for learned

advocate Mr. S.P. Majmudar appearing for the petitioner has

submitted that the petitioner has passed away on 28.01.2012.

He has invited the attention of this Court to the communication

dated 07.08.1997, wherein the petitioner has specifically made

a grievance against the appointment of Inquiry Officer Shri K.B.

Bhagat since he was the approving authority of the design of

Block No. 8, which ultimately had collapsed.

4. Learned advocate Mr. Jadeja for the petitioner has further

submitted petitioner had requested vide letters dated

19.04.1997, 17.06.1997 as well as 08.06.1998 to the disciplinary

proceedings as well as to the Inquiry Officer to provide

necessary documents on which the reliance was placed,

however, the same was not provided till the departmental

inquiry as well as the inquiry proceedings were over, which also

indicates bias on behalf of the Inquiry Officer. He as submitted

that non-supply of such copies to the petitioner has caused

great prejudice since he was unable to put forth his defence in

an effective manner as all the measurements and designs as

well as the material which were used in the construction were

mentioned therein.

5. Learned advocate Mr. Jadeja for the petitioner has invited

the attention of this Court to the defence statement of the

petitioner dated 04.10.1997, wherein the petitioner has

specifically placed reliance on the report of S.V.R. Engineering

College, Surat, which was an expert body, called upon by the

respondent authorities constituting of three(3) highly qualified

professor of College. Learned advocate has submitted that the

College has specifically found that the block No. 8 has collapsed

due to the two reasons;(i) differential settlement of soil below

foundation of block No. 8 and (ii) due to some defects in the

structural design of the said block. He has submitted that the

inquiry officer has placed reliance on the report of the G.I.D.C.

expert shri. Jalundhwala, who has not even put his signature on

the report. He has further pointed out that the inquiry officer

has cursorily not considered the aforesaid contentions raised

by the petitioner in his defence statement. He has submitted

that the inquiry officer has simply discarded the same by

stating that the same are irrelevant.

6. In support of his submissions, learned advocate Mr. Jadeja

has placed reliance on the judgment of the Apex Court in the

case of Union of India v. Ram Lakhan Sharma, (2018) 7 SCC 670 :

AIR 2018 SC 4860. He has also submitted that in various

judgments the Apex Court has held that the documents on

which the reliance is placed, if are not supplied to the

delinquent, then the inquiry proceedings are vitiated. Thus, he

has submitted that the impugned orders are required to be set

aside. Reliance is also placed on the judgment dated

18.03.2019 passed in Special Civil Application No. 15208 of

2004 in the case of his Superior, wherein this Court has set

aside the penalty imposed on him.

 7. Learned advocate Mr. Uday Joshi appearing for the

respondent has submitted that the appointment of Shri K.B.

Bhagat as an Inquiry Officer has not resulted to any bias since

the findings of the Inquiry Officer as well as the inquiry report

reveal that Block No. 8 had collapsed because of faulty material

which was used by the petitioner and not because of the faulty

design. He has further submitted that the documents as

demanded by the petitioner were supplied to him. However, he

has submitted that the documents which were demanded by

the petitioner were offered for inspection. Thus, he has

submitted that the punishment imposed by the respondent

authorities on the petitioner cannot be set aside as the same is

imposed as per the regulations of the Corporation. In support

of his submissions, learned advocate Mr. Joshi has placed

reliance on the judgment of the Apex Court in the case of State

Bank of India v. Narendra Kumar Pandey, (2013) 2 SCC 740. Thus,

he has submitted that the impugned orders are not required to

be quashed and set aside. Thus, it is submitted by the learned

advocate for the respondents that the documents were only

given for inspection and it was not feasible to supply the copies

and hence, the departmental inquiry could not have been

vitiated on this ground.

 8. No further submissions are advanced by learned

advocates appearing for the respective parties.

9. It is also not in dispute that the Inquiry Officer Mr. K.B.

Bhagat was associated with the drawing/design of the quarters

which have ultimately collapsed. The petitioner on the very first

occasion, when he was appointed as an Inquiry Officer vide

communication dated 07.08.1997 has requested the

disciplinary authority to change him on account of his

involvement with the design.

10. The Apex Court in the case of Ram Lakhan Sharma (supra)

while endorsing the view taken by the Division Bench of the

Madras High Court has observed as thus:

“30. A Division Bench of the Madhya Pradesh High Court

speaking through Justice R.V. Raveendran, CJ (as he then was)

had occasion to consider the question of vitiation of the inquiry

when the Inquiry Officer starts himself acting as prosecutor in

Union of India v. Mohd. Naseem Siddiqui, ILR (2004) MP 821.

In the above case the Court considered Rule 9(9)(c) of the

Railway Servants (Discipline & Appeal) Rules, 1968. The Division

Bench while elaborating fundamental principles of natural

justice enumerated the seven well recognised facets in

paragraph 7 of the judgment which is to the following effect:

“7. One of the fundamental principles of natural justice is

that no man shall be a judge in his own cause. This principle

consists of seven well recognised facets : (i) The adjudicator

shall be impartial and free from bias, (ii) The adjudicator

shall not be the prosecutor, (iii) The complainant shall not be

an adjudicator, (iv) A witness cannot \be the Adjudicator, (v)

The Adjudicator must not import his personal knowledge of

the facts of the case while inquiring into charges, (vi) The

Adjudicator shall not decide on the dictates of his Superiors

or others, (vii) The Adjudicator shall decide the issue with

reference to material on record and not reference to

extraneous material or on extraneous considerations. If any

one of these fundamental rules is breached, the inquiry will

be vitiated.”

31. The Division Bench further held that where the Inquiry

Officer acts as Presenting Officer, bias can be presumed. In

paragraph 9 is as follows:

“9. A domestic inquiry must be held by an unbiased person

who is unconnected with the incident so that he can be

impartial and in deciding the subject matters of inquiry. He

 should have an open mind till the inquiry is completed and

should neither act with bias nor give an impression of bias.

Where the Inquiry Officer acts as the Presenting Officer, bias

can be presumed. At all events, clearly gives an impression of

bias. An Inquiry Officer is in position of a Judge or

Adjudicator. The Presenting Officer is in the position of a

Prosecutor. If the Inquiry Officer acts as a Presenting Officer,

then it would amount to Judge acting as the prosecutor.

When the Inquiry Officer conducts the examination-inchief of

the prosecution witnesses and leads them through the The

brief facts of the case are as under : so as to present the case

of the disciplinary authority against the employee or cross-

examines the delinquent employee or his witnesses to

establish the case of the employer/disciplinary authority

evidently, the Inquiry Officer cannot be said to have an open

mind. The very fact that he presents the case of the employer

and supports the case of the employer is sufficient to hold

that the Inquiry Officer does not have an open mind.”

32. The Division Bench (after elaborately considering the

issue summarised the principles in paragraph 16 which is to the

following effect:
 “16. We may summarise the principles thus:

(i) The Inquiry Officer, who is in the position of a Judge shall

not act as a Presenting Officer, who is in the position of a

prosecutor.

(ii) It is not necessary for the Disciplinary Authority to appoint

a Presenting Officer in each and every inquiry. Non-

appointment of a Presenting Officer, by itself will not

vitiate the inquiry.

(iii) The Inquiry Officer, with a view to arrive at the truth or to

obtain clarifications, can put questions to the prosecution

witnesses as also the defence witnesses. In the absence of

a Presenting Officer, if the Inquiry Officer puts any

questions to the prosecution witnesses to elicit the facts,

he should thereafter permit the delinquent employee to

cross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-in-

chief by leading the prosecution witnesses through the

prosecution case, or puts leading questions to the

departmental witnesses pregnant with answers, or cross-

examines the defence witnesses or puts suggestive

questions to establish the prosecution case employee, the

 Inquiry Officer acts as prosecutor thereby vitiating the

inquiry.

(v) As absence of a Presenting Officer by itself will not vitiate

the inquiry and it is recognised that the Inquiry Officer can

put questions to any or all witnesses to elicit the truth, the

question whether an Inquiry Officer acted as a Presenting

Officer, will have to be decided with reference to the

manner in which the evidence is let in and recorded in the

inquiry.

Whether an Inquiry Officer has merely acted only as an

Inquiry also acted as a Presenting Officer depends on the

facts of each case. To avoid any allegations of bias and

running the risk of inquiry being declared as illegal and

vitiated, the present trend appears to be to invariably

appoint Presenting Officers, except in simple cases. Be that

as it may.”

11. The observations made by the division bench of the

Madras High Court as incorporated in the aforesaid judgment

specifically elaborate that the adjudicator shall be impartial and

free from bias. It is further observed in Paragraph No. 9 by the

Division Bench that a domestic inquiry must be held by an

unbiased person who is unconnected with the incident so that

he can be impartial and objective in deciding the subject

matters of inquiry. He should have an open mind till the inquiry

is completed and should neither act with bias nor give an

impression of bias. Thus, even there is an apprehension of

likelihood of bias, the Inquiry Officer, who acts as quasi-judicial

authority has to recuse himself from the proceedings.

12. In the present case, unquestionably, the Inquiry Officer

was connected with the design of the block which had

collapsed and in fact, he was the approving authority. Before

the Inquiry Officer and during the inquiry proceedings also, the

petitioner had specifically contended that the block had

collapsed because of the faulty design and not) by the material

used in the construction. The Inquiry Officer has placed

reliance on various documents and has concluded that due to

defective material used by the petitioner, the block had

collapsed and not because of faulty dsign. The issue of faulty

design of the block was also a subject matter in the

departmental proceedings. Thus, the Inquiry Officer, who was

the approving authority of the design, has ultimately held that

the building had not collapsed because of such faulty design,

but because of the material used by the petitioner. Hence, it

can be safely presumed that the Inquiry Officer was very well

connected with such finding wherein it was held that the

building had not collapsed because of faulty design. It is

noticed by this Court that the contentions raised by the

petitioner by placing reliance on the expert report of the S.V.R.

Engineering College, is discarded by the inquiry officer by

stating that it is found to be irrelevant. As regards the

contentions raised by the petitioner objecting the reliance

placed by the inquiry officer upon the report of the expert of

G.I.D.C, since the report is not signed by the expert, the same

has been brushed aside by the inquiry officer by saying that

such contentions are not acceptable. It is not the case of the

respondents that the report of the S.V.R. Engineering College,

Surat was called upon on the request of the petitioner. The said

report was called upon by the inquiry officer and the reliance

placed in such report, which was favourable to the petitioner is

discarded cursorily by observing that it is not relevant. Hence,

the approach of the inquiry officer in the entire episode

appears to be prejudicial and biased.

13. As regards the contentions raised by the learned

advocate for the respective parties for the grant of back-wages,

learned advocate Mr. Joshi has placed reliance on the judgment

of the Apex Court in the case of Gujarat Agricultural University v.

All Gujarat Kamdar Karmachari Union, (2009) 15 SCC 335 : AIR

2010 SC 2507 and has submitted that the petitioner is not

entitled to full back-wages but at the most, he can get 50% of

back-wages. Learned advocate Mr. Jadeja has submitted that

the petitioner would be entitled to full back-wages.

14. The contentions raised by the petitioner for setting aside

the departmental inquiry on the ground of non-supply of the

relevant documents, merits acceptance. The petitioner during

the departmental proceedings and in the final defence

statement dated 19.06.1999 has made a request to supply the

relevant document, which was required for his defence. The

“Remarks” column of his defence statement reveals that though

some of the documents were supplied, the relevant papers

were missing, namely, in Item No. I there were 258 pages

missing, which were related to copy of plans. (2) Design

calculations was found in the file (3) Consultancy Report of the

S.V.R. College of Engineering & Technology, which was a vital

document. (4) Soil Investigation Report mislead some other

report of other quarters were shown. (5) Incomplete Report of

Shri M.J. Jalundhwala on which reliance was placed by the

inquiry officer. Apart from the above documents, the

documents on which the reliance was placed by the inquiry

officer only inspection was allowed, which violates the

principles of natural justice. The inspections of documents will

not meet with the doctrine of fair-play and equity. Such

documents are required to be supplied to the delinquent so

that he can effectively put-forth his defence. The Apex Court in

the case of State Bank of India v. D.C. Aggarwal, (1993) 1 SCC 13 :

AIR 1993 SC 1197 has held that even if the document is a

privileged document, the same should be supplied to the

delinquent and non-supplying of such document would vitiate

the departmental inquiry and would be against the procedural

fairness.

15. Similarly, the Apex Court in the case of Committee of,

Kisan Degree College v. Shambhu Saran Pandey, (1995) 1 SCC 404

has held thus:

“Postponement of the opportunity to inspect the documents

to the time of final hearing was obviously an erroneous

procedure. In the first instance, the delinquent should be given

 the opportunity for inspection and thereafter the enquiry should

be conducted and then the delinquent should be heard at the

time of conclusion of the enquiry.”

16. In the present case, the aforesaid documents were not

supplied to the petitioner on the ground that since the

documents were not feasible to supply and unquestionably, the

aforesaid documents, upon which the reliance is placed by the

Inquiry Officer to prove the charges against the petitioner, were

required to be supplied to the petitioner.

17. Reliance is placed by learned advocate for the

respondents on the judgment of the Apex Court in the case of

Narendra Kumar Pandey (supra) will not come to the rescue

since the same deals with the list to be annexed with the

charge-sheet and the Apex Court has observed thus:

“20. We are of the view that the High Court has committed an

error in holding that the charge-sheet should have mentioned

about the details of the documents and the names of the

witnesses which the Bank proposed to examine and a list to that

effect should have been appended to the charge sheet. We may

point out that the charge-sheet need not contain the details of

the documents or the names of the witnesses proposed to be

 examined to prove the charges or a list to that effect unless

there is a specific provision to that effect. Charge-sheet, in other

words, is not expected to a record of. Fair procedure does not

mean giving of copies of the documents or list of witnesses along

with the charge-sheet. Of course, statement of allegations has to

accompany the charge-sheet, when required by the Service

Rules.”

18. A perusal of the inquiry report reveals that the petitioner

had also raised the issue before the Inquiry Officer to supply

the documents. It is specifically mentioned by him that the

aforesaid documents are needed by him for putting forth an

effective defence, but it appears that some of the documents,

upon which reliance was placed, are not even allowed to' be

inspected. Under the circumstances, the impugned

departmental inquiry, which was held against the petitioner

suffers from procedural unfairness, and is required to be

quashed and set aside. In fact, such an approach would

substantiate the argument of the petitioner that the Inquiry

Officer was biased against him as he was connected with the

design and had approved it.

19. It is reported by the learned advocate for the petitioner

that the petitioner has passed away on 28.01.2012 and hence,

in this view of the matter, it would not be feasible to ask the

disciplinary authority to conduct the inquiry afresh.

20. In the considered opinion of this Court, the petitioner

would be entitled to 50% back-wages and a just balance needs

to be struck and the principle of ‘no work, no pay’ does not

deserve to be given a complete go-by looking to the peculiar

circumstances of the case. The interest of justice would be

subserved, if the respondents are directed to pay 50% back-

wages as per the law enunciated by the Apex Court in the case

of Gujarat Agricultural (supra).

21. Under the circumstances, the impugned order dated

30.08.2001 and communication dated 31.08.2004 are hereby

quashed and set aside. The respondents shall calculate the

aforesaid amount and pay the same to the petitioners. The

respondents shall also re-fix the pay and the retirement

benefits accordingly, within a period of two(2) months from the

date of receipt of the writ of this order. If the aforementioned

amount is not paid within the time specified by this Court, then

the same shall further carry 12% rate of interest for the delayed

period. The petition stands allowed accordingly. Rule is made

 absolute to the aforesaid extent.

———

2015 SCC OnLine Del 6556 J2

(BEFORE KAILASH GAMBHIR AND I.S. MEHTA, JJ.)

Shri Pawan Kumar .…. Petitioner

Mr. Vijay Sharma, Advocate

v.

Delhi Transport Corporation .…. Respondent

Ms. Latika Chaudhary, for Ms. Avnish Ahlawat, Advocate

W.P. (C) No. 4261/2013

Decided on January 16, 2015

JUDGMENT

I.S. MEHTA, J.

1. Aggrieved from the order of the Central Administrative

Tribunal, Principal Bench, New Delhi dated 24.09.2012 in O.A.

No. 566 of 2012, the petitioner has preferred the present writ

petition under Articles 226 and 227 of the Constitution of India

for setting aside the aforesaid order and for issuing necessary
directions to the respondent.

2. The brief facts of the case are that the petitioner Pawan

Kumar s/o Shri Sultan Singh was employed as a Driver with the

respondent i.e. Delhi Transport Corporation vide appointment

letter bearing No. PLDIII/DSSSB/Driver/2008/3697 dated

23.12.2008 in the Pay band of Rs. 5200-20200 + grade pay of

Rs. 2000 and other allowances initially on probation for a

period of two years. On 11.03.2009, during the period of

probation, the petitioner suffered an injury when a fire-cracker

hit his right eye which left him visually handicapped by 30% as

is exhibited by the certificate dated 16.05.2009 issued by Dr.

Rajendra Prasad Centre for Ophthalmic Sciences. The petitioner

was thereafter asked by the respondent not to resume duties

after 17.04.2009 after his medical examination was conducted

at the direction of the respondent.

3. Subsequently, the petitioner filed an O.A. No. 566/2012

before the Central Administrative Tribunal, Principal Bench,

New Delhi seeking issuance of a direction to recruit him in the

alternative suitable post with continuity in service in the pay

scale, allowances and other benefits of Driver. The Ld. CAT vide

order dated 24/09/2012 declined to give any relief to the

petitioner and dismissed his OA. Hence, the present writ-

petition by the petitioner.

4. The basis of the relief sought in the present writ petition is

under the provisions of “The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995” (hereinafter referred to as ‘the Act’). Mr. Vijay Sharma,

learned counsel for the petitioner argued that the petitioner

acquired the injury/disability for no fault of his, during the

period in which he was on probation as a Driver employed with

the respondent and is entitled to benefit under Section 47 of

the Act and deserves to be given an alternative post in the

same pay scale with the respondent along with the back wages,

seniority and other service benefits.

5. On the other hand, the learned counsel for the respondent

Ms. Latika Chaudhary has drawn our attention to Section 2(t) of

Act and pointed out that requirement under section 2(t) for

disability is 40% and since the petitioner has not suffered 40%

disability, he cannot be given alternative employment under

Section 47. Section 47 of the Act is reproduced hereinunder:

47. 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.

(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 povisions of this

section. (underlining supplied)

Section 2, the definition clause of the Act defines a “person with

disability” in clause (t) as follows:

“Sec 2(t) -“person with disability” means a person suffering from

not less than forty per cent of any disability as certified by a

medical authority”.
Section 2, the definition clause of the Act defines the term

“disability” in clause (i) as follows:

“Disability” means-

i) blindness;

ii) low vision;

iii) leprosy-cured;

iv) hearing impairment;

v) loco motor disability;

vi) mental retardation;

vii) mental illness;

6. The petitioner is seeking relief under the Act. The said Act is

based on the “Proclamation on the Full Participation and Equality

of the People with Disabilities in the Asian and Pacific Region”

adopted in the year 1992 at Beijing, to which India is one of the

signatory States. The Parliament of India, in order to implement

the said Proclamation, passed the aforementioned Act in 1995.

The present Act is a beneficial legislation enacted for the

benefit of disabled persons and to afford them adequate

opportunities and participation in employment especially in the

services of the Government Establishments.

7. It was argued by the learned counsel for the respondent that

the Act has to be read as a whole and Section 2(t) specifically

provides that a “person with disability” means a person suffering

from at least 40% disability. In the present case, it is an

admitted fact that the petitioner suffers from 30% disability and

it was argued on behalf of the respondent that the provisions

of Section 47 are not applicable to the present facts and

circumstances of the case.

We have heard the learned counsel for the parties.

8. The bare perusal of Section 47 shows that Section 47(1)

pertains to “an employee who acquires a disability during his

service” and does not deal with a “person with disability”. The

definition given under Section 2(t) does not deal with the

disability which is acquired by an employee during the period

of service/employment. Rather, it deals with persons suffering

from at least 40% disability entitling them to the post, which are

reserved for disabled persons u/s 33 of the Act.

9. On the other hand, a person, who acquires a disability during

his service which renders him unsuitable for the post that he

was holding, is still entitled to the benefit of Section 47 even

though his disability is less than 40%. The meaning of the term

“disability” under Section 47 shall be ascertained from Section

2(i).

10. It is apparent from the available records that the petitioner

as a result of the accident was declared medically unfit to

continue working as a driver with the respondent. He acquired

a disability of “low vision” which rendered him unsuitable for

the post that he was holding with the respondent. So far as it

relates to acquisition of a disability, the present case is covered

under the provisions of Section 47 of the aforesaid Act.

Reliance may be placed on Kunal Singh v. Union of India (UOI),

AIR 2003 SC 1623, wherein the Apex Court made the following

observation:

“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.”

11. The sole ground on which The Ld. Central Administrative

Tribunal denied relief to the petitioner was that being a

probationer, “he could not be continued in service till

retirement as probationer or confirmed employee”. It is an

undisputed fact that the petitioner acquired 30% handicap

during the probation period. The accident resulting in the

handicap occurred on 11.03.2009 during the probation period.

It was argued by the respondent that the petitioner is not

entitled to the benefit of Section 47 as he was on probation at

the time of acquisition of the disability. Clause 8 of the

appointment letter dated 23.12.2008 reads as under:

“8. His appointment is purely temporary. He shall be on probation

for a period of 2 years from the date of appointment. During the

period of his probation, his services shall be liable to be terminated

at any time without notice and without assigning any reason

thereof. He shall be considered as having completed the period of

probation satisfactorily only when a notification to this effect is

issued by the competent authority.”

However, Section 47 does not make any distinction between

the nature of services it protects. Relief cannot be denied to the

petitioner on the ground that he was still undergoing the

probation period at the time of acquisition of the disability. In

this regard, the Bombay High Court in Union of India v. Pramod

Sadashiv Thakre, 2012 (2) ALLMR 468, upheld this view in the

following terms:

“It was, however, urged by Mr. Sundaram, learned counsel for the

petitioners, that the respondent's services cannot be protected by

Section 47 of the Act since the respondent was a temporary

employee on probation. Section 47 of the Act, reproduced above,

protects the services of an employee and makes no distinction

between the nature of the services it protects. The purpose and

intention of the provisions is to protect an employee from

unemployment on the ground that he has incurred disability.

Parliament has in its wisdom accommodated the possibility that an

employee may not be able to discharge the duties of office

prescribed for him and to that effect a provision has been made

that an employee shall be employed in some other post with same

benefits.”

12. Moreover, it is immaterial as to whether the injury was

caused to the petitioner in the course of his employment as a

driver or otherwise. This Court in the case of Shri. Sunil Kumar v.

Delhi Transport Corporation, 120 (2005) DLT 499, made the

following observations:

“…decisions of Courts have held that it is wholly immaterial where

the injury is caused while on duty or at any other time. The

Disabilities Act is a beneficial enactment. No person will welcome

an injury to his person.”

In Delhi Transport Corporation v. Rajbir Singh, 100 (2002) DLT

111, a Division Bench of this Court made the following

observations:

“26. What was emphasized in the said paragraph was that those

were already in employment should not be uprooted when they

incurred disability. It would not mean that such disability must

occur during the course of employment which expression finds

place in certain statutes, as for example, Workmen Compensation

Act.

27. The purport and object of statute like Workmen Compensation

Act are totally different and distinct from the said Act. They seek to

achieve different purposes. Whereas Workmen Compensation Act

provides for grant of compensation, in terms of the provisions of

the said Act, service of disabled is sought to be secured.”

13. There is no plea taken by the respondent that the petitioner

has indulged in any misconduct as a driver during the period of

probation till the time of injury. Therefore, in our opinion, it is a

fit case where the petitioner should be given benefit u/s 47(1).
Section 47 of the Act is a mandatory provision casting a duty

upon the employer not to dispense with or reduce in rank an

employee during the period of his employment with the

establishment. It has been so held in the Kunal Singh's case

(Supra) in the following terms:

“11….The Act is a special Legislation dealing with persons with

disabilities to provide equal opportunities, protection of rights and

full participation to them. It being a special enactment, doctrine of

generalia specialibus non derogant would apply”

In the same case, the Division Bench of the Apex Court also

made the following observations:

“9. …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.”

As such, the respondent is directed to act as per the provisions

under Section 47(1) i.e. by giving him an alternative post with

the same pay scale, continuity of service, and other service

benefits with the respondent and work in accordance with his

capabilities be assigned by the respondent within a period of

six weeks from today. Since the petitioner was on probation

and had not yet completed the period of probation of two

years, therefore, the petitioner be put on probation as per the

applicable rules on the alternative post for the remaining

period of probation under the respondent who shall further

deal as per the rules. However, the petitioner has not worked

as an employee of the respondent since the day on which he

acquired the disability and is therefore not entitled to 100%

back-wages. Petitioner being a young man was able enough to

undertake any other work/employment in accordance with his

abilities after the accident. Bearing this in mind, we are of the

opinion that granting him 50% of his back-wages will meet the

ends of justice. Accordingly, the respondent is hereby directed

to pay 50% of his back wages with due increments within a

period of eight weeks from today. In the event of non-payment

within eight weeks, the DTC is liable to pay interest on that

amount @ 9% p.a. till date of payment.

14. The impugned order is accordingly quashed.

15. There shall be no order as to costs.

16. The writ-petition is allowed in the above terms.