# Munna Lal Sharma v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-19
- **Case number:** Civil Misc. Writ Petition No. 26980 of 2012
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-lal-sharma-v-state-of-u-p-ors-43220
- **Pages:** 7

## Headnote

C.S.C., Sri A.K. Lal, Sri Sujeet Kumar Rai
Persons
with
disabilities(Equal
opportunities, Protection of Rights and full
participation)
Act
1995-Section-47petitioner working as cadre secretary-due
to loss of vision of both eyes (optic
atrophy) proceeded on medical leave-of 18
months, duly sanctioned-denial of salary in
spite of direction of Court-rejecting the
claim-decided to compulsory retire-held
amount to termination-just contrary, to
mandate of overriding provisions of Act
1995-direction issued to pay entire arrears
of salary with all service benefits to pay
9% interest thereon till actual payment
made.
Held: Para-15
In view of this submission, while setting
aside the order dated 8.11.2012 retiring
the
petitioner
from
service,
the
respondents are directed to pay the
petitioner entire arrears of salary till
8.11.2012 along with all services benefit
admissible to the petitioner with interest
@ 9% till the date of actual payment. It
is directed that computation be done and
payment shall be made to the petitioner
within a period of two months from the
date a certified copy of this order is
produced.
Case Law discussed:
(2003) 4 SCC 524; 2010 (8) ADJ 280; (2004) 6
SCC 708.

## Text

48
 INDIAN LAW REPORTS ALLAHABAD SERIES
Electricity Act and the matter is specified
therein.
25. For the aforesaid reason, petition
is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2014
BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
Civil Misc. Writ Petition No. 26980 of 2012
Munna Lal Sharma
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Pulak Ganguly, Sri Arun Kumar Singh-I
Counsel for the Respondents:
C.S.C., Sri A.K. Lal, Sri Sujeet Kumar Rai
Persons
with
disabilities(Equal
opportunities, Protection of Rights and full
participation)
Act
1995-Section-47petitioner working as cadre secretary-due
to loss of vision of both eyes (optic
atrophy) proceeded on medical leave-of 18
months, duly sanctioned-denial of salary in
spite of direction of Court-rejecting the
claim-decided to compulsory retire-held
amount to termination-just contrary, to
mandate of overriding provisions of Act
1995-direction issued to pay entire arrears
of salary with all service benefits to pay
9% interest thereon till actual payment
made.
Held: Para-15
In view of this submission, while setting
aside the order dated 8.11.2012 retiring
the
petitioner
from
service,
the
respondents are directed to pay the
petitioner entire arrears of salary till
8.11.2012 along with all services benefit
admissible to the petitioner with interest
@ 9% till the date of actual payment. It
is directed that computation be done and
payment shall be made to the petitioner
within a period of two months from the
date a certified copy of this order is
produced.
Case Law discussed:
(2003) 4 SCC 524; 2010 (8) ADJ 280; (2004) 6
SCC 708.
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)
1. Heard Shri Arun Kumar Singh,
learned counsel for the petitioner, learned
Standing Counsel for respondent Nos. 1
to 3,Shri Sujeet Kumar Rai, learned
counsel respondent No.4 and Shri A.K.
Lal learned counsel for respondent No.5.
2. While working as Secretary of the
Cooperative Society Bijnor, namely,
Kisan Sewa Sahkari Samiti, Saidpur,
District Bijnor, petitioner has suffered
visual impairment and lost his eyesight
resultantly he has acquired complete
visual disability i.e. blindness. The
petitioner started losing his eyesight in the
month of September, 2006 and had
become
100%
visually
disabled
in
February, 2009. He has applied for
medical leave which was sanctioned for
the period from 15.1.2007 to 16.1.2008
and 16.1.2008 to 30.6.2008 by the
Secretary/General
Manager,
District
Cooperative bank, Bijnor. His salary has
not
been
paid,
therefore,
he
has
approached this Court by filing writ
petition No. 49740 of 2010 which was
disposed on 19.8.2010. The order passed
by this Court is as under:-
"Learned
Standing
Counsel
represents respondent Nos.1 to 4.
Issue notice to respondent No.5.
The petitioner was serving as Cadre
Secretary,
Shadipur
Kisan
Sewa
1 All]. Munna Lal Sharma Vs. State of U.P. & Ors.
49
Cooperative Society Ltd. For the reasons,
which could not be ascertained by the eye
specialists, he started losing his eye sight.
The petitioner could not recover even
after treatment and has been certified to
be 100% disabled on account of loss of
vision in both the eyes [optic Atrophy
both
eye;
visual
disability
100%
(hundred)] certified by the Chief Medical
Officer,
Udham
Singh
Nagar
on
16.2.2009.
He had proceeded on leave and was
sanctioned 18 months' medical leave
(from
15.1.2007
to
16.1.2008
and
thereafter from 16.1.2008 to 30.6.2008)
by
the
Secretary/General
Manager,
District Cooperative Bank, Bijnor.
It is stated that inspite of sanction of
leave and the protection given to him
under Section 47 of the Persons with
Disabilities
(Equal
Opportunities,
Protection
of
Rights
and
Full
Participation) Act, 1995,(In short PWD
Act, 1995) the society has not paid salary
and
has
not
provided
a
sheltered
appointment
to
the
petitioner.
The
petitioner has approached the Asstt.
Registrar under Section 71 of the U.P.
Cooperative
Societies
Act
with
an
application dated 8.6.2010 for orders and
recovery of arrears of salary from the
society.
All the respondents are allowed three
weeks' time to file counter affidavit. The
petitioner will have one week, thereafter,
to file rejoinder affidavit.
List on 27th September, 2010.
In the meantime, we direct the Asstt.
Registrar,
Cooperative
Society,
U.P.
Distt. Bijnor to conclude the proceedings
under Section 71 of the U.P. Cooperative
Societies Act within a month; he will
ensure the payment of atleast half of the
salary to the petitioner for the period for
which the leave was sanctioned from
15.1.2007 to 16.1.2008 and thereafter
from 16.1.2008 to 30.6.2008, to be
credited to the bank account of the
petitioner positively within one month."
3. Pursuant to the order of this Court
dated 19.8.2010 petitioner's representation
dated 8.6.2010 was considered and
rejected vide order dated 12.9.2011
passed by the District Assistant Registrar,
Cooperative Societies, Bijnor. Rejecting
the claim of the petitioner for payment of
salary the ground taken is that the
petitioner was absent with effect from
1.7.2006 and decision has been taken by
the Society to retire the petitioner on
account of its bad financial condition. On
29.11.2011
District
Administrative
Committee has taken a decision to retire
the petitioner from service. Consequently
order dated 8.12.2011 was passed retiring
the petitioner from service.
4. The present writ petition is
directed against the order dated 12.9.2011
passed by the District Assistant Registrar
and the order dated 8.12.2011 passed by
the
Member
Secretary,
District
Administrative
Committee/
General
Manager, District Cooperative Bank.
5. Assailing the orders impugned,
learned counsel for the petitioner submits
that admittedly the petitioner has acquired
visual disability while in service and
hence the petitioner is protected under
Section 47 of the PWD Act, 1995 which
provides that an employee who is already
in service and acquires a disability during
his service should be provided suitable
post, if it is available. In case, It is not
possible to adjust the employee against
any post, supernumerary post is to be
created, he shall be allowed to continue
till the date of superannuation. Service
50
 INDIAN LAW REPORTS ALLAHABAD SERIES
benefit cannot be denied to the employee
on account of disability acquired while in
service.
6. Learned counsel for the petitioner
has placed reliance upon the judgment of
Apex Court in Bhagwan Das and another
Vs. Punjab State Electricity Board, 2008
AIR SCW 534, wherein similar situation
came up for consideration before the
Apex Court. It was held in paragraphs 13
and 14, which are as follows:-
"13.Appellant No.1 was a Class IV
employee, a Lineman. He completely lost
his vision. He was not aware of any
protection that the law afforded him and
apparently believed that the blindness
would cause him to lose his job, the
source of livelihood of his family. The
enormous mental pressure under which he
would have been at that time is not
difficult
to
imagine.
In
those
circumstances it was the duty of the
Superior Officers to explain to him the
correct legal position and to tell him about
his legal rights. Instead of doing that they
threw him out of service by picking up a
sentence from his letter, completely out of
context. The action of the concerned
officers of the Board, to our mind, was
deprecatable."
14.We understand that the concerned
officers were acting in what they believed
to be the best interests of the Board. Still
under the old mind-set it would appear to
them just not right that the Board should
spend good money on someone who was
no longer of any use. But they were quite
wrong, seen from any angle. From the
narrow point of view the officers were
duty bound to follow the law and it was
not open to them to allow their bias to
defeat the lawful rights of the disabled
employee. From the larger point of view
the officers failed to realise that the
disabled too are equal citizens of the
country and have as much share in its
resources as any other citizen. The denial
of their rights would not only be unjust
and unfair to them and their families but
would create larger and graver problems
for the society at large. What the law
permits to them is no charity or largess
but their right as equal citizens of the
country."
7. In Bhagwan Dass (Supra)
observations made in Kunal Singh Vs.
Union of India, (2003) 4 SCC 524 has
been relied upon. While interpreting
import of section 47 of PWD Act, 1995 it
was held that there cannot be any
discrimination
in
Government
employments and no establishment shall
dispense with or reduce in rank, an
employee who acquires a disability during
his service. Sub-Section (2) of Section 47
of PWD Act, 1995, further provides that
no promotion shall be denied to a person
merely on the ground of his disability.
In paragraph 9 of the Kunal
Singh(Supra) it was held as follows:-
"Chapter VI of the Act deals with
employment relating to persons with
disabilities, who are yet to secure
employment. Section 47, which falls in
Chapter VIII, deals with an employee,
who is already in service and acquires a
disability during his service. It must be
borne in mind that Section 2 of the Act
has given distinct and different definitions
of
"disability"
and
"person
with
disability". It is well settled that in the
same enactment if two distinct definitions
are given defining a word/expression,
they must be understood accordingly in
terms of the definition. It must be
1 All]. Munna Lal Sharma Vs. State of U.P. & Ors.
51
remembered that person does not acquire
or suffer disability by choice. An
employee, who acquires disability during
his service, is sought to be protected
under Section 47 of the Act specifically.
Such employee, acquiring disability, if
not protected, would not only suffer
himself, but possibly all those who
depend on him would also suffer. The
very frame and contents of Section 47
clearly indicate its mandatory nature. The
very opening part of Section reads "no
establishment shall dispense with, or
reduce in rank, an employee who acquires
a disability during his service". The
Section further provides 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; if it
is not possible to adjust the employee
against any post he will be kept on a
supernumerary post until a suitable post is
available or he attains the age of
superannuation, whichever is earlier.
Added to this no promotion shall be
denied to a person merely on the ground
of his disability as is evident from subsection (2) of Section 47. Section 47
contains a clear directive that the
employer shall not dispense with or
reduce in rank an employee who acquires
a disability during the service. In
construing a provision of social beneficial
enactment that too dealing with disabled
persons intended to give them equal
opportunities, protection of rights and full
participation, the view that advances the
object of the Act and serves its purpose
must be preferred to the one which
obstructs the object and paralyses the
purpose of the Act. Language of Section
47 is plain and certain casting statutory
obligation on the employer to protect an
employee acquiring disability during
service. " Further reliance has been placed
upon the judgment of Union of India and
others vs. State of U.P. and another
2010(8) ADJ 280, wherein it was
observed that the PWD Act 1995
guaranteed to a person, who develops
disability as defined in the Act from being
put off the employment. He has to be
offered an alternate/sheltered job. The
right of the disabled person to receive
sympathetic consideration to continue in
employment
on
acquiring
disability
during course of his tenure has been
replaced by a statutory right by PWD Act,
1995 .This statutory right is not subject to
any discretion and cannot be defeated on
the prejudice of the employer unless the
establishment has exempted any particular
category of work and valuable right of an
employee, who has acquired disability
during the course of employment is
guaranteed under section 47 of the PWD
Act, 1995. It was held that services of the
petitioner therein who has acquired
disability during the course of tenure in
service could not be terminated . Reliance
has been placed in Kunal Singh(supra)
and Union of India Vs. Sanjay Kumar
Jain (2004), 6, SCC 708.
8. Keeping in view of the above
legal position, present case is to be
examined. Admittedly in the instant case,
the
petitioner
has
acquired
visual
disability during service. He submitted
leave application and leave for certain
period was granted to the petitioner.
However, salary was not paid as such he
had to rush to this Court. Pursuant to the
order of this Court dated 19.8.2010 an
amount of Rs. 58,000/- was paid to the
petitioner towards half salary for the
period from 15.1.2007 to 30.6.2008.
However remaining amount of Rs.
58,600/- has been refused by order dated
52
 INDIAN LAW REPORTS ALLAHABAD SERIES
12.9.2011 on the ground that decision has
been taken by the Committee to retire the
petitioner on account of bad financial
condition of the Society. It is further
apparent from the order passed by the
Assistant
Registrar,
decision
taken
whatsoever to retire the petitioner from
the service was not served upon the
petitioner. However, payment of salary
for the rest of the period and half salary
from 15.1.2007 to 30.6.2008 has been
denied on the ground that the petitioner
was absent without leave with effect from
1.7.2006.
9. It is apparent from the order dated
20.5.2009 passed by Member Secretary,
District Administrative Committee that
leave for the period from 16.1.2007 to
15.1.2008 was accorded on full salary,
whereas
leave
from
16.1.2008
to
30.6.2008 was sanctioned on half salary.
As leave of the petitioner was sanctioned,
there was no question of withholding the
salary for the period of leave. Admittedly
only half salary has been paid for the
period from 15.1.2007 to 30.6.2008,
however, the petitioner is found entitled
for the payment of full salary for the
period
of
leave
i.e.
15.1.2007
to
30.6.2008. The sanctioned leave on half
salary from 16.1.2008 to 30.6.2008 is not
justifiable for the
reason
that
the
petitioner has submitted medical papers
for sanction of medical leave and the fact
that he has acquired complete visual
impairment thereafter. It is apparent from
the record that since after 30.6.2008,
petitioner has approached the respondents
on various occasions. He has prayed for
payment of salary for the period of leave
and further to allow him to continue.
Respondent did not allow the petitioner to
continue
and
did
not
offer
an
alternate/sheltered job. The denial of
salary to the petitioner on the ground that
he has remained absent from 1.7.2006 is
nothing but an act of termination of the
services of the petitioner, which is clearly
prohibited under section 47 of the PWD
Act 1995 . Further the petitioner was
made to retire by order dated 8.12.2011
pursuant to the decision taken by the
District Administrative Committee on
29.11.2011 but admittedly salary for the
said period has not been paid to the
petitioner.
It
appears
that
certain
disciplinary inquiry was also initiated
against the petitioner at some point of
time for his absence but was not
continued thereafter. It does appear from
the
record
that
the
petitioner
has
approached the respondents continuously
but he was not offered an alternative job.
In Kunal Singh(Supra) the Apex Court
has observed that Section 8 of the PWD
Act 1995 provides that it was the duty of
the Superior Officer to explain to the
employee, who has suffered disability, the
correct legal position and informed of his
legal rights. Petitioner was approaching
the authorities but his legal rights have
not been taken care of. Instead a
disciplinary proceeding was initiated
against him, the salary for the period of
his sanctioned medical leave has not been
paid till date. These facts indicate that the
authorities were not fully conscious of
their statutory obligations.
10. There is nothing on record to
indicate that an effort was made to find
out alternative job for the petitioner as
mandated under PWD Act 1995. Even in
case, no such job was available, the
petitioner was required to be kept on a
supernumerary
post
until
suitable
employment could be found for him. On
the other hand taking recourse of
provision of Rule 27(ss) of Regulations
1 All]. Munna Lal Sharma Vs. State of U.P. & Ors.
53
1978
for
appointment
of
Cadre
Secretary,the Petitioner was made to retire
on 8.12.2011.This litigation in this Court
is for payment of salary for the period of
medical leave and, thereafter, against the
order of retiring the petitioner from
service on the ground of medical
incapacitation being in violation of
section 47 of PWD Act 1995.
11. The order of retirement is
nothing but termination of services of the
petitioner on the ground of permanent
disability suffered by him. Admittedly
disability occurred during the course of
employment and,therefore, the provision
of section 47 of PWD Act 1995 would be
attracted. It is held in Kunal Singh(Supra)
that PWD Act 1995 is specific legislation
dealing with persons' disabilities to
provide equal opportunities, protection of
rights and full participation to them. It
being a special enactment, doctrine of
generalia
specialibus
non
deorogant
would apply. It was held that the decision
to grant invalidity pension to the appellant
therein under Rule 38 of CCS (Pension)
Rules, 1972, was no ground to deny the
protection mandatorily made available to
the appellant under Section 47 of the
PWD Act 1995. Rule 38 of Central Civil
Services (Pension) Rules cannot override
Section
47
of
the
PWD
Act
1995.Reference was also taken to Section
72 PWD Act 1995 which provides that
the PWD Act 1995 override any other
enactment or any instructions enacted or
issued for the benefit of person with
disability. It was directed that as appellant
therein has acquired disability during his
service he could be shifted to some other
post with the same payscale and all
service benefits; if it was not possible to
adjust him against any post, he could be
kept on a supernumerary post until a
suitable post was available or he attains
the age of superannuation, whichever is
earlier. Paragraphs 11 and 12 of Kunal
Singh(Supra) are relevant and reproduced
as under:-
11.We have to notice one more
aspect in relation to the appellant getting
invalidity pension as per Rule 38 of the
CCS Pensions Rules. The Act is a special
Legislation dealing with persons with
disabilities to provide equal opportunities,
protection of rights and full participation
to them. It being a special enactment,
doctrine of generalia specialibus non
derogant would apply. Hence Rule 38 of
the Central Civil Services (Pension) Rules
cannot override Section 47 of the Act.
Further Section 72 of the Act also
supports the case of the appellant, which
reads: -
"72. Act to be in addition to and
not in derogation of any other law. - The
provisions of this Act, or the rules made
thereunder shall be in addition to, and not
in derogation of any other law for the time
being in force or any rules, order or any
instructions issued thereunder, enacted or
issued for the benefits of persons with
disabilities."
12.Merely because under Rule 38 of
CCS Pension Rules, 1972, the appellant
got invalidity pension is no ground to
deny the protection, mandatorily made
available to the appellant under Section
47 of the Act. Once it is held that the
appellant has acquired disability during
his service and if found not suitable for
the post he was holding, he could be
shifted to some other post with same payscale and service benefits; if it was not
possible to adjust him against any post, he
could be kept on a supernumerary post
until a suitable post was available or he
attains
the
age
of
superannuation,
whichever is earlier. It appears no such
54
 INDIAN LAW REPORTS ALLAHABAD SERIES
efforts
were
made
by
the
respondents.They have proceeded to hold
that he was permanently incapacitated to
continue in service without considering
the effect of other provisions of Section
47 of the Act. "
12. In the instant case recourse has
been taken to Rule 27(c) of Service
Regulation
1978
pertaining
to
appointment of Cadre Secretary which
provides that on account of long medical
incapacitation of an employee a decision
can be taken to retire him from service.
13. Present is not a case of medical
incapacitation of an employee rather it is
case where the petitioner has acquired
disability during his service. The word
"disability" has been defined in section
2(i) of PWD Act 1995.Section 47 of the
Act clearly provides that the services of
employee could not be dispensed with if
he has acquired disability during his
service. The recourse of Rule 27(s) of
Regulations of Rules pertaining to Cadre
Secretary could not be taken and the
petitioner could not have been retired
from 8.12.2011.Petitioner has a statutory
right to continue in service till the age of
superannuation. He is entitled to continue
in
service
or
another
suitable
post/sheltered job which should be
offered to the petitioner till age of
retirement on the same payscale and
service benefit.
14. The respondents have proceeded
to
hold
that
the
petitioner
was
permanently medically incapacitated to
continue in service and had retired him
without considering the effect of PWD
Act 1995. The order dated 8.12.2011
passed
by
respondent
no.4
District
Administrative Committee retiring the
petitioner from the service is,therefore,
illegal and is hereby set aside. However,
at this stage the submission of the learned
counsel
for
the
petitioner
needs
consideration that the petitioner does not
want to continue in service and has had
suffered a lot on account of repeated
litigations and enormously suffered as a
result of his disability and inhumane
approach adopted by the respondents. He
has,therefore, decided not to challenge the
order of retirement but the petitioner is
pressing his entitlement for full payment
and all service benefits till date of his
retirement i.e. till 8.12.2011.
15. In view of this submission, while
setting aside the order dated 8.11.2012
retiring the petitioner from service,the
respondents are directed to pay the
petitioner entire arrears of salary till
8.11.2012 along with all services benefit
admissible to the petitioner with interest
@ 9% till the date of actual payment. It is
directed that computation be done and
payment shall be made to the petitioner
within a period of two months from the
date a certified copy of this order is
produced.
16.

In
view
of
the
above
observation, the order passed by the
Assistant
Registrar
dated
12.9.2011
denying salary to the petitioner on
account of his absence during the period
of medical leave with effect from
1.7.2006 is unsustainable and is hereby
set aside.
17. With the above direction,the writ
petition is allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2014