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
