Lissiamma James & Anr. vs Hindustan Organic Chemicals Ltd. & Ors.

Applicants are the widow and daughter respectively of late P.C.James, who was Workman Grade-III in the company of the respondents 1 and 2 at Ambalamugal. They belong to Scheduled Tribe community. On 16.08.2005 while engaged in duty in the company along with two other employees, he was electrocuted and suffered serious burn injuries. The injured were immediately rushed to the hospital; two other injured died and P.C.James suffered 100% physical disability. His left leg below knee and the right forefoot were amputated. According to the applicants he was under treatment for about eight months; since he required the help of someone else to attend the company, could not attend duty thereafter. While so, on 12.09.2019 he died in hospital. Even though he had suffered grievous injuries while attending official duty, the company had paid him salary only upto 31.12.2007. Thereafter, neither the salary was paid nor any certificate of termination was issued. While so, he approached the Commissioner for Workmen’s Compensation with an application for compensation and was paid an amount of Rs.4,21,296/-. The company did not extend him any rehabilitation measures under the Physical Disabilities Act nor he was given suitable job/work. Thus at first he approached the National Human Rights Commission with a petition. There, the company took the stand that they had met all the treatment expenses and also arranged artificial limb to him and paid salary till 31.12.2007. In Annexure-A6 communication to the Commission the company maintained that the Provident Fund and Gratuity amounts are not payable unless the employee makes an application in the prescribed form. It was observed that when the employee takes a decision and submits application for Provident Fund and Gratuity in the prescribed form, the management shall take action in accordance with law. Thereafter, he moved the Commissioner for Persons with Disabilities on 16.12.2014. After obtaining the comments of the respondent company, the Commissioner for Persons with Disabilities did not intervene in the matter holding that even though the employee had suffered disabilities in 2005, he had produced the disability certificate on 29.10.2010 only. He did not get any relief from that end also. According to the applicants, Sri James had never submitted his resignation from the company nor the company had terminated his service. As long as the said position continues, he is entitled to get all service benefits including arrears of salary. Even though he had moved Annexure-A11 application for gratuity, that was not considered and thus he moved the Hon'ble High Court with WP(C)No.19549/2019. During the pendency of the Writ Petition he died and the applicants were impleaded as additional petitioners 2 and 3. The High Court disposed of the Writ Petition by Annexure-A12 judgment holding that it is not maintainable before that Court, and the matter has to be moved before the Administrative Tribunal. Thus the applicants have approached this Tribunal seeking a direction to the respondent company to pay the salary arrears, gratuity and other benefits under the provisions of the Persons with Disabilities Act, 1995, at the earliest.

The respondents 1 and 2 filed a common reply opposing the prayers and challenging the maintainability of the application. In their short reply, it is admitted that James was a permanent employee of the company. After the accident entire treatment expenses were met by the company, that the entire cost of artificial limb were also borne by them. The company also granted him salary as a special case till 31.12.2005 even though he had not attended duty after the accident on 16.08.2005. He was also paid compensation of Rs.4,21,296/- under the Workmen's Compensation Act. Later, accepting the application, full amount outstanding in his credit was disbursed in settlement from his Provident Fund account. The first applicant had accepted the benefits without any demur. The company could not extend protection under the Physical Disabilities Act as her husband had not turned up with relevant medical certificates, in spite of repeated requests. A certificate dated 26.09.2007 issued from the hospital was sent by the 1^st applicant stating that her husband was still under-going treatment and he was unable to do his duties without external help. Thereafter he approached the 3^rd respondent, who rejected the application. Her husband was relieved from the services of the company on 31.12.2007 and all amounts due to him including gratuity and provident fund were settled and there is no employer-employee relationship existing between the company and the husband of the 1^st applicant after 31.12.2007. It is the specific case of the respondents 1 and 2 that late James had accepted provident fund amount on 15.11.14 in final settlement, that gratuity amount of Rs.81,949 was disbursed on 22.12.2014. On informing the same, he had received amounts towards Provident Fund and Gratuity and other benefits without any demur.

The first applicant filed a rejoinder. According to her, on demand she had produced Annexure-A1 medical certificate before the company. After 31.12.2007 the company unilaterally stopped making payment of salary. Her husband was not issued any certificate of termination as per Standing Order No.53 of the company. He had approached the company for suitable post reserved for persons with disabilities which was not considered. At first he approached the National Human Rights Commission and then Chief Commissioner for Persons with Disabilities. In Annexure-A8 it is stated that the application for gratuity is under process. But in the reply statement it is stated that an amount of Rs.81,949/- was disbursed on 22.12.2014, which are contradictory.

The respondents 1 and 2 filed additional reply statement stating that the statement in the earlier reply regarding the payment on 22.11.2014 was an inadvertent mistake. According to them, out of the dues of Rs.1,12,174/- outstood towards arrears of salary and gratuity, Rs.81,949/-was payable towards gratuity and balance amount of Rs.30,225/- was towards arrears of salary. From it, Rs.1,00,000/- has already been credited in the account of Sri.P.C.James maintained in State Bank of India, Ambalamedu branch on 27.04.2018 and the balance amount of Rs.12174/-was deposited in the same bank account on 21.08.2018.

Later, through a memo they produced copy of relieving order dated 01.10.2014 showing that 'Sri.James stands relieved from the service of the company with effect from 31.12.2007(AN).'

I heard the counsel on both sides. The learned counsel for the applicants and the learned Standing Counsel for the respondents 1 and 2 reiterated their stands in the respective pleadings. The file relating to the service matters of late P.C.James was summoned and perused by me.

I heard the learned counsel for the 3^rd respondent also. The learned counsel for the applicants submitted that the said James had not tendered his resignation from the company nor any application for relieving was filed before the 2^nd respondent and that he knew about the alleged relieving order of 01.10.2014 only from the court. He was also not given any certificate of termination, the respondents 1 and 2 have acted most irresponsibly without giving salary and other benefits to James. They also did not follow the provisions of the Persons with Disabilities Act. According to the learned Standing Counsel for the respondents 1 and 2, the relieving order was duly served on the employee and that was how Annexure-A11 application for payment of gratuity was filed. According to her, the gratuity amount and arrear salary amount have been disbursed to the employee; despite repeated directions to produce disability certificate they did not produce it and that was how the company had delayed processing his application for disbursing the terminal benefits.

There is no dispute that while engaged in his duties in the company, the said James had suffered grievous injuries with high voltage electric burns which resulted in the below knee amputation of his left leg, forefoot amputation of right foot, loss of elbow flexion on right side and complete loss of intrinsic function on both sides. Annexure-A1 certificate indicates that he had suffered 100% physical disability. However, Annexure A-2 suggests that the Medical Board had estimated 70% permanent locomotive disability. It is patent that he had suffered grievous hurt on his lower limbs, which caused him permanent disability. Annexure-A1 shows that he was in hospital from 16.08.2005 to 07.11.2005. According to the applicants, his treatment continued even thereafter and that he could not lead a normal life after the accident. Having regard to the gravity of the injuries, such an argument cannot be brushed aside.

It is also the common case that the company had paid him salary only till 31.12.2007. The file does not indicate that even though some isolated representations were given, any initiative was taken by the company for rehabilitating him.

Later, he approached the National Human Rights Commission from which no relief was obtained. Then he moved the Commissioner for Persons with Disabilities under the Ministry of Social Justice and Empowerment, who also took a highly technical stand under the cover of an office memorandum issued by the DoPT. Then he moved the Hon'ble High Court with a Writ Petition and since its maintainability was disputed, after the disposal of the Writ Petition the applicants approached this Tribunal with the aforesaid reliefs.

It has also come out that after 16.08.2005 he never attended duty in the company. In the nature of the injuries sustained by him, it could not have been possible for him to attend the company duties of a Workman, without the help of another person.

The respondents 1 and 2 have boasted that the entire treatment expenses and the expenses of artificial limbs were borne by them, they are not liable to pay salary, since Sri.James had not attended the company after 16.08.2005, that the payment of salary till 31.12.2007 was made gratuitously as a concession extended to him. Here two aspects require to be highlighted. Firstly, he had suffered permanent disability during the course of his discharge of functions in the company. Therefore, the fact that the company had borne the treatment expenses and expenses of artificial limbs etc. are not concessions granted to him. Standing order No.32 of the company clearly suggests that it is the responsibility of the company to extend necessary arrangements for giving medical aid to a workman, who met with an accident during the course of employment.

Secondly, the incident had happened when Act 1 of 1996, that is the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act was in vogue. Section 47 of the Act makes it clear that no discrimination shall be shown to persons who acquired disability during his service. Section 47 reads as follows:

It appears that the Central Government has exempted all categories of post of combatant personnel of the Armed Forces from the above provisions by notification dated 28.03.2002. Similarly, by a notification dated 16.08.2004, Central Government has exempted all categories of posts of 'combatant personnel' only of the Special Service Bureau (SSB) under the Ministry of Home Affairs from the purview of Section 47.

Identical provisions are incorporated in Section 20 of the Rights of Persons with Disabilities Act, 2016 also, which is the successor Act, which reads as under:

The provisions are identical and on similar lines. If a person suffers disability during the course of employment, it is the duty of the employer to provide reasonable accommodation and appropriate barrier-free and conducive environment to such employees. Such employee shall not be deprived of his employment nor shall be reduced in rank. Similarly, after acquiring disability, if he is not suitable for the post he is holding, he shall 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, still he will have to be kept in a supernumerary post until a suitable post is available or he attained the age of superannuation, whichever is earlier.

To put it in other words, the statutes clearly support the claim of the applicants. Late James had suffered serious injuries while engaged in company duties which ultimately caused him permanent physical disability. He was unable to attend the duties hitherto he was attending owing to the serious injuries suffered. He was unable even to move alone, without the help of others. The company knew his predicament. Still, under the pretext of non-production of disability certificate etc., the company was prolonging the matter in one way or the other. They abruptly stopped paying him salary and other allowances after 31.12.2007. No attempt was made to redeploy him in tune with his physical condition and as mandated by the statute.

James died on 12.09.2019. When the applicants pursued the matter, at the last lap of these proceedings, on 01.07.2022 they have turned up with a relieving order dated 01.10.2014 stating that he stood relieved with effect from 31.12.2007. In fact, this Tribunal takes this conduct very seriously and have reasons to believe that the 2^nd respondent was handling the matter in a light-hearted and irresponsible manner. When Annexure-A8 comments were made before the Commissioner for Persons with Disabilities on 4.08.2015, they had no case that he stood relieved with effect from 31.12.2007. This was first stated by them in the reply statement on 05.02.2021. Whatever it may be, it is beyond comprehension as to how an employee could be relieved with retrospective effect, that too after a lapse of seven years.

Moreover, the relieving order dated 01.10.2014 is a cryptic one stating that 'Sri.P.C.James, Pers.No.11408068, General Workman Grade-III stands relieved from the services of HOCL with effect from 31.12.2007 (AN)'. When a permanent employee of the company is relieved prematurely, the reasons for such relieving should be shown in the order. Taken in isolation, nothing can be inferred from this document. It is obnoxious and ridiculous that the company had issued such an order on 01.10.2014 relieving a person with effect from 31.12.2007 putting back date more than seven years. It is clearly the result of a second thought, after the said James had approached different fora like National Human Rights Commission and the Commissioner for the Persons with Disabilities for justice, to explain the delay in disbursing the benefits due to him. They also might have realised that unless there is a relieving order, the application for disbursement of gratuity etc. cannot be entertained.

The file does not indicate service of such a relieving order on the employee. When queried, the learned standing counsel submitted that it was handed over direct. Still, there must be some acknowledgement. As rightly pointed out by the learned counsel for the applicants, as per S.O.No.51 of the company a workman can be discharged or terminated only after giving due notice after making payment of wages in lieu of such notice as provided under the contract of service. Here, no one has a case that such a notice was served on James. Moreover, a certificate of termination of service as provided under S.O.No.53 is nowhere in the picture. To sum up, such a relieving order was created for the purpose of shielding the lapses of the officials and cannot stand judicial scrutiny.

Coming back to the provisions of the Rights of Persons with Disabilities Act, it is the statutory duty of an employer to take care of such an employee and create a most convenient atmosphere in the work place and rehabilitate the person who suffered disabilities during the course of employment. Nowhere it is stated that he could be discharged, terminated or relieved owing to such disabilities suffered. On the other hand, he has to be protected and rehabilitated till the date of superannuation. If the employee is not suitable to do the work he was doing, he must be put on another duty even by creating supernumerary posts. But the company has acted in total disregard of these salutary provisions. The file indicates that on 25.03.08, Sri James had approached the 2^nd respondent with a petition intimating his inability to attend duties owing to physical incapacity and beseeched for securing his life in future. In the physical condition, it was impossible for him to discharge the duties as a workman. In the setting, 2^nd respondent ought to have given him some light duties that could be performed by a physically challenged person. Before the NHRC, he pleaded for granting an alternative employment. But it appears that, instead of trying to rehabilitate him, he was pressed to tender his resignation. This is evident from Annexure A7 and the copy of petition given to the NHRC, available in the file. That means, instead of trying to assist and promote James or handling the matter with empathy, they were trying to avoid him by issuing a relieving order.

What is inferable is, respondents 1 and 2 have acted in negation of the statutory mandate. They stopped his salary on a fine morning, arbitrarily, ignoring the provisions of law. When the employee approached different fora for justice, the company was raising technical objections. It appears that the NHRC and the 3^rd respondent also did not realise the seriousness of the matter. Ultimately, respondents 1 and 2 were trying to neutralize him by issuing the 'relieving order'. There is no doubt that such an order which works against his interest might not have been invited by the employee. On the other hand, when late James approached the 3^rd respondent seeking 'all disability benefits' they found out that the convenient way to tackle the matter is to issue a relieving order and disburse amount from the gratuity etc.

At the risk of repetition, it must be stated that termination of such a employee is illegal. Statute does not support such a course of action. Terminating an employee who became disabled and throwing him to the lurch is cruel, barbaric, inhuman and flouting all principles of natural justice.

May be at the instance of the company, Annexure-A11 application was given, pursuant to which some amounts were disbursed as gratuity. It is not known whether this fact was made known to the employee or his near relatives. At first the 2^nd respondent had no idea on these matters. In the first reply he stated that an amount of Rs.81,949/- was disbursed on 22.12.14 and then he has come out with mending the version. In the additional reply statement he has stated that a total sum of Rs.1,12,174/- included Rs.81,949/- towards gratuity, that the amounts were credited in his account in two instalments, Rs.1,00,000/- on 27.04.18 and the balance Rs.12,174/- on 21.08.18.

I have no doubt that the company had statutory liability to protect and keep him engaged till the date of superannuation. His date of birth is 11.06.1962. S.O.No.36 indicates that the age of retirement is 58 years. That means, he had service up to 30.06.2020. But before that date he passed away on 12.09.2019. Therefore, he should be deemed to have been in service till the date of death on 12.09.2019. So declared.

Resultantly, the respondents 1 and 2 shall give salary arrears and other benefits due to Sri. James, from 01.01.2008 till 12.09.2019. Amounts payable towards gratuity, PF etc. shall be reworked and the entire amounts shall be paid to the applicants on their producing necessary legal heirship certificate, which shall be done within a period of one month from the date of production of such certificate.

Original Application is allowed as above, with costs.