Donadi Ramesh, J.

1. The instant intra-court appeal has been filed by respondent No. 2 aggrieved by the order in Writ – A No. 58074 of 2014 dated 10.02.2020.

2. The respondent in the appeal has filed the writ petition assailing the order dated 6.4.2011 passed by the appellant herein. The said writ petition was allowed with a direction to reinstate the petitioner in service alongwith all consequential benefits.

3. The facts of the case are that the petitioner was working as a line man with the appellant/Corporation and he was posted at Electricity Urban Distribution Division, Phool Bagh, KESCO, Kanpur. On 27.06.2009, while the petitioner was working on high tension over head line after taking proper shut down, due to negligence on the part of the concerned Officer of the appellant/Corporation, the high tension line on which petitioner was working was suddenly energized resultantly he got electricity shock and his both arms burned. As a result thereof, his both arms were amputated by the doctors while undergoing treatment. In view of the said action, he got hundred percent permanent disability as declared by the Medical Board in its report dated 16.12.2009. On the basis of above said report, the appellant/Corporation has passed the impugned order on 06.04.2011, whereby, petitioner was compulsory retired with effect from 30.04.2011. The petitioner being hundred percent handicapped is unable to sign or put his thumb impression, has made oral request for cancellation of the above said order and requesting the appellant/Corporation to reinstate the petitioner in the service. However, the respondent/appellant have not paid any heed on the request of the petitioner, thereafter, he has made a representation by taking help of Shri Deepak Sikroria, Authorized Representative on 18.01.2013 and again on 18.06.2013. The Executive Engineer (Mu) and Public Information Officer of respondent/appellant by letter dated 29.09.2014 only supplied copy of the letter of Executive Enginer (VI)-I dated 28.02.2011 which records that the representation dated 18.01.2013 was not decided. In fact as per the date of birth of the petitioner, he has to retire on 31.05.2022 but taking hundred percent disability in view of the accident, respondents have passed the impugned order on 30.04.2011 giving compulsory retirement to the petitioner. The said action is contrary to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 the Act.

4. Refuting the above said averments, one Arjun Kumar Singh, Executive Engineer, Kanpur Electricity Supply Company Limited, Kanpur Nagar, has filed an affidavit stating that the petitioner while working as the Lineman whose both hands were amputated as a result of electric accident on 27.06.2009. Accordingly, the Chief Medical Officer, Kanpur Nagar has given certificate on 16.12.2009 declaring that the petitioner is hundred percent disabled. Bases on the above said certificate, the respondent/Corporation has passed the order on 06.04.2011 by giving compulsory retirement to the petitioner w.e.f. 30.04.2011, which reads as follows:

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"Office-Memo.

Shri Rajkumar, Lineman, Phulbagh Division, KESCO, Kanpur met with an electrical accident during his duty on 27.06.09 and his both hands had to be amputated during treatment at Chandni Hospital, Kanpur. After due consideration over the guidance received from Uttar Pradesh Power Corporation Limited (UPPCL), Lucknow through Letter No. 882- Ara.-09(Ba)/Pakali/10-43-Ara.(09Ba)/10 dated 06.07.10 in this regard and Letter No. 313/E.U.D.C.- First/11 dated 28.02.11 sent by Superintendent Engineer(Vi.)- First, KESCO, in this connection and taking account of the physical incapability/disability of Shri Rajkumar, Lineman, Phulbagh Division KESCO, Kanpur, the order is passed for his compulsory retirement from the company’s service with effect from the afternoon of 30.04.11.

All types of retirement benefits will be permissible to Shri Rajkumar, Lineman, Phulbagh Division, KESCO, Kanpur on his compulsory retirement.”

(By the Court)."

5. They have further stated that in accordance with the provisions of the Workmen's Compensation Act, 1923, the petitioner had been paid Rs.3,91,368/- as compensation and Rs.1,80,000/- towards medical claim and further Rs.43,508/- towards medical expenses on 26.05.2010 by the Corporation. In view of the payment made as per the provisions of the Workmen's Compensation Act, respondents have rightly taken decision to compulsory retire the petitioner and accordingly issued proceeding on 06.04.2011.

6. With the above said factual background, the petitioner has specifically raised an issue with regard to application of Section 47 of the Act, the respondents have not made any averment in the counter affidavit with regard to the said provisions. For the benefit of deciding the crux of the issue, the said provisions is extracted:

“Section-47. Non-discrimination in Government Employees:

(1) No establishment shall dispense with, or reduced 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.”

7. Considering the above said provisions and also following the decision of the Apex Court in Kunal Singh (supra), learned Single Judge has allowed the writ petition by setting aside and quashing the order of the Chief Engineer, KESCO dated 06.04.2011 and directed the respondent/Corporation to reinstate the petitioner in service in view of Section 47 of the Act, 1995, within two months from the date of production of a certified copy of the order of this Court. Assailing the said order, respondents have filed present intra-court appeal.

8. Ms. Usha Kiran, learned counsel appearing for the appellants/Corporation has submitted that the orders impugned are contrary to the Regulations of the Corporation and further learned Single Judge has not taken note of the payments which were made to the petitioner/respondent herein, under Workmen's Compensation Act, 1923. While allowing the writ petition, learned Single Judge has not considered the aspect of payment of retiral benefits and gratuity apart from the payments which were made to the petitioner under Workmen's Compensation Act. She further argued that in accordance with the provisions of the U.P. Retirement Benefit Rules, 1961 as applicable to the Corporation and also as per Section 6(10) of the U.P. Electricity Transfer Reform Scheme, 2000, the U.P. State Electricity Board (Employees' Retirement) Regulations, 1975, and the provisions of Workmen's Compensation Act are applicable to the U.P. Power Corporation Limited. When the petitioner/respondent herein, is hundred percent disabled and is not able to work, hence based on the medical certificate issued by the Medical Board vide its report dated 16.12.2009, Corporation has taken a decision to compulsory retire the petitioner, accordingly, the order was passed on 06.04.2011.

9. Learned counsel for the appellants has further contended that as per Clause 2(b) of Uttar Pradesh State Electricity Board Employees’ (Retirement) Regulations, 1975, the appellants/Corporation have power to pass the orders. While exercising the power under the said clause, the Authority has passed an order on 06.04.2011 retiring the petitioner/respondent in the public interest. For the benefit, the said clause is extracted:

“(b) Notwithstanding anything contained in Clause (a), the appointing authority or any authority to which the appointing authority is subordinate, may, at any time, by notice to Board's employee (whether permanent or temporary) without assigning any reason, require him to retire, in public interest, provided that such employee has completed 20 years of qualifying service and has attained the age of 50 years. Any employee of the Board, also, may,by giving three months’ notice to the appointing authority, seek voluntarily retirement at any time, after attaining the age of 45 years, provided that he has completed minimum qualifying service of 20 years.”

10. She has submitted that in view of above clause, as the petitioner got hundred percent permanent disability and is not able to work and there is no other suitable post in the Corporation, for the sake of public interest, the authorities have exercised the powers under Clause 2(b) of the said Regulation and passed the impugned order, hence, the impugned order is in accordance with Regulation of the Corporation.

11. Reply to the above arguments of the appellants/Corporation, learned counsel appearing on behalf of the respondent/petitioner has submitted that the very claim of the petitioner in the writ petition is that he is entitled for the protection granted in Section 47 of the Act. Section 47 of the Act starts with negative connotation, it says that no establishment shall dispense with, or reduce in rank of an employee who acquires disability during his service. Hence, no employer is entitled to dispense with the services on the ground of disability, further, as per provisions of sub-section 1 of Section 47 of the Act, if it is not possible to adjust the said employee at any post, the Organization has to create a supernumerary post till he attains the age of superannuation. In view of the above said protection granted in the aforesaid provisions, the respondents should not have to pass the impugned order on 06.04.2011. To support his contention, he relied on the decision of the Apex Court in the case of Kunal Singh vs. Union of India AIR 2003 SC 1623 [LQ/SC/2003/208] . The relevant observations made therein are as follows:

“Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant 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. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.”

12. Further, he has also relied on the judgment of the Apex Court in Bhagwan Das & another vs. Punjab State Electricity Board (2008) 1 SCC 579 [LQ/SC/2008/13] . The relevant paragraphs are as follows:

“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. The very opening part of the 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 be 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 be 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 employee shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a 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. After the Act came into force with effect from December 7, 1996 (vide S.O.107(E) dated 7th February, 1996), the Government of Punjab, Department of Personnel and Administrative Reforms, issued a letter dated September 24, 1996 directing all the heads of departments to comply with Section 47 of the Act. The Punjab State Electricity Board too adopted the Government letter under its Circular No.6/97, dated February 17, 1997.

In view of Section 47 of the Act and the Circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the appellant the Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the appellant was declared completely blind on January 17, 1994 he was not covered by the provisions of the Act that come into force on February 7, 1996. Such plea can not be raised because on February 7, 1996 when the Act came into force the appellant was undeniably in service and his contract of employment with the Board was subsisting.”

13. Learned counsel for the petitioner/respondent herein, has submitted that in Bhagwan Das (supra) case, the respondent is the employee remained absent from duty without any sanctioned leave since long back. A show cause memo was issued, however, he failed to report for duty, thereafter, a charge sheet was issued initiating disciplinary proceedings against the said employee and based on the request of the employee, the Board retired him from service but the said action of the Corporation in terminating the service of the disabled employee was held contrary to Section 47 of the Act.

14. Based on the above facts, no doubt, there is a specific protection under Section 47 of the Act, if an employee who acquires a disability during his service, he sought to be protected under Section 47 of the Act. The very frame and contents of Section 47 of the Act clearly indicates its mandatory nature. On reading of Section 47 clearly mandates all the Organizations and appropriate Governments that if an employee acquires a disability during service, he should be continued till he attains the age of superannuation. It will not be out of place to mention here that in view of protection granted under Section 47 of the Act, the appellants/Corporation are duty bound to follow the law and it is not open to them to allow to defeat the lawful rights of a disabled employee.

15. As contended by learned counsel for the appellants, though power has been given to the Authorities as per Clause 2(b) of the said Regulation for premature retirement for the sake of public interest but it is important to keep in mind that where the Rule and Regulation are directly inconsistent to the mandatory provision of the Statute, the Authorities has to follow the provisions of the Act.

16. In view of above observations made by the Hon'ble Apex Court while interpreting Section 47 of the Act and also discussion made by the learned Single Judge, there is no hesitation in holding that the impugned order dated 06.04.2011 is bad in law and illegal. In view of the provisions of Section 47 of the Act, the respondent would be deemed to be in service until the age of superannuation i.e. 31.05.2022, and would thus be entitled to all service benefits including promotions etc. till the date of his retirement.

17. As discussed above, we see no ground to interfere with the order passed by the learned Single Judge.

18. Accordingly, the appeal stands dismissed.

19. No order as to costs.