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2020 Supreme(Bom) 1402
IN THE HIGH COURT OF BOMBAY
MILIND N. JADHAV, J.
Brihan Mumbai Electric Supply And Transport Undertaking, Mumbai – Appellant
Versus
Sadashiv Dnyandeo Gaikwad And Others - Respondents
W.P. No. 10254 of 2019 with Civil Appln. No. 2166 of 2019
Decided on : 12-08-2020
Advocate Appeared:
For the Appellant : Aseem Naphade along with Kavita Anchan and Arsh Mishra instructed by M. V. Kini and Co.
For the Respondent: J. P. Kharge, A. B. Kadam, A.G.P.
The main legal point established in the judgment is the distinction between 'disability' and 'person with disability' as defined in the Acts, and the powers of the Commissioner to address complaints related to deprivation of rights of persons with disabilities.
Headnote:
Disability - Employment - Persons with Disabilities Act, 1995, Rights of Persons with Disabilities Act, 2016 - Section 47, Section 62 - The judgment discusses the acquisition of disability by an employee during service, the powers of the Commissioner to look into complaints relating to deprivation of rights of persons with disabilities, and the difference between 'disability' and 'person with disability' as defined in the Acts.
Fact of the Case:
The case involves a dispute between an employer, a statutory undertaking of the Mumbai Municipal Corporation, and an employee who acquired a disability during his service as a bus conductor. The employee was terminated, and the Commissioner and Competent Authority, Welfare of Persons with Disabilities, directed the employer to reinstate the employee along with backwages and allowances.
Finding of the Court:
The court upheld the Commissioner's order, confirming the employee's disability and directing the employer to reinstate the employee. The court also directed the employer to pay costs to the employee and dismissed the employer's petition.
Issues: The key issues involved the acquisition of disability during service, the powers of the Commissioner to address complaints related to deprivation of rights of persons with disabilities, and the difference between 'disability' and 'person with disability' as defined in the Acts.
Ratio Decidendi: The court held that the Commissioner has the power to issue suitable instructions to the concerned authorities for redressing the grievance of the employee who may be a person with disability or who may have acquired disability during service. The court also emphasized the distinction between 'disability' and 'person with disability' as defined in the Acts.
Final Decision: The court rejected the employer's petition, confirmed the Commissioner's order, directed the employer to reinstate the employee, and ordered the employer to pay costs to the employee.
JUDGMENT :
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 8-10-2018 (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 8-10-2018.
4. Briefly, the facts pertaining to the case are as under :
(a) Respondent No. 1 was appointed as bus conductor on 11-9-1993 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 3-5-2011, 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 Hospital 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 18-1-2012, the doctors at KEM Hospital, Mumbai conducted surgery/operation on his left knee and removed one implanted steel plate. Thereafter on 22-2-2012, the second implanted steel plate was also removed by conducting another surgery/operation.
(e) On 12-6-2012, 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 5-7-2012.
(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 12-1-2012, 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 3-12-2012, the doctors of Lokmanya Tilak Memorial Hospital, Sion, Mumbai issued certificate dated 31-2-2012, 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 and thereafter to respondent No. 3 i.e.
