Disabled employees are entitled to receive their full salary and benefits under the law, even when unable to work due to disability.

JUDGMENT

Harsimran Singh Sethi, J. (Oral)

In the present writ petition, the grievance of the petitioner is that while working as Multi Purpose Health Worker (Male) since 28.06.2019, unfortunately he met with a road accident on 31.12.2020 and received severe head injuries and is in coma since then. The prayer of the petitioner is that as he has been declared 100% disabled, a copy of medical report dated 11.07.2022 is annexed as Annexure A-3, but no salary is being paid to the son of the petitioner since January, 2021.

2. Learned counsel for the petitioner argues that keeping in view the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which has been further replaced by " The Rights of Persons with Disability Act, 2016", any employee, who suffers disability while in service, is entitled for the same benefits as being enjoyed by him/her before the suffering of disability in question.

3. Learned counsel for the petitioner submits that the respondents be directed to release the full salary of the petitioner starting from January, 2021 onwards along with arrears and interest, which is being withheld in an arbitrary manner.

4. Upon notice of motion, the respondents have conceded the fact with regard to the appointment of the petitioner as Multi Purpose Health Worker (Male) as well as the injuries suffered by the petitioner and he being in coma since 31.12.2020.

5. The only justification given by the respondents for not releasing the salary of the son of the petitioner is that the matter is still pending consideration before the higher authorities to create a supernumerary post so as to release the salary of the petitioner.

6. I have heard learned counsel for the parties and have gone through the record with their able assistance.

7. The employer has to be sensitive about the miseries of his employee, who unfortunately met with an accident and is in Coma since last more than three years. In the present case, employee, who is in coma, has been made to approach this Court for the release of the salary which employee is otherwise entitled for under the law. This situation should have been avoided by the State being a welfare state.

8. As per the facts, which have come on record, the petitioner namely Amit Kumar is in coma since 31.12.2020. He was an employee working as Multi Purpose Health Worker (Male) at the time when he suffered the ailment.

9. Keeping in view Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995, any employee, who acquires disability during his service, should be shifted to another post with the same pay scale and the same service benefits. In case, it is not possible to shift the employee to any other post, then any supernumerary post should be created so that the employee concerned is able to get salary which the employee was getting prior to becoming disabled, upto the age of superannuation. Section 47 of the said Act, 1995 is as under:-

"47. Non-discrimination 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, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

10. Keeping in view the said provisions of