State Shall Ensure That Persons With Disabilities Are Not Harassed By Transferring/Posting Them To Places With Environment Not Suitable For Them: Delhi HC
At the very outset, it must be stated that while acting as a bulwark for persons with disabilities and batting most strongly in favour of ensuring that persons with disabilities are not harassed by transferring/posting them to places with unsuitable environment, the Delhi High Court in a most learned, laudable, landmark and latest judgment titled Bhavneet Singh vs IRCON International Limited through Chairman and Managing Director & Ors in W.P.(C) 12404/2022, CM APPL. Nos. 37256/2022 & 10458/2023 and cited in Neutral Citation No.: 2023:DHC:9447 that was pronounced as recently as on December 15, 2023 has minced just no words to hold unequivocally that the State shall ensure that the Persons with Disabilities are not subjected to harassment by being transferred or posted at places where they cannot get an environment being conducive for their working. We see that the Court observed thus in a writ petition that had been filed by an orthopaedically handicapped person against IRCON International Limited. We need to note that the Single Judge Bench of Hon’ble Mr Justice Chandra Dhari Singh clearly directed that, “State shall ensure that the Persons with Disabilities are not subjected to unnecessary and relentless harassment by being transferred/posted at places where they are unable to get an environment which is conducive for their working. Furthermore, it aims at ensuring that the Persons with Disabilities shall have the requisite medical facilities, etc. available at the place they are posted.” We thus see that the Delhi High Court very rightly allowed the petition and set aside the transfer order.
To put things in perspective, the Single Judge Bench comprising of Hon’ble Mr Justice Chandra Dhari Singh while dwelling on the facts of the case envisages in para 2 that, “The facts leading to the instant petition are as follows:
a. Petitioner is an orthopedically Handicapped person with 72% locomotor disability and the respondent no. 1, IRCON International Ltd. is a Government company incorporated by Central Government (Ministry of Railways) under the Companies Act, 1956. The respondent no. 1 is a leading turnkey construction company in public sector and 86% of it’s shares are held by the Ministry of Railways. The respondent No.2 is currently posted at respondent no. 1 and the respondent No.3 is currently posted at respondent no.1.
b. On 15th December 2017, the petitioner joined as Deputy Manager HRM at Human Resource Management Department in the respondent no.1’s corporate office and was subsequently transferred from the respondent no.1’s corporate office to it’s wholly owned subsidiary vide office order no. 131/2020 dated 30th March 2020.
c. The respondent’s Corporate Office vide Office Order No 139/2020 dated 10th April 2020 and took over the charge of respondent no.1’s wholly owned subsidiary w.e.f. 11th April 2020.
d. On 18th January 2022, the petitioner initiated representation before the Competent Authority to challenge promotion of the petitioner in the respondent organization through e-office which was rejected on 2nd March 2022 and the petitioner’s request to consider his candidature for the promotion was dismissed.
e. On 9th March 2022, the petitioner was transferred from Ircon ISL, Noida to respondent no.1’s Corporate Office vide Office order number IISL 6/2022. The petitioner’s filed complaint before the Court of Chief Commissioner for Persons with Disabilities against IRCON for non-adherence with the legal provisions under Rights of Persons with Disabilities Act, 2016.
f. The petitioner further filed a Representation-cum-Demand for Justice Petition on 18th July 2022 before the respondent no.1 through its counsel against denial of promotion to the petitioner but no response.
g. A Show-cause notice was issued to the petitioner on 8th August 2022 on the basis of pseudonymous/anonymous complaint received by the Department and the petitioner was asked to furnish an explanation for not applying for leave and for not marking attendance via biometric card.
h. In August 2022, the petitioner was again transferred from respondent no.1’s Corporate Office, Saket to Chhattisgarh Rail Project.
i. Hence, the petitioner herein being aggrieved by the impugned orders of transfer dated 22nd August 2022 and the order of relieving dated 23rd August 2022 passed by the respondent no. 1 has filed the instant writ petition.”
Do note, the Bench notes in para 4 that, “It is submitted that the analogous case of Mr. Sandeep Sharma, a person with 50% visual impairment, who was also employed in the respondent no.1 as AM (HRM), was transferred to Chhattisgarh Rail Project and the Chief Commissioner observed that Persons with Disabilities should not be deprived of their legitimate rights. Eventually the respondent Organization transferred Mr. Sandeep Sharma back to Delhi. Despite being aware of the legal position and the illegality of their conduct, the respondents have acted in an identical manner with the petitioner in the instant case.”
It deserves mentioning that the Bench after hearing the learned counsel for the parties and perusing the records specifies in para 28 that, “It is the case of the petitioner that the petitioner being a person with special needs shall not be transferred to Chhattisgarh since, the same shall result in undue harassment and health issues to the petitioner. The petitioner would be deprived of the constant medical care and access to health care that he needs due to his special and severe medical condition.”
Be it noted, the Bench notes in para 32 that, “The key objectives of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is as follows:
In hindsight, the Bench point out in para 33 that, “In the year 2006, the United Nations General Assembly adopted UN Convention on Rights of Persons with Disabilities (hereinafter CRPD). Since, India was one of the countries to sign and ratify the treaty, the State enacted new law in furtherance of the commitments under CRPD. Hence, in the year 2016, Parliament enacted Rights of Persons with Disabilities Act, 2016.”
Most significantly, the Bench mandates in para 41 that, “State shall ensure that the Persons with Disabilities are not subjected to unnecessary and relentless harassment by being transferred/posted at places where they are unable to get an environment which is conducive for their working. Furthermore, it aims at ensuring that the Persons with Disabilities shall have the requisite medical facilities, etc. available at the place they are posted.”
It cannot be lost on us that the Bench while going through the petitioner’s case very rightly observes in para 45 that, “The petitioner has pleaded before this Court that he needs medical attention which can only be provided at his current place of posting i.e., at Delhi. Since, the petitioner wears a knee length prosthetic known as an Ankle Foot Orthosis (AFO) in his left leg, and that he is under the supervision of a para-medical professional for the last seven years and that the said AFO needs regular maintenance for its wear and tear for which the petitioner needs to visit their workshop/clinic which is in Delhi.”
In addition, the Bench hastens to add in para 46 stating that, “Furthermore, the petitioner is also under the supervision of a Neurologist at Fortis Hospital, Noida for more than a decade. He has to undergo MRI tests of C- Spine, L-spine and other diagnostic tests as and when prescribed, and other Orthopaedic counterparts to keep a track of degenerative changes taking place in his spine.”
While citing the relevant provisions and the relevant case laws, the Bench then propounds in para 47 that, “It is a well settled principle that while adjudicating upon such delicate matters, the Court has to be more sensitive and empathetic to the plight of a persons with disability and also to ensure that values provided in Articles 14, 15, 16 and 21 of the Constitution of India are duly protected. The aforesaid principle has been reiterated by the Hon’ble Supreme Court in the judgment of Justice Sunanda Bhandare Foundation v. Union of India, WP (C) NO. 116 of 1998 dated 26th March 2014 which held as follows:
“As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State, that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity.””
It is worth noting that the Bench notes in para 48 that, “In the instant matter, this Court is of the view that taking into consideration the medical conditions and the ongoing treatment of the petitioner, the petitioner should not be transferred to any other State as the same may create hindrances to the treatment of the petitioner.”
As a corollary, the Bench then holds in para 49 that, “In view of the aforesaid discussions, this Court deems it necessary to interfere and set aside the impugned orders. The respondent no.1 acted in violation of the Article 14 of the Constitution of Indian since it ignored the special needs of the petitioner and posted him to a far- off place.”
Resultantly, the Bench directs in para 50 that, “Accordingly, the writ is allowed and the transfer Order dated 22nd August 2022 being Office Order No. 643/2022 bearing no. IRCON/HRM/TRANS/3121 and the relieving Order dated 23rd August 2022 being Office Order No.645/2022 bearing no. IRCON/HRM/PF/10001610 passed by the respondent No.1 transferring the petitioner to Chhattisgarh Rail Project, are set aside.”
What’s more, the Bench directs in para 51 that, “Accordingly, the instant petition stands is disposed of along with pending applications, if any.”
Finally, the Bench concludes by directing in para 52 that, “The order be uploaded on the website forthwith.”
All told, we thus see that the Delhi High Court in this leading judgment has left no stone unturned to make it pretty clear that State shall ensure that persons with disabilities are not harassed by transferring/posting them to places with environment not suitable to them. It thus merits no reiteration that it is the bounden duty of the State that what Delhi High Court has directed is implemented most strictly so that persons with disabilities are not made to undergo untold sufferings for no fault of theirs because of being posted or transferred to unsuitable places. No denying!