Union of India & Ors. vs Bali Ram No. 850808321

Held: 1.1 The statutory mandate of s.47, PwD Act is too peremptory to be ignored – PwD Act is an enactment for persons with disabilities intended to guarantee them equal opportunities and full participation apart from protection of rights – Importantly, s.47 starts with “No” – Negative words in a statute convey a clear prohibition – It is a legislative device to make a statute imperative – An employee like the respondent, while retaining the status of a public servant, is entitled to security of service – A physical disability that he acquires while in service rendering him unfit for the work assigned to him has to be dealt with by the employer in the manner ordained by s.47 – Either he is shifted to some other post carrying same pay and service benefits, or, if it is not possible, the employer is under a duty to adjust him on any other post – If that too is not possible, a supernumerary post has to be created for him which, for all intents and purposes, would be personal to him. [Para 74]

1.2 Further, the PwD Act came into force in the year 1995, whereas the respondent was medically invalidated from service in 1998 – The Notification saw the light of the day as late as in 2002 – Neither by express words nor by necessary implication was it made to apply retrospectively from the date the PwD Act was enforced – Also, the PwD Act being a beneficial legislation, any notification exempting an establishment from the duty imposed by s.47 has to be strictly construed to protect the interests of disabled employees who acquire disability while in service – The duty imposed by the PwD Act being mandatory and not discretionary, the law did not leave the appellants with an option to discharge their duty at their convenience – By not offering alternate posting, the appellants failed in their role as a model employer and converted a welfare provision into a dead letter. [Paras 57, 75]

1.3 Furthermore, waiver of a statutory right is generally disfavoured particularly when the statute is for public welfare or the waiver would be contrary to public policy – Moreover, elements to constitute a waiver are absent in the present case – Objection founded on waiver is thoroughly misconceived and is, thus, overruled – Single Judge justified in finding the appellants to be remiss. [Paras 47, 50, 52, 79]

1.4 Order of the Single Judge modified – Respondent awarded an amount of Rs.1,25,00,000/- (Rupees one crore twenty five lakh only), inclusive of back wages, interest and costs of the present proceedings. [Para 82]

Central Reserve Police Force Act, 1949 – CRPF, an instrumentality of the State, ought to be fully cognizant of the provisions of the PwD Act:

Held: CRPF, being a force constituted under the Central Reserve Police Force Act, 1949 and functioning under the administrative control of the Ministry of Home Affairs, Government of India, failed to respond in time – Being an instrumentality of the State, it was expected to be fully cognizant of the provisions of the PwD Act and the statutory protection conferred upon the respondent u/s.47 thereof – In such circumstances, it is difficult to comprehend how the order of medical invalidation came to be passed in the first place, particularly when at the relevant point in time no notification exempting the CRPF from the operation of the PwD Act had been issued – Action of the appellants was taken in disregard of the statutory mandate then in force – Single Judge justified in finding the appellants to be remiss. [Paras 77, 79]

Pleadings – Absence of requisite pleadings and specific prayers – When not fatal – Granting relief beyond what is prayed – Writ Jurisdiction – Absence of pleadings and prayers in the writ petition in relation to invocation of the PwD Act by the respondent – Effect, if any:

Held: No ground was raised by the appellants either in their LPA before the Division Bench or in the present civil appeal to the effect that the Single Judge travelled beyond the pleadings and the prayers in the writ petition – Since no ground has been raised, this aspect cannot be dilated any further – Justice is a virtue which transcends all barriers – Neither the rules of procedure nor technicalities of law can stand in its way – Even the law bends before justice – The entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness – Art.226 confers a power that is plenary, equitable and discretionary, and is not one bound by the rigidities of law – Although in exercise of writ jurisdiction the high courts are guided by the principles flowing from the CPC, they are not bound by it – High courts’ writ jurisdiction under Art.226 is wider than the jurisdiction of the civil courts – Art.226 is a reservoir of equity meant to secure justice to the party aggrieved by omission or failure to perform a duty by an authority within the meaning of Art.12 – Rather than being stifled by technical pleas raised by such authority to resist its exercise, in an exceptional case, the high court may do what the justice of the case demands – One of such exceptions is when the court is convinced that the petitioner is legally entitled to more than what has been claimed, but might have claimed less due to ignorance or bona fide mistake or inelegant drafting of the writ petition by his lawyer – Since substantive justice cannot be allowed to be trumped by technicalities, if the record before the high court clearly evinces entitlement of the suitor to a wider relief than what is claimed, the opponent is put on notice and he/it has no answer, much less adequate answer, and thereby, no prejudice is caused to him/it, and it is found that the opponent is seeking to use a procedural technicality as a shield for its own statutory breach, the court in an appropriate case may, in its discretion, grant such relief as the suitor is found entitled – However, the exception to the rule of doing justice despite deficient pleadings in a writ petition ought to be sparingly invoked and judiciously applied where the law and the record disclose a clear entitlement of the suitor and the court is convinced that upholding the plea raised by the opponent, based on technicality, would defeat the right – Code of Civil Procedure, 1908 – Order VII – secundum allegata et probata. [Paras 38-44]

Service Jurisprudence – Distinction between initial disqualification and subsequent disability – Respondent’s claim seeking grant of full financial and service benefits upon his invalidation from service was rejected holding that he was entitled only to a lump-sum payment of Rs. 15,000/- in accordance with the applicable rules, as his disability was not found to be attributable to his service:

Held: The point as to whether or not the impaired vision from which the respondent suffered was attributable to and/or aggravated by service in the CRPF need not detain this Court – Nothing has been brought on record by the appellants to suggest that the respondent had been suffering from an ophthalmic condition since his enrolment in the CRPF – Medical fitness of the respondent must have been assessed at the time of his enrolment and appointment as a driver – Had he been found short of the required standards, whether the recruitment process would have resulted in an appointment in the first place – Even if it is assumed that the ophthalmic condition was neither attributable to nor aggravated by service in the CRPF, nothing turns on it – Parliament did not limit s.47 to disabilities attributable to service; the protection is unqualified and unconditional – It operates irrespective of how the disability was acquired – The relevant question is not hypothetical fitness at appointment, but whether the appellants explored alternatives before ending the respondent’s service – More than ten years of unblemished driving followed by an acquired ophthalmic condition, indeed, provided a case for accommodation or alternate posting, not medical invalidation – Service jurisprudence distinguishes between initial disqualification and subsequent disability, and the law ought to lean towards retention over ouster from service unless, of course, ouster becomes inevitable. [Para 76]

Delegated Legislation – Nature – Prospective: Held: Delegated legislation is ordinarily prospective in nature and a right or liability created for the first time cannot be given retrospective effect – Unless and until there is a clear intention expressed in the notification issued in pursuance of delegated power that it would also apply retrospectively, the same cannot be given a retrospective effect and would always operate prospectively – An exemption notification which takes out cases from the purview of a beneficial legislation has to be strictly construed – The rule deducible from Federation of Indian Mineral Industries would govern all delegated legislation including an exemption notification because (i) absence of any distinction carved out by such rule between “imposition of duty” and “removal of duty” and (ii) the law may not be read in a manner providing one rule for liability and another for immunity – The Notification upon which the appellants place heavy reliance, exempting combatant personnel of the CPMF from the application of s.47, PwD Act, was issued only on 10.09.2002 – Neither by express words nor by necessary implication was it made to apply retrospectively from the date the PwD Act was enforced – Also, the PwD Act being a beneficial legislation, any notification exempting an establishment from the duty imposed by s.47 has to be strictly construed to protect the interests of disabled employees who acquire disability while in service – So long as the proviso is not invoked by the appropriate Government for exempting an establishment from the provision of sub-section (1) of s.47, the employer has a duty to offer an alternate post and the employee a right to be accommodated; however, once a notification is issued in terms of the proviso below sub-section (2) of s.47 exempting an establishment from the provisions of the section, not only does the duty of the employer cease from the date the same takes effect, the employee would lose the statutory protection of continuity in service – Issuance of the notification on 10.09.2002 aids the respondent more than advancing the cause of the appellants – It shows that even the Government of India in the appropriate ministry felt the need to carve the CMPFs out of the coverage of s.47 seven years after the enactment of the PwD Act, meaning thereby that the said provision applied with full force to the CMPFs and covered them between 1995 and 10.09.2002 – Notification has no bearing on the legality of the order of medical invalidation – Respondent’s medical invalidation vide order dtd.11.03.1998 was made at a point of time when s.47, PwD Act operated and the appellants were bound by its categorical mandate – The said order being ultra vires s.47 read with Arts.14 and 21 of the Constitution as on date the same was made, the subsequent issuance of the Notification cannot have retrospective effect so as to legitimise an act that is void ab initio – The right of the respondent crystallised on the date of ouster; and a later exemption from the statutory mandate cannot efface the breach already committed. [Paras 55-57] Waiver – Elements – If, absent in the present case: Held: Yes – Waiver, in law, is an intentional relinquishment of a known right or advantage, benefit, claim or privilege by a person which, except for such waiver, he would have enjoyed – Waiver must have three elements – To constitute waiver, what is required to be proved by the party raising the plea is that (i) a person (the other party to the lis against whom waiver is claimed) has a right; (ii) such person has clear knowledge of that right; and

(iii) despite the knowledge (of an existing right), that person has voluntarily and consciously given up that right – Mere silence or inaction or delay to enforce the existing right does not constitute waiver, since there must be a clear conduct revealing that the right has been given up – Waiver of a statutory right is generally disfavoured particularly when the statute is for public welfare or the waiver would be contrary to public policy – Moreover, whether or not a party has waived his right has to flow from his conduct and is, essentially, a question of fact – Neither in the LPA nor in this appeal, no point of waiver has been pleaded by the appellants – Without a pleading, a plea of waiver need not be adjudicated – Single Judge, recorded a finding of fact accepting the respondent’s version that he had no knowledge of s.47, PwD Act conferring a right on him to be continued in service notwithstanding his impairment of vision – In the LPA, no challenge was laid to such finding – Appellants neither disputed before the Single Judge nor before the Division Bench or this Court that the respondent’s disability was not covered by the beneficial provisions of the enactment – In such a situation, to attract waiver, what was required of the appellants was to demonstrate that the respondent was aware of his right u/s.47, yet, he elected to give it up while preferring to receive invalid/disability pension – However, there is no material on record to suggest that the respondent had been informed by the appellants of a right available to him under the PwD Act and that he relinquished his claim for enforcement of such right – Therefore, the elements to constitute a waiver are absent in the present case – Objection founded on waiver is thoroughly misconceived and is, thus, overruled – Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – s.47. [Paras 46, 47, 49, 50, 52]

Principle of ‘no work, no pay’ – Inapplicability – Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – s.47:

Held: Appellants having failed to provide an alternate post commensurate with the respondent’s disability as mandated by s.47, PwD Act, cannot be permitted to take shelter behind the principle of ‘no work, no pay’ – The situation of non-employment of the respondent is entirely the appellants’ creation – Respondent is, thus, entitled to full back wages and the appellants must bear the consequences of their own inaction – The preambular promise of the Constitution cannot remain symbolic. [Para 81]