Saturday, May 25, 2019

Upendra Giri Vs. CMD L& T Hydrocarbon Engineering Ltd. | Case No. 386/1023/2018/07/2384-2385 | Dated: 23.05.2019




In the Court of State Commissioner for Persons with Disabilities
National Capital Territory of Delhi
25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
Phone-011-23216002-04, Telefax: 011-23216005,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act, 2016]

Case No. 386/1023/2018/07/2384-2385                 Dated: 23.05.2019

In the matter of:

Sh. Upendra Giri,
F-29, Harijan Basti,
Old Kondli, Delhi-110096.                                      ..…….Complainant
                                                         
                                          Versus       
                    
The Chief Managing Director/Managing Director,
L & T Hydrocarbon Engineering Ltd.,
Mount Poonamallee Road,
Post Box No. 979, Manapakkam,
Chennai-600089.                                                       ........ Respondent

Date of Hearing     15.05.2019

Present:       Sh. Upendra Giri, Complainant.
                    Sh. Jitendra Kumar, Advocate, for the Respondent.

ORDER
The above named complainant, a person with 72% locomotor disability vide his complaint dated 09.07.2018 submitted that he was retrenched by M/s L&T Hydrocarbon Engineering Ltd. on 09.01.2016 when he was left with 3.5 years of service due to his physical disability.  He alleged that he was harassed and discriminated.  In his own department, other employees in similar positions are working because they are related to senior management.  He was retrenched illegally against the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PwD Act).  The company has recruited new employees in his place.  He also claimed that he acquired disability during service and hence he should be allowed to continue his service in the company without any discrimination and be paid back wages. 
2.       Section 47 of PwD Act provided as under:
“47.     Non-discrimination in Government employment- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service;
Provided 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;
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability;
Provided that the appropriate Government may having regard to the type of work carried on in any establishment by notification and subject to such conditions if any as may be specified in such notification exempt any establishment from the provisions of this section.”
3.       While that PwD Act has since been repealed and replaced by the Rights of Persons with Disabilities Act, 2016, hereinafter referred to as the Act, identical provision in Section 20 of this Act exists.  Although this provision of Section 20 of the Act is not applicable to a private establishment, yet in light of the fact that the Act itself is based on the principle of respect for inherent dignity, non-discrimination and equality of opportunity and Section 21 of the Act and Rule 8 of the Persons with Disabilities Rules, 2017 mandate every establishment including the private establishments to follow Equal Opportunity Policy, the complaint was taken up with the respondent for considering the request of the complainant and to submit an action taken report within 30 days vide letter dated 23.07.2018.
4.       As there was no response from the company, a notice dated 25.10.2018 was issued directing the respondent to submit his/her version of the case by 02.11.2018 followed by another reminder dated 16.11.2018 and a hearing on 25.09.2019.  Sh. Tej Pratap Singh, advocate who appeared on behalf of the respondent on 25.09.2019, submitted that the reply had already been prepared and would be filed within a week after its approval. 
5.       The reply on behalf of the respondent was filed on 25.02.2019 during the hearing.  In the said reply, the respondent has inter-alia submitted that the complainant has already challenged his resignation under the provisions of the Industrial Disputes Act before the Ld. Labour court, Dwarka, New Delhi and the same is pending before the Hon’ble Court.  Therefore, the present claim of the complainant is liable to be dismissed.  The respondent further submitted that as per the rules and regulations, the respondent has the right to terminate its employee at any stage as per the requirement or schedule of the company after giving him a termination notice or after paying him appropriate amount.  He further submitted that the complainant was working with the respondent at its MPT project at Barmer, Rajasthan.   As the project was close to completion, the respondent started demobilizing employees from the project.  The identified employees who were found to be consistently low performers and surplus to the requirements of the respondent were relieved of their services.  They were served with the appropriate closer/ termination letter. 
6.       Respondent further mentioned that they had paid the requisite dues as per the terms and conditions of the contract to the complainant and settled the full and final payment.  The respondent denied that relatives of the senior officials are working on the similar positions.  The respondent further submitted that the complainant is suffering from the multiple epiphyseal dysplasia disease, which is a genetic disease and not caused due to the employment with the respondent.    
7.       In his rejoinder dated 14.03.2019, the complainant submitted that he will withdraw his Industrial dispute from the Labour Court, if the respondent is ready to accept his demand for reinstatement/re-employment.  The complainant further submitted that he was relieved from service without paying the retrenchment compensation etc. under the provisions of Industrial Disputes Act with mala-fide intention. The disease has developed during the period of his employment due to heavy workload and it is not a genetic disease.    
8.       In the next two dates of hearings on 14.03.2019 and 16.04.2019, clarification on the following issues remained pending:
(i)      whether the complainant was retrenched or terminated and whether he was paid the applicable dues; and
(ii)      whether the complainant was singled out for termination/retrenchment.
9.       Therefore, the matter had to be adjourned once again to 15.05.2019.  Though no written clarification was filed on 15.05.2019, yet Sh. Jitender Kumar, Advocate who appeared for the respondent submitted that the complainant was retrenched which is evident from his ‘service certificate’ dated 04.03.2016 and he has been paid all the dues he was entitled to consequent to his retrenchment.  He further submitted that as per the policy of the company, the low performing employees are given an option either to submit resignation so that their prospects for further employment are not adversely affected or are retrenched/ terminated.  
10.     On the other hand, the complainant stated that he has not been paid the retrenchment compensation by the company.  He also submitted that the company has also not paid him the amount contributed on account of superannuation.  According to the statement of ‘superannuation contribution’ upto 31.03.2015, the amount was Rs.2,65,691/-.  The respondent submitted copy of the claim/petition filed by the complainant before the Court of Sh. S.S. Malhotra, POLC, Karkardoom Courts in which the complainant has requested for various claims apart from superannuation claim. 
11.     It is observed from the list of 87 employees whose list has been submitted by the respondent, between 15.04.2015 and 12.03.2016, all but the complainant, Sh. Upendra Giri, Assistant Manager (Industrial Relations) of MPT, Modification Works for Mangla Polymer Project at serial no. 73 and Sh. Sukhwant Singh, Driver of DCU Piping IOCL, Paradip at serial no. 82, had resigned.  The complainant and Sh. Sukhwant Singh are shown to have been ‘terminated’.  It is observed that despite repeated directions and the provision of Section 93 of the Act that; “Whoever, fails to produce any book, account or other documents or to furnish any statement, information or particulars which, under this Act or any order, or direction made or given there under, is duty bound to produce or furnish or to answer any question put in pursuance of the provisions of this Act or of any order, or direction made or given there under, shall be punishable with fine which may extend to twenty-five thousand rupees in respect of each offence, and in case of continued failure or refusal, with further fine which may extend to one thousand rupees for each day, of continued failure or refusal after the date of original order imposing punishment of fine”, clear information has not been filed by the respondent even after a lapse of 10 months.  This gives an impression that the possibility of discrimination against the complainant on the ground of his disability at some level cannot be ruled out.
12.     Since the complainant has approached the Labour Court under the Employees Compensation Act, that Court will be considering all the issues related to the retrenchment of the complainant and the payment of compensation that he was entitled to.  In light of my observation in para 11 of this order, I recommend that CEO and MD or his representative officer to be deputed by him/her for this purpose, should examine the grievance of the complainant and consider his request and also give an audience to the complainant and settle the matter within 60 days from the date of receipt of this order ensuring non-discrimination on the ground of disability and equal opportunity to the complainant.  The issue of payment of superannuation amount, which as per the complainant, has not been agitated before the Labour Court, should be paid to him, if he is entitled to the same as per the terms of his employment within 20 days of the decision of the CEO and MD.
13.     Action taken report on the above mentioned recommendations be submitted to this Court within three months from the date of receipt of this order as required under Section 81 of the Act.
14.     The complaint is disposed of.
15.     Given under my hand and the seal of the Court this 23rd day of May, 2019.

(T.D. Dhariyal)
State Commissioner for Person with Disabilities

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