Case Note & Summary
The Petitioner, General Manager of B.E.S.T. Undertaking, challenged an order of the Commissioner, Handicapped Welfare, Maharashtra State, directing them to engage Respondent No.1, a bus driver who acquired a 30% loss of sight in his left eye during service, in an alternative post with same pay scale and service benefits. Respondent No.1 was a bus driver with the Petitioner Undertaking. On 4 October 2014, after parking his bus, he was accidentally hit in the left eye by a stone thrown by an unknown boy. The injury resulted in a disability, and medical boards declared him unfit for driving duties. The Petitioner terminated his services with effect from 2 January 2016, citing unfitness and that the disease did not fall under Sections 2(i) and (t) of the Persons with Disabilities Act, 1995. Respondent No.1 requested alternative employment. The Commissioner directed the Petitioner to provide alternative employment. The Petitioner challenged this order. The court analyzed Section 47 of the Act, which prohibits termination of an employee who acquires a disability during service and mandates provision of alternative employment. The court held that the Act applies to all disabilities, not just those listed in Sections 2(i) and (t), and that the employer must provide alternative employment with same pay scale and benefits. The court dismissed the petition, upholding the Commissioner's order.
Headnote
A) Disability Law - Alternative Employment - Section 47 of Persons with Disabilities Act, 1995 - Acquired Disability - The court considered whether an employer must provide alternative employment to an employee who acquires a disability during service, even if the disability is not covered under Sections 2(i) and (t) of the Act. The court held that Section 47 applies to all employees who acquire a disability during service, regardless of whether the disability is listed in the Act, and the employer is duty-bound to provide alternative employment with same pay scale and service benefits. (Paras 1-10)
B) Disability Law - Termination - Section 47 of Persons with Disabilities Act, 1995 - Invalidity Certificate - The court held that an employer cannot terminate an employee who acquires a disability during service merely by issuing an invalidity certificate; the employer must first explore the possibility of alternative employment. The termination order was set aside as the employer failed to comply with Section 47. (Paras 5-10)
Issue of Consideration
Whether an employer is obligated to provide alternative employment to an employee who acquires a disability during service, under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, even if the disability does not fall within the specified categories under Sections 2(i) and (t) of the Act.
Final Decision
The court dismissed the writ petition, upholding the order of the Commissioner, Handicapped Welfare, Maharashtra State, directing the petitioner to provide alternative employment to Respondent No.1 with same pay scale and service benefits.
Law Points
- Persons with Disabilities Act
- 1995
- Section 47
- alternative employment
- acquired disability
- termination
- duty to provide alternate post
Case Details
2018 LawText (BOM) (03) 41
Writ Petition No.2900 of 2017
Mr. Aseem Naphade, a/w. Ms. Hetal Master, i/b. Ashwin Ankhad & Associates, for the Petitioner; Mr. A.L. Patki, Additional G.P., for Respondent No.2; Mr. Syed Asif Abbas Naqvi, for Respondent No.1
The General Manager of B.E.S.T. Undertaking
Mohammad Ramjan M. Shahaban And Anr.
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Nature of Litigation
Writ petition challenging an order of the Commissioner, Handicapped Welfare, Maharashtra State, directing the petitioner to provide alternative employment to a disabled employee.
Remedy Sought
The petitioner sought to quash the Commissioner's order directing alternative employment for Respondent No.1.
Filing Reason
The petitioner was aggrieved by the Commissioner's order to engage Respondent No.1 in an alternative post with same pay scale and service benefits.
Previous Decisions
The Commissioner, Handicapped Welfare, Maharashtra State, passed an order directing the petitioner to engage Respondent No.1 in some other post with same pay scale and service benefits.
Issues
Whether the disability of Respondent No.1 (30% loss of sight in left eye) falls within the purview of the Persons with Disabilities Act, 1995, specifically under Sections 2(i) and (t).
Whether the petitioner was obligated under Section 47 of the Act to provide alternative employment to Respondent No.1 who acquired disability during service.
Submissions/Arguments
Petitioner argued that Respondent No.1's disability (loss of vision in one eye) is not covered under Sections 2(i) and (t) of the Disabilities Act, and thus the Act does not apply.
Respondent No.1 contended that he acquired disability during service and is entitled to alternative employment under Section 47 of the Act.
Ratio Decidendi
Section 47 of the Persons with Disabilities Act, 1995, applies to all employees who acquire a disability during service, irrespective of whether the disability is listed under Sections 2(i) and (t) of the Act. The employer is duty-bound to provide alternative employment with same pay scale and service benefits, and cannot terminate the employee merely by issuing an invalidity certificate.
Judgment Excerpts
By the impugned order, the Commissioner directed the Petitioner herein to engage Respondent No.1, who was working as a driver with the Petitioner Undertaking and who acquired disability during his service (30% loss of sight in the left eye), in some other post with same pay scale and service benefits.
The court held that Section 47 of the Disabilities Act applies to all employees who acquire a disability during service, regardless of whether the disability is covered under Sections 2(i) and (t).
Procedural History
Respondent No.1, a bus driver, acquired a 30% loss of sight in left eye due to an accident on 4 October 2014. Medical boards declared him unfit for driving. The petitioner terminated his services on 7 July 2016. Respondent No.1 applied for alternative employment. The Commissioner, Handicapped Welfare, Maharashtra State, passed an order directing the petitioner to provide alternative employment. The petitioner challenged this order by filing Writ Petition No.2900 of 2017 before the Bombay High Court.
Acts & Sections
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: 2(i), 2(t), 47
