Staff entitled to a switch in post if disabled during employment period: HCUpdated: Aug 13, 2020 00:07 IST
Every employee who acquires a disability during the course of his employment is entitled to be shifted to another suitable post, irrespective the percentage of his disability, the Bombay high court said, on Wednesday
A single judge bench of justice Milind Jadhav on Wednesday rejected argument advanced on behalf Brihanmumbai Electric Supply and Transport (BEST) undertaking that it was not bound to accommodate a bus conductor Sadashiv Gaikwad on another suitable post, after he acquired disability of a lower limb, since the percentage of his disability was less than 40℅.
The judge also rejected BEST’s contention that Gailwad was not entitled to the benefit of shifting to another suitable post after his accident, as contemplated under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and that the civic undertaking was justified in terminating his services.
Justice Jadhav held that for claiming the benefit of section 47 a person does not have to be certified as a “person with a disability” - a person with 40℅ or more disability.
The judge clarified that section 47 envisages that if an employee acquires a disability during the course of his employment and becomes unsuitable for the post held by him, the employee should accommodate him on another suitable post, with same service benefits, and if no other suitable post is available, he should be posted on a supernumerary post till the time such a post becomes available.
“That is the mandate of section 47,” said the judge. “There is nothing to suggest that for applying this mandate, the employee must be shown to be a ‘person with disability’ within the meaning of section 2(t), that is to say, a person suffering from not less than 40% of any disability as certified by a medical authority.”
HC said the interpretation sought to put by BEST on section 47 could not be accepted, as it would lead to an absurdity, in as much as, such reading of the benevolent provision would allow employers to terminate services of employees, if the percentage of disability acquired by them is less than 40℅. “That would be a travesty of justice and no sensible legislature could have ever intended such result,” said the court.
Gaikwad was appointed as a bus conductor in September 1993 and was attached to Malvani depot. On May 3, 2011, he met with an accident in Pune district and suffered a serious injury to his left knee. After lengthy treatment, when he went to resume duty in January 2012, for some period he was accommodated on other posts with light duties, but eventually his services were terminated on September 1, 2015, on the ground that it was not possible to accommodate him anymore further on any post having light duty.
In between, the bus conductor was referred by his employer to various public hospitals in the city, one of which evaluated the percentage of his disability at 17℅ and was also refused disability certificate as the disability was less than 40℅.
Gaikwad then moved an appeal before the commissioner and competent authority for welfare of persons with disabilities, who on October 8, 2018 ordered his employer to reinstate him in service, pay him back wages and accommodate him on a suitable post. BEST had then approached HC challenging the October 2018 order.