Holding

The Board’s termination of the disabled employee’s service was illegal; under Section 47 of the Persons with Disabilities Act, 1995, an employee who acquires disability during service cannot be retired and must be retained (or placed on a supernumerary post) with entitlement to reinstatement and all service benefits.

Summary

Bhagwan Dass, a Class IV lineman of the Punjab State Electricity Board, became completely blind while in service. He wrote a letter explaining his absence and requesting retirement, also asking that his wife be employed in his place. The Board interpreted the letter as a voluntary retirement request and terminated his service under Rule 5.11, ignoring his rights under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Supreme Court held that the employee’s disability, acquired during service, entitled him to protection against dismissal and that his letter could not be read as a voluntary retirement. Consequently, the Board’s termination was declared illegal, and the employee was ordered to be reinstated with all accrued benefits until superannuation. The appeal was allowed.

Issues considered

Whether the termination of service of an employee who acquired disability during service violates Section 47 of the Persons with Disabilities Act, 1995.
Whether the employee's letter requesting retirement amounts to a voluntary retirement that bars the application of Section 47.
Whether the Board was statutorily obligated to retain the disabled employee or place him on a supernumerary post as per the Act and related circulars.
Whether the employee is entitled to reinstatement, back wages, and other service benefits.

Legislation cited

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995s. 47

Subjects

disabilityemploymentterminationSection 47equal opportunityreinstatementnon-discriminationcivil service rulesstatutory interpretation

Judgment

[2008] 1 S.C.R. 32

A BHAGWAN DASS & ANR.
v.
PUNJAB STATE ELECTRICITY BOARD
(C.A. No. 8 of 2008)
JANUARY 4, 2008
B
(G.P. MATHUR AND AFTAB ALAM, JJ.)

Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995; S.47:
C Disabilities - Appellant-Employee completely lost vision
of his eyes while in service -Absence from duty- Show Cause
Notice - Not aware of his rights under the Act, and under stress
he sought retirement from service requesting employment for
his wife in his place - Employer-respondent retired him from
D service - Correctness of - Held: Respondent erred in
construing appellant's letter as a request for voluntary
retirement - Supreme Court strongly deprecated action of
respondent in denying the appellant his legal rights frustrating
mandate of law on incorrect and groundless plea that
E appellant himself had asked for retirement.
Disabled employee - Right of, as mandated by law -
Legal duties of authorities - Held: Authorities duty-bound to
follow the law and to promote the object of legislative mandate
- In the facts and under the circumstances of the case,
F termination of services of the appellant was bad and illegal -
Respondent directed to reinstate the appellant in service with
all consequential benefits - Civil Service Rules - Rr.5-11 -
Punjab State Electricity Board Employees Punishment and
Appeal Regulations, 1971 - R.8 -Interpretation of Statutes.
G Appellant-employee lost vision of his both eyes while
in service of respondent-Punjab State Electricity Board.
Allegedly, he remained absent from duty without any
sanctioned leave for certain period. He was directed by
the authorities to resume duties but he failed to report for
H 32
BHAGWAN DASS & ANR. v. PUNJAB STATE 33
ELECTRICITY BOARD

- duty. Later, a charge sheet was issued initiating A
disciplinary proceedings against him for gross
misconduct under Regulation 8 of the Punjab State
Electricity Board Employees Punishment·" & Appeal
Regulation 1971. The appellant vide his letter dated July
17, 1996, while explaining his absence from duty, had B
requested the Board to retire him from service and, in his
place, provide employment to his wife. But the Board,
instead of considering his request, retired him from
service in terms of Rule5.11 of the Civil Services Rules.
The appellant then filed an affidavit stating that he had no c
knowledge about the protection available to him in terms
of the provisions of the Act and so he offered for
retirement. The affidavit did not evoke any response from
the authorities. The disabled employee then approached
the High Court by filing a Civil Writ Petition seeking relief D
in terms of Section 47 of the Persons with Disabilities
(Equal Opportunities Protection of Rights and Full
Participation Act, 1995. The Petition was dismissed by the
High Court. Hence the present .appeal.
Allowing the appeal, the Court E
HELD: 1.1. When the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995 came into force the appellant was in service and
his contract of employment with the Board was
subsisting. His case was, therefore, squarely covered by F
the provisions of the Act. (Para - 7) (38-D, E)
1.2 The only material on the basis of which the
officers of the Board took the stand that the appellant had
himself made a request for retirement on medical grounds G
was his letter dated July 17, 1996. The letter was written
when a charge sheet was issued to him and in the letter
he was trying to explain his absence from duty. In this
letter he requested to be retired but at the same time asked
that his wife should be given a suitable job in his place. H
34 SUPREME COURT REPORTS [2008] 1 S.C.R.

A Thus, the letter should not be read as an offer for voluntary .,
retirement. {Para - 18) (42-C, D)
1.3 Appellant No.1 had completely lost his vision and
he was not aware of any protection that the law afforded
him and apparently believed that the blindness would
8 cause him to lose his job, the source of livelihood of his
family. The enormous mental pressure under which he
would have been at that time is not difficult to imagine. In
those circumstances it was the duty of the superior
officers to explain to him the correct legal position and to
C tell him about his legal rights. Instead of doing that they
threw him out of service by picking up a sentence from
his letter, completely out of context. The action of the
concerned officers of the Board was deprecatable. {Para
-19) (42-E, F, G)
D 1.4 From the narrow point of view the officers were
duty bound to follow the law and it was not open to them
to allow their bias to defeat the lawful rights of the disabled
employee. From the larger point of view the officers failed
to realize that the disabled too are equal citizens of the
E country and have as much share in its resources as any
other citizen. The denial of their rights would not only be
unjust and unfair to them and their families but would
create larger and graver problems for the society at large.
What the law permits to them is no charity or largess but
F their right as equal citizens of the country. (Para - 20)
(43-B, C)
2. The action of the Board in terminating the service
of the disabled employee must be held to be bad and
illegal. In view of the provisions of Section 47 of the Act,
G the appellant must be deemed to be in service and he
would be entitled to all service benefits including annual
increments and promotions etc. till the date of his
retirement. The amount of terminal benefits paid to him
should be adjusted against the amount of his salary. If
H any balance remains, that should be adjusted in easy
BHAGWAN DASS & ANR. v. PUNJAB STATE 35
ELECTRICITY BOARD [AFTAB ALAM, J.]
i monthly instalments from his future salary. The appellant A
shall continue in service till his date of superannuation
according to the service records. (Para - 21) (43-C, D, E)
CIVILAPPELLATE JURISDICITON: Civil Appeal No. 8 of
2008.
B
From the final Judgment and Order dated 11.8.2005 of
the High Court of Punjab and Haryana at Chandigarh in C.W.P.
i
No. 12534/2005.
Vipin Gogia (for Ms. Jaspreet Gogia) for the Appellants. :,..._
c
Jayashree Anand (for Ashwani Bhardwaj) for the Respon-
dent.
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. Leave granted. D
2. This case highlights the highly insensitive and apathetic
attitude harboured by some of us, living a normal healthy life,
'r
towards those unfortunate fellowmen who fell victim to some
incapacitating disability. The facts of the case reveal that officers
of the Punjab State Electricity Board were quite aware of the E
statutory rights of appellant No.1 and their corresponding
obligation yet they denied him his lawful dues by means that
can only be called disingenuous.
3. The facts of the case are brief and are all taken from the
_.I, (Reply) Affidavit filed on behalf of the Punjab State Electricity F
Board and its officers (the respondents in the appeal). Appellant
No.1 joined the respondent Board on July 19, 1977, on ad-hoc/
work-charged basis. His services were regularized as an
Assistant Lineman on June 16, 1981. While in service he
became totally blind on January 17; 1994 and a certificate to G
that effect was issued by the civil surgeon, Faridkot.
4. Here, it may be noted that the rights of an employee
who acquires a disability during his service are protected and
safeguarded by Section 47 of the Persons with Disabilities
H
36 SUPREME COURT REPORTS [2008] 1 S.C.R.

A (Equal Opportunities, Protection of Rights and Full Participation) }

Act, 1995. Section 47 reads as follows:
"47. Non-discrimination in Government employments -
(1) No establishment shall dispense with, or reduce in
rank, an employee who acquires a disability during his
B 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
c 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.
D
(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,
E 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."
5. It may further be noted that the import of Section 47 of
the Act was considered by this court in Kuna! Singh vs. Union
F of India & Anr. [2003 (4) SCC 524] and in paragraph 9 of the )..

decision it was observed and held as follows :
"Chapter VI of the Act deals with employment relating to
persons with disabilities, who are yet to secure
G employment. Section 47, which falls in Chapter VIII, deals
with an employee, who is already in service and acquires
a disability during his service. It must be borne in mind
that Section 2 of the Act has given distinct and different
definitions of "disability" and "person with disability". It is
well settled that in the same enactment if two distinct
H
BHAGWAN DASS & ANR. v. PUNJAB STATE 37
ELECTRICITY BOARD [AFTAB ALAM, J.]

< definitions are given defining a word/expression, they A
must be understood accordingly in terms of the definition.
It must be remembered 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, B
acquiring disability, if not protected, would not only suffer
himself, but possibly all those who depend on him would
1 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 c
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;
D
if it is not possible to adjust the employee against any
post he will be kept on a supernumerary post until a
r 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) E
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 F
_J
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 G
casting statutory obligation on the employer to protect
an employee acquiring disability during service."
(Emphasis added)
6. After the Act came into force with effect from December
H
38 SUPREME COURT REPORTS [2008) 1 S.C.R.

A 7, 1996 (vide S.0.107(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 departmer,ts to comply with
Section 47 of the Act. The Punjab State Electricity Board too
B adopted the Government letter under its Circular No.6/97, dated
February 17, 1997.

7. 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
C 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
D 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
E the Board was subsisting. His case was, therefore, squar.ely
covered by the provisions of the Act.

8. Coming now to the reason assigned by the Board to
deny him the protection of Section 4 7 of the Act, it is stated on
behalf of the respondents that he remained absent from duty
F without any sanctioned leave from January 18, 1994 to March
21, 1997. He was directed by the Executive Engineer to resume
duties vide Memo No.412, dated March 16, 1994 and Memo
No.6411, dated August 4, 1994. He, however, failed to report
for duty and on September 13, 1994, a charge sheet was issued
G initiating disciplinary proceedings against him for gross
misconduct under regulation 8 of the Punjab State Electricity
Board Employees Punishment &Appeal Regulation 1971.
9. The matter appears to have lain dormant for sometime
c>·:d Uren it is stated that the appellant by his letter dated July 17,
H
BHAGWAN DASS & ANR. v. PUNJAB STATE 39
ELECTRICITY BOARD [AFTAB ALAM, J.]

-/ 1996 requested the Board to retire him from service. As a matter A
of fact by this letter the appellant sought to explain his absence
from duty and requested that his wife might be employed in his
place. But it was made the basis for denying the appellant his
lawful dues. Since the whole case of the respondents is based
on this letter it would be appropriate to reproduce it in full : B

"Sir,
i I explain as under the subject cited unnatural
happening which I met,
When I was returning home after performing my duty C
on 17-1-94 then vision of my eyes lessened suddenly I
got treatment from far and near for eye-sighVlessening
of vision of my eyes. But I became completely blind.
Now I cannot perform my hard work duty I want to retire
from service. I may be retired and my wife may be D
provided with suitable job against me. Yourself will be
genesis to me."
(Emphasis added)
10. At this stage some internal correspondences took
place between the officers of the Board over the question how E
to deal with the appellant. On July 10, 1997, the Senior Executive
Engineer (OP) Division, Malout wrote to the Deputy Chief
Engineer, Operation Circle, Muktsar, asking for instructions in
the matter. Paragraphs 2, 3 and 4 of the letter are relevant and
are reproduced below : F
"2) As per report of Medical Board the official is unfit for
duty, he cannot perform any duty.
3) But as per instructions contained in Punjab Government
Memo No.17 /16/94-5 PP-1 /6546 adopted by PSEB vide G
its Circular No.6/97 the official/officer it (sic is) not to be
retired from service who become disable during service.
4) The official has represented that he may be retired
from duty and his wife be provided with suitable job."
H
40 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 11. The Senior Executive Engineer received the reply from
the Secretary of the Board vide letter dated February 17, 1998
in which he was advised as follows :
"It is advisable to retire the official as per rules and
regulations of the Board if the employee is not otherwise
B interested in taking the benefit of Board's Circular No.61
97.
For the purpose of clarification as to whether employee is
entitled to the benefits, otherwise admissible under rules/
c regulations of the Board in preference to Benefits
admissible under Circular No.6/97, if he so desires, can
be obtained from the Office concerned which issued said
circular."
12. Later on, the charge-sheet issued against the appellant
D was withdrawn by the Senior Executive Engir:eer vide Office
Order No.14, dated January 13, 1999 and the appellant was
asked to submit leave application for the period of absence.
13. Next in series is a letter, dated November 15, 1999,
from the Director/IR, PSEB, Patiala to the Senior Executive
E Engineer, (OP) Division, Malout. In this letter it was stated as
follows:
"As per cited subject it is made clear that employee who
is blind shall not be retired as per instructions of the Board.
F But is (sic. if) such employee himself make request for
retirement then he can be given retirement on medical
ground."
14. Finally, the Senior Executive Engineer, issued Office
Order No.559, dated December 14, 1999, by which the appellant
G was relieved from service with effect from March 21, 1997 (the
date of issuance of Medical Certificate) as per Rule 5.11 of
Civil Services Rules-Vol.II.
15. aappears that the appellant protested against the action
H of the Board in relieving him from service and made
BHAGWAN DASS & ANR. v. PUNJAB STATE 41
ELECTRICITY BOARD [AFTAB ALAM, J.]

representations. The representations, it seems, were forwarded A
to the superior authorities and the Board's decision was
communicated to the Senior Executive Engineer vide letter
dated February 18, 2000 from the Director/IR, PSEB, Patiala.
The contents of the letter are as follows :
"With regard to cited subject it is made clear that there are B
instructions of the Board on which blind employee is not
liable to be retired. But in the case of Shri Bhagwan Dass
ALM advice of retirement was given as he himself made
request for his retirement on Medical Ground. So the
case of this employee is not likely considered for his C
rejoining of duty."
16. The appellant then filed an affidavit before the
concerned officers. A copy of the affidavit is at Annexure R-12
to the respondents' affidavit. In the affidavit he pathetically D
pleaded that he had no knowledge about the Rules of the
Electricity Board and represented for retirement unknowingly.
He further stated that when he came to know that there was no
need for retirement for those who were disabled during service
he again represented that he might not be retired and might be
retained in service as per the instructions of the department. E
The affidavit did not evoke any response but the severance was
completed by making payment of his terminal dues.
17. The disabled employee then approached the Punjab
& Haryana High Court in Civil Writ Petition No.12534 of 2004 F
seeking relief in terms of section 47 of the Act and the Circulars
issued by the State Government and the Board in its furtherance.
In the writ petition he was joined by his son, appellant No.2, and
an alternative relief was sought for employment of his son in his
place. Unfortunately, before the High Court it was the second G
relief that came into focus and the High Court dismissed the
writ petition by a brief order referring to the decision of this Court
in Umesh Nagpal vs. State of Haryana [1994 (3) SCT 174]. In
the High Court order there is no mention of Section 47 of the
· Act and the disabled employees' claim/right on that basis. H
42 SUPREME COURT REPORTS [2008] 1 S.C.R.

A Against that order this appeal is preferred in which the disabled
employee! agitates his rights on the basis of Section 47 of the
Act.
18. From the materials brought before the court by none
other than the respondent-Board it is manifest that
B notwithstanding the clear and definite legislative mandate some
officers of the Board took the view that it was not right to continue
a blind, useless man on the Board's rolls and to pay him monthly
salary in return of no service. They accordingly persuaded each
other that the appellant had himself asked for retirement from
C service and, therefore, he was not entitled to the protection of
the Act. The only material on the basis of which the officers of
the Board took the stand that the appellant had himself made a
request for retirement on medical grounds was his letter dated
July 17, 1996. The letter was written when a charge sheet was
D issued to him and in the letter he was trying to explain his absence
from duty. In this letter he requested to be retired but at the same
time asked that his wife should be given a suitable job in his
place. In our view it is impossible to read that letter as a voluntary
offer for retirement.
.E 19. Appellant No.1 was a Class IV employee, a Lineman.
He completely lost his vision. He was not aware of any protection
that the law afforded him and apparently believed that the
blindness would cause him to lose his job, the source of
livelihood of his family. The enormous mental pressure under
F which he would have been at that time is not difficult to imagine.
In those circumstances it was the duty of the superior officers to
explain to him the correct legal position and to tell him about his
legal rights. Instead of doing that they threw him out of service
by picking up a sentence from his letter, completely out of context.
G The action of the concerned officers of the Board, to our mind,
was deprecatable.
20. We understand that the concerned officers were acting
in what they believed to be the best interests of the Board. Still
under the old mind-set it would appear to them just not right that
H
BHAGWAN DASS & ANR. v. PUNJAB STATE 43
ELECTRICITY BOARD [AFTAB ALAM, J.]

Board should spend good money on someone who was no A
" the
longer of any use. But they were quite wrong, seen from any
angle. From the narrow point of view the officers were duty bound
to follow the law and it was not open to them to allow their bias
to defeat the lawful rights of the disabled employee. From the
larger point of view the officers failed to realise that the disabled B
too are equal citizens of the country and have as much share in
its resources as any other citizen. The denial of their rights would
not only be unjust and unfair to them and their families but would
create larger and graver problems for the society at large. What
the law permits to them is no charity or largess but their right as c
equal citizens of the country.
21. In light of the discussions made above, the action of
the Board in terminating the service of the disabled employee
(appellant No.1) with effect from March 21, 1997 must be held
to be bad and illegal. In view of the provisions of Section 47 of D
the Act, the appellant must be deemed to be in service and he
would be entitled to all service benefits including annual
r increments and promotions etc. till the date of his retirement.
The amount of terminal benefits paid to him should be adjusted
against the amount of his salary from March 22, 1997 till date. If E
·any balance remains, that should be adjusted in easy monthly
installments from his future salary. The appellant shall continue
in service till his date of superannuation according to the service
records. He should be reinstated and all due payments, after
adjustments as directed, sh_ould be made to him within six weeks F
_.j
from the date of presentation of a copy of the judgment before
the Secretary of the Board.
22. In the result the appeal is allowed with costs quantified
at Rs.5,000/-.
G
S.K.S. Appeal allowed.
~