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Judgment
Tarun Agarwala, J.—Heard Sri Sheshadri Trivedi, the learned Counsel for the Petitioner and Sri A. N. Roy, the learned Counsel for the Respondents.
The Petitioner was appointed as a constable in Central Industrial Security Force and was posed at Mathura Refinery of the Indian Oil Company at Mathura. The Petitioner fell ill and was admitted to the mental hospital on 17.4.1995 and was discharged on 19.6.1995. Thereafter, it transpires, that medical board was constituted in which the Petitioner was again examined by a panel of doctors and a certificate was issued on 4.7.1995 holding that the Petitioner was suffering from a psychotic disorder namely, schizophrenia and that the Petitioner was unfit for a security job. The medical board, however, recommended that if the departmental rules permit, the Petitioner could be considered for a sedentary job.
It transpires that review board was constituted and the Petitioner was again examined by a panel of doctors. The review board gave a certificate dated 22.8.1995 holding that the Petitioner was not fit for a security job either armed or unarmed and, further held that in view of the disease which the Petitioner possesses, he was also unfit for any sedentary job. In view of the aforesaid, the Petitioner was discharged from service by an order dated 26.9.1995. It further transpires that the authorities issued a letter to the Petitioner for appointing a member of his family on compassionate grounds. It further transpires that the Petitioner as well as his wife refused to accept such appointment on 11.5.1996.
The matter rested at that but after some time, the Petitioner made a representation on 25.6.1997 for reconsideration of his order of discharge on the ground of mental disability and in the alternative prayed that an appointment on compassionate grounds be provided to his brother. It is alleged that the said representation remained pending and, accordingly a legal notice was issued to the Respondents by a notice dated 8.3.1999 and eventually when nothing was done, the Petitioner filed the present writ petition in March 2001 praying for the quashing of the order of discharge dated 26.9.1995 and further directing the Respondents to provide him a sedentary job.
The learned Counsel for the Petitioner invited the attention of the Court to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Disabilities Act) and submitted that in view of the provision of Section 47 of the said Act, it became mandatory upon the Respondents to provide him with an alternate job. The learned Counsel submitted that the aforesaid Act and the provisions contained therein would also apply to a case where a decision had already been taken prior to the enforcement of the Act. The learned Counsel submitted that Disabilities Act is a beneficial piece of legislation which has been enacted with the object of eliminating discrimination against persons with disabilities and that the Act calls for a positive obligation on the State and its authorities to eliminate such discrimination.
On the other hand, the learned Counsel for the Respondents submitted that the Disabilities Act came into force with effect from 7.2.1996, whereas, the order of discharge was passed on 26.9.1995 and that the Disabilities Act could not be taken into consideration nor can the said Act have retrospective effect to nullify an order passed prior to the enforcement of the Act. Further, the learned Counsel for the Respondents submitted that by a notification dated 10.9.2002, issued u/s 47 of the Disabilities Act, the post of combatant personnel has been exempted from the rigours of the Disabilities Act and that the said notification has been upheld by a Full Bench of this Court in Union of India and Ors. v. Mohd. Yasin Ansari and Ors. (2006) 4 ESC 2540.
No doubt, the admitted position is, that the Petitioner was discharged from service on 26.9.1995. The Disabilities Act came into existence with effect from 7.2.1996. The question is, whether the said Act has a retrospective effect and whether it could nullify an action taken by the authorities which had been passed prior to the enforcement of the Disabilities Act? The learned Counsel for the Petitioner placed reliance upon a decision in Delhi Transport Corporation v. Harpal Singh Ex-Security Guard and Anr. 2003 (99) FLR 300 , wherein it was held that a statutory enactment incorporating a welfare measure particularly for the weaker sections of society has to be given full effect of the said benefit and even though the order of termination was passed prior to the enforcement of the Act but since a reference was made by the person after the enforcement of the Act, the said Act would become applicable. Further reliance was made of another decision in the matter of Delhi Development Authority Vs. Omvati Kalshan, wherein it was held that since the order of discharge was passed after coming into force, the said Act would be applicable once the Act came into force, and the authorities would be deprived from terminating the services of the employee. The learned Counsel for the Petitioner further placed reliance in Bharat Singh Vs. Management of New Delhi Tuberculosis center, New Delhi and Others, wherein the Supreme Court held that the provision of Section 17B of the Industrial Disputes Act would have a retrospective effect even to those awards passed prior to 21.4.1984 if the said award had not become final, the Supreme Court held in paragraphs 11 and 17 as under:
In interpretation of statutes, Courts have steered clear of the rigid stand of looking into the words of the section alone but have attempted to make the object of the enactment effective and to render its benefits into the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the Courts. Section 17B on its terms does not say that it would bind awards passed before the date when it came into force. The Respondents'' contention is that a section which imposes an obligation for the first time cannot be made retrospective. Such sections should always be considered prospective. In our view, if this submission is accepted, we will be defeating the very purpose for which this section has been enacted. It is here that the Court has to evolve the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under review. We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the intention of the Legislature is not clear from the words or where two constructions are possible, it is the Court''s duty to discern the intention in the context of the background in which a particular section is enacted. Once such an intention is ascertained the Courts have necessarily to give the statute a purposeful or a functional interpretation. Now, it is trite to say that acts aimed at social amelioration giving benefits for the have-nots should receive liberal construction. It is always the duty of the Court to give such a construction to a statute as would promote the purpose or object of the Act. A construction that promotes the purpose of the legislation should be preferred to a literal construction. A construction which would defeat the rights of the have-nots and the underdog and which would lead to injustice should always be avoided. This section was intended to benefit the workmen in certain cases. It would be doing injustice to the section if were to say that it would not apply to awards passed a day or two before it came into force.
In our considered view, therefore, the High Court was in error in holding that the Legislature did not intend to give retrospective effect to Section 17B. We hold that Section 17B applies even to awards passed prior to August 21, 1984, if they have not become final. We set aside the judgment of the High Court and allow this appeal with costs, quantified at Rs. 3,000.
The learned Counsel further placed reliance upon a decision of Supreme Court in Narendra Kumar Chandla Vs. State of Haryana and others, in which it was held that Article 21 of the Constitution of India protects the right to livelihood as an integral facet of a right to life and where an employee who was affected with a disease due to which he was unable to perform the duties of the post he was holding it was incumbent for the employer to make every endeavour to adjust the said employee on a post in which the said employee could suitably discharge the duties. The learned Counsel submitted that the Supreme Court passed the said order even prior to the enforcement of the Disabilities Act. The learned Counsel submitted that the Supreme Court had passed the said judgment in 1994 invoking the provisions of Article 21 of the Constitution of India which was prior to the enforcement of the Disabilities Act and thereafter irrespective as to whether the Disabilities Act was applicable or not, the Petitioner was entitled for a suitable relief under Article 226 of the Constitution of India.
Having given my thoughtful consideration in the matter, and after hearing the learned Counsel for the parties at some length and upon a perusal of the affidavits and the judgments cited by the learned Counsel for the parties, this Court is of the opinion that the Petitioner cannot be granted any relief at this stage. From a perusal of the writ petition, there is no averment with regard to the enforcement of any provisions of the Disabilities Act or of Article 21 of the Constitution of India. The argument on these aspects was raised by the learned Counsel at the time of hearing of the petition.
No doubt, the Disabilities Act is a beneficial piece of legislation which has been enacted with the object of eliminating discrimination against persons with disability. Even prior to the enforcement of the Act, resort for protection was always available under Article 21 of the Constitution of India. Consequently, it cannot be said that prior to the coming into force of the Disabilities Act, persons with disability were not given any relief. The Courts were conscious of the provisions of Article 21 of the Constitution of India and, in appropriate matters, were enforcing Article 21 of the Constitution of India in matters of right to livelihood and protection was given to persons with disability. The enforcement of the Disabilities Act only acknowledged the constitutionally unacceptable discrimination practised against the disabled for years and the Act seeks to correct that discrimination by unambiguously casting a positive obligation on the State and its authorities to eliminate such discrimination.
All statutory enactments are enforced with prospective effect unless it is specifically stated to be effective with retrospective effect. In the present case, the Disabilities Act was enforced from 7.2.1996. The Disabilities Act, being a beneficial piece of legislation incorporating a welfare measure will be available to those persons who incurred a disability prior to the enforcement of the Act and who are still working and, to that extent, the Act could be applicable retrospectively as held in D.T.C.''s case (supra).
In my opinion, the Disabilities Act could not annul an order of discharge passed by an authority prior to the enforcement of the Act. Consequently, the Disabilities Act cannot have a retrospective effect to nullify an order of discharge which was passed prior to the enforcement of the Disabilities Act.
Further this Court finds that by a notification dated 10.9.2002, the provisions of Section 47 of the Disabilities Act has been kept out of the purview of the post of combatant personnel in Central Industrial Security Force and, therefore, the said provisions cannot be invoked or utilized by the Petitioner for a sedentary job in the said post. Even otherwise this Court finds that the review board had recommended that the Petitioner was not fit for any industrial security job either armed or unarmed and further found that in view of the disease, the Petitioner cannot be given any sedentary job in the force. This opinion has been given by a panel of doctors, who are expert in their fields and such opinion cannot be reviewed at this stage after several years. The Court finds that the Petitioner was discharged in the year 1995 and had approached the Court in the year 2001 after almost five and a half years. Consequently, no direction can be issued to the authorities to consider the Petitioner''s application for appointment on a sedentary job.
In view of the aforesaid, this Court does not find any merit in the writ petition.
The writ petition fails and is dismissed.