Civil Appeal No.1886 of 2007 with Civil Appeal No. 1858 of 2007. Case: 1. Dalco Engineering Private Limited, 2. Fancy Rehabilitation Trust and Another Vs 1. Shree Satish Prabhakar Padhye and Others, 2. Union of India and Others. Supreme Court (India)
| Case Number | Civil Appeal No.1886 of 2007 with Civil Appeal No. 1858 of 2007 |
| Counsel | For Appellant: Ajay Majithia, Rajesh Kumar, Kailash Chand, Vinay Navare and Abha R. Sharma, Advs. and For Respondents: K.V. Vishwanathan, Sr. Adv., Gaurav Mitra, Bina Madhavan, Antima Bazaz, Advs. for LawyersâS Knit and Co., Ajay Bhargava, Vanita Bhargava, Abhijeet Swaroop, Kaitan and Co., Shankar Chillarge and Asha Gopalan Nair, Advs. |
| Judges | R. V. Raveendran, R. M. Lodha & C. K. Prasad, JJ. |
| Issue | Companies Act, 1956 - Section 617; Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Sections 2, 29, 39, 44, 47 and 47(1); Disabilities Act; Prevention of Corruption Act, 1988 - Section 2; Prevention of Damage to Public Property Act, 1984; State Bank of India Act, 1955 - Section 3; Life ... |
| Citation | AIR 2010 SC 1576 , JT 2010 (3) SC 450 , 2010 (2) KLT 447 (SC) , 2010 (3) SCALE 427 , (2010) 4 SCC 378 , 2010 (4) UJ 1882 (SC) |
| Judgement Date | March 31, 2010 |
| Court | Supreme Court (India) |
Judgment:
R. V. Raveendran, J.
Facts in CA No.1886/2007:
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The appellant is a private limited company incorporated under the provisions of the Companies Act, 1956. The respondent - S.P. Padhye - (also referred to as `the employee') was employed as a Telephone Operator by the appellant for more than two decades. The respondent's service was terminated by the appellant with effect from 31.12.2000 on the ground that he had become deaf (85% reduction in ability to hear). The respondent complained to the Disability Commissioner, Pune, in regard to such termination, alleging that he was fit, able and normal when he joined service of the appellant and as he acquired the hearing impairment during the period of service, he should have been continued in employment in some suitable post. The Disability Commissioner made an order dated 12.10.2001 suggesting to the employer to undertake a social responsibility, by re- employing the respondent to discharge any other work. The suggestion was not accepted by the employer.
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According to the respondent, the Commissioner, instead of making a mere suggestion, ought to have issued a direction to the employer, in exercise of jurisdiction under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`the Act', for short). He therefore filed a writ petition seeking the following reliefs (i) quashing of the order dated 12.10.2001; and (ii) a direction to implement the provisions of the Disabilities Act by directing the employer to reinstate him in service in a suitable post, with retrospective effect from 1.1.2001, in the same pay-scale and service benefits. The High Court allowed the said writ petition by judgment dated 23.12.2005, and directed the employer to reinstate the respondent and shift him to a suitable post with the same pay-scale and service benefits and with full back-wages. The High Court held that the respondent, though a private limited company, was an "establishment" as defined under section 2(k) of the Act and consequently section 47 of the Act enjoined it not to dispense with the services of its employee who acquired a disability.
Facts in CA No. 1858/2007:
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The first Appellant is a Public Trust (for short the 'Trust') working for the benefit of the physically and mentally challenged persons, took up a house-keeping contract from the third respondent Company on 24.7.2000. The appellant employed several physically handicapped persons for executing the said contract. The third respondent terminated the appellant's contract on 18.7.2006. Feeling aggrieved, the appellant filed a complaint dated 22.7.2006 with the Disability Commissioner, Pune followed by a writ petition in the High Court for quashing the notice terminating the contract. The appellant also sought a direction for rehabilitation of the persons with disabilities who were employed by it for executing the said house-keeping contract, under the provisions of the Act. A Division Bench of the Bombay High Court by judgment dated 19.9.2006 dismissed the writ petition holding that the third respondent was not an "establishment" within the meaning of section 2(k) of the Act and, consequently, the provisions of the Act did not apply and that the Disability Commissioner had no jurisdiction to issue any direction to the third respondent. It also held that the earlier decision in S.P. Padhye (which is the subject matter of the first case) was per incuriam as it ignored two binding decisions of this court - the Constitution Bench decision in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [1975 (1) SCC 421 ] and the decision in S.S. Dhanoa v. Municipal Corporation, Delhi [1981 (3) SCC 431 ]. Feeling aggrieved, the appellants have filed this appeal.
Questions for decision
4) The employee relies on section 47 which provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. Section 47 of the Act is extracted below:-
"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."
The term "establishment" employed in section 47 is defined in section 2(k) of the Act as follows:
"2. Definitions.--In this Act, unless the context otherwise requires, --
xxxxx
(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;"
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The question is, having regard to the definition of the word `establishment' of section 2(k) of the Act, whether the requirement relating to non-discrimination of employees acquiring a disability during the course of service, embodied in Section 47, is to be complied with only by authorities falling within the definition of State (as defined in Article 12 of the Constitution), or even by private employers. This leads us to the following two questions:-
(i) Whether a company incorporated under the Companies Act (other than a Government company as defined in section 617 of the Companies Act, 1956) is an "establishment" as defined in section 2(k) of the Act?
(ii) Whether the respondent in the first case and the appellant in the second case are entitled to claim any relief with reference to section 47 of the Act?
Re: Question (i)
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Let us examine the meaning of the crucial word 'establishment' used in sub-section (1) of section 47 of the Act. The definition of the word 'establishment' in section 2(k), when analyzed, shows that it is an exhaustive definition, and covers the following categories of employers:
(i) a corporation established by or under a Central, Provincial, or State Act;
(ii) an authority or a body owned or controlled or aided by the Government;
(iii) a local authority;
(iv) a Government company as defined in Section 617 of the Companies Act, 1956; and
(v) Departments of a Government.
It is not in dispute that the employers in these two cases are companies incorporated under the Companies Act, 1956 which do not fall under categories (ii) to (v) specified in...
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