Showing posts with label Social Protection on acquiring disability. Show all posts
Showing posts with label Social Protection on acquiring disability. Show all posts

Friday, March 8, 2019

Karamvir Singh Vs. Dte of Education | Case No. 4/1733/2017-Wel./CD/1177-1178 | Dated: 07.03.2019




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. 4/1733/2017-Wel./CD/1177-1178       Dated: 07.03.2019

In the matter of:

Sh. Karamvir Singh
R/o 2116, Type IV
Delhi Administration Flats
Gulabi Bagh, Delhi-110007                           ……................ Petitioner

                                          Versus                           
The Director,
Directorate of Education,
Old Secretariat,
Delhi-110054                                                ...………...…Respondent

Date of Order        26.02.2019

           
ORDER

The above named complainant, a person with 90% locomotor disability vide his complaint dated 24.07.2017 submitted that he is working as PGT (Hindi) in Govt. Sarvodya Bal Vidyalaya, Nangloi, Delhi.  On 29.11.2016 he slipped down in his village Bhaini Bharo, District Rohtak and suffered ligament injury in his left shoulder and was not able to move it till the date of his fitness for rejoining the work.  The doctor at Pt. B.D. Sharma, PGIMS, Rohtak advised him bed rest.  He informed the Principal of his school vide his letter dated 30.11.2016 for special disability leave for 2 weeks.  The Principal sought clarification from Dy. Director Education (DDE), West-B who declined to grant special disability leave and stopped payment of his salary for the month of February, 2017.  The complainant contended that DDE, West B wrongly interpreted the CCS Leave Rules 1972 and have ignored the provisions of OM no.18017/01/2014-Estt. (L) dated 25.02.2015.  Para 5 of the said OM provides that  “Leave applied on medical certificate in connection with disability should not be refused or revoked without reference to a medical Authority, whose advice shall be binding.  The ceiling on maximum permissible leave laid down in rule 12 may not be applied to leave on medical certificate applied in connection with the disability.  He further contended that para 2 & 3 of the OM also protect his rights which is being denied to him by respondent no. 1 & 2 which is arbitrary and illegal.  The complainant requested that the respondent may be summoned and directed to take corrective measures by sanctioning special disability leave to him. 
2.       The complaint was taken up with the respondent vide notice dated 29.09.2017 followed by reminder dated 03.11.2017. DDE, West-B vide communication dated 16.11.2017 informed the complainant that his case file was forwarded to the Competent Authority who also rejected the request and upheld the decision of the District Authority in light of Rule 12.  The matter was again examined at District Level in light of the Rule 12 of Rules which deal with special disability leave which provides that the special disability leave is admissible to all the employees “when disabled by injury intentionally or accidently inflicted or caused in, or in consequence of the due performance of official duties or in consequence of official position”.
3.       The complainant in his rejoinder dated 20.11.2017 contended that his case was to be considered under the provisions of Section 47 of Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 which provides that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service.  DoPT’s OM no.18017/01/2014-Estt. (L) dated 25.02.2015 also clarifies that leave applied on medical certificate in connection with disability should not be refused and Leave Rule and CCS Rule 12  would not apply in connection with disabilities.  If the leave had been debited for the period after Govt. servant is declared in capacitated, the same shall be remitted back into his /her leave account. 
4.       The complainant also referred to an order dated 23.02.2015 of Commissioner for Persons with Disabilities of Govt. of Haryana which was upheld by the Hon’ble High Court.  Accordingly, the complainant claimed that he should be sanctioned disability leave for the period from 29.11.2016 to 06.03.2017. 
5.       DDE, W-B vide letter dated 16.11.2017 contended that special disability leave is admissible to all the employees when disabled by injury intentionally or accidently inflicted or caused in or in consequence of the due performance of official duties or in consequence of his official position.  Therefore, since the injury was caused when the complainant was at his home town and the injury was not in consequence of his official position, the complainant was not entitled to special disability leave. 
6.       Upon considering the written submission of parties, and after hearing on 18.12.2017, 22.01.2018, 28.02.2018, DDE W-B with the approval of the Competent Authority and the DoE passed a speaking order dated 28.04.2018.  Relevant extracts of the order are as under:
“...Firstly, from a close perusal of para 2 above, it can be safely stated that the para is not about Special Disability Leave. Rather, it is about ensuring safety of service and service conditions of an employee who has acquired disability during service. This para nowhere speaks about any special disability leave provisions for the employees. And his is definitely not a case of termination of service or denial of promotion etc. Therefore, applicant’s claim in r/o Disability Leave on the basis of para 2 above does not hold any merit. Para 5 of the O.M. mandates reference to a medical authority.
            Importantly, Rules 44 & 45 of the CCS Leave Rules deal with Special Disability Leave. Rule 44 is reproduced for a ready, reference herein under:
            “44. Special Disability Leave for injury intentionally inflicted:
            1) The authority to grant leave may grant special disability leave to a Government servant (whether permanent or temporary) who is disabled by injury intentionally inflicted or caused in, or in consequence of the due performance of his official position”.
            From the representation dated 07.03.2017 submitted by the applicant, it becomes evidently clear that the injury was not intentionally inflicted on him nor was it caused ‘in consequence of the due performance of his official duties’ as the employee had gone to his native place Rohtak to attend the last rites of his deceased mother when his foot slipped by chance, thus, causing ligament injury to his left shoulder. Clearly, the applicant’s case does not fall in this category.
Lastly, Rule 45 of the CCS Leave Rules deals with accidental injuries (i.e. not inflicted intentionally). For the clarity of the case, it is important to quote and properly appreciate as to what Rule 45 says. It says:
            45. Special Disability Leave for Accidental Injury:
(1)          The Provisions of Rules 44 shall apply also to a Government servant whether permanent or temporary, who is disabled by injury accidentally incurred in, or in consequence of the due performance of his official duties or in consequence of his official position, or by illness incurred in the performance of any particular duty, which has the effect of increasing his liability to illness or injury beyond the ordinary risk attaching to the civil post which he holds”.
Here again the words to be marked are “disabled by injury accidentally incurred in, or in consequence of, the due performance of official duties or inconsequence of his official position”. Needless to say that the applicant had not visited his native place Rohtak in Official capacity nor did he get injured in consequence of performing his official duty.
            In these circumstances, it can be safely concluded that the provision of special disability leave in r/o an employee is for those cases wherein the injury is in consequence of discharge of official duty, whereas in this case the employee was in his home town for his personal obligation when he got his left shoulder injured.
Now, therefore, the undersigned is of the considered view that the applicant may apply for leave as due/ eligible to him but his case does not merit grant of leave under provisions of Special Disability Leave u/r 44 &45 of the CCL Leave Rules.
            This issue with prior approval of competent authority.

(JUHIAGGARWAL)
DDE (WEST-B)”
7.       Thereafter the complainant submitted that the DoE is harassing him by not granting him special disability leave. 
8.       In view of the fact that DoPT OM no.18017/01/2014-Estt. (L) dated 25.02.2015 specifically states that the leave applied on medical certificate ‘’in connection with disability” should not be refused or revoked without reference to a Medical Authority, whose advice shall be binding, the complainant was directed to submit documents (report from medical authority) indicating the percentage of disability due to the ligament injury of his left shoulder and that he was declared incapacitated to join the duty because of that disability vide letter dated 12.06.2018.  All India Institute of Medical Sciences, New Delhi who had assessed his disability and issued disability certificate on 22.10.1990, was also requested that the assessment of disability of the complainant due to injury of his shoulder may be done and to indicate the percentage of disability due to said injury before taking a view to recommend or otherwise his case for grant of special disability leave.
9.       All India Institute of Medical Sciences, New Delhi vide letter dated 06.11.2018 informed as under:
“The disability due to multiligamental pathology of left shoulder without surgical intervention is 18% (Eighteen Percent), when calculated in isolation without any disability of any other part of the body.
However, the patient is also suffering from Post Polio Residual Paralysis of Bilateral Lower Limb. The disability when calculated together for bilateral lower limb and shoulder is 90% (Ninety Percent) without any surgical intervention of his shoulder.
Patient has a limited ability due to weakness in bilateral lower limb as patient has to use upper limb for daily living.”
10.     The following points raised by the complainant need to be addressed:
i)             Whether the complainant’s case is covered under Section 47 of the Persons with Disabilities Act, 1995.
ii)            Whether the order of Commissioner for Persons with Disabilities, Govt. of Haryana in the case of Sh. Sameer Narula Vs. Punjab National Bank upheld by Hon’ble High Court of Punjab and Haryana vide order dated 27.11.2015 is relevant to the complainant’s case.
iii)          Whether the complainant’s case is covered under DoPT’s OM no.18017/01/2014-Estt. (L) dated 25.02.2015.
11.     Section 47 of the Persons with Disabilities Act, 1995 provides as under:
47.       (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.
12.     The above provision is apparently for cases in which a Govt. employee acquires a disability during his/her service that renders him/her unsuitable for the post he/she was holding.  Section 47 is applicable irrespective of whether the employee was performing any official duty or otherwise.  It is very clear that nature/the severity of the disability so acquired should be such that the employee concerned is not able to perform the functions of the post he /she was holding.  Sh. Sameer Narwal, whose case was before the Commissioner for Persons with Disabilities, Haryana and Punjab & Haryana High Court, was not paid his salary and allowances on the ground that he acquired disability outside the duty hours and not during the course of his duties. 
13.     Whereas in the instant case, the nature or the extent of disability acquired by the complainant as a consequence of the injury in his shoulder was not such as to render him not suitable for the post of PGT (Hindi) that he was holding.  The treating doctor only advised him bed rest from 29.11.2016 to 06.03.2017 for a period of 98 days at the end of which he was declared fit to join the duty.  AIIMS, New Delhi has certified that the extent of disability due to the said injury is 18% which did not increase the overall percentage of disability of the complainant which was 90%.  Therefore, Section 47 of PwD Act, 1995 is not applicable to the case of the complaint, and the order of Hon’ble High Court of Punjab and Haryana is not relevant to the facts of this case. 
14.     The DoPT’s OM dated 25.02.2015 also provides that the leave on medical certificate in connection with disability should not be debited from the account of govt. servant and if the same has been debited, it should be remitted back into his/her leave account.  For this to happen, the affected employee should have acquired disability and at the end of the treatment, he/ she should be issued a certificate of disability, as provided in CCS (Leave) Second  Amendment Rules, 2018 notified vide GSR 438(E) dated 03.04.2018. The said amendment provides that the Medical Authority for the purpose of special disability leave shall issue certificate of disability in Form 3A and which, among other things, shall recommend that the Govt. servant may be granted leave on medical ground.  If it were not so, any Govt. employee who is advised bed rest for any ailment and for any duration could claim special disability leave, which certainly is not the intent of Section 47 of the Persons with Disabilities Act, 1995 or CCS (Leave) Second Amendment Rules, 2018. Disability, as per clause (f a) of the Amendment Leave Rules, 2018 means “specified disability” “benchmark disability” and “disability having high support needs” as referred to in the Rights of Persons with Disability Act, 2016. 
15.     As the complainant was incapacitated due to the injury in his shoulder and he acquired 18% permanent disability due to the said injury, it is recommended that the complainant’s request for grant of special disability leave should be considered, if he produces the recommendation from the medical authority in Form 3A in term of DoPT’s OM no. 18017/1/2014-ESA(L) dated 25.02.2015 and consequent amendment to CCS (Leave) Rules vide Notification dated 11.12.2018. It may be noted that para 7 of DoPT’s OM dated 25.02.2015 mentioned that necessary amendments to CCS (Leave) Rules, 1972 were being notified separately. Hence the request of the complaint should not be rejected on the ground that the amendment notification is dated 11.12.2018.
16.     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.
17.     The complaint is disposed off.
18.     Given under my hand and the seal of the Court this 07th day of March, 2019.     





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