2015 (2) TMI 1261 - SC - Indian Laws

Interpretation of statute - proviso contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - termination of disabled man - disability caused during the service - Held that - It is well settled that the provisions of a statute must be read harmoniously together. However, if this is not possible then it is settled law that where there is a conflict between two Sections, and you cannot reconcile the two, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other - the positive provision contained in s. 2(d) must prevail over the definition of transfer of property prescribed by s.5. No doubt, the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannot over-ride the clear and positive direction contained in the specific words used by s. 2(d). It is settled law that a proviso does not travel beyond the provision to which it is a proviso. Therefore, the golden rule is to read the whole Section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction - one is to read Section 47 as a whole and being read as a whole it is clear from the proviso that it would apply to type of work carried on in any establishment and would, therefore, apply to both dispensing with service including reduction in rank as well as promotion. Apart from the plea of the disabled officers mentioned being vague, for no particulars are given as to the extent of their disability, the Union has made it clear that Standing Order No.7/99 will not apply and that since the job requirements demand a high level of fitness and ability CRPF is exempted from the provisions of Section 47 of the Act. Not only has this plea not been raised before the High Court, but the plea raised before us is lacking in particulars and has to be dismissed for this reason also. The respondent, who has been occupying official accommodation, will vacate such accommodation by 30th June, 2015 - appeal allowed.

Summary

Issues Involved:
1. Interpretation of the proviso contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
2. Applicability of the exemption notification dated 10th September, 2002 to the CRPF.
3. Alleged discrimination against the respondent in comparison to other disabled officers.

Issue-wise Detailed Analysis:

1. Interpretation of the Proviso in Section 47 of the 1995 Act:
The core issue revolves around the interpretation of the proviso in Section 47 of the 1995 Act. The High Court had ruled that the exemption provided under the notification dated 10th September, 2002, should be read as applying only to sub-section (2) of Section 47, which deals with promotion, and not to sub-section (1), which deals with termination of service. The Supreme Court, however, disagreed with this interpretation. It emphasized that the literal rule of construction should be applied, and the language of the proviso, which states "this Section" and not "this sub-section," indicates that it applies to the entire Section 47. The Court noted that both Section 33 and Section 47 use similar language regarding exemptions based on the "type of work" carried out in any establishment, justifying exemptions for armed forces and CRPF due to the nature of their duties. The Court concluded that the proviso to Section 47 applies to both sub-sections (1) and (2), thereby allowing exemptions from both termination and promotion provisions.

2. Applicability of the Exemption Notification:
The respondent argued that the exemption notification dated 10th September, 2002, should not apply because his disability occurred before the notification date. The Supreme Court clarified that the relevant date for applying the exemption notification is the date of dispensing with service, not the date of acquiring the disability. Since the respondent's service was terminated on 1st July, 2011, well after the notification date, the exemption notification was applicable.

3. Alleged Discrimination Against the Respondent:
The respondent claimed discrimination, citing instances where other disabled officers were retained and even promoted. The Supreme Court addressed this by examining the specifics of the respondent's case and the nature of his disability, which was categorized as 100% permanent incapacitation. The Court noted that the CRPF's requirements for high physical fitness justified the exemption from Section 47. Furthermore, the plea of discrimination was dismissed due to lack of particulars and because it was not raised before the High Court.

Conclusion:
The Supreme Court allowed the appeals, setting aside the judgment of the Allahabad High Court. It ruled that the exemption proviso in Section 47 applies to the entire section, thus covering both termination and promotion. The exemption notification dated 10th September, 2002, was applicable to the respondent's case. The plea of discrimination was dismissed due to insufficient details and procedural reasons. The respondent was ordered to vacate official accommodation by 30th June, 2015, without incurring penal charges until that date. The appeals were allowed with no order as to costs.