1. On 30.4.1993, the applicant, Shri Rajinder Kumar Sharma who was Assistant Audit Officer in the office of Accountant General (Audit), Shimla met with an accident on Scooter with a Bus of Himachal Pradesh Roadways Transport Corporation and was seriously injured. He was admitted in Indira Gandhi Medical College Hospital, Shimla from where he was discharged on 8.9.1993 (Annexure A-5J. A disability certificate dated 25.9.1997 (Annexure A-6) was issued indicating that there has been permanent loss of functions in relation to right half of the body and the disability reckoned was to the extent of 64%. He had come under the category of Handicapped persons.' He had remained intermittently on leave. By order dated 21.7.1999 (Annexure A-7) he was virtually forced to proceed on further leave and was not allowed to join as the report of the Medical Board dated 18.6.1999 (Annexure R-4) was to the following effect: "On examination Shri Rajinder Kumar has cognitive deficits in the form of deficits in the form of difficulty in comprehension mainly for written commands and was unable to reply to the simple questions on verbal as well as written testing. He was unable to do simple calculations in the form of 100-7 beyond one stage. He was also not oriented specially to time. His verbal speech showed pronounced dysarthria. He also had difficulty in naming common objects and persons. His motor deficits consisted of RT Hemiparesis with Spasticity and right upper motor neuron facial palsy. At present he is not fit for the job of Astt. Audit Officer. Hence he is advised repeat medical board after six months to assess the improvement in cognitive functions." In continuation of the aforesaid report, the applicant was again examined by the medical board at Shimla on 26.8.2000 and before giving a final opinion, it was thought proper to get an opinion of a Neurologist and Psychometric evaluation from the Post Graduate Institute of Medical Education and Research, Chandigarh. The report of the PGI, Chandigarh is contained in letter dated 16.3.2002 (Annexure R-6) which reads as follows: "Mr. Rajinder Kumar (R.K. Sharma) has been examined in detail in Neurology O.P.D. vide Neurology Clinic No. 23849 (C.R. No. 485404).
Mr. Rajinder Kumar had a road traffic accident in April, 1993, He was unconscious for 50 days and also needed abdominal surgery. He has been having weakness of left arms and legs since that time. He was bed ridden for one and a half year. He regained his control on urinary bladder in the next two years and has been slowly able to walk since the end of 1997. His higher mental functions, however, are still deranged. He has got residual right hemiparesis and residual aphasia. Detailed psychological examination by the department of clinical psychology revealed that his attention could be aroused with difficulty. Instructions had to be repeated for his comprehension for the tests. He had difficulty in speaking hindering proper communication. He was found to have a I.Q. of 77 i.e., borderline intelligence and severe memory impairment. Keeping in mind the neurological and psychological evaluation mentioned above, Mr. R.K. Sharma is not fit to continue his job as Assistant Audit Officer." One the basis of the aforesaid report, a medical board consisting of three doctors of Indira Gandhi Medical College Hospital, Shimla was convened on 26.4.2002. The report of the medical board reads as follows: "...The Medical Board perused examined the Neurologist examination report and Psychometric evaluation report done by the Neurologist, PGI and MER, Chandigarh vide letter No. Neuro/02/387 dated 16.3.02.
Shri R.K. Sharma, Assistant Audit Officer has got residual right hemiparesis and residual aphesis and is having an I.Q. (Intelligence Quotient) of 77, i.e. Borderline intelligence and severe memory impairment.
In view of the above findings, Sh. R.K. Sharma, Assistant Audit Officer is not to fit to continue his job as Assistant Audit Officer." 2. The applicant made a number of representations seeking protection of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 thereinafter called the Disabilities Protection Act, 1995). The mailer was examined by the Assistant Comptroller and Auditor General of India, New Delhi with reference to the various medical reports and the provisions of the Disabilities Protection Act, 1995 and it was opined that the provisions of Clause (j) of FR 56 can be invoked to retire the applicant in public interest and that the second proviso to Section 47 of the Disabilities Protection Act is not applicable to him as he seems to be inflicted of the disability to the extent where he could not be able to perform even light duties. Ultimately, by invoking the provisions of Clause (j) of FR 56, the applicant was retired prematurely on medical grounds by order dated 10.12.2002 (Annexure A-1) as he was found to be unfit to perform the duties.
3. By means of the present O.A. under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed that the impugned order (Annexure A-1) be quashed and a direction be issued to the respondents to extend the benefit of the provisions of Section 47 of the Disabilities Protection Act, 1995.
4. A detailed reply has been filed on behalf of the respondents. The gist of the pleas taken by the respondents is that the applicant has been retired prematurely in public interest as he was found to be medically unfit to perform his duties and in these circumstances the protection of Section 47 of the Disabilities Protection Act, 1995 was not available to him. A rejoinder has been filed by the applicant.
5. We have heard Mr. N.P. Mittal, learned Counsel for the applicant as well as Mr. San jay Goyal appearing on behalf of the respondents at considerable length. Since there was dispute with regard to the physical/mental condition of the applicant, we had called him to appear in person before us. The observations made by us about the mental and physical condition of the applicant and also the mannerism are contained in the order sheet of date. They shall be discussed at the appropriate place in this order.
6. The moot point for consideration in the present O.A. is whether the applicant was rightfully and justifiably retired prematurely in public interest by invoking the provisions of Clause (j) of FR 56 or he was entitled to the protection of Section 47 of the Disabilities Protection Act, 1995.
7. To begin with, it may be mentioned that the applicant who otherwise was an able bodied person had suffered permanent loss of functions in relation to right half of his body on account of an unfortunate accident in the year 1993. He was subjected to various medical examinations and ultimately on the report of the Medical Board based on the report of PGI, Chandigarh was found unfit to remain in service as he had developed residual right hemi paresis and residual aphasia and was having the intelligence quotient of 77 i.e. Borderline Intelligence and severe memory impairment. It was on medical grounds that the provisions of Clause (j) of FR 56 were invoked and he was prematurely retired. The provisions of Clause (j) of FR 56 under which the applicant has been retired from service vide Annexure A-I read as follows: "(j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do having the absolute right to retire any Government servant by giving him notice of not less than three months' in writing or three months' pay and allowances in lieu of such notice.
(i) if he is in Group 'A' or Group 'B' service or post in a substantive. quasi permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years.
(ii) in any other case after he has attained the age of fifty five years." 8. The applicant is seeking protection of the provisions of Section 47 of Disabilities Protection Act, 1995. It reads as follows: "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, 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 he specified in such notification, exempt any establishment from the provisions of this section." A close study of the various provisions of the Disabilities Protection Act, 1995 make it clear that it provides for social security to the disabled persons and employees. It came into being to give some sort of succour to the disabled persons. By reason of Section 47 of the said Act which is beneficent in nature, the employer had been saddled with certain liabilities towards the disabled persons. Section 47 of the Act, 1995 contemplates that, despite disability, a person must be kept in the same post where he had been working . Once he is not found suitable for the post he was holding he can be shifted to some other post but his pay and other service benefits needs to be protected. The second proviso appended to Section 47 of the Act, in no uncertain terms, 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. The said Act provides for social security for the disabled persons and if for the said purpose a statutory liability has been thrust upon the employer the same cannot be held to be arbitrary.
The gist of the provisions of Section 47 of the Act is that an employee cannot be prematurely retired on the ground of medical invalidation.
The provisions of Section 47 of the Act came to be interpreted by a Division Bench of the Delhi High Court in the case of Baljit v. DTC, (2000) DLT 286, It was observed in Para 13 as under: "13.....Section 47 in clear terms mandates that no establishment shall dispense with or reduce in rank the employee who acquires the disability during his service. Even if he is not suitable for the post he was holding as a result of disability he is to be shifted to some other post with same pay scale and service benefits. Even when he cannot be adjusted against any other post he is to be kept on supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. The intention of Section 47 is clear and unambiguous namely, not to dispense with the service of the person who acquires disability during his service.
The purpose is no! far to seek. When the objective of the enactment is to provide proper and adequate opportunities to the disabled in the field of education, employment etc., it is obvious that those who are already in employment should not be uprooted when they incur disability during the course of employment. Therefore, their employment is protected even if the destiny inflicts cruel blow to them affecting their limbs. Even if he is not able to discharge the same duties and there is no other work suitable for him, he is to be retained on the same pay scale and service benefits so that he keeps on earning his livelihood and is not rendered jobless".
The above decision was followed by the Delhi High Court in the case of Delhi Transport Corporation v. Rajbir Singh, DCLR 2002 (II) 746. The provisions of Section 47 of the Disabilities Act, 1995 came to be considered by the Apex Court in a significant judgment reported in JT 2003(2) SC 132 Kunal Singh v. Union of India and Anr. It was ruled that services of Government employee cannot be terminated if he/she become disabled during service. The Apex Court has accepted the decision that the Disabilities Act, 1995 prohibits the Government as well as the Public Corporations from terminating the services of any employee in the event of his/her becoming disabled during service. The contrary view taken by the High Court was reversed. In Para 9 of the report, the Apex Court has observed as follows: "....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 definitions are given defining a word/expression, they must he understood accordingly in terms of the definition. It must he remembered that 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 possible all those depend on him would also suffer. The very opening pan 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 he 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 he 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." It appears that an argument was raised before the Apex Court that since the disabled person has been granted the benefit of invalidity pension under Rule 38 of the CCS (Pension) Rules. 1972, he was not entitled to the protection of Section 47 of the Disabilities Act, 1995. The Apex Court rejected this submission by observing that the Act is special legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them, it being a special enactment, doctrine of generalia specialibus non-derogant would apply. Hence, Rule 33 of the Central Civil Service (Pension) Rules cannot override Section 47 of the 1995 Act. The provisions of the Act are in addition to and not in derogation of any other law. Section 72 of the Act provides that the provisions of the Act, or the rules made there under shall be in addition to and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities. The view taken by the Apex Court is that once it is held that the employee has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits. If it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier.
9. The departmental instructions issued by the Government of India, Ministry of Personnel, P.O. and Pensions, Department of Personnel and Training contained in Office Memorandum dated 19.1.2004 which was issued in consultation with the Comptroller and Auditor General of India in so far as persons serving in Indian Audit and Accounts Department are concerned, are also in keeping with the spirit of the provisions of Section 47 of the Disabilities Act, 1995, as interpreted by the High Courts and the Apex Court. In the light of the provisions of Section 47 of the Act, the position of Rule 20(2) of CCS (Leave) Rules, 1972 has been set out in the departmental instructions as under: "(a) if he is on duty, shall not be invalidated from service during his service period; (b) if he is already on leave, the period of leave or an extension thereafter to the extent permissible under Sub-rule (I) of this rule and even beyond that may be granted as per relevant rule(s)" 10. Thus, there can be no dispute about the fact that the provisions of Clause (j) of FR 56 which confer absolute right on the Competent Authority to prematurely retire an employee in public interest cannot nullify the provisions of Section 47 of the Disabilities Protection Act, 1995. If a person is entitled to the protection of Section 47 of the 1995 Act, he cannot be weeded out or written off by invoking the provisions of Clause (J) of FR 56. The provisions of Section 47 of the 1995 Act cannot, in any case, be camouflaged.
11. Now the question is whether the applicant's mental and physical condition is such that he is totally unfit or incapacitated to perform duties of any nature. The report dated 16.3.2002 (Annexure A-6) mentions the fact that the higher mental functions of the applicant are still deranged. He has got residual right hemiparesis and residual aphasis. Detailed psychological examination by the department of clinical psychology revealed that his attention could be aroused with difficulty. Instructions had to be repeated for his comprehension for the tests. He had difficulty in speaking hindering proper communication. It was on the basis of the above report that the Medical Board incorporated the opinion in its report dated 26.4.2002 that the applicant is having I.Q. of 77 i.e. Borderline intelligence and severe memory impairment. Obviously, on the ground that the applicant was found to be medically unfit to perform the duties of the post he was holding, he was prematurely retired by invoking the provisions of Clause(j) of FR 56. The correctness of the medical reports was seriously challenged on behalf of the applicant and it was stated that the applicant has a fit mental state and can perform lighter duties.
With a view to reach the truth and to gauge the mental and physical condition of the applicant, we directed him to be present in person before us. Incidentally, the hearing of this case took place before the Circuit Bench of this Tribunal which has a sitting in a Court room in the campus of High Court at Shimla. To appear before us one has to gel down and climb stairs which numbered more than 40. The applicant came of his own after getting down and climbing up the long stair case. As is incorporated in the order-sheet dated 5.7.2004, the applicant "entered the Court room and sat on the chair on our command with full etiquettes and respect. Both of us put several questions to him. He responded to each of the questions and gave coherent replies. His mental faculties appeared to be responding very well. Mr. Sanjay Goyal, learned Counsel for the respondents was directed to put a few questions to Sh. Sharma (applicant) in order to verify the correctness or otherwise of the report given by the PGI. Mr. Goyal states that in view of the replies given by the applicant to our queries, he docs not want to put any question to the applicant. We had also directed the applicant to write the multiplication table of 13 which he has correctly jotted down on a piece of paper. This multiplication has been kept on record which is duly signed by us." These observations indicate that inspite of disability suffered by the applicant, he is in a fit mental state to perform the duties which may be assigned to him, keeping in view his present condition. It is true that a Tribunal or Court should not brush-aside a medical report, particularly, that of the Medical Board, based on the opinion of the experts of P.G.I. but the unsavoury feature of the case is that the stark reality which we have mentioned above, cannot he ignored. In order to do full justice, the Tribunal has lobe socially sensitised. It is not bound by any fetters which may throttle the cause of justice. Therefore, in view of the menial and physical condition of the applicant which we have observed, the applicant is in a position to perform duties of an alternative post having light work. It was not a case where the provisions of Section 47 of Disabilities Act, 1995 could have been cast aside by the authorities in a casual manner. If the approach adopted by the respondents is approved, in that event, the very purpose and object of the provisions of Section 47 of the Disabilities Act, 1995 would be rendered nugatory and purposeless and the object for which the said provisions were brought into existence by a Parliamentary legislation would become otiose. In our firm view, the applicant was undoubtedly entitled to the protection available to him under Section 47 of the Disabilities Act, 1995. His premature retirement by invoking the provisions of Clause (j) of FR 56 was illegal and unjustified.
12. In the result, the O.A. succeeds and is allowed. The impugned order dated 10.12.2002 (Annexure A-1) is hereby quashed. The applicant is held entitled to the protection of the provisions of Section 47 of the Disabilities Act, 1995. The applicant shall be treated to be in service throughout unmindful of the order of his premature retirement (Annexure A-1), with all consequential benefits. The respondents shall detail the applicant on a post which may be commensurate to his health and physique. The arrears of pay and allowances shall be released to the applicant within a period of four months from the date of production of a copy of this order before the Competent Authority. No order as to costs.