PwD Act | Alternate Employment With Same Pay Benefits To Employee Who Suffers Disability During Course Of Employment A Statutory Right: Andhra HC

In a recent case, the Andhra Pradesh High Court allowed payment of wages to a workman from the date he suffered from disability during course of employment till he was provided an alternative employment under Section 47 of Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995."Section 47 itself provides for grant of alternative employment to a disabled employee or on equivalent posts carrying the same pay scale and not to oust such employee from the service." Brief Facts of the Case The Petitioner was appointed as a casual conductor in the Andhra Pradesh Road Transport Corporation in 1984. While he was on duty, he met with an accident and was hospitalized in Nizam's Institute of Medical Sciences (NIMS) and in operation of spinal cord, his two discs were removed. The Corporation retired the petitioner from service on medical ground vide order in 2001. The Petitioner made several representations for alternative employment but the Corporation paid no heed. The petitioner filed a case before the Disabled Welfare & State Commissioner under Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 in which the Commissioner in 2006 directed the Corporation to consider petitioner's claim in light of Section 47 of the 1995 Act. As a consequence, the petitioner's services were utilized at bus pass station from 2007. The petitioner requested the Corporation for payment of wages for the interregnum period from 2001 up to 2007 but there was no response from the Corporation. Contentions of Both Sides The Counsel for petitioner, Ch. Gopal Raju submitted that in view of the statutory provisions of Section 47 of the 1995 Act, the petitioner ought to have been offered alternative employment to some other post with the same pay scale and service benefits. The petitioner was entitled to receive the salary for the interregnum period. The standing counsel for the Corporation K.M.R. Bala Prasad submitted that the writ petition suffered from laches. The petitioner was claiming salary w.e.f. from 2001 to 2007 by filing petition in the year 2011. Another contention put forth was that for claiming relief under Section 47 of 1995 Act, the disability must be one of those under Section 2(i) of the Act (that is Blindness; Low Vision; Leprosy-cured; Hearing impairment; Locomotor disability; Mental retardation; Mental illness). Furthermore, the Workmen cannot claim back wages as a matter of right. Findings of the Court Section 47(1) of the Act reads as "no establishment shall with, or reduce in rank, an employee who acquires disability during his service". The proviso to Section 47(1) conferred a right on an employee who acquired disability to be shifted to some other post with the same pay scale and service benefits. Justice Ravi Nath Tilhari observed that not only alternate employment but also pay scale and the service benefits were protected. The Court relied on Kunal Singh v. Union of India (2003), in which the Supreme Court has laid down 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." Justice Ravi Nath Tilhari made the following observations: 1. Regarding latches, the court observed that from the facts on record, the petitioner did not give up his claim and continuously requested for the salary arrears by filing representations. Normally a person approaches the court, as a last resort and with respect to a disabled person, it is only after finding no hope of justice from the respondent Corporation, the Petitioner had to approach the Court. The matter is left to the discretion of the High Court in its exercise of writ jurisdiction as laid down by Apex Court in Narayani Debi Khaitan v. State of Bihar (1964). 2. The disability from which petitioner suffered was a locomotor disability and covered under Section 2(i)(v) read with Section 2(1)(o) of the 1995 Act and his case was this covered under Section 47 of the Act. In K. Moses v. A.P.S.R.T.C. (2010), the Andhra Pradesh High Court held that: "…if the employee suffered from the disability under the Act, 1995 he cannot be subjected to break in service for want of suitable post being immediately available. He would be entitled to claim continuity of service for all purposes from the date of his so-called retirement from service…" 3. The Workman can claim back wages as there was statutory protection of Section 47 of the 1995 Act. In the result the writ petition was allowed and the Corporation was directed to pay...

PwD Act | Alternate Employment With Same Pay Benefits To Employee Who Suffers Disability During Course Of Employment A Statutory Right: Andhra HC

Jagriti Sanghi

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