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2020 Supreme(Bom) 1473
In the High Court of Bombay
MILIND N. JADHAV, J.
Brihan Mumbai Electric Supply and Transport Undertaking through its General Manager - Petitioner
Versus
Sadashiv Dnyandeo Gaikwad and Others - Respondent
Writ Petition No. 10254 of 2019 and Civil Application No. 2166 of 2019
Decided on : 12-08-2020
For the Petitioner: Mr. Aseem Naphade a/w. Kavita Anchan and Mr. Arsh Mishra i/b. M.V. Kini and Co.
For the Respondent:Mr. J.P. Kharge, Advocate Mr. A.B. Kadam, A.G.P.
The distinction between 'disability' and 'person with disability' and the employer's obligation to protect an employee acquiring disability during service under Section 47 of the Act.
Headnote:
Disability Rights - Employment - The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, The Rights of Persons with Disabilities Act, 2016 - The judgment discusses the disability rights of an employee under the Persons with Disabilities Act, 1995 and the Rights of Persons with Disabilities Act, 2016. It highlights the legal provisions of Section 47 of the 1995 Act and the Commissioner's power under Section 62 to look into complaints relating to deprivation of rights of persons with disabilities. The judgment emphasizes the distinction between 'disability' and 'person with disability' and the employer's obligation to protect an employee acquiring disability during service under Section 47 of the Act. The court confirms the disability of the employee and upholds the Commissioner's order directing reinstatement and back wages.
Fact of the Case:
The employee, a bus conductor, suffered a serious injury resulting in a disability. The employer terminated his services, citing disability below 40%. The employee sought reinstatement under the Persons with Disabilities Act, 1995. The Commissioner partly allowed the appeal and directed reinstatement, but the employer did not comply. The employer challenged the order, arguing the disability was less than 40% and the Commissioner had no power to issue mandatory directions.
Finding of the Court:
The court upheld the Commissioner's order, confirming the employee's disability and directing reinstatement with back wages. The court emphasized the distinction between 'disability' and 'person with disability' and the employer's obligation to protect an employee acquiring disability during service under Section 47 of the Act. The court rejected the employer's argument that the Commissioner had no power to issue mandatory directions.
Issues: The core issue was the degree of disability of the employee and the employer's obligation under Section 47 of the Act. The court also addressed the Commissioner's power to issue mandatory directions and the rejection of the employee's disability certificate.
Ratio Decidendi: The court clarified the distinction between 'disability' and 'person with disability' and emphasized the employer's obligation to protect an employee acquiring disability during service under Section 47 of the Act. The court upheld the Commissioner's power to issue mandatory directions and rejected the rejection of the employee's disability certificate.
Final Decision: The court rejected the employer's challenge, confirmed the employee's disability, upheld the Commissioner's order directing reinstatement, and awarded costs to the employee.
JUDGMENT :
MILIND N. JADHAV, J.
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.
(c) Thereafter respondent No. 1 went to resume his 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 a
