The termination of an employee based on medical unfitness is contrary to the protections established under disability laws, requiring adjustments or supernumerary positions for disabled employees.

JUDGMENT :

M.S. KARNIK, J.

1. Jurisdiction of this Court under Article 226 of the Constitution of India is invoked by the petitioner, challenging termination of petitioner's service vide order dated 6^th April, 2023 passed by respondent No. 2.

2. Facts of the case in brief are that the petitioner was appointed as Junior Clerk temporarily in the Maharashtra State Electricity Distribution Company Limited (for short “MSEDCL”) with effect from 27^th August, 2003. The petitioner was made permanent on 30^th August, 2004. On 17^th April, 2018, when the petitioner was about to leave the Office, he suddenly felt uneasy. He was admitted in Satara Diagnostic Hospital at Satara for treatment. The petitioner was diagnosed with a serious brain disease. The petitioner had to be admitted in Sahyadri Hospital in Pune on 18^th April, 2018. The petitioner was operated in Sahyadri Hospital at Pune and was eventually discharged on 05^th June, 2018.

3. The petitioner exhausted all his leave. The petitioner obtained a fitness certificate from the doctor who was treating him, for making an application to the respondents on 26^th November, 2019 to allow him to join duty. Instead of allowing the petitioner to join duty, the petitioner was asked to subject himself to medical examination by Civil Surgeon, Satara. The Civil Surgeon, Satara sent his report dated 13^th January, 2021 to the Superintendent Engineer of the respondents. The petitioner made an application on 19^th January, 2021 to respondent No.3 to allow him to join the duty.

4. Respondent No.3 thereupon instructed the petitioner to get himself medically examined by the Standing Medical Board, Government Hospital, Sangli. Respondent No.3 also sent a letter dated 12^th March, 2021 to the Standing Medical Board, Government Hospital, Sangli requesting them to do a medical examination of the petitioner. The petitioner, therefore, again went through a medical examination by the Standing Medical Board, Sangli on 5^th and 6^th April, 2021. The Standing Medical Board issued a medical certificate dated 23^rd April, 2021, declaring the petitioner “FIT FOR DUTY for light work” with review after one year.

5. Respondent No.3 wrote a letter dated 31^st May, 2021 to the Chief Engineer, Baramati requesting him for creation of a supernumerary post as per section 47 (1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “The Disabilities Act, 1995”). Instead of permitting the petitioner to join duty based on the medical certificate issued by the Standing Medical Board, the petitioner was yet again asked by respondent No.2 to appear for medical examination by the Medical Advisor of MSEDCL Dr. S. Jayaram, vide letter dated 30^th September, 2021. Dr. Jayaram certified that the petitioner had no complaints and that he was “clinically satisfactory at present” and that “he is fit for light duty not involving verbal communication”. Despite the medical certificate of Dr. S. Jayaram, certifying the petitioner fit for light duty, respondent No.3 wrote a letter to the Standing Medical Board, Government Medical College, Sangli requesting and specifically instructing them to re-examine the petitioner to determine whether the petitioner can perform tasks such as communication, writing and reading.

6. The Standing Medical Board medically examined the petitioner on 18^th April, 2022 and 19^th April, 2022. The Medical Board certified on 29^th June, 2022 that the petitioner is “UNFIT FOR DUTY” due to inability to communicate with verbal commands due to cerebrovascular accident. Respondent No.2, vide order dated 6^th April, 2023, communicated to