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2015 Supreme(Bom) 1207
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Ashok and Ors. – Petitioner
VERSUS
Assistant Director (A) the Director General, Information and Public Relations, Maharashtra and Ors. – Respondents
WRIT PETITION NO.655 Of 2005
Decided On : 06/08/2015
Advocate Appeared:
For the Petitioner:Mr. V.Y. Patil, Advocate.
For the Respondents: Mrs. S.D. Shelke, AGP.
The central legal point established in the judgment is the mandatory nature of Section 47 of the Persons with Disabilities Act, 1995, which prohibits establishments from dispensing with or reducing in rank an employee who acquires a disability during his service, and the requirement to afford an opportunity of hearing before termination.
Headnote:
Persons with Disabilities - Termination of Employment - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 47 - Summary of Acts and Sections: The court discussed the rights of the petitioner under the Persons with Disabilities Act, 1995, particularly focusing on Section 47 which prohibits establishments from dispensing with or reducing in rank an employee who acquires a disability during his service. The court also referenced case law including Kunal Singh Vs. Union of India, Shivaji S/o Vishwanath Dongre Vs. State of Maharashtra, Bhagwan Dass and another Vs. Punjab State Electricity Board, and Dilbagh Singh Vs. Delhi Transport Corporation to interpret and apply the provisions of Section 47 in the context of the petitioner's case.
Fact of the Case:
The petitioner, a 'Peon' and Messenger, was terminated based on a medical report declaring him unfit due to a defect in the left eye. The petitioner's complaint was dismissed by the Labour Court, and recovery of benefits received under an interim order was directed. The Industrial Court also dismissed the petitioner's revision petition. The petitioner's legal heirs challenged these judgments, citing non-adherence to principles of natural justice and violation of the Persons with Disabilities Act, 1995.
Finding of the Court:
The court found that the termination of the petitioner's employment without affording an opportunity of hearing and without considering the provisions of Section 47 of the Act of 1995 was erroneous. The Labour Court's dismissal of the complaint and the recovery order were deemed unsustainable. The Industrial Court's concurrence with these conclusions was also found to be non-application of mind.
Issues: The issues revolved around the termination of the petitioner's employment, non-adherence to principles of natural justice, and the violation of the Persons with Disabilities Act, 1995, particularly Section 47.
Ratio Decidendi: The court held that the principles of natural justice mandate an opportunity of hearing before termination, and the provisions of Section 47 of the Act of 1995 must be adhered to, prohibiting establishments from dispensing with or reducing in rank an employee who acquires a disability during his service.
Final Decision: The petition was allowed, and the impugned judgments of the Labour Court and the Industrial Court were quashed and set aside. The respondents were directed to pay the residual wages of the deceased petitioner to his legal heir, the wife, within a specified period.
1. This petition was Admitted by order dated 31/01/2007. The stay to the recovery ordered by this Court on 10/03/2005 was confirmed on 31/01/2007.
2. The petitioner challenges the judgment and order of the Labour Court dated 23/04/1999 in Complaint (ULP) No.155/1990, by which his complaint was dismissed. By an interim order passed by the Labour Court, pending the complaint, the petitioner was granted 75% wages till the decision in the complaint. The Labour Court, therefore, directed recovery of all benefits received under its interim order.
3. The petitioner also challenges the judgment of the Industrial court dated 05/08/2004 in Revision (ULP) No.4/2004 (Old No.709/1999) by which the revision petition preferred by the petitioner, was dismissed.
4. This case involves the rights of the petitioner under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for Short, the Act of 1995).
5. The petitioner submits that he was appointed as a “Peon” on 28/04/1981. He continuously worked and served as a Messenger, as well. By letter dated 22/09/1987, it was informed that the petitioner is unfit due to a defect in the left eye. He was still continued. By letter dated 26/02/1990, the respondent relying upon the letter dated 22/09/1987 issued by the Board of Referees from J. J. Ophthalmic Hospital, Bombay, terminated the petitioner.
6. The petitioner submits that the termination has occurred in 1990 on the basis of a letter dated 22/09/1987. The petitioner has subsequently died on 04/01/2015 and his legal heirs are on record. His date of superannuation would have been 31/03/2020.
7. The petitioner submits that besides the letter dated 22/09/1987, there has been no charge levelled upon the petitioner and his past record was clean and unblemished. He, therefore, submits that the dismissal of the complaint by the impugned judgment of the Labour Court is erroneous and the recovery order is unsustainable.
8. He further submits that the judgment of the Industrial Court is equally perverse as the Industrial Court failed to note the error committed by the respondent and the Labour Court. He, therefore, prays for setting aside of the impugned judgment.
9. The learned AGP has strenuously supported the impugned judgments. An affidavit in reply dated 15/04/2005 has been placed on record. The respondents have contended that they have acted only on the report of the Board of Referees and as such neither can the report dated 22/09/1987 be faulted, nor can the petitioner claim continuance in employment despite being blind. It is further submitted that the respondent have no grievance against the petitioner. This is not adversarial litigation. An unfit employee and more so with defective eye sight, could not have been kept in employment.
10. I have considered the submissions of the learned Advocates. The report dated 22/09/1987 is shown to the Court. It is not disputed that the report dated 22/09/1987 issued by the Board of Referees , Bombay, J.J. Ophthalmic Hospital, Bombay mentions that the petitioner is declared unfit to perform duties as a “Peon”.
11. By communication dated 26/02/1990, the petitioner was informed that his employment is brought to an end from 01/03/1990 as he is medically unfit. It does not appear from the record that a show cause notice before terminating the service of the petitioner was issued to him or that he was heard, more so when the respondent was relying on a medical report issued three years ago on 22.9.1987.
12. The principles of natural justice mandate an opportunity of hearing. The cardinal principle of affording an opportunity of hearing and giving a fair hearing to a person, has not been adhered to in the instant case.
13. Section 47 of the Act of 1995 reads as under :
“47. Nondiscrimination 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, afte
