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TMI Blog2013 (7) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... of dismissal from service of a disabled person, if it comes to his notice that the said person with disabilities has been deprived of his rights. 3. The factual matrix of the case is as follows: The Appellant who was appointed on 30th July, 1990 as Primary Teacher in Vagara School was transferred to Primary School, Tal. Manda, Bharuch from 18th June, 1999. Thereafter, she proceeded on medical leave from 21st June, 1999 to 30th July, 1999, and remained on leave upto 7th September, 1999. In that respect, she had not produced any type of leave report. Thereafter, from 15th September, 1999, she again remained absent unauthorisedly without producing any kind of leave report. 4. In the meantime, on 31st December, 1999, a notice was issued to the Appellant regarding her time to time absence and she was thereby informed to explain in writing the grounds for her absence within seven days. But neither written nor oral explanation was received by the authorities. Thereafter, she directly resumed her duties in the school on 25th November, 2000. The Principal of Primary School, Manad had informed the same to Taluka Development Officer, Bharuch, who in turn intimated the same to the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing. 7. At the time of hearing the Appellant herself remained present alongwith her father and on behalf of the Respondent Shri Maganbhai B. Vasava, Head Clerk and Shri Dilavarshinh A. Raj, Junior Clerk had remained present. The Appellant contended that though she was physically healthy at the time of joining the services because of mental illness that developed afterwards she was treated by doctors time to time, who advised her to take rest. She specifically pleaded that since she was divorced by her husband in the year 1998, she started suffering from mental depression which resulted in 40 to 70 per cent mental disability. A certificate issued by the Medical Board of Government Hospital was also produced before the Commissioner. 8. On behalf of Respondent, it was contended that the Appellant unauthorisedly remained absent from service from time to time and in spite of giving opportunity to her, she never replied and because of her carelessness and negligence towards duty, the students suffered. It was further submitted that a charge sheet was also issued to her in this regard but having received no reply from her, she was dismissed from service. 9. The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en entitled to the benefits of the Act, namely; The Persons with Disabilities (Equal Opportunities, etc.) Act, 1995 and more particularly, Section 47 of the Act. 4. Ms. Mandavia, learned Counsel appearing for the Petitioner, however, submitted that it is not a case of dismissal from the service on account of the mental disability or reduction in rank and, therefore, if the dismissal has already taken place, it cannot be set aside by the Commissioner, which may result into consequential reinstatement in service with back wages and other directions. She also submitted that on account of the mental disability of the Respondent, she is not at all in a position to discharge any other work also. 5. Whereas, Mr. Jani, learned Counsel appearing for the Respondent submitted that as per the medical certificate produced on page 60 of the Chief District Medical Officer and Civil Surgeon, she has mental disability upto 40 to 70% and, therefore, she may be in a position to do minor manual work in the School, if assigned to her. 6. It appears that if the person has sustained physical disability, including that of mental disability while in service, it would be required for the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servation: 14. In the present case, the Respondent has remained on long leave and she has not responded to any of the communications by the Petitioner. Her services were terminated in the year 2004 on the ground of absenteeism. Though the Respondent was asked to produce certificate she has failed to comply with the same. 15. In short, after 2004 she was not in service and therefore, the Respondent cannot rely upon the provisions of said section which clearly states that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service . I am therefore of the view that the said section would be of no help to the Respondent. Even otherwise, she had served for only 2 months and she remained absent from 1990 prior to act came into force. 16. As regards the contention that the Respondent sick, it is required to be noted that the Respondent was asked to produce medical certificate which was not produced. Further it is required to be noted that she has served only for 20 months in all. 17. Even otherwise the Respondent was dismissed in the year 2004. She has challenged the said decision after a period of more than three years, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: 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 merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 15. The appointment, function and duties of the Chief Commissioner and Commissioners for Persons with Disabilities have been laid down under Chapter XII of the Act. Under Section 58(c) of the Act the Chief Commissioner shall take s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the appropriate authority to ensure restoration of rights of such disabled person and/or to implement the law, rule, guideline, instruction if not followed. A complaint may be made by any disabled person himself or any person on behalf of disabled persons or by any person in the interest of disabled persons. Thus the issue as involved is decided affirmatively in favour of the Appellant and against the Respondent. 17. The Appellant was appointed as Primary Teacher on 30th July, 1990 and continued for nine years without any complaint till she proceeded on medical leave on 21st June, 1999. She thereafter, remained absent from time to time for about 1360 days from June, 1999 till the date of dismissal. The Appellant has taken a specific plea that she was divorced by her husband in the year 1998 and since then she suffered mental depression. The Government Medical Board also held the Appellant mentally disabled as she was suffering from 40 to 70 per cent mental disability. The order of dismissal was passed during her mental disability in violation of Section 47(1) of the Act. In this background, the Commissioner having declared the order of dismissal as void, it was not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. Inspite of the same, the Respondent authority have neither reinstated the Appellant nor paid salary w.e.f. 1.2.2008. So, they cannot take advantage of their own wrong and, thereby, cannot deny the benefit of wages to which the Appellant was entitled pursuant to the order passed by the High Court on 11th January, 2008. 23. There is nothing on the record to suggest that the Respondent authority got the Appellant examined by a Government Doctor to determine the duty to be assigned to her. In view of her reinstatement, now the Respondent authority may get opinion of the doctor for assigning her duty. In case the Appellant is not in a position to perform the normal duty because of her mental condition, the competent authority will apply Proviso to Section 47(1) of the said Act. 24. Having regard to the fact that we have upheld the order passed by the Commissioner, we direct the authorities to reinstate the Appellant in service immediately and to pay her regular salary every month. The Appellant shall be entitled to arrears of salary w.e.f. 1.2.2008 which the Respondent shall pay within three months, else the Appellant shall become entitled to interest at the rate of 6% per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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