Burden To Prove Administrative Urgency In Cases Relating To Transfer Of Disabled Employee Lies On Employer: Delhi High Court
In a case relating to the transfer of a disabled employee, the Delhi High Court has observed that the provisions of the Rights of Persons with Disabilities Act, 2016 take precedence over any employment and contractual arrangements. The Court stated that disabled employees cannot be transferred unless there is an administrative urgency, with the burden of proving such urgency resting on...
In a case relating to the transfer of a disabled employee, the Delhi High Court has observed that the provisions of the Rights of Persons with Disabilities Act, 2016 take precedence over any employment and contractual arrangements. The Court stated that disabled employees cannot be transferred unless there is an administrative urgency, with the burden of proving such urgency resting on the employer.
The Division Bench of Justice Rajiv Shakdher and Justice Amit Bansal outlined that a transfer order concerning a disabled employee must consider the following factors:
“i) Firstly, the order should be non-discriminatory.
ii) Secondly, the concerned employee should, ordinarily, be exempted from rotational transfer.
iii) Thirdly, at the time of transfer or promotion, a differently-abled person should, preferably, be moved to a place of their preference, subject to administrative constraints, if any.
iv) The employer should ensure that a differently-abled person is posted to a place where required medical and infrastructural facilities are readily available.
v) The employer should refrain from posting a differently-abled person to a place that is far away from her or his residence, resulting in, amongst other things, difficulties in commuting between residence and workplace.”
Background:
The respondent-employee is an orthopedically handicapped person with 72% locomotor disability and also suffers from cerebral palsy. He works as an Assistant Manager at the appellant company (Ircon). Ircon transferred the employee from the Delhi Office to the Bilaspur Office in Chhattisgarh.
This transfer order was challenged by the employee and a Single Judge Bench of the High Court set aside the transfer order. Ircon filed the present appeal against the decision of the Single Judge.
Ircon contended that the Disability Act does not prohibit the transfer of disabled persons. It also contended that a transfer order should be examined based on the same legal standards applied to a non-disabled person.
The High Court observed that while transfer orders are exclusive decisions of the employer, courts can interfere with such decisions if they are made with a mala fide intent or violate any statutory provisions.
The Court considered whether an employer needs to consider the provisions of the Rights of Persons with Disabilities Act, 2016 (RPD Act) and Government Circulars and Memorandums while transferring a disabled employee.
Government Memorandums and Circulars
The Court took note of OMs (Office Memorandums) of various government departments. Particularly, it referred to OMs dated 31.03.2014 and 02.02.2024 issued by the Ministry of Personnel, Public Grievances and Pensions. These memos indicated that disabled employees may be exempted from rotational transfer if they can achieve the desired performance in their current jobs. The practice of accommodating their choice of posting location should continue.
In the present case, the Court noted that the respondent-employee was transferred twice in 5 years. It stated that such rotational transfer orders “...can be unsettling for a differently-abled person, such as the respondent.”
It thus held that the transfer order to Bilaspur was contrary to the government memos.
Administrative exigency
The Court stated that if the employer claims that the transfer order was issued on the basis of an administrative urgency, then the burden is on the employer to prove that an urgency exists. It stated:
“...when a transfer order is passed concerning a differently-abled person, the burden to prove that it was triggered due to administrative exigencies or constraints would be on the employer.”
In the present case, the Court held that Ircon was not able to discharge its burden. It noted that Ircon's explanation that it could not relocate other individuals to Bilaspur due to their current assignments was insufficient to discharge the burden placed on it.
Disability Act supersedes contractual agreement
The Court noted that a contractual arrangement, including an employment contract, is always subordinate to a statute. Thus, if there is a conflict between a contractual arrangement and a legislative framework, the latter would prevail.
“A contractual arrangement between parties, including an employment contract, is always subordinate to the legislative framework governing the field occupied by the subject contract. Therefore, very often, protection is granted to one or the other party, which is inconsistent with the arrangement arrived at between contracting parties of their own volition.”
Here, it referred to Section 20(5) of the RPD Act, which permits the government to frame policies for posting and transferring disabled employees. Further, it referenced Section 21, which mandates all establishments (private and government) to notify the 'Equal Opportunity Policy'. Rule 8(3) of the Rights Of Persons With Disabilities Rules, 2017 specifies that this policy should give preference to differently-abled persons in matters of transfers and posting.
The Court remarked, “Therefore, notwithstanding any provision in the employment contract concerning transfer, it will stand superseded and/or be subordinate to the provisions of the 2016 Act and the 2017 Rules in the event it is bedeviled with inconsistency.” It thus rejected Ircon's contention that the transfer order must be evaluated based on the same legal principles applicable to non-disabled employees.
The court emphasised that Ircon should ensure a supportive environment for disabled employees. It remarked “...we get the sense that the respondent is being transferred because of interpersonal problems with co-workers. IRCON IL, as a model employer, is duty-bound to provide a friendly environment to differently-abled persons such as the respondent so that he can attain his full potential.”
It recommended that Ircon conduct sensitisation sessions for its employees “...to sensitise and help them prepare for their interactions with differently-abled persons.”
The Court thus upheld the decision of the Single Judge. It ordered the appellant company to pay costs of Rs. 25,000 to the respondent-employee.
Case title: IRCON INTERNATIONAL LTD vs. BHAVNEET SINGH
Citation: 2024 LiveLaw (Del) 840