Employee Can't Be Removed Or Reduced In Rank Owing To Disability: P & H HC Pulls Up Punjab Govt. For "Anathematising" Welfare State, PWD Act [Read Order]

"The object of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 is to provide a congenial work environment keeping in view the disability of the employee", asserted the Punjab and Haryana High Court on Friday.

Justice Anupinder Singh Grewal was considering a plea, where the petitioner, though 75% physically challenged, was aggrieved that the state authorities are arbitrarily not allowing him to continue till the age of 60 in violation of the 1995 Act as well as instructions dated 19.11.2014. "There is inadvertent error in the subject of the instructions which should read regarding the increase in age from 58 years to 60 years", it was urged.

The State counsel had filed reply wherein it was stated that the increase in age of retirement from 58 to 60 years for disabled employees is not unconditional but subject to the condition that they should be mentally and physically fit to discharge the duties of the post. She also filed a copy of the medical report of the Civil Surgeon, Patiala which mentioned that the petitioner was examined by the Board of Doctors and it was found that the petitioner is disabled to the tune of 75% as he is suffering from severe ataxia as assessed by the department of neurology. It was also stated that he is unable to walk independently and cannot carry out activities of daily living like bathing, dressing, transferring and eating independently. In their opinion, the petitioner cannot carry out his office work as Junior Assistant.

"It is manifest that the respondents are being insensitive and indifferent to the plight of a challenged employee which is anathema to a welfare state and contrary to the objective of the Act", observed the bench.

The Single Judge noted that merely because the employee cannot carry out work as Junior Assistant, it cannot be taken that he would be unfit to discharge any other job.

Justice Grewal placed reliance on section 47(1) of the Act which stipulates that no establishment can dispense with or reduce in rank an employee who acquires a disability during his service. In the event, he is found to be not suitable for the post he was holding, he has to be shifted to some other post with the same pay scale and service benefits. It is further provided 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.

Accordingly, the court issued interim directions to the state of Punjab, requiring that the petitioner be taken back in service forthwith in the same pay scale and adjusted at suitable post where he may work online from home in view of the Covid-19 pandemic. 

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