Let us not forget every disabled person is not a Stephen Hawkins to contribute, the court said.
The mighty Indian Railways, one of the world’s biggest employers, lost their legal battle against their employee, who fought it from her wheel chair where she has been forced by fate to stay immobile.
Expressing surprise at the vigour in which the Indian Railways pursued the case against a disabled employee, a Division Bench of Kerala High Court has upheld an order of Central Administrative Tribunal wherein it held that a disabled employee of Indian Railways, need not report to office to receive her salary and directed the Railways to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits.
In 1998, Fancy Babu suffered transverse myelopathy (inflammation of spinal cord) at D4 level, which eventually resulted in complete paralysis confining her to bed.
In 2002, she proposed to retire voluntarily and the Indian Railways accepted it. In 2009, having come to know of the beneficial provisions of benefit of Section 47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995, the employee approached the Central Administrative Tribunal seeking reinstatement and extension of benefits under the Act.
The Tribunal, allowed the original application, setting aside the order or retirement and directed the employee’s reinstatement with effect from 15.02.2002.
The said order was confirmed by the High Court by dismissing the appeal preferred by the Railways.
In 2015, the lady again approached the CAT complaining that the order was not complied with by the Indian Railways. Treating it as a special case, the tribunal held that the employee need not report to office to receive her salary and it directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. The Indian Railways preferred appeal against this order by the CAT.
The contention put forth by the Indian Railways was that that since it is in trust of public money; it would be against the public interest to let a person draw salary without her discharging any function—without even attending the office. On the part of employee, it was urged that, where an employee has been totally incapacitated and has been rendered immobile, it is inequitable and unconscionable to compel the employee to attend office, much less discharge functions.
Dismissing the challenge against the CAT order, the division bench comprising Justices PR Ramachandra Menon and Dama Seshadri Naidu, observed: “Given the modesty of women, the employer, still, expects a crippled woman employee to visit the work place, and, if necessary, discharge the functions to be assigned to her—all this with a urinary catheter permanently fixed and also with bowel incontinence: her modesty exposed and privacy invaded.”
The judgment authored by Justice Dama Seshadri Naidu discusses judicial recognition of human dignity in various countries. The bench also observed that employer’s insistence that she should physically mark her attendance daily in office violates her privacy. “The doctrine of dignity takes into its fold ‘privacy’, too, for it is a facet of a woman’s dignity,” the court held.
“The employer seems to have understood that keeping an employee on the rolls, as if she had been in service, must mean that she should perform the ritual of attending office. We are afraid it is misplaced, if not perverse,” the bench said.
Dismissing the appeal and upholding the CAT order, the bench remarked: “Here is a conflict, as it seems, between the employee’s constitutional right—right to dignity and privacy—and the employer’s right—right to compel an employee to discharge the allotted functions. Need we say, it is the constitutional right that prevails? Nevertheless, we hasten to add, it may be a constitutional canon but needs the facts to justify it. Here, the facts, we think, justify this conclusion.”
Read the Judgment here.
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