BHAGWAN DASS & ANR. v. PUNJAB STATE ELECTRICITY BOARD

Citation: [2008] 1 S.C.R. 32

Court: Supreme Court of India

Bench: G.P. MATHUR, AFTAB ALAM

Case summary

BHAGWAN DASS & ANR. v. PUNJAB STATE ELECTRICITY BOARD.pdf

Judgment text

[2008] 1 S. C. R. 32 BHAGWAN DASS & ANR. v. PUNJAB STATE ELECTRICITY BOARD (C. A. No. 8 of 2008) JANUARY 4, 2008 (G. P. MATHUR AND AFTAB ALAM, JJ. ) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; S. 47: Disabilities - Appellant-Employee completely lost vision ofhis eyes while in service -Absence from duty- Show Cause Notice - Not aware ofhis rights under the Act, and under stress he sought retirement from service requesting employment for his wife in his place - Employer-respondent retired him from service - Correctness of - Held: Respondent erred in construing appellant's letter as a request for voluntary retirement - Supreme Court strongly deprecated action of respondent in denying the appellant his legal rights frustrating mandate of law on incorrect and groundless plea that appellant himself had asked for retirement.

Disabled employee - Right of, as mandated by law - Legal duties of authorities - Held: Authorities duty-bound to follow the law and to promote the object of legislative mandate - In the facts and under the circumstances of the case, termination of services of the appellant was bad and illegal - Respondent directed to reinstate the appellant in service with all consequential benefits - Civil Service Rules - Rr. 5-11 - Punjab State Electricity Board Employees Punishment and Appeal Regulations, 1971 - R. 8 -Interpretation of Statutes. Appellant-employee lost vision of his both eyes while in service of respondent-Punjab State Electricity Board. Allegedly, he remained absent from duty without any sanctioned leave for certain period. He was directed by the authorities to resume duties but he failed to report for ELECTRICITY BOARD duty.

Later, a charge sheet was issued initiating disciplinary proceedings against him for gross misconduct under Regulation 8 of the Punjab State ·" Electricity Board Employees Punishment & Appeal Regulation 1971. The appellant vide his letter dated July 17, 1996, while explaining his absence from duty, had requested the Board to retire him from service and, in his place, provide employment to his wife. But the Board, instead of considering his request, retired him from service in terms of Rule5. 11 of the Civil Services Rules. The appellant then filed an affidavit stating that he had no knowledge about the protection available to him in terms of the provisions of the Act and so he offered for retirement. The affidavit did not evoke any response from the authorities.

The disabled employee then approached the High Court by filing a Civil Writ Petition seeking relief in terms of Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation Act, 1995. The Petition was dismissed by the High Court. Hence the present . appeal. Allowing the appeal, the Court HELD: 1. 1. When the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 came into force the appellant was in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act. (Para - 7) (38-D, E) 1. 2 The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty.

In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. Thus, the letter should not be read as an offer for voluntary . , retirement. {Para - 18) (42-C, D) 1. 3 Appellant No. 1 had completely lost his vision and he was not aware of any protection that the law afforded him and apparently believed that the blindness would 8 cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board was deprecatable. {Para -19) (42-E, F, G) 1.

4 From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realize that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country. (Para - 20) (43-B, C) 2. The action of the Board in terminating the service of the disabled employee must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement.

The amount of terminal benefits paid to him should be adjusted against the amount of his salary. If any balance remains, that should be adjusted in easy i monthly instalments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. (Para - 21) (43-C, D, E) CIVILAPPELLATE JURISDICITON: Civil Appeal No. 8 of 2008. From the final Judgment and Order dated 11. 8. 2005 of the High Court of Punjab and Haryana at Chandigarh in C. W. P. i No. 12534/2005. Vipin Gogia (for Ms. Jaspreet Gogia) for the Appellants. :,... _ Jayashree Anand (for Ashwani Bhardwaj) for the Respondent. The Judgment of the Court was delivered by AFTAB ALAM, J. 1. Leave granted. 2. This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, 'r towards those unfortunate fellowmen who fell victim to some incapacitating disability.

The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of appellant No. 1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous. 3. The facts of the case are brief and are all taken from the _. I, (Reply) Affidavit filed on behalf of the Punjab State Electricity Board and its officers (the respondents in the appeal). Appellant No. 1 joined the respondent Board on July 19, 1977, on ad-hoc/ work-charged basis. His services were regularized as an Assistant Lineman on June 16, 1981. While in service he became totally blind on January 17; 1994 and a certificate to that effect was issued by the civil surgeon, Faridkot. 4.

Here, it may be noted that the rights of an employee who acquires a disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities } (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 reads as follows: "47. Non-discrimination in Government employments - (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. " 5. It may further be noted that the import of Section 47 of the Act was considered by this court in Kuna! Singh vs. Union of India & Anr. [2003 (4) SCC 524] and in paragraph 9 of the ).. decision it was observed and held as follows : "Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability".

It is well settled that in the same enactment if two distinct ·:d Uren it is stated that the appellant by his letter dated July 17, -/ 1996 requested the Board to retire him from service. As a matter of fact by this letter the appellant sought to explain his absence from duty and requested that his wife might be employed in his place. But it was made the basis for denying the appellant his lawful dues. Since the whole case of the respondents is based on this letter it would be appropriate to reproduce it in full : "Sir, i I explain as under the subject cited unnatural happening which I met, When I was returning home afterperforming my duty on 17-1-94 then vision of my eyes lessened suddenly I got treatment from far and near for eye-sighVlessening of vision of my eyes. But I became completely blind. Now I cannot perform my hard work duty I want to retire from service. I may be retired and my wife may be provided with suitable job against me. Yourself will be genesis to me.

" (Emphasis added) 10. At this stage some internal correspondences took place between the officers of the Board over the question how to deal with the appellant. On July 10, 1997, the Senior Executive Engineer (OP) Division, Malout wrote to the Deputy Chief Engineer, Operation Circle, Muktsar, asking for instructions in the matter. Paragraphs 2, 3 and 4 of the letter are relevant and are reproduced below : "2) As per report of Medical Board the official is unfit for duty, he cannot perform any duty. 3) But as per instructions contained in Punjab Government Memo No. 17/16/94-5 PP-1 /6546 adopted by PSEB vide its Circular No. 6/97 the official/officer it (sic is) not to be retired from service who become disable during service. 4) The official has represented that he may be retired from duty and his wife be provided with suitable job. " 11.

The Senior Executive Engineer received the reply from the Secretary of the Board vide letter dated February 17, 1998 in which he was advised as follows : "It is advisable to retire the official as per rules and regulations of the Board if the employee is not otherwise interested in taking the benefit of Board's Circular No. 61 97. For the purpose of clarification as to whether employee is entitled to the benefits, otherwise admissible under rules/ regulations of the Board in preference to Benefits admissible under Circular No. 6/97, if he so desires, can be obtained from the Office concerned which issued said circular. " 12. Later on, the charge-sheet issued against the appellant was withdrawn by the Senior Executive Engir:eer vide Office Order No. 14, dated January 13, 1999 and the appellant was asked to submit leave application for the period of absence. 13.

Next in series is a letter, dated November 15, 1999, from the Director/IR, PSEB, Patiala to the Senior Executive Engineer, (OP) Division, Malout. In this letter it was stated as follows: "As per cited subject it is made clear that employee who is blind shall not be retired as per instructions of the Board. But is (sic. if) such employee himself make request for retirement then he can be given retirement on medical ground. " 14. Finally, the Senior Executive Engineer, issued Office Order No. 559, dated December 14, 1999, by which the appellant was relieved from service with effect from March 21, 1997 (the date of issuance of Medical Certificate) as per Rule 5. 11 of Civil Services Rules-Vol. II. 15. aappears that the appellant protested against the action of the Board in relieving him from service and made representations.

The representations, it seems, were forwarded to the superior authorities and the Board's decision was communicated to the Senior Executive Engineer vide letter dated February 18, 2000 from the Director/IR, PSEB, Patiala. The contents of the letter are as follows : "With regard to cited subject it is made clear that there are instructions of the Board on which blind employee is not liable to be retired. But in the case of Shri Bhagwan Dass ALM advice of retirement was given as he himself made request for his retirement on Medical Ground. So the case of this employee is not likely considered for his rejoining of duty. " 16. The appellant then filed an affidavit before the concerned officers. A copy of the affidavit is at Annexure R-12 to the respondents' affidavit. In the affidavit he pathetically pleaded that he had no knowledge about the Rules of the Electricity Board and represented for retirement unknowingly.

He further stated that when he came to know that there was no need for retirement for those who were disabled during service he again represented that he might not be retired and might be retained in service as per the instructions of the department. The affidavit did not evoke any response but the severance was completed by making payment of his terminal dues. 17. The disabled employee then approached the Punjab & Haryana High Court in Civil Writ Petition No. 12534 of 2004 seeking relief in terms of section 47 of the Act and the Circulars issued by the State Government and the Board in its furtherance. In the writ petition he was joined by his son, appellant No. 2, and an alternative relief was sought for employment of his son in his place. Unfortunately, before the High Court it was the second relief that came into focus and the High Court dismissed the writ petition by a brief order referring to the decision ofthis Court in Umesh Nagpal vs. State of Haryana [1994 (3) SCT 174].

In the High Court order there is no mention of Section 47 of the · Act and the disabled employees' claim/right on that basis. Against that order this appeal is preferred in which the disabled employee! agitates his rights on the basis of Section 47 of the Act. 18. From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996.

The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. . E 19. Appellant No. 1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context.

The action of the concerned officers of the Board, to our mind, was deprecatable. 20. We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no " longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large.

What the law permits to them is no charity or largess but their right as equal citizens of the country. 21. In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No. 1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual r increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If ·any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, sh_ould be made to him within six weeks _.

j from the date of presentation of a copy of the judgment before the Secretary of the Board. 22. In the result the appeal is allowed with costs quantified at Rs. 5,000/-. S. K. S. Appeal allowed. ~