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TMI Blog2004 (8) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... nt thinks it appropriate to exempt such establishment from the provisions of Section 47. The proviso to sub-Section (2) thereof does not operate in the absence of the notification. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso. Though several documents were referred to contend that the intention of the employer was to exclude certain establishments, a bare perusal thereof shows that they have no relevance and do not in any way fulfill the requirements of the proviso to Sub-section (2) of Section 47. It goes without saying that if a notification in this regard is issued by the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered unfit as he may become visually handicapped in future. The respondent was therefore not called for viva voce test. He filed O.A.No.439/2001 before the CAT challenging the order dated 20.9.2000 whereby it was indicated that he was not to be called for viva voce test as he had been declared medically unfit. The CAT after hearing the parties came to hold that while considering the case of the respondent (applicant before it) the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short the 'Act') were not kept in view. CAT took note of the fact that a new paragraph 189A was introduced in the Establishment Manual which clearly laid down that there shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olves around Section 47 of the Act, it would be appropriate to quote the provision which reads as follows: "Section 47: Non-discrimination in Government employments-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further 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. (2) No promotion shall be denied to a person m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efits, vis-`-vis non-disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream." Sub-Section (1) of Section 47 in clear terms provides that there cannot be any discrimination in government employments and no establishment shall dispense with or reduce in rank an employee whatsoever during his service. Sub-section (2) is relevant for our purpose. It, in crystal clear terms, provides that no promotion shall be denied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation of Calcutta (AIR 1965 SC 1728); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). "The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances" (per Lord Esher in Re Barker, 25 Q.B.D. 285). A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206). The above position was noted in Ali M.K. & Ors. v. State of Kerala and Ors. (2003 (4) SCALE 197). Though several documents were referred to contend that the intention of the employer was to exclude certain establishments, a bare perusal thereof shows that they have no relevance and do not in any wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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