# "15. In Vasant Rao Roman v. Union

- **Citation:** (2008) 3 ILRA 774
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-07
- **Case number:** Civil Misc. Writ Petition No. 9636 of 2001
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/15-in-vasant-rao-roman-v-union-41188
- **Pages:** 6

## Headnote

Sri A.N. Roy
S.S.C.

Protection
of
the
Persons
with
Disabilities
(Equal
Opportunities,
Protection
of
Rights
and
Full
Participation ) Act, 1995 -Section 47discharge from service on ground of
physical disability-petitioner working as
Constable in C.I.S.F. Suffering from
schizophrenia-confirmed
by
medical
Board-discharged
from
service
26.09.1995-the
Act
enforced
w.e.f.
07.02.1996-with
prospective
effectpetitioner approached the Court in the
year 2001-almost 51⁄2 years passed-not
entitled for any secondary job being
unfit for either armed or unarmed post.

Held: Para 12

In my opinion, the Disabilities Act could
not annul an order passed by an
3 All] Dhruv Singh Yadav V. D.G., C.I.S.F. (Ministry of Home Affairs) and others
775
authority prior to the enforcement of the
Act. Consequently, the Disabilities Act
cannot have a retrospective effect to
nullify an order of discharge which was
passed prior to the enforcement of the
Disabilities Act.
Case law discussed:
(2006) 4 ESC 2540,.(2003) 99 FLR 300, 2008
(116) FLR 10, AIR 1986 Supreme Court 842,
1994 (68) FLR 942.

## Text

774 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
there was no justification in denying him
arrears of emoluments from the date of
promotion. Para 15 of the judgment is
being quoted below:

"15. In Vasant Rao Roman Vs. Union
of India and others,1993 Suppl.(2) SCC
324 arrears of salary was denied to the
employees though it was held that denial
of promotion on the higher post on
account of wrong fixation of seniority was
illegal. The Apex Court held that the
principle of 'no work, no pay' would have
no application to the said case since the
employee was neither under suspension
nor any disciplinary proceeding was
pending against him and on the contrary
he was made to suffer on account of
administrative reason for which he was
not responsible. There was shortage of
literate Shunters at Gwalior during 1960
and the employee being literate was
deputed for table work and therefore for
administrative reason he could not
complete requisite number of firing
kilometers. The juniors were promoted as
Shunters and Drivers and his claim was
ignored on account of lack of requisite
number of firing kilometers. Thus on the
one hand the employee was utilized by the
department to benefit it self with the
qualification of the employee since the
literate Shunters to discharge table work
were not readily available and on the
other hand for the same qualification he
was denied promotion on the ground that
he has not completed requisite number of
firing kilometers. Hence, the Apex Court
held that there was no justification in
denying him arrears of emoluments from
the date he was allowed promotion to the
post of Shunter Grade 'B' and Driver
Grade 'C'. "

16. In view of the aforesaid fact, I
find no merit in the writ petition, The writ
petition is hereby dismissed.

No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 9636 of 2001

Dhruv Singh Yadav

...Petitioner
Versus
Director General, C.I.S.F. (Ministry of
Home Affairs) and others ...Respondents

Counsel for the Petitioner:
Sri. Ram Mohan
Sri. S.K. Srivastsva
Sri. Sheshadri Treivedi
Sri. A.K. Srivastsva

Counsel for the Respondents:
Sri A.N. Roy
S.S.C.

Protection
of
the
Persons
with
Disabilities
(Equal
Opportunities,
Protection
of
Rights
and
Full
Participation ) Act, 1995 -Section 47discharge from service on ground of
physical disability-petitioner working as
Constable in C.I.S.F. Suffering from
schizophrenia-confirmed
by
medical
Board-discharged
from
service
26.09.1995-the
Act
enforced
w.e.f.
07.02.1996-with
prospective
effectpetitioner approached the Court in the
year 2001-almost 51⁄2 years passed-not
entitled for any secondary job being
unfit for either armed or unarmed post.

Held: Para 12

In my opinion, the Disabilities Act could
not annul an order passed by an
3 All] Dhruv Singh Yadav V. D.G., C.I.S.F. (Ministry of Home Affairs) and others
775
authority prior to the enforcement of the
Act. Consequently, the Disabilities Act
cannot have a retrospective effect to
nullify an order of discharge which was
passed prior to the enforcement of the
Disabilities Act.
Case law discussed:
(2006) 4 ESC 2540,.(2003) 99 FLR 300, 2008
(116) FLR 10, AIR 1986 Supreme Court 842,
1994 (68) FLR 942.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Sheshadri Trivedi, the
learned counsel for the petitioner and Sri
A.N. Roy, the learned counsel for the
respondents.

2. The petitioner was appointed as a
constable in Central Industrial Security
Force and was posted at Mathura Refinery
of the Indian Oil Company at Mathura.
The petitioner fell ill and was admitted to
the mental hospital on 17th April 1995 and
was discharged on 19th June 1995.
Thereafter, it transpires, that a medical
board was constituted in which the
petitioner was again examined by a panel
of doctors and a certificate was issued on
4th July 1995 holding that the petitioner
was suffering from a psychotic disorder
namely, schizophrenia and that the
petitioner was unfit for a security job. The
medical board, however, recommended
that if the departmental rules permit, the
petitioner could be considered for a
sedentary job.

3. It transpires that a review board
was constituted and the petitioner was
again examined by a panel of doctors. The
review board gave a certificate dated 22nd
August 1995 holding that the petitioner
was not fit for a security job either armed
or unarmed and, further held that in view
of the disease which the petitioner
possesses, he was unfit for any sedentary
job. In view of the aforesaid, the
petitioner was discharged from service by
an order dated 26th September 1995. It
further transpires that the authorities
issued a letter to the petitioner for
appointing a member of his family on
compassionate
grounds.
It
further
transpires that the petitioner as well as his
wife refused to accept such appointment
on 11th May 1996.

4. The matter rested at that but after
some
time,
the petitioner made a
representation on 25th June 1997 for
reconsideration of his order of discharge
on the ground of mental disability and in
the alternative prayed that an appointment
on compassionate grounds be provided to
his brother. It is alleged that the said
representation remained pending and,
accordingly a legal notice was issued to
the respondents by a notice dated 8th
March 1999 and eventually when nothing
was done, the petitioner filed the present
writ petition in March 2001 praying for
the quashing of the order of discharge
dated 26.9.1995 and further directing the
respondents to provide him a sedentary
job.

5. The learned counsel for the
petitioner invited the attention of the
Court to the Protection of the Persons
with Disabilities (Equal Opportunities,
Protection
of
Rights
and
Full
Participation)
Act,
1995
(hereinafter
referred to as the Disabilities Act) and
submitted that in view of the provision of
Section of the said Act, it became
mandatory upon the respondents to
provide him with an alternate job. The
learned
counsel
submitted
that
the
aforesaid
Act
and
the
provisions
contained therein would also apply to a
case where a decision had already been
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
taken prior to the enforcement of the Act.
The learned counsel submitted that the
Disabilities Act is a beneficial peace of
legislation which has been enacted with
the object of eliminating discrimination
against persons with disabilities and that
the Act calls for a positive obligation on
the State and its authorities to eliminate
such discrimination.

6. On the other hand, the learned
counsel for the respondents submitted that
the Disabilities Act came into force with
effect from 7.2.1996, whereas, the order
of
discharge
was
passed
on
26th
September 1995 and that the Disabilities
Act could not be taken into consideration
nor can the said Act have retrospective
effect to nullify an order passed prior to
enforcement of the Act. Further, the
learned counsel for the respondents
submitted that by notification dated 10th
September 2002, issued under Section 47
of the Disabilities Act, the post of
combatant personnel has been exempted
from the rigours of the Disabilities Act
and that the said notification has been
upheld by a Full Bench of this Court in
Union of India and others Vs. Mohd.
Yasin Ansari and others reported in
(2006) 4 ESC 2540.

7. No doubt, the admitted position
is, that the petitioner was discharged from
service on 26th September 1995. The
Disabilities Act came into existence with
effect from 7th February 1996. The
question is, whether the said Act has a
retrospective effect and whether it could
nullify and action taken by the authorities
which had been passed prior to the
enforcement of the Disabilities Act? The
learned counsel for the petitioner placed
reliance upon a decision in Delhi
Transport Corporation Vs. Harpal
Singh Ex-Security Guard and another,
reported in (2003) 99 FLR 300, wherein it
was held that a statutory enactment
incorporating
a
welfare
measure
particularly for the weaker sections of
society has to be given full effect of the
said benefit and even though the order of
termination was passed prior to the
enforcement of the Act but since a
reference was made by the person after
the enforcement of the Act, the said Act
would
become
applicable.
Further
reliance was made of another decision in
the
matter
of
Delhi
Development
Authority Vs. Omvati Kalshan reported
in 2008 (116) FLR 10, wherein it was
held that since the order of discharge was
passed after coming into force, the said
Act would be applicable once the Act
came into force, and the authorities would
be deprived from terminating the services
of the employee. The learned counsel for
the petitioner further placed reliance in
Bharat Singh Vs. Management of New
Delhi Tuberculosis Centre reported in
AIR 1986 Supreme Court 842, wherein
the Supreme Court held that the provision
of Section 17-B of the Industrial Act
would have a retrospective effect even to
those awards passed prior to 21st April
1984 if the said award had not become
final,
the
Supreme
Court
held
in
paragraphs 11 and 17 as under:

"In interpretation of statutes, Courts
have steered clear of the rigid stand of
looking into the words of the Section
alone but have attempted to make the
object of the enactment effective and to
render its benefits into the person in
whose favour it is made. The legislators
are entrusted with the task of only making
laws. Interpretation has to come from the
Courts. Section 17B on its terms does not
say that it would bind awards passed
3 All] Dhruv Singh Yadav V. D.G., C.I.S.F. (Ministry of Home Affairs) and others
777
before the date when it came into force.
The respondents' contention is that a
Section which imposes an obligation for
the
first
time
cannot
be
made
retrospective.
Such
sections
should
always be considered prospective. In our
view, if this submission is accepted, we
will be defeating the very purpose for
which this Section has been enacted. It is
here that the Court has to evolve the
concept of purposive interpretation which
has
found
acceptance
whenever
a
progressive social beneficial legislation is
under review. We share the view that
where the words of a statute are plain and
unambiguous effect must be given to
them. Plain words have to be accepted as
such but where the intention of the
legislature is not clear from the words or
where two constructions are possible, it is
the Court's duty to discern the intention in
the context of the background in which a
particular Section is enacted. Once such
an intention is ascertained the Courts
have necessarily to give the statute a
purposeful or a functional interpretation.
Now, it is trite to say that acts aimed at
social amelioration giving benefits for the
have-nots
should
receive
liberal
construction. It is always the duty of the
Court to give such a construction to a
statute as would promote the purpose or
object of the Act. A construction that
promotes the purpose of the legislation
should
be
preferred
to
a
literal
construction. A construction which would
defeat the rights of the have-nots and the
underdog and which would lead to
injustice should always be avoided. This
Section was intended to benefit the
workmen in certain cases. It would be
doing injustice to the Section if were to
say that it would not apply to awards
passed a day or two before it came into
force.

"In our considered view, therefore,
the High Court was in error in holding
that the legislature did not intend to give
retrospective effect to Section 17B. We
hold that Section 17B applies even to
awards passed prior to August 21,1984, if
they have not become final. We set aside
the judgment of the High Court and allow
this appeal with costs, quantified at Rs.
3000/-.

8. The learned counsel further
placed reliance upon a decision of
Supreme Court in Narendra Kumar
Chandla Vs. State of Haryana and
others reported in 1994 (68) FLR 942,
in which it was held that Article 21 of the
Constitution of India protects the right to
livelihood as an integral facet of a right to
life and where an employee who was
affected with a disease due to which he
was unable to perform the duties of the
post he was holding it was incumbent for
the employer to make every endeavour to
adjust the said employee on a post in
which the said employee could suitably
discharge the duties. The learned counsel
submitted that the Supreme Court passed
the said order even prior to the
enforcement of the Disabilities Act. The
learned
counsel
submitted
that
the
Supreme Court had passed the said
judgement
in
1994
invoking
the
provisions
of
Article
21
of
the
Constitution of India which was prior to
the enforcement of the Disabilities Act
was applicable or not, the petitioner was
entitled for a suitable relief under Article
226 of the Constitution of India.

9. Having given my thoughtful
consideration in the matter, and after
hearing the learned counsel for the parties
at some length and upon a perusal of the
affidavits and the judgements cited by the
778 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
learned counsel for the parties, this Court
is of the opinion that the petitioner cannot
be granted any relief at this stage. From a
perusal of the writ petition, there is no
averment with regard to the enforcement
of any provisions of the Disabilities Act
or of Article 21 of the Constitution of
India. The argument on these aspects was
raised by the leaned counsel at the time of
hearing of the petition.

10. No doubt, the Disabilities Act is
a beneficial peace of legislation which has
been
enacted
with
the
object
of
eliminating discrimination against persons
with
disability.
Even
prior to the
enforcement of the Act, resort for
protection was always available under
Article 21 of the Constitution of India.
Consequently, it cannot be said that prior
to the coming into force of the Disabilities
Act, person with disabilities were not
given any relief. The Courts were
conscious of the provisions of Article 21
of the Constitution of India and in
appropriate
matters,
were
enforcing
Article 21 of the Constitution of India in
matters of right to livelihood and
protection was given to the persons with
disability. The enforcement of Disabilities
Act
only
acknowledged
the
constitutionally
unacceptable
discrimination
practised
against
the
disabled for years and the Act seeks to
correct
that
discrimination
by
unambiguously
casting
a
positive
obligation on the state and its authorities
to eliminate such discrimination.

11. All Statutory enactments are
enforced with prospective effects unless it
is specifically stated to be effective with
retrospective effect. In the present case,
the Disabilities Act was enforced from 7th
February 1996. The Disabilities being a
beneficial
peace
of
legislation
incorporating a welfare measure will be
available to those persons who incurred a
disability prior to the enforcement of the
Act and who are still working and, to that
extent, the Act could be applicable
retrospectively as held in DTC's case
(supra).

12. In my opinion, the Disabilities
Act could not annul an order passed by an
authority prior to the enforcement of the
Act. Consequently, the Disabilities Act
cannot have a retrospective effect to
nullify an order of discharge which was
passed prior to the enforcement of the
Disabilities Act.

13. Further this Court finds that by a
notification dated 10th September 2002,
the provisions of Section 47 of the
Disabilities Act has been kept out of
purview of the post of combatant
personnel in Central Industrial Security
Force and, therefore, the said provisions
cannot be invoked or utilized by the
petitioner for sedentary job in the said
post. Even otherwise this Court finds that
the review board had recommended that
the petitioner was not fit for any industrial
security job either armed or unarmed and
further found that in view of the disease,
the petitioner cannot be given any
sedentary job in the force. This opinion
has been given by a penal of doctors, who
are expert in their fields and such
opinions cannot be reviewed at this stage
after several years. This Court finds that
the petitioner was discharged in the year
1995 and had approached the Court in the
Year 2001 after almost five and a half
years. Consequently, no direction can be
issued to the authorities to consider the
petitioner's application for appointment on
a sedentary job.
3 All] M/s Oriental Insurance Co. Ltd. V. Motor Accident Claims Tribunal and others
779

14. In view of the aforesaid, this
Court does not find any merit in the writ
petition.

The writ petition fails and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2008

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No. 715 of 2008

M/s Oriental Insurance Co. Ltd.

...Petitioner
Versus
Motor Accident Claims Tribunal, Baghpat
and others

 ...Respondents

Counsel for the Petitioner:
Sri. Manish Goyal.

Counsel for the Respondents:
Sri. Santosh Kumar Singh

Constitution
of
India-Article
226Rejection
of
recall
application
of
Insurance Company-on the ground of
fraud-Motor Accident Claims Tribunal
rejected-due to want of provision of
review-held-illegal-matter remitted back
to decide the allegations of fraud-till the
decision, there should be no payment of
compensation-fraud vitiate everythingtechnical objection either before the
Tribunal or the before High Court-cannot
be allowed.

Held: Para 12:

Having heard learned counsel for the
parties and having perused the material
on record, I am of the opinion that once
an application is moved alleging fraud
against
the
claimants
then
it
was
bounden
duty
of
the
tribunal
to
reconsider the matter and examine
whether there was a fraud involved in
the matter or not.
Case law discussed:
(2000) 2 LRI 12.

(Delivered by Hon'ble Bharti Sapru, J.)

1. Heard Sri Manish Goyal learned
counsel for the petitioner and Sri Santosh
Kumar Singh, who has appeared on
behalf of the respondents no. 2 to 4.

2. This petition has been filed by the
petitioner Insurance Company seeking a
direction to set aside the judgement and
order dated 31.5.2008 passed by the
respondent no.1 in Misc. Case no. 5 of
2007 arising out of MAC no. 61 of 2004.
The second prayer is that order or
direction may also be issued setting aside
the
judgement
and
award
dated
23.09.2006 passed by the respondent no.
1 in MAC no. 61 of 2004 and the third
prayer is that the respondent no. 1 be
restrained from releasing the amount of
compensation along with interest in
favour of the respondents no.2 to 4 on the
basis of the judgement and award dated
23.09.2006.

3. The facts of the case are that a
claim
petition
was
filed
by
the
respondents alleging that an accident took
place on 13.04.2004 when the deceased
was going on a Motor Cycle no. UP 14J8083 from Baghpat to his village along
with Jai Pal Singh, the Motor Cycle was
hit by car no. DL-1CF 2901 and on
account of the accident , one person died
and Jai Pal Singh received injuries.

4. A claim for compensation was
made and an award was passed on
23.09.2006 finally by which Rs.5,19,616
was allowed in favour of the claimant-