Case Note & Summary
The petitioner, an employee of Western Coalfields Ltd., suffered a disability while in service. He approached the employer seeking benefits under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates that an employee who acquires a disability during service must be given an alternative post with the same pay scale and service benefits. The employer, however, provided him an alternate job but with the initial wages of the new category, treating him as not meeting the 40% disability threshold required under Section 2(t) for 'person with disability'. The employer relied on a circular dated 10.09.2004 to justify this stance. The petitioner challenged this communication dated 9/23 March 2010 before the High Court, contending that Section 47 applies to any employee acquiring disability during service irrespective of the percentage, and relying on the Supreme Court decision in Kunal Singh v. Union of India. The core legal issue was whether the definition of 'person with disability' under Section 2(t) and its 40% threshold applies to deny the protection of Section 47. The court analyzed the scheme of the Act, noting that Chapter VI (employment and reservation) uses the term 'person with disability' and the 40% threshold for new recruitment, but Section 47 in Chapter VIII distinctly deals with employees already in service who acquire disability. The court observed that Section 47 does not refer to such employees as 'persons with disability' and is a welfare provision intended to protect their pay scale and service benefits. The proviso to Section 47(1) even requires the employer to keep the employee on a supernumerary post if adjustment is not possible. Following the Supreme Court's observation in Kunal Singh that 'disability' and 'person with disability' are separate concepts, the court held that the 30% disability suffered by the petitioner does not disqualify him from Section 47 benefits. Consequently, the court quashed the impugned communication and directed the employer to release the difference in salary payable within six months, while allowing the petitioner to withdraw the deposited amount of Rs. 1,00,000 from the court registry, adjusted against the dues. The petition was allowed with no costs.
Headnote
A) Persons with Disabilities Law - Scope of Section 47 - Section 47 Applies Irrespective of Disability Percentage - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Sections 2(t), 47 - The court examined whether an employee who acquires disability during service is covered by Section 47, even if disability is less than 40%. Held that the definition of 'person with disability' under Section 2(t) with a 40% threshold is inapplicable; Section 47 protects any employee acquiring disability during employment, ensuring same pay scale and service benefits. (Paras 5-9) B) Employment Law - Rights of Disabled Employees - Supernumerary Post Provision - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Section 47 - When an employee acquires disability and cannot be adjusted against any post, the employer must keep him on a supernumerary post until a suitable post is available or superannuation. The court directed release of salary difference and quashed the communication denying benefit. Held that the employer's circular and reliance on Section 2(t) were erroneous. (Paras 8, 11)
Issue of Consideration
Whether an employee who suffers only 30% disability while in service is entitled to protection under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, despite Section 2(t) defining 'person with disability' as having not less than 40% disability.
Final Decision
Writ petition allowed. Impugned communication dated 9/23 March 2010 quashed. Respondent No. 2 directed to release difference of salary payable to petitioner within six months. Petitioner allowed to withdraw Rs. 1,00,000 deposited with Registry, to be adjusted against dues. No costs.
Law Points
- Section 47 protects employees acquiring disability during service irrespective of percentage
- Section 2(t) definition of 'person with disability' with 40% threshold does not apply to such employees
- same pay scale and service benefits must be preserved
- supernumerary post provision if adjustment not possible
