A.K. Sikri, J.

1. All these seven petitions raise identical question of law and are concerned with the interpretation of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act, for short) and other related provisions of the Act. Accordingly, these petitions are disposed of by this common judgment.

2. Petitioners are suffering from one or the other form of disability. But they were not disabled at the time of their birth nor when they entered service with the respondent-Delhi Transport Corporation (hereinafter referred to as DTC, for short). They were all hale and hearty, medically fit and were appointed to different posts in DTC after undergoing proper selection and were/are working in DTC as regular employees. Unfortunately, during their services they have suffered some or the other form of disability, as will be noticed when facts are narrated in each case. However, due to such disablement they are all slapped with the orders of premature retirement rendering them unemployed. The main challenge in the petition is of the following two different kinds namely; (a) in some cases the alleged disability from which they are suffering is not of the kind which could have entitled the employer to force premature retirement on them, or (b) even in those cases where disability is of the kind which has rendered them incapacitated to perform the job which they were performing, the action of the premature retirement is challenged on the ground that petitioners could have been given alternate jobs which they could perform notwithstanding such disability.

3. Before dealing with the problem of the nature mentioned above and in order to appreciate the same in proper perspective it would be relevant to note, in brief, the facts of each case.

Civil Writ Petition No. 4278 of 1999

4. Petitioner was appointed as driver in 1982 and his last place of posting was at Khanpur Depot now known as Dr. Ambedkar Nagar Depot. He fell sick and suffered from chest infection. He applied leave on medical grounds supported by medical certificates. Petitioner joined duty in December, 1998 when he was asked to appear before Medical Board for check up. On 15th March, 1999 order of premature retirement was served on the petitioner. Petitioner applied for alternative job but his request was ignored. Since February, 1999 salary of the petitioner was not paid.

Civil Writ Petition No. 2002 of 1998:

5. Petitioner was appointed as Assistant Fitter on 28th July, 1991 with the respondent-DTC. While on duty on 13th November, 1996, while repairing bus (No. 3298) he sustained injury in his right eye as a small iron chip hit his eye ball. Petitioner underwent treatment at Dr. Rajendra Prasad Centre for Opthalmic Sciences of the All India Institute of Medical Sciences. He joined the services on 4th December, 1996. Petitioner gave fitness certificate dated 10th December, 1996 when he was asked to appear before the Medical Board of the Corporation. Without looking into the documents regarding treatment, he was declared medically unfit by Dr. Srivastava who, according to the petitioner, is not an eye specialist. Petitioner was served with order of premature retirement dated 2nd April, 1998. Petitioner vide his representation dated 3rd April, 1998 made a request for withdrawal of the premature retirement order which was rejected. Petitioner states that he is to work in a team comprised of mechanics, fitters and assistant fitters and was not required to perform any driving duty. Petitioner further submits that his capability and suitability can be adjudged by putting him on the job of assistant fitter.

Civil Writ Petition No. 5470 of 1998:

6. Petitioner was initially appointed as Helper on 1st April, 1987 and was confirmed on the said post on 30th June, 1988. While in service, be acquired skill of driving heavy vehicle and obtained driving licence. Petitioner was appointed as driver and was confirmed on the said post on 13th July, 1990. While on duty on 1st August, 1996 on Bus No. DL-IP-9911, the steering wheel of the bus suddenly came out and he sustained injury on his right ankle. He was taken to Deen Dayal Upadhya Hospital where his right ankle was operated upon by applying stiches and he was discharged on the same day. Petitioner remained on leave for taking rest and on 1st January, 1997 he was declared medically fit by specialist of Deen Dayal Upadhya Hospital and was advised to drive light duty vehicles. Thereafter, he was declared fit for duty as a driver on 6th May, 1997 but still not allowed to join duty. He states that Medical Officer of the Corporation declared him medically unfit without proper medical examination. The Depot Manager, Indraprastha Estate issued impugned order of premature retirement on 3rd August, 1998. Petitioner was not given alternate equivalent post by the respondent despite instructions dated 11th October, 1996. Petitioner in this petition prays for a direction to the respondent-DTC to put him on driving duty and adjust his suitability to drive DTC buses as he has fully recovered from his ailment.

Civil Writ Petition No. 4304 of 1999

7. Petitioner was appointed as driver on 20th September, 1980. On 2nd May, 1997 he received injuries on his spinal cord after a fall from the roof of his house. He was admitted to St. Stephens Hospital where he remained as indoor patient for sometime and was advised bed rest for one month on 8th August, 1997. Petitioner was declared medically fit to resume duty on 7th September, 1997. On his reporting for duty petitioner was asked to undergo medical check up by the Corporation. In the medical report petitioner was advised to take two months rest. On petitioners rejoining, he was again made to go through medical check up and the Medical Officer declared him medically unfit. Consequently, an order of premature retirement dated 26th November, 1998 was passed by Depot Manager. Indraprastha Estate Depot. Petitioner submits that doctor at St. Stephen Hospital had issued fitness certificate and since the hospital is on the panel of the Corporation, the certificate ought to have been accepted by the Corporation. Petitioner further submits that he is fully fit to drive DTC bus without any difficulty and his performance has not been watched for adjudging, this capability to drive vehicle. Despite requests petitioner was not given any alternate post.

Civil Writ Petition No. 4166 of 1999

8. Petitioner was appointed as Conductor on 19th October, 1973. While on duty on city route between Ranjit Nagar to Jama Masjid via Daryaganj on 2nd September, 1996 the bus developed some defect. The petitioner along with some passengers got down from the bus to push the bus for starting it. When he was engaged in pushing the bus a two wheeler scooter hit him and he sustained injures on his back and was admitted to Dr. Ram Manohar Lohia Hospital on the same date. After undergoing treatment, petitioner was declared medically fit on 14th May, 1997. However, petitioner was not allowed to join duty when he reported for duty. He was served with order of premature retirement dated 28th July, 1998. Grievance of the petitioner is that Circular dated 11th October, 1996 was not complied with by the respondent which provided for giving alternate equivalent post as per the Act, 1955.

Civil Writ Petition No. 3015 of 1999

9. Petitioner was employed as driver in February, 1983. While on duty on 11th April, 1996 driving bus No. DL-IP-9437 (Delhi-Lucknow route) when petitioner was returning to Delhi from Lucknow, another vehicle No. UP-12-4181 which was coming from the opposite direction in a rash and negligent manner hit the bus of the petitioner as a result of which petitioner received multiple fractures on his right leg. Petitioner was taken to Sitapur Hospital and from there he was brought to Hindu Rao Hospital and was then taken to Lok Nayak Jai Prakash Narain Hospital. Petitioner was operated upon on 14th April, 1996 and since there was a strike in the hospital he was taken to Veeranwali Nursing Home in Chanakyapuri, New Delhi. Petitioner was again operated upon as an emergency case and incurred an expenditure of Rs. 27,800 + Rs. 16,000 on medicines, and this amount was not reimbursed to him nor any compensation was paid under the Workmens Compensation Act. Petitioner did not receive any salary since April, 1996 i.e. when he met with the accident. Petitioners representations dated 16th January, 1999 and 22nd January, 1999 were not replied by the respondent. The present petition was filed in May, 1999. This Court passed interim orders on 25th May, 1999 directing the respondents to provisionally pay salary to the petitioner from April, 1999 onwards. However, this order has not been complied with by the respondents. Petitioner had approached this Court at the stage with a request for payment of medical expenses, arrears of salary and for posting him on alternative post with protection of pay as per mandatory requirement of the Act, 1955 which has not been complied with by the respondent DTC. A contempt petition being CCP No. 327 of 1999 is pending in this Court due to non-compliance of the orders dated 25th May, 1999 and the case fixed for hearing on 21st February, 2000.

Civil Writ Petition No. 3032 of 1999

10. Petitioner was appointed as driver on 22nd November, 1980. Petitioner was on duty on inter-state route from Delhi to Balaji when on 5th June, 1995 while returning from Balaji to Delhi the steering wheel of the bus developed some defect and the bus rammed into a tree. Petitioner sustained fracture on his right leg. Traffic Inspector Shri Lal Chand visited the spot of accident. Petitioner was taken to Jaipur Hospital. From there he was admitted to Lok Nayak Jai Prakash Narain Hospital where he was operated upon and relieved from the hospital on 23rd July, 1995. On his joining duty, he requested the Depot Manager to give him an alternate post and also pay the salary since June, 1995. Both the pleas were not accepted by the respondent-DTC. Petitioner submits that he was not given alternate equivalent post in terms of circular dated 11th October, 1996 and also in terms of Section 47 of the Act, 1995. Petitioner in this case claims that the respondent-DTC be prohibited from dispensing with the services of the petitioner and they should be directed to immediately pay the arrears of salary as well as medical expenses incurred by him and absorb him against alternate post with full protection of pay. According to the petitioner he is now fully fit to perform the duty of driver. His suitability can be adjudged by directing the respondents to put him on driving duty and watch his performance.

11. Undisputably the people with disabilities also have same rights, hopes and aspirations as everyone else. They are to be provided with equal opportunities and rather better incentives for their rehabilitation in the society. Asian and Pacific countries, primarily with this end in view, started decade of disabled persons from 1993 which is to go up to the year 2002. For this purpose a meeting was held in Beijing on 1st to 5th December, 1992 called the Meet to Launch the Asian and Pacific Decades of Disabled Persons. In this meeting Asian and Pacific countries adopted the Proclamation on the full participation and equality of people with disabilities in the Asian and Pacific regions. To give effect to this proclamation Parliament in India passed the enactment known as Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Statement of object and reasons to this Act which was appended to the Bill, before it was enacted, reads as under:

The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory of the said proclamation and it is necessary to enact a suitable legislation to provide for the following:

(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis, non-disabled persons;

(iv) to counter act any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down a strategies for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and

(vi) accordingly, it is proposed to provide inter alia for the constitution of Coordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate governments and the local authorities will have to undertake various rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provisions of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged.

3. The Bill seeks to achieve the above objects.

12. The aforesaid legislation came into effect from 1st January, 1996. Apart from the object of raising the status of the persons suffering from various kinds of disabilities in order to achieve the above mentioned objects, a special provision has been made in terms of Section 47 of the Act which prohibits an establishment from dispensing with or reducing in rank an employee who acquires disability during his service. Protection is also given to such an employee to shift him to the other post with the same pay scale and service benefits if such an employee could not be found suitable for the post he was holding. Provision is also mad to create supernumerry post until a suitable post is available and till the concerned persons attains the age of superannuation. Such a person acquiring disability cannot be denied promotion





merely on the ground of his disability. For proper appreciation let me reproduce of Section 47 of the Act at this juncture:

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 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.

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 not 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. Notwithstanding the aforesaid clear and mandatory provisions contained in Section 47 of the Act, the respondent-Corporation has passed the orders of voluntary retirement in the a fore-mentioned cases which is an establishment within the meaning of Section 2 (k) of the Industrial Disputes Act as it was established under Central Act. Such obvious Legislature intent is not understood by the officials of the DTC, who are at the helm of affairs and have handed out such shabby treatment to the petitioners. Even when their attention was drawn to the provision they chose to lend deaf ears and did not rectify their wrong act.

14. 3rd December, is celebrated as International day of Disabled Persons. On 3rd December, 1999 i.e. only a few days ago Ministry of Social Justice and Empowerment Government of India, came out with its policy decisions and welfare measures taken to assuage the feelings of disabled persons, which was published in almost all leading dailies published in this country. It contained messages of President of India, Prime Minister of India and Minister of State for Social Justice and Empowerment. These messages reflect the commitment of Government of India to strive for the betterment of the disabled persons. The newspapers also carried initiatives which are taken by the Ministry for the welfare of these persons and carried the slogan Trust the abilities of people with disabilities. It is widely accepted that disabled persons need to be treated as valued member of the society who can contribute to the development and progress of the country. They do not need our sympathy or pity but an opportunity to employment. With these objectives in mind the aforesaid legislation was enacted. It is but a cruel joke meted out to these petitioners that their services are terminated under the garb of voluntary retirement on the ground that they are no more fit for their respective jobs as noticed above.

15. It may be relevant to mention here that DTC had earlier vide Office Order dated 13th November, 1995 provided scheme for payment of compensation to those employees who were rendered medically unfit by the DTC Medical Board in the posts to which they were appointed. Thereafter, circular dated 11th October, 1996 was issued stating certain modifications in the earlier scheme. Notwithstanding such scheme and the provisions of Section 47 of the Act, impugned action is taken by the respondent-DTC.

16.I may mention here that even when the aforesaid legislation was not enacted Courts have been passing appropriate orders for rehabilitation of such employees who suffered disabilities during the course of their employment. In Special Leave Petition (Civil) No. 1575 of 1991 entitled Shri Vedi Prakash Singh, Conductor v. DTC and Others, Supreme Court gave directions vide order dated 5th August, 1991 to the effect that he should be posted against an equivalent post and be also paid salary for the intervening period. Similarly, in the case of State of Haryana v. Narendra Kumar Chawla, reported in 1994 (4) SCC 460 , [LQ/SC/1994/160] the Apex Court held that in case of employees rendered physically handicapped due to disease, the Court has power to give directions regarding absorption of such Employee carrying a pay scale equal to that of his original post. A known essential requirement for appointments to that post can also be relaxed. It is further observed in mat judgment that such an employee has right to protection of pay. Even when he is absorbed in a lower post, he is entitled to protection of the pay scale of his original post in view of Article 21 of the Constitution of India.

17.One may also notice, at this stage, certain decided case relating to respondent DTC itself. In Rampal v. DTC, reported in 1997 LICthis Court had referred the case of the concerned to Government hospital for medical examination. On medical examination he was declared fit. On this basis order of premature retirement was quashed and the concerned employee was directed to be taken on duty. In Phool Chand v. DTC, being Civil Writ Petition No. 4100 of 1995, this Court passed the following directions vide order dated April 28,1998:



the fact that the petitioner injured during the course of employment is not disputed and the disability is also known to the first respondent. Under the circumstances, the petitioner has to be given suitable employment as per the circular dated the 11th October, 1996. When a person had suffered an injury during his employment, I am unable to appreciate the argument on behalf of the first respondent in semantics and trying to put forth an argument of interpretation of the office order and the circular. The first respondent is bound to consider the welfare of the petitioner and must have given him suitable employment. Accordingly, the writ petition is allowed.

18. To the same effect is the judgment of this Court in the case of Inder Das v. DTC, in Civil Writ Petition No. 3700 of 1997 decided on 31st July, 1998 wherein following directions were passed:

Mr. B.S. Charya, the Counsel for the petitioner, submitted that the DTC must follow its own circular dated 11.10.1996 and give the petitioner a susitable appointment having regard to his physical condition in the same scale of pay which he was drawing as driver. The learned Counsel also submitted that the expenditure for treatment to the tune of Rs. 15,382 incurred by the petitioner should be paid by the respondents.

There is considerable force in the arguments of the learned Counsel for the petitioner, Mr. B.S. Charya. The petitioner is entitled to the relief prayed for. According, the writ petition is allowed.

The first respondent is directed to issue suitable orders giving employment to the petitioner, having regard to the physical condition of the petitioner, in the office in the same scale of pay which he was getting as driver on the date of sustaining the injury, and the first respondent shall pay the petitioner the sum of Rs. 15,383

The first respondent shall pass appropriate orders on or before the 30th of September, 1998 and also pay the sum of Rs. 15,383 on or before that date.

19. In view of DTCs own policy dated 11th October, 1996 as well as legal position contained in Section 47 of the Act, 1995, Mr. Vali who appeared on behalf of the DTC, had apparently no answer on the merit of these cases. Faced with such a situation, his trumcard was the provisions of Section 59 of the Act, which according to him provides for alternate efficacious remedy. He wanted that the petitioners be shown the door in view of this provision and plead their case with Chief Commissioner. In order to consider and appreciate the submission of the respondent Section 59 may be noticed at this stage.

Section 59:

Chief Commissioner to look into complaints with respect to deprivation of rights of persons with disabilitiesWithout prejudice to the provisions of Section 58 the Chief Commissioner may of his own motion or on the application of any aggrieved person or otherwise look into complaints with respect to matters in relation to

(a) deprivation of rights of persons with disabilities;

(b) non-implementation of laws, bye-laws, relations, executive orders, guidelines or instructions made or issued by the appropriate Government arid the local authorities for the welfare and protection of rights or persons with disabilities;

and take up the matter with the Appropriate Authorities.

20. According to Chapter XII of the Act, Section 57 makes provision for appointment of Chief Commissioner for persons with disabilities. Section 58 of the Act lays down the functions of the Chief Commissioner which comprises of coordination of the work of commissioners, monitoring the utilisation of funds, disbursed by the Central Government, take steps to safeguard the rights and facilities made available to person with disabilities and submit reports to the Central Government on the implementation of the Act at such intervals as the Government may prescribe.

21. Section 59 of the Act only provides that without prejudice to the provisions of Section 58, the Chief Commissioner may on his own motion or otherwise look into the complaint regarding deprivation of right, non-implementation of law, bye-laws, rules issued by the appropriate Government and the local authorities and the welfare and protection of rights of persons with disabilities and take up the matter with the Appropriate Authorities. Section 60 talks of appointment of commissioners for persons with disabilities. Section 61 says about the powers of the Commissioner within the State and it is virtually reproduction of the provisions of Section 58. Section 62 talks of the procedure to look into the complaint.

22. Thus, there is no power with the Chief Commissioner or the Commissioner to hold order of termination of service or dispensing the service of an employee or reduction in rank to the invalid and to enforce such an order or to pass order of a prohibitive nature or to compel an establishment to take back the employee whose services have been terminated illegally and in contravention of the mandatory provisions of Section 47 of the Act of 1995. Even if it is presumed that there is such a power with the Chief Commissioner under Section 59 of the Act, existence of alternate remedy is not an absolute bar for exercising jurisdiction under Article 226 of Constitution of India. This is only a self-imposed restriction and in a given case the Court can direct the party to avail alternate remedy rather than approach the High Court under Article 226 of the Constitution of India. The existence of alternate remedy is not always a sufficient reason for refusing a party quick relief by filing a writ or order. In the present case it is still doubtful as to whether Chief Commissioner had any such power to hold voluntary retirement order passed by the respondent as illegal and direct the DTC to take these petitioners back in service. Moreover, as noticed above, there is a branch of the mandatory provision of Section 47 of the Act. For these reasons, I am not inclined to accept this statement of the respondent about the non-maintainability of these writ petitions on the ground of alleged alternative remedy.

23. These petitions accordingly succeed. Rule is made absolute. Respondent-DTC to implement the following directions:

(i) In Civil Writ Petitions 4278 of 1999,2002 of 1998,5470 of 1998,4304 of 1999 and 4166 of 1999, the orders of voluntary retirement are hereby quashed. Respondents are directed to take the petitioners back into service and pay the salary from the date when the respondents stopped paying full salary soon after the accident/injury as the case may be. Petitioners would be treated as in continuous employment without any break in service. In case they are not fit to perform the duties which they were performing since their initial appointment till their disability, the respondent shall deal with these cases in terms of proviso to Section 47.

(ii) In Civil Writ Petitions 3015 of 1999 and 3032 of 1999 where the services of the petitioners are not yet terminated, respondents are directed not to terminate their services and absorb them against alternate equivalent post after adjudging their suitability. They are also held to be entitled to full salary from the date when they sustained injuries but denied pay and allowances by the respondents.

(iii) Petitioners shall also be entitled to cost which is quantified at Rs. 3,000 in each petition.