Heard learned counsel for the petitioner, learned Standing Counsel for the State and Shri Shobhit Mohan Shukla, learned counsel for the other opposite parties.
The petitioner herein is an employee of the Lucknow Development Authority. He has filed this writ petition challenging an order dated 11.03.2015 passed in purported compliance of the orders of this Court dated 02.12.2014 passed in the earlier writ petition filed by the petitioner bearing No. 6951(SS) of 2014 declining his claim for salary w.e.f. August, 2014 on the ground that he had not attended the office being paralysed, therefore, he is not entitled to the salary on the Principle of 'No Work No Pay'. It has further been recorded in the impugned order that Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (For short 'Act, 1995) does not extend to granting protection to such an employee.
According to the petitioner, while returning from duty on 19.02.2007 he met with a mishap resulting in grievous head injuries consequently he went into a paralytic state of the body on account of which he was not able to attend the office though he had informed the authorities about this fact who were aware of the same. He was paid salary from 2007 to July, 2014. The salary for the month of August, 2014 was arbitrarily stopped, therefore, he met the Vice Chairman of the authority on 05.11.2014 raising a grievance in this regard. The said Vice Chairman is said to have ordered an inquiry into the matter but it was not conducted. Being aggrieved the petitioner filed a writ petition before this Court bearing No. 6951(SS) of 2014 which was disposed of on 02.12.2014 with a direction to the Vice Chairman of the LDA to consider the application of the petitioner dated 05.11.2014 sympathetically within a period of two months having due regard to the provisions of the Act, 1995. Inspite of the orders of this Court the said application was not disposed of instead a notice dated 28.01.2015 was issued inter alia alleging unauthorized absence from duty as also second marriage during subsistence the first one. He was asked to show cause as to why he should not be compulsorily retired. It is alleged by the petitioner that he could not submit his reply to the notice dated 28.01.2015 on account of his paralytic medical condition.
On account of aforesaid notice, the petitioner filed another writ petition bearing No. 336(SS) of 2015 which was disposed of on 20.02.2015, once again with a direction to decide the application of the petitioner dated 05.11.2015 while staying the proceedings in pursuance to the said notice dated 28.01.2015. It is only after this that the impugned order has been passed on 11.03.2015.
The petitioner has filed a supplementary affidavit annexing therewith a disability certificate issued by the Chief Medical Officer, Lucknow stating that the petitioner suffers from 80% disability. The said disability certificate is dated 01.05.2015/06.05.2015.
A counter affidavit has been filed on behalf of the LDA wherein inter alia it has been stated that a person has to submit a disability certificate issued under Rule 4 of the Act, 1995 in order to claim protection under Section 47 of the said Act, and there is no provision for payment of salary despite non attendance under the scheme of the relevant enactment.
It is not in dispute that the petitioner has not been paid his salary since August, 2014 till date. It is also not in dispute that he has neither been suspended nor any subsistence allowance has been paid nor has he been removed, dismissed or compulsorily retired from services.
The moot question is as to whether the petitioner is entitled to the salary w.e.f. August, 2014 consequent to his alleged disability under Section 47 of the Act, 1995. The counter affidavit of the opposite parties does not deny the specific assertion made by the petitioner in the petition that he met with a serious accident on 19.02.2007 resulting in grievous head injuries and consequent paralysis, therefore, the facts as stated in the writ petition in this regard are accepted as correct. The only objection raised in the counter affidavit is regarding non submission of disability certificate. If it was so, the opposite parties could have very well asked the petitioner to do so much earlier, moreover this is not the ground mentioned in the impugned order for rejection of his claim. According to the petitioner he did not submit such a certificate earlier as there was no necessity as he was paid the salary from the year 2007 to August, 2014 without any demur inspite of his disability under the orders of the Vice Chair man of the LDA and he was neither aware nor informed of any such legal requirement. The opposite parties have not denied the fact that they have paid the salary to the petitioner w.e.f. 2007 to August, 2014 inspite of his paralytic state and non attendance, a fact which is categorically mentioned in the application of the petitioner dated 05.11.2014, therefore, the plea rasied in the counter affidavit is clearly an afterthought. The explanation offered by the petitioner is a reasonable one and is accepted, subject of course to the veracity of certificate by the Vice Chairman C. L.D.A. The petitioner has annexed his photograph which prima facie does indicate his disability as also the fact that he is Wheel Chair bound, a fact which has also been mentioned in the disability certificate dated 01.05.2015/06.05.2015. He has also annexed the discharge slip issued by the department of Neurosurgery, King George Medical University, Lucknow of the year 2007 which indicates that he was admitted to the Neurosurgery Department on 21.02.2007 and was discharged on 08.03.2007. The said discharge summery refers to the Final Diagnosis B/L Fronto Parieta-Compd. Depressed # with underlying contusions etc. The Vide Chairman L.D.A. shall ascertain as to the whether the certificate has in deed been issued by the concerned doctors/hospital.
Section 47 of the Act, 1995 reads 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."
The said provision came up for consideration before the Supreme Court in the case of Anil Kumar Mahajan Vs. Union of India and others, (2013) 7 SCC 243. Paragraph 20 and 22 of the aforesaid judgment are as under:-
"20. The Appellant was appointed in the service of the respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15-10-2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even if it is presumed that the appellant became insane, as held by the enquiry officer, mental illness being one of the disabilities under Section 2(i) of the 1995 Act under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.
22. It is informed at the bar that in normal course the appellant would have superannuated from service on 31-7-2012. In that view of the matter, now there is no question of reinstatement of the appellant though he may be entitled for consequential benefits including arrears of pay. Having regard to the facts and finding given above, we have no other option but to set aside the order of compulsory retirement of the appellant dated 15-10-2007 passed by the respondents; the order dated 22-12-2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 2784 of 2008 and the impugned order dated 20-4-2010 passed by the High Court of Delhi in Anil Kumar Mahajan Vs. Union of India and the case is remitted to the respondents with a direction to treat the appellant as continued in the service till the date of his superannuation. The appellant shall be paid full salary minus the subsistence allowance already received for the period from the date of initiation of departmental proceeding on the ground that he was suffering from mental illness till the date of compulsory retirement. The appellant shall also be provided with full salary from the date of compulsory retirement till the date of superannuation in view of the first and second provisos to Section 47 of the 1995 Act. If the appellant has already been superannuated, he will also be entitled to full retiral benefits counting the total period in service. The benefits shall be paid to the appellant within three months, else the respondents will be liable to pay interest at the rate of 6% per annum from the date the amount was due, till the actual payment."
Another decision wherein the aforesaid provision came up for consideration before the Supreme Court is reported in (2003) 4 SCC 524, Kunal Singh Vs. Union of India and another From a conjoint reading of the provisions of the Act, 1995 and the authorities cited herein above, it is evident that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service. It is not in dispute that the disability alleged by the petitioner has been acquired during service. The relevant facts in this regard have not been disputed by the opposite parties.
The first proviso to Section 47 states that if an employee after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. Considering the disability alleged and the condition of the petitioner, this does not appear to be a case where he is suitable for the post of U.D.A. on which he was working earlier nor does it appear to be a case where he could be shifted to some other post.
The second proviso states 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. If the disability certificate is genuine, it is this second proviso which would be applicable to the facts of the present case. As far as the petitioner's further continuance in service of the opposite parties is concerned subject to aforesaid verification of the certificate the disability having been acquired during service the opposite parties can neither dispense his services nor reduce him in rank. This is evident in no uncertain terms from the second proviso which says that if it is not possible to adjust the employee against any post, he may be kept on supernumerary post until a suitable post is available "or he attains the age of superannuation whichever is earlier" meaning thereby such a person is to be continued in service either on the same post or against another suitable post until a suitable post is available or against a supernumerary post or till he attains the age of superannuation, but, the service can not be dispensed with nor can he be reduced in rank on account of such disability. Thus, compulsory retirement or dispensing of service of the petitioner in any other manner based on such disability is completely ruled out.
This statutory protection has been provided by the Act, 1995 to a person who has acquired a disability as defined under the Act, 1995 during his services. As per Section 2 (i) "disability" means inter alia "locomotor disability". "Locomotor disability" has been further defined in Section 2(o) to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy, therefore, paralytic condition of the petitioner would be covered within the definition of disability. The term "person with disability" has also been defined in Section 2(t) to mean a person suffering from not less than forty per cent of any disability as certified by a medical authority. The term "medical authority" has been defined in Section 2(p) to mean any hospital or institution specified for the purposes of this Act by notification by the appropriate Government. In the instant case the disability certificate is alleged to have been issued from the Government District Hospital under the signature of the Chief Medical Officer. The said certificate refers to the disability of the petitioner as physically disabled permanently to the extent of 80%.
If the petitioner is suffering from paralysis then he can not be compelled to attend office and has to be treated in service till he attains the age of superannuation as he has acquired the disability during his service. The principle of 'No Work No pay' will have no application in view of the protection available under Section 47 of the Act, 1995.
Now the other question which requires consideration is can the petitioner be proceeded departmentally on the basis of the facts unrelated to his disability such as the allegation as contained in the notice dated 28.01.2015 that he had solemnized a second marriage during the life time of the first wife which is a misconduct under the relevant rules. This Court is of the view that the Act of 1995 grants protection to a disabled person against any action based on such disability but the provisions contained in Section 47 of the Act, 1995 can not be read, understood and given a meaning beyond the object and scope of the said Act. Section 47 of the Act, 1995 can not be understood to imply that the protections referred therein are available to a disabled person even in the event of a misconduct having been committed by him. Under the relevant rules in the event of any misconduct being committed and it being proved after following the due process of law, then, even a disabled person can be visited with punishment prescribed under Rules commensurate with the gravity of the misconduct. It being so considering the allegations against the petitioner it would be open for the opposite parties to proceed against him departmentally as per the disciplinary rules and the law on the subject.
The original disability certificate which is on record shall be returned by the office to the petitioner as per rules after keeping a true photocopy of the same on the records of this writ petition. The original certificate shall be submitted by the petitioner before the Vice Chairman, Lucknow Development Authority.
The Vice Chairman of the Lucknow Development Authority, Lucknow is directed to look into the matter ascertain the veracity of the disability certificate relating to the petitioner, if the certificate is found to be genuine then he shall withdraw the impugned order dated 11.03.2015 and allow the petitioner to continue in service either against the post on which he was working or any other post in terms of Section 47 of the Act, 1995 as discussed herein above. As a logical corollary and for the reasons already mentioned earlier, the petitioner shall be deemed to be in continuous service and shall be paid current salary as also arrears of salary w.e.f. August, 2014, as is admissible to him considering his rank and post. If the certificate is not found to be genuine the order dated 11.03.2015 shall continue to operate. This exercise shall be completed within a period of one month from the date a certified copy of this order is submitted.
The writ petition is disposed of in the aforesaid terms. There shall be no orders as to costs.