An employee cannot be Removed or Reduced in Rank Due to Disability –Punjab and Haryana High Court
The Punjab and Haryana High Court has on 25th August 2020 has passed a ruling reaffirming his right to work and confirming that a person with a physical disability has the right to continue his job and a mere disability cannot be a reason to terminate employment and discontinue his services. If he is unable to efficiently continue on his job, he should be given a suitable post with equal pay scale and service benefits.
The answer to the question of whether an employee cannot be terminated while on disability is a common concern if there is any chance that the petitioner‘s impairment/illness may not be everlasting but likely to continue into the indefinite future. Unfortunately, the answer could be complicated and a bit challenging to reach an assumption for both the petitioners as well as the employers.
The judgment came from the one person bench by Justice Anupinder Singh Grewal in consideration of the plea, the P&H High Court rapped the Government for being “insensitive and indifferent to the plight of a challenged employee” and directed his reinstatement.
Where the petitioner namely Rawel Singh though was 75% physically challenged was aggrieved and the question- in-issue was the state authorities restriction with the disallowance for him to continue his services and pressuring him to give up his services and go on voluntary retirement at the age of 58 years where there were two years left till was in violation of the Persons with Disabilities (Equal Rights, Protection of Rights and Full Participation) Act 1995 as well as instructions dated 19.11.2014.
Appearing before the P&H High Court under the single bench judge Grewal through video conferencing, the petitioner’s counsel Manu K. Bhandari contended that the petitioner was being denied his continuance of services for the reason of him being 75% challenged physically but the respondents were arbitrarily was in violation till the age of 60 in violation of Act.
The court guided itself on the objects of the Act abovementioned keeping in view that the physical disability of an employee cannot be forced to attain retirement, shall not render him unfit for any job. Section 47 (1) of the Persons with Disabilities (Equal Rights, Protection of Rights and Full Participation) Act 1995 Act stipulates that no establishment can dispense with or reduce in rank an employee who acquires a disability during his service.
In the event, such person is found to be unsuitable for the job, as the petitioner was found to be unfit for the job as a junior assistant, he has to be shifted to some other post with a similar pay scale and service benefits. It has also been maintained that an establishment cannot dispense with the services of an employee or reduce his rank in case he acquires disability with his job.
The judgment also provided that if there is no imminent position available in the establishment for the purpose of shifting the employee in some other suitable position he may be kept on a supernumerary position or he attains the age of superannuation whichever is earlier;
Accordingly, the court issued directions to the state of Punjab requiring the petitioner to reinstated in his services on the same pay scale and permit him to work from home considering the pandemic situation.
The state counsel had filed a reply wherein it was stated that the increase in age of retirement from 58 to60 years for disabled employees is not unconditional but subject to conditions 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 was 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 cannot carry out activities of office work as a 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. 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.
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