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September 5, 2020

An Employee cannot be Removed or Reduced in Rank Due to Disability – HC

by CA Shivam Jaiswal in Legal Court Judgement

An Employee cannot be Removed or Reduced in Rank Due to Disability – HC

A disability is defined as a condition or function judged to be significantly impaired relative to the usual standard of an individual or group. The term is used to refer to individual functioning, including physical impairment, sensory impairment, cognitive impairment, intellectual impairment mental illness, and various types of chronic disease.

The Rights of Persons with Disabilities Act was formed with the main objective to uphold the dignity of any person in the society and prevent any discrimination against any individual in the name of disability.  It just speaks of “inclusive society”, accepting every person, irrespective of disability, if any.

The main objective includes –

  • respect for inherent dignity
  • non-discrimination
  • inclusion in society
  • respect for difference and acceptance of persons with disabilities
  • equality of opportunity
  • accessibility
  • equality between men and women
  • respect for the rights of the children with disabilities.

The Punjab and Haryana High Court has passed a  ruling reaffirming the right to work and confirming that a person with a physical disability has the right to continue his job and a mere disability cannot be a reason to terminate employment and discontinue his services in the case of Rawel Singh vs State of Punjab and Others.

Submissions by Petitioner

The petitioner contended that although he was 75% physically challenged but the respondents were arbitrarily not allowing him to continue till the age of 60 and pressuring him to go on voluntary retirement at the age of 58 years where there were two years left till his retirement in violation of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995.

Submissions by Respondent

  • State counsel filed a reply wherein it was stated that the increase in age of retirement from 58 to 60 years for disabled employees was not unconditional but subject to the condition that they should be mentally and physically fit to discharge the duties of the post.
  • A copy of the medical report of the Civil Surgeon wherein it was mentioned that the petitioner was examined by the Board of Doctors and it was found that the petitioner was disabled to the tune of 75% as he was suffering from severe ataxia as assessed by the department of neurology was also filed.
  • It was also stated that he was unable to walk independently and could not carry out activities of daily living like bathing, dressing, transferring and eating independently.
  • In their opinion, the petitioner could not carry out his office work as Junior Assistant.

Observations of the High Court

  • It was obvious that the respondents were being insensitive and indifferent to the plight of a challenged employee which is contrary to the objective of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995.
  • The object of the Act was to provide congenial work environment keeping in view the disability of the employee.
  • Merely because the employee could not carry out work as Junior Assistant, it cannot be taken that he would be unfit to discharge any other job
  • Section 47(1) of the Act stipulated that no establishment could dispense with or reduce in rank an employee who acquired a disability during his service.
  • In the event, he was found to be not suitable for the post he was holding, he had to be shifted to some other post with the same pay scale and service benefits.
  • It was further provided that if it was not possible to adjust the employee against any post, he may be kept on a supernumerary post (a supernumerary post is a post created for accommodating a permanent officer) until a suitable post is available or he attains the age of superannuation, whichever is earlier.

The HC issued interim directions to the respondents that the petitioner shall be taken back in service in the same pay scale and adjusted at suitable post whereat he may work online from home in view of Covid-19 pandemic.

In this judgment, the High Court has seized an opportunity to hold the governments and employers accountable as they have not done enough to transfer benefits enshrined in the law to the beneficiaries. The disability rights discourse seems to have found momentum once again. These fine judgments have reinforced the disabled-friendly judicial activism.

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