Judgment:
ORDER
G. Rohini, J.
1. The petitioner herein was recruited as Immigration Clerk on 6.11.1975 in the office of the Shipping Corporation of India Limited, Mumbai, which is a Government of India Enterprise. Later he was promoted as Purser Officer.
2. It is pleaded that while on-board the ship, the petitioner had an accidental fall in the bath-room on 28.5.2005 and sustained injury to the right hip joint which ultimately resulted shortening of his right leg. That apart, in the process of treatment which involved multiple major and minor operations the petitioner had developed chronic Osteomyelitis right hip psoas abscess/ Paravertebral abscess D8-D9/Potts diseases of spine D8-D9 and was declared permanently unfit for Sea service by the Medical Officer, Chennai on 27.8.2008. In the meanwhile, though the petitioner was paid by the Corporation the injury wages, after he was declared unfit for Sea service, by order dated 11.11.2008 the petitioner's services were terminated w.e.f. 27.8.2008. However, he was informed that a compensation of Rs. 8,50,000/- would be paid as per Clause-8 of the Agreement and that the treatment period from 3.10.2005 to 26.8.2008 would be treated as medical leave under Clause-79 (2) of the Agreement but the salary and allowances paid from 3.10.2005 in excess of the entitlement under Clause-79 (2) of the Agreement would be recovered.
3. Aggrieved by the same, the present writ petition is filed contending inter alia that the action of the respondents in terminating the services of the petitioner even without any notice or opportunity to make his representation is arbitrary, illegal and in violation of the principles of natural justice. It is also contended that since he suffered the disability while in service, the respondents are bound by the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act'). Thus, the petitioner seeks a Mandamus declaring that the order of termination dated 11.11.2008 passed by the 3rd respondent as totally illegal and without jurisdiction and a consequential direction to provide him alternative employment in terms of Section 47 of the Act.
4. This Court while issuing Rule Nisi, by order dated 8.4.2009 in WPMP. No. 34837 of 2008 directed the respondents 1 and 2 to consider the petitioner's case for a suitable post in terms of Section 47 of the Act and pass appropriate orders within six weeks.
5. In compliance with the said order, by order dated 19.5.2009 the petitioner was informed that the Corporation was unable to consider his request to provide an alternative employment since the disability suffered by the petitioner was not covered by the term disability as defined under the Act. Moreover since the petitioner was served as a Seaman on-board Vessel, the only post to which he can be transferred is that of Seaman for which he has already been declared unfit. Further, the nature of shore job to be carried out requires a great deal of skill and high level of education and the petitioner is neither qualified nor competent to carry out the same.
6. While reiterating the same, in the counter-affidavit filed on behalf of the respondents, it is contended that the petitioner had a history of road accident since the year 1995 wherein he had damaged Tibia of his right leg and thereafter on 18.6.1999 he again met with an accident while on leave and sustained fracture of Femur of his right leg and remained on unpaid leave from 12.6.1999 to 20.10.2002. He joined the service on 8.7.2002 and as per the medical certificate dated 20.12.2002 he was found fit for Sea Service. It is further contended that no accident had taken place on-board the Vessel M.V. Sentinal and the petitioner had not sustained any injury during the course of employment as claimed by him. He complained of severe pain to his hip joint and was unable to walk on account of the previous injuries suffered by him. The Corporation had granted leave to the petitioner from 3.6.2005 to 31.7.2008 even though he was entitled only for 4 months wages. In fact, excess payment has been made which is required to be recovered from him. That apart since the petitioner is medically unfit for Sea Service, his services have been terminated. So far as the provisions of the Act is concerned, it is contended that the said Act has no application and the disability suffered by the petitioner is not covered by the definition of the 'disability' under the said Act. It is further stated that there is no post to which a Seaman can be transferred. It is further explained that the petitioner is not entitled to disability compensation under Clause-74 of the Agreement as the injury is not in course of employment while on-board the Vessel. As per Clause-98 of the Agreement, the petitioner is entitled only to receive Rs. 8,50,000/- towards compensation payable to Officers declared permanently unfit for Sea Service. Hence, the petitioner cannot be granted any relief as prayed for.
7. I have heard the learned Counsel for both the parties and perused the material on record.
8. As could be seen from the material on record, it is not in dispute that the petitioner suffered a Locomotor disability and he is declared medically unfit for Sea service. Having regard to the said undisputed fact, the termination of the petitioner on medical grounds cannot be held to be arbitrary or illegal.
9. However, I find force in the contention of the petitioner that the respondents are bound to provide him an alternative employment in terms of Section 47 of the Act, which runs as under:
47. Non-discrimination in Government employment:- (1) No establishment shall dispense with, or reduce in rank, an employee who acquired a disability during his service:
PROVIDED THAT, if an employee after acquiring disability 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. The expression 'disability' has been defined under Section 2(i) of the Act and admittedly the disability suffered by the petitioner comes within the meaning of Section 2(i) of the Act. However, while denying the petitioner's plea that he suffered the injury resulting in his disability while onboard on the vessel M.V. Sentinal, it is contended that since the petitioner did not acquire the disability during the course of employment, he is not entitled for the benefit of the Act. It is also contended that there is no post to which a Seaman can be transferred to and therefore there is no possibility to provide any alternative employment.
11. Both the above contentions, being contrary to the language of Section 47 of the Act as well as the very object and intendment of the Act are untenable.
12. A plain reading of Section 47 of the Act read with the definition of disability under Section 2(i) of the Act make it clear that Section 47 is attracted to every employee who acquired a disability during his service. There is no provision under the Act which either expressly or by necessary implication provides that such disability should be on account of injury suffered during the course of employment. It is pertinent to note that the expression used is 'disability during his service' but not injury during service or employment.
13. In identical circumstances, the Supreme Court in Kunal Singh v. Union of India and Anr. (2003) INSC 74 : 2003 (4) ALT 7.1 (DNSC), held as under:
The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads 'no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service'. The Section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.
14. The said principle has been followed and reiterated in a later decision in Bhagwan Dass and Anr. v. Punjab State Electricity Board (2008) INSC 3 : 2008 (1) SCJ 930, observing as under:
It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature.
15. For the aforesaid reasons, it is not open to the respondents to contend that the Act is not attracted as the petitioner did not suffer the injury, resulting in the disability, during the course of his employment. Consequently, the respondents are bound to comply with the mandate under Section 47 of the Act by providing an alternative employment to the petitioner.
16. So far as the second contention is concerned, even assuming that the stand taken by the respondents that the post of Seaman is not transferable is correct, as per the second proviso to Section 47(1) of the Act in such circumstances it is mandatory to keep the petitioner on a supernumerary post until a suitable post is available or till he attains the age of superannuation whichever is earlier.
17. Hence, the order dated 19.5.2009 is hereby set aside and the Writ Petition is disposed of with a direction to the respondents to pass appropriate orders afresh in compliance with the provisions of Section 47 of the Act as expeditiously as possible preferably within a period of three (3) months from the date of receipt of this order. No costs.