Syndicate Bank, Divisional Office, M.G. Road, Ernakulam V. The Assistant Secretary, Syndicate Bank, T.D. Road, Cochin-682 035 and Syndicate Bank Staff Association, T.D. Road, Cochin-682 035 and Central Government Industrial Tribunal cum-Labour Court, Ernakulam-682 011

WA/1728/2012

AI Insights

The case revolves around the termination of Mr. R. Santharam Pai, a clerk at Syndicate Bank, who suffered a severe disability (quadriplegia) due to a road accident. The management terminated his service based on the Sasthri Award, citing his inability to perform duties due to 100% disability. Mr. Pai's union contested the termination, leading to proceedings before the Labour Court, which found the termination illegal under the Disabilities Act. The management's appeal to the High Court challenged the Labour Court's jurisdiction and the applicability of the Disabilities Act, but the court upheld the Labour Court's decision, emphasizing the protection afforded to disabled employees under the Act.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 799147 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-03-2013
• Assessment Year: misc
• Other Referred Cases: F.A.C.T. v. Gopinatha Panicker, Mukand Ltd. v. Mukand Staff & Officers' Association, State Bank of Bikaner & Jaipur v. Om prakash Sharma, Commissioner of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver, Bhagwan Dass v. Punjab State Electricity Board
• Laws Referred To: Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Industrial Disputes Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: N NAGRESH; T V VINU; O V RADHAKRISHNAN; P PARAMESWARAN NAIR
• Assessee Lawyers: M P ASHOK KUMAR; P C GOPINATH; S A ABDUL SALEEM; M R DHANIL; S NANDAGOPAL
• Keywords: Disability; Industrial Tribunal; Labour Court; Termination of service; Welfare legislation; Quadriplegia
• Section: 10B; 50; 47; 10A; 59; 10(4)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934 WA.No. 1728 of 2012 () ------------------------------- {IN WP(C).16412/2009 OF THIS COURT} APPELLANT(S)/PETITIONER : ------------------------------------------- THE DIVISIONAL MANAGER, SYNDICATE BANK, DIVISIONAL OFFICE, M.G.ROAD, ERNAKULAM. (NOW THE DEPUTY GENERAL MANAGER SYNDICATE BANK, REGIONAL OFFICE, PIONEER TOWERS, ERNAKULAM IS IN CHARGE OF THAT BANK). BY ADVS.SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SRI.S.A.ABDUL SALEEM SRI.M.R.DHANIL SRI.S.NANDAGOPAL RESPONDENT(S)/RESPONDENTS : ------------------------------------------------------ 1. THE ASSISTANT SECRETARY, SYNDICATE BANK, T.D.ROAD, COCHIN-682 035. 2. SYNDICATE BANK STAFF ASSOCIATION, T.D.ROAD, COCHIN-682 035. 3. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM-LABOUR COURT, ERNAKULAM-682 011. R1 & 2 BY ADV. SRI.N.NAGARESH R1 & 2 BY ADV. SRI.T.V.VINU R1,R2 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, C.J. & K. VINOD CHANDRAN, J. ---------------------------------------------------- W.A. No.1728 of 2012 ---------------------------------------------------- Dated this the 21st day of March, 2013 Judgment Manjula Chellur, C.J. This appeal is directed against the judgment dated 24.7.2012 in W.P.(C) No.16412 of 2009. In order to understand the real question of controversy, a brief note of the facts that led to the filing of the present litigation need to be mentioned. 2. One Mr.R.Santharam Pai, a Clerk working in the Syndicate Bank met with a major road accident on 26.8.1993 which resulted in serious injuries. Ultimately, he was diagonised with Quadriplegia on account of injuries in the road accident. The medical board, after examining the workman certified that he has cent percent disability. Therefore, appellant-Management decided to terminate the services of the workman after giving him necessary notice in terms of settlement, i.e., clause 522(1) of the Sasthri Award. However, the workman represented by his wife gave several representations which were not taken into consideration. Therefore, the Union took up the issue to espouse the cause of the workman before the Central Labour W.A.No.1728/12 2 Commissioner. 3. Incidentally, they also raised a contention that the workman could be terminated only on the date of attaining superannuation at 60 years. As conciliation proceedings failed before the Central Labour Commissioner, the appropriate Government referred the dispute for adjudication to the Labour Court concerned. Before the Labour Court, management's stand was that termination of service of the workman in terms of Sasthri Award, especially clause 522(1) which mandates three months notice was duly complied with and there was neither illegality in the procedure nor was there arbitrary exercise of power by the management is the contention of the appellant. 4. The Labour Court, after giving opportunity to both the parties, ultimately concluded that the termination of service of workman was in violation of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Disabilities Act'). It is pertinent to mention that apart from adjudicating the validity of termination of service of the workman, another dispute with regard to appointment of the wife of the workman was also W.A.No.1728/12 3 adjudicated by the Labour Court. So far as the second question with regard to compassionate employment to the wife of the workman during life time of employee, the Labour Court did not agree with the claim of the Union and rejected the same. Opining that the termination of service is illegal, the same being in total violation of Section 47 of the Disabilities Act, the Labour Court proceeded to direct the appellant-management to treat the workman as being in service till the date of superannuation by extending all the benefits that were payable to him if he were to be in service. There could not be any order of reinstatement as the workman superannuated in the year 2000, and the Industrial Dispute came to be disposed of on 23.5.2008. 5. Aggrieved by the award of the Industrial Tribunal, a writ petition came to be filed. The learned Single Judge dealt with the contentions raised by the writ petitioner-management with regard to application of Disabilities Act as determined by the Labour Court discharging the functions of a Tribunal under the Industrial Disputes Act (for short 'I.D.Act'). However, rejecting the stand of the management that the Labour Court is not having jurisdiction to adjudicate the issues under Disabilities Act, the W.A.No.1728/12 4 learned Single Judge proceeded to opine; while considering the dispute under I.D.Act, consideration of provisions of Disabilities Act, especially Section 47 of the Disabilities Act was justified by holding that Section 59 does not exclude the jurisdiction of the Labour Court. Therefore, the award passed by the Labour Court came to be upheld by dismissing the Writ Petition. The learned Single Judge also opined the law laid down in F.A.C.T. v. Gopinatha Panicker (2004 (2) KLT 455) would apply to the facts of the present case. Aggrieved by the said judgment of the learned Single Judge, the management is before us. 6. Learned counsel arguing on behalf of the appellant- management raised three points for consideration contending that the answer to the above three points with reference to Sections47 and 50 of the Disabilities Act pointing out that the Disabilities Act is a mechanism by itself which deals with the issues pertaining to the persons suffering from disability as contemplated under the Disabilities Act. The three points are as under: 1) Whether the Labour Court could decide a matter beyond the reference, an issue which is not W.A.No.1728/12 5 specifically referred by the appropriate government. 2) Whether the Labour Court can decide the controversial issue in question; not being a competent authority constituted under Section 50 of the Disabilities Act. 3) Whether interpretation of Section 47 of the Disabilities Act would include a person who is suffering cent percent disability to discharge any kind of work including reporting for duty by marking attendance in the office. He relies on the decision of the Andhra Pradesh High Court in State Bank of India v. Industrial Tribunal, Hyderabad (2002-II-LLJ 703) and the decisions of the Supreme Court in Mukand Ltd. v. Mukand Staff & Officers' Association [ (2004) 10 SCC 460] and State Bank of Bikaner & Jaipur v. Om prakash Sharma [ (2006) 5 SCC 123]. 7. Mr.M.P.Ashok Kumar, learned counsel arguing on behalf of the appellant-management contends that in the absence of any pleading with regard to benefits flowing from Disabilities Act; a special statute, was Labour Court justified in interpreting W.A.No.1728/12 6 Section 47 of the Disabilities Act, especially in the absence of mentioning the same in the claim statement before the Labour Court. He relies on Section 7A to show how the Tribunals are constituted by notification by the appropriate Government to deal with the matters under the I.D.Act. He relies on Section 10(4) of the I.D. Act to contend that except on the specified points of dispute for adjudication, the Labour Court or the Tribunal shall not travel beyond its jurisdiction. He also relies on Rule 3(b) of the Industrial Disputes (Central) Rules, 1957 (for short 'the Central Rules') to substantiate his contention that the scope of adjudication before the Labour Court or the Industrial Tribunal should not go beyond the specific issues in dispute. According to him, the Tribunal must confine to the specific issues in dispute as per 10A and 10B of the Central Rules. He further contends that as required under 10A of the Central Rules, the parties to the dispute must forward a statement setting forth the specific issues in dispute to the Conciliation Officer concerned whenever his intervention is sought. Rule 10B of the Central Rules refers to the proceeding before the Labour Court, Tribunal or National Tribunal with regard to statement of claim and the procedure to deal with W.A.No.1728/12 7 the same. 8. According to the learned counsel for the appellant- management Mr.Ashok Kumar, in the present case the Labour Court, totally ignoring its jurisdiction to deal with the dispute, placed reliance on an earlier statement which was not the subject matter of the dispute at all even according to the claim statement of the Union and therefore, he contends that the award of the Labour Court with the above directions is totally alien to the exercise of power by the Labour Court under the I.D.Act and the award is one without jurisdiction. The Tribunal cannot try the dispute under the Disabilities Act is the argument. He further contends that the learned Single Judge totally ignored the fact that at the fag end of the adjudication before the Labour Court, the workman placed reliance on Disabilities Act and therefore, the management was not in a position to challenge the same as contemplated under the Disabilities Act. According to the appellant, none of the observations of the learned Single Judge so far as the appreciation of facts on record with reference to Disabilities Act is justifiable, therefore, the judgment of the learned Single Judge deserves to be set aside for the simple W.A.No.1728/12 8 reason that award of the Labour Court was beyond the scope of the I.D.Act and hence not a valid award in the eye of law. 9. As against this, learned Senior Counsel Mr.O.V.Radhakrishnan arguing for respondents 1 and 2, took us through the contents of Ext.P1, the reference order, to contend that the entire dispute revolves round the medical ground, i.e., the disability of the workman on account of the disability sustained by him in a motor accident. According to the learned counsel, the enactment being a special statute and a welfare legislation, has to be applied in appropriate cases and the competent authority under Section 50 of the Disabilities Act is not an adjudicatory authority and therefore, such a dispute could be considered only in a court of law having inherent jurisdiction while deciding an issue directly or impliedly raised before the court. According to the learned Senior Counsel, the very termination order clearly indicates that on account of the petitioner's disability, he was terminated and also brings to our attention a glaring deficit, i.e., Sasthri Award was much prior to the introduction of the Disabilities Act. According to the learned Senior Counsel, in order to ascribe or certify a person disabled as W.A.No.1728/12 9 indicated in the Disabilities Act, he must have 40% of the disability which would attract the definition of disability as defined under the Disabilities Act. Therefore, if the disability is below 40% under the enactment, none of the benefits could be extended and if disability is beyond 40%, one cannot say there cannot be any benefit flowing out of the provisions of the special statute. He stresses upon the second proviso to Section 47 of the Disabilities Act to contend that this is an enabling provision and there is a mandate to consider this special enactment by all the parties who are concerned with the said enactment, i.e., the management or the courts dealing with the dispute in question. He relies upon the decisions of the Supreme Court in Commissioner of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver (AIR 1968 SC 59) and Bhagwan Dass v. Punjab State Electricity Board [ (2008) 1 SCC 579]. 10. Section 2(k) of the I.D.Act defines what 'industrial dispute' would mean which reads as under: “ “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between W.A.No.1728/12 10 workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;” Section 7A of the I.D.Act refers to constitution of one or more Industrial Tribunals for the adjudication of industrial disputes by the appropriate Government by way of notification in the official gazette. It is not in dispute that the Bank in question is also an industry and the relationship between the management and the workman thus covers the subject; under I.D.Act. Section 10 of the I.D.Act deals with reference of disputes to both Courts or Tribunals. Sub-section (4) of Section 10 of the I.D.Act is relevant in order to answer the issue raised by the appellant-management whether the Labour Court could decide a matter which was not the subject matter of reference. The dispute that came to be referred for adjudication by the appropriate Government under Section 10(1)(d) of the I.D.Act reads as under: “Whether the action of the management of Syndicate Bank to terminate the services of Sh.R.S.Pai, Clerk vide order dated 16.12.96 is legal and justified, and whether the management is justified in not considering the request of the Smt.Pushpa Pai, W.A.No.1728/12 11 W/o.R.S.Pai terminated employee due to medical ground for compassionate appointment? If not, what relief the workman is entitled to?” In order to understand the genesis of the dispute in question, we have to necessarily refer to order of termination dated 16.12.1996 which reads as under: SYNDICATE BANK: ZONAL OFFICE (PERSONNEL CELL : WORKMEN SECTION) THIRUVANANTHAPURAM -695 010 Ref.No: 1440/ZO/PC/WS/TVZ Dated 16/12/1996 TERMINATION ORDER WHEREAS Sri.R.Santarama Pai joined the service of the Bank on 01.02.1978 as Clerk and is governed by the Service Conditions as envisaged in Sastry Award and Bipartite Settlements. AND WHEREAS he is presently posted at Kochi Stock Exchange Branch and has been absenting from attending duties since 1.9.93 in view of his incapacitation due to injuries sustained when he had met with an accident on 28.08.1993. AND WHEREAS he has availed extraordinarily leave on loss of pay of 579 days so far till 01.09.1996 and no W.A.No.1728/12 12 further request for leave has been received. AND WHEREAS the Medical Board constituted by the Bank for medical examination of Sri.R.Santarama Pai has certified vide their Certificate dt. 15.05.1996 that Sri.R.Santarama Pai is 100% disabled and accordingly, he is incapacitated to discharge his duties as Clerk in the Bank. AND WHEREAS in terms of service conditions of employees laid down under para no.522(1) of Sastry Award as modified and Bipartite settlements state that in cases not involving disciplinary action for misconduct and subject to provision of para 4 of Chapter XXXIV, the employment of a permanent employee may be terminated by three months notice or on payment of three months' pay and allowances in lieu of notice. Now, therefore, since the services of Sri.R.Santarama Pai are not available to the Bank on account of his disablement, the undersigned being the Competent Authority decides to invoke the above provisions and terminate the services of Sri.R.Santarama Pai, Clerk, Emp.No.249780, Kochi Stock Exchange Branch by giving three months' notice and he stands terminated from the services of the Bank on the expiry of three months from the date of receipt of this notice. W.A.No.1728/12 13 SD/- DY. GENERAL MANAGER To Sri.R.Santarama Pai, Emp.No.249780, Clerk (Kochi Stock Exchange Branch), “Narayana Nivas”, T.D.Road, ERNAKULAM, COCHIN-682 011.” 11. After referring to the major accident met by the terminated employee, the management refers to the leave extended to him, i.e., ordinary and extraordinary. It also refers to Medical Board constituted by the Bank for medical examination of Mr.R.S.Pai. According to this, as the Medical Board certified the disability of the employee is 100%, the management opined he is incapacitated to discharge his duties as Clerk in the Bank. Therefore, in terms of clause 522(1) of Sasthri Award and Bipartite Settlement entered from time to time, after giving three months notice, the services of the employee came to be terminated. The termination order clearly indicates that on account of the disability of the employee-Clerk as per the certificate of the Medical Board constituted by the Bank on account of his 100% disability, the management opined he was incapable of discharging his duties as Clerk, and therefore W.A.No.1728/12 14 terminated him from service. 12. The question is whether under the I.D.Act, the Labour Court could have considered provisions of the Disabilities Act which was never raised either in the complaint before the Competent Authority or referred by the Government or mentioned in the claim statement before the Labour Court. Reading of certain provisions of Disabilities Act would enable us to decide the controversy placed before us. Section 2 of the Disabilities Act deals with various definitions of the Act. Section 2 (h) defines “competent authority” as an authority appointed under Section 50 of the said Act. Section 2(i) defines “disability” as under: (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (viii) mental illness; We are concerned with locomotor disability which is one of the disabilities coming under Section 2(i) (v) of the Disabilities Act as stated above. Reading of Section 2(o) of the Disabilities Act, one W.A.No.1728/12 15 has to understand what exactly was locomotor disability having regard to the disability of quadriplegia suffered by the appellant. Section 2(o) of the said Act defines 'locomotor disability” as under: “locomotor disability” means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;” None of the definitions under Section 2 of the Disabilities Act excludes a person from the purview of the enactment if the suffering of disability is above 40%. A person must be certified by a Medical Board to be suffering from not less than 40% of any disability defined under Section 2(i) of the Disabilities Act to label him as a person with disability. In other words, the Disabilities Act prescribes minimum percentage of disability to extend the benefits of the said Act and it does not prescribe maximum percentage of disability as a criteria to be considered for the benefit of the Disabilities Act. Anything at 40% and above if the person is suffering of any one of the disabilities described under Section 2(i) of the Disabilities Act could be subjected to the benefit of the provisions of the Disabilities Act. Any W.A.No.1728/12 16 interpretation that 100% is a total disability removed from the scope and ambit of the Act would be a 'causus omissus' not necessitated; by reason of no ambiguity in the legislature prescribing anything above 40% as disability under the Act. 13. Section 10A of the I.D.Act empowers a Tribunal or Labour Court constituted under the I.D.Act that when an order of reference is sent by appropriate Government specifying the points of dispute for adjudication, the Labour Court or Tribunal, as the case may be, has to confine its adjudication only to those points and also matters incidental thereto. Though the order of reference did not indicate Disabilities Act, whether the issue falling under the Disabilities Act could have been discussed or not by the Labour Court is to be seen. 14. Learned counsel for the appellant-management refers to State Bank of India v. Industrial Tribunal, Hyderabad (supra), a Division Bench judgment of the High Court of Andhra Pradesh and places reliance on para 8 which reads as under: “In our considered opinion, in directing the reinstatement of Sri.Golla Vijayendra Rao, with full back wages and other attendant benefits, the Industrial Tribunal has exceeded the jurisdiction W.A.No.1728/12 17 vested in it. It is well settled that the jurisdiction of the Industrial Court to decide industrial disputes is determined by the terms of reference. In R.S.Ram Dayal Ghasiram Oil Mills v. Labour Appellate Tribunal, AIR 1964 SC 567: 1963-II-LLJ-65 the Supreme Court held that the Industrial Tribunal requres jurisdiction to adjudicate upon an 'industrial dispute' only after it has been referred to it. In other words, without such reference, the Tribunal does not get any such jurisdiction to adjudicate upon any dispute. Where in an order referring an industrial dispute to a Tribunal under Section 10(1) of the Act, the appropriate Government has specified the points of dispute for adjudication, the Tribunal shall confine the adjudication to those points and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its adjudication to the point specifically mentioned and anything which is incidental thereto. We do not find it necessary to dilate this aspect further because in a recent judgment in W.A.No.649 of 2001, dated March 11, 2002, we have had an occasion to consider the case law governing jurisdiction of the Industrial Court to decide industrial disputes on a reference by the appropriate Government under Section 10(1) of the Act.” W.A.No.1728/12 18 In this case also the dispute was between State Bank of India and its employees. The issue was with regard to reinstatement of one Golla Vijayendra Rao with full back wages and with full attendant benefits. The management contended before the Court that the Industrial Tribunal exceeded its jurisdiction vested in it, therefore, there was no justification in the award passed by the Industrial Tribunal in the said case. While dealing with the said issue, after referring to the decision of the Supreme Court in R.S.Ram Dayal Ghasiram Oil Mills v. Labour Appellate Tribunal (AIR 1964 SC 567), the Division Bench of the Andhra Pradesh High Court dwelt upon the word 'industrial dispute' and queries as to whether it means only the points of reference or whether a Tribunal or Court dealing with the dispute could look into other factors as well. In that context, while saying that the Tribunal is not free to enlarge the scope of the dispute referred to it and has to confine its adjudication to the points specifically mentioned, the Court opined that anything which is incidental to the words, could also be dealt with. 15. On the same issue, learned counsel for the appellant- management relies upon Mukand Ltd. v. Mukand Staff & W.A.No.1728/12 19 Officers' Association (supra)(paragraphs 23 and 36) to contend that the Tribunal, being a creature of the statute prescribing resolution of disputes referred; cannot adjudicate matters not within the purview of the dispute as spelt out in the order of reference. In that context, their Lordships opined the issue of salaries not being a point for reference could not have been decided by the Tribunal. Placing reliance on this, it is contended that in the present case also, deciding the issues under the Disabilities Act, was beyond the scope of reference. 16. Placing reliance on State Bank of Bikaner & Jaipur v. Om prakash Sharma (supra) (paragraph 14), learned counsel for the appellant contends that in the absence of adjudication of any reference which is not emanating from the order of reference, there is no justification in the exercise of power by the Labour Court as it is nothing but exceeding its jurisdiction. In the present case, the dispute for adjudication referred by the appropriate Government was with regard to termination of services of the employee on the ground of disability. While considering the said ground of termination, whether consideration of Disabilities Act is valid or not, has to be W.A.No.1728/12 20 considered. 17. The defence placed by the management with reference to various awards and Bipartite Settlements between the Management and the Union representing the employees is the background in which the issue is to be considered. 18. Incidentally, if any enactment throws light on the rights of the parties to the dispute, the same has to be considered by the authority adjudicating the reference. In order to conclude whether the termination in question was valid or not, the special enactment, being a welfare legislation was glaring at the Labour Court and happened to be relied upon by the employee. Necessarily it has to be considered as it is incidental to the dispute at hand, as the disability in question was the basis for termination and the person suffering from disability has to be considered, from the point of the special enactment; a welfare legislation. Therefore, especially when the employee raised extension of benefits to him under the Disabilities Act; when the management terminated his services because of his 100% disability, there is no reason why the Tribunal or the Court should not look into the provisions of the Disabilities Act to arrive at a W.A.No.1728/12 21 right conclusion while answering the cause placed before the Court. Therefore, we are of the opinion, considering the dispute or the reference or points of reference, definitely this case calls for application of provisions of Disabilities Act as it is a matter incidental to the main issue; i.e., validity of termination of service on the basis of disability. 19. Then coming to the second point, i.e., whether the Labour Court can decide the issue under Section 50 of the Disabilities Act and whether the Labour Court was a competent authority under the said Act, one has to definitely refer to Section 50 of the Disabilities Act. This comes under Chapter X of the Disabilities Act. Said Chapter indicates how the State Government shall appoint any authority as it deems fit, to be a competent authority for the purpose of the Disabilities Act. Section 51 of the said Act refers to establishment and maintenance of an institution for persons with disabilities and the mandate for obtaining a certificate of registration. Section 52 deals with Certificate of Registration. Section 53 deals with revocation of certificate. Section 54 deals with appeal, if any, to be filed against the order of the competent authority by refusing W.A.No.1728/12 22 to grant a certificate or revoking a certificate which was already granted. None of the provisions of this Chapter are applicable to the resolution of the dispute or points of reference before the Labour Court. 20. Chapter XI of the Disabilities Act deals with institutions for persons with severe disabilities. Chapter XII of the Disabilities Act refers to appointment of Chief Commissioner and Commissioners for persons with disabilities. Section 57 of the said Act deals with appointment of Chief Commissioner under the Disabilities Act and Section 58 deals with functions of the Chief Commissioner which is relevant to understand the functions that could be exercised by the Chief Commissioner. It reads as under: “58. Functions of the Chief Commissioner.- The Chief Commissioner shall- (a) coordinate the work of the Commissioners; (b) monitor the utilisation of funds disbursed by the Central Government; (c) take steps to safeguard the rights and facilities made available to persons with disabilities; (d) submit reports to the Central Government on the implementation of the Act at such intervals as the Government may prescribe.” W.A.No.1728/12 23 Section 59 of the Disabilities Act refers to duties and the power of the Chief Commissioner, suo motu, or receiving any complaint or application by any aggrieved party or otherwise. Section 60 of the said Act deals with appointment of Commissioners for persons with disabilities. Section 61 refers to powers of the Commissioner which reads as under: 61. Powers of the Commissioner.- The Commissioner within the State shall - (a) co-ordinate with the departments of the State Government for the programmes and schemes for the benefit of persons with disabilities; (b) monitor the utilisation of funds disbursed by the State Government; (c) take steps to safeguard the rights and facilities made available to persons with disabilities; (d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner.” The powers of Commissioner under Section 61 and the powers of the Chief Commissioner under Section 58 would clearly indicate how these two statutory functionaries have to co-ordinate the work assigned to them with reference to the provisions of the W.A.No.1728/12 24 Disabilities Act. Section 62 is akin to Section 59 indicating the powers of the Commissioner. Section 63 refers to powers of authorities and officers while dealing with the matters before them, similar to powers of the civil court. This is with reference to following matters, i.e., Section 63(a) to (e). None of these provisions either under Chapter X, Chapter XI or Chapter XII, have an indication of any adjudicatory powers being given to the authorities. 21. The entire provisions referred to above would only indicate that the Chief Commissioner has to co-ordinate with the departments of the State Government for the programmes and the Schemes beneficial to the persons with disabilities, monitoring the utilisation of funds granted by the State Government, taking steps safeguarding the rights and facilities made available to persons with disabilities and submitting report to the State Government on the implementation of the Act. He can also look into the complaints in respect of matters relating to deprivation of rights of persons with disabilities, non- implementation of laws and take up the matter with the appropriate authorities. However, he cannot act on the complaint W.A.No.1728/12 25 or representation taking the responsibility of adjudicating the matter itself. He can utmost take up the matter before the appropriate authorities, to fight for the rights of the persons with disabilities. He cannot himself enforce any of the benefits flowing under the Disabilities Act towards the persons with disabilities. Therefore, the argument of the learned counsel for the appellant- management that Labour Court is not a competent authority under Section 50 of the Disabilities Act cannot be considered at all because the appropriate authority or the competent authority under the Disabilities Act cannot adjudicate the reference; like that of a Labour Court or Industrial Tribunal. 22. In the light of our definite opinion that the Industrial Tribunal or Labour Court can also look into the matters incidental to the points of reference, automatically the Labour Court gets jurisdiction to decide the industrial dispute from the point of view of Disabilities Act also, as the party to the dispute was a person with disability. Quadriplegia was the disability which comes under the definition of 'locomotor disability', i.e., Section 2(o) of the Disabilities Act. He was certified by the Medical Board as a person suffering from Quadriplegia; as the locomotor activity of the W.A.No.1728/12 26 bones, joints and muscles were restricted. The four limbs, two upper and two lower limbs of the person should not be functioning in order to consider him a person with disability above 40%. On the other hand, he was suffering from 100% disability as certified by the Medical Board constituted by the management-Bank itself. Therefore, we have to consider whether the termination on the ground of 100% disability of the employee has to necessarily refer to the provisions of Disabilities Act to understand the controversial issue in the right perspective. 23. Then coming to the third point raised by the appellant- management, i.e., whether interpretation of Section 47 of the Disabilities Act is in consonance with the intention of the legislation, one has to read what exactly Section 47 and its provisos, especially second proviso to sub-section(1) would mean. Section 47 and its second proviso are relevant for the purpose of this appeal which reads 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: W.A.No.1728/12 27 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.” According to the learned counsel, Section 47 has to be read along with Section 2(o) in order to understand whether a supernumerary post contemplated under second proviso to Section 47 could be extended to the employee in question, when an employee suffers from 100% disability which disabled him to do any work and was disabled from even coming to the office and marking his attendance. It is nobody's case and, especially not W.A.No.1728/12 28 the case of the appellant-management that as required under Section 47, they called upon the terminated employee to come and mark his attendance in order to consider, whether a supernumerary post could be created or not. On the basis of the medical certificate issued by the Medical Board, they proceeded to terminate his services, totally ignoring the provisions of the special welfare legislation; Disabilities Act. 24. In order to interpret Section 47, one has to see the object for which the enactment was thought of by the legislature. The provisos 1 and 2 to Section 47(1) has to carefully read along with Section 47 of the Disabilities Act. The appellant- management could not have dispensed with the services of the employee unless they had undertaken the exercise as contemplated under provisos one and two. They have to first determine that the employee after acquiring the disability was not suitable for the post he was holding and then; whether there is a possibility of shifting him to some other posts with same pay scale and service benefits. If that is not possible, the 2nd proviso has to be applied which mandates that the employer has to look for all possibility to accommodate the employee in any alternative W.A.No.1728/12 29 post and if that is not possible, then a supernumerary post has to be created to keep the employee in service until a suitable post is available or till the employee attains the age of superannuation whichever is earlier. Apparently, this exercise was not at all taken by the appellant-management. 25. In this context, it is relevant to refer to the decision of the Supreme Court on this point in Bhagwan Dass v. Punjab State Electricity Board (supra). It clearly indicates the sensitivity with which one has to consider the continuance of the person with disability. Paragraphs 2, 3 and 4 and also paragraphs 17 and 19 of the said decision are relevant. It was a case of an employee, a Lineman, in the Punjab State Electricity Board who totally lost his vision and he was not given the protection that the law afforded to him, therefore, their Lordships in the said paragraphs, which is narrated hereunder, opines how a normal healthy living person should consider the life of a person with disabilities. Their Lordships deprecated, the highly insensitive and apathetic attitude harboured by some by the executives of the Board, the employer therein, and its officers concerned. Paragraphs 2, 3, 4, 17 and 19 are extracted hereunder: W.A.No.1728/12 30 “2. This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of Appellant 1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous. 3. The facts of the case are brief and are all taken from the (reply) affidavit filed on behalf of the Punjab State Electricity Board and its officers (the respondent in the appeal). Appellant 1 joined the respondent Board on 19.7.1977, on an ad hoc/work- charged basis. His services were regularised as an Assistant Lineman on 16.6.1981. While in service he became totally blind on 17.1.1994 and a certificate to that effect was issued by the Civil Surgeon, Faridkot. 4. Here, it may be noted that the rights of an employee who acquires a disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 17. From the materials brought before the court by none other than the respondent Board it is manifest that notwithstanding the clear and definite W.A.No.1728/12 31 legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated 17-7-1996. The letter was written when a charge-sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. 19. We understand that the officers concerned were acting in what they believed to be the best interests of the Board. Still under the old mindset 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 W.A.No.1728/12 32 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 largesse but their right as equal citizens of the country.” 26. Whether the benefits under the Disabilities Act could be extended in the absence of any positive reference to 100% disability as already stated above with reference to point No.1 is the real issue. Except defining person with disability as a person suffering from 40% disability, none of the provisions refer to any situation where the disability generally is above 40% or 100%, for that matter. The minimum is prescribed and not the maximum. Therefore, if a person is suffering from more than 40% disability, even if it were to be 100%, he cannot be considered as a person who does not fall within the ambit of disability, without express exclusion. On the other hand, he has to be considered as a person with disabilities. In the context of W.A.No.1728/12 33 the very word used in the 2nd proviso, i.e., 'supernumerary post', that itself would indicate a fictional position has to be created so as to accommodate the person with disability to continue his work as it would boost his morale to live and also the drive to live. With this object in mind, the special legislation is thought of, and if the special legislation is meant to extend benefit to the persons with disabilities under the Disabilities Act, it is the duty of every one, especially the management and the courts to see that no person is deprived of the benefit of the legislation. In other words, 100% disability not being defined under the enactment or excluded, it is not open to the appellant- management to contend that a person who is totally unable to do any kind of work including marking his attendance and visit the office is excluded from the purview of the enactment. In this context, the law laid down by the Apex Court in Commissioner of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver (supra) is relevant. Paragraphs 8, 9 and 10 are relevant which reads as under: “8.........Generally speaking, it is true that the proviso is an exception to the main part of the section; but it is recognised that in exceptional cases W.A.No.1728/12 34 a proviso may be substantive proviso itself. We may in this connection refer to Rhondda Urban District Council v. Taff Vale Railway Co. 1909 AC 253, where S.51 of the Act thereunder consideration was framed as a proviso to preceding Sections. The Lord Chancellor however pointed out that “though S.51 was framed as a proviso upon preceding Sections, but it is true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before”. 9. Again in Commissioner of Income-Tax v. Nandlal Bhandari and Sons 1963-47 ITR 803 (MP) it was observed that “though ordinarily a proviso restricts rather than enlarges the meaning of the provision to which it is appended, at times the legislature embodies a substantive provision in a proviso. The question whether a proviso is by way of an exception or a condition to the substantive provision, or whether it is in itself a substantive provision, must be determined on the substance of the proviso and not its form”. 10. Finally, in State of Rajasthan v. Leela Jain 1965-1 SCR 276 = (AIR 1965 SC 1296) the question arose whether the proviso in the Act under consideration there was a limiting provision to the main provision or was a substantive provision in itself. This Court observed that “so far as general W.A.No.1728/12 35 principal of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the S. and carve out something which but for the proviso would have been within the operative part.” But it was further observed that the proviso in that particular case was really not a proviso in the accepted sense but an independent legislative provision by which to a remedy which was prohibited by the main part of the Section, an alternative was provided.” 27. As per the above judgment, one has to look at the proviso in order to understand whether it is called as an exemption or condition resulting as a substantive provision for the purpose of achieving the object of the enactment. Section 47 definitely indicates how a person with disability, who is in an employment under an employer, has to be dealt with. Proviso two is an enabling proviso and not an exception. At no stretch of imagination, one can ascribe any restriction so far as the second proviso to Section 47 of the Disabilities Act. If there is any deficit or vagueness to understand a legislation, it is well settled that one has to look into the objects for which the legislation is made. The interpretation sways to the benefit of those protected. As W.A.No.1728/12 36 already stated above, it is a welfare legislation meant to alleviate the problems of persons with disabilities and in a way to eliminate discrimination on the grounds of disability against the persons who come within the purview of this enactment. As a matter of fact, this enactment came into force after participation of India, in the meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993-2000 convened by the Economic and Social Commission for Asia and Pacific, held at Beijing between 1st to 5th December, 1992, wherein they adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region. Therefore, India being a signatory to the said Proclamation, this legislation was introduced with effect from 7.2.1996. The termination notice dated 16.12.1996 must have been served terminating his services with effect from 20.3.1997, almost six months after the commencement of the Disabilities Act. 28. In view of the above discussion and reasoning, we are of the opinion, neither the Labour Court nor the learned Single Judge erred in appreciating the lis between the parties from the point of view of the Disabilities Act. Accordingly, the Writ Appeal W.A.No.1728/12 37 is dismissed. Having regard to the fact that deceased employee met with an accident on 26.8.1993, and was terminated with effect from 20.3.1997 and died in 2012, during the pendency of the Writ Appeal, we note that till he was alive, he did not see the light of the result of the lis or the cause he fought for. In that view of the matter, we direct the appellant-management to settle the benefits as indicated in the award of the Labour Court within three months from the date of receipt of a copy of this judgment in the name of the wife of the deceased employee. MANJULA CHELLUR, CHIEF JUSTICE. K. VINOD CHANDRAN, JUDGE. srd W.A.No.1728/12 38 "