Mandatory disability protection in service requires alternate posting or supernumerary placement; compassionate appointment and delay do not defeat the right.
Section 47(1) of the Persons with Disabilities Act imposes a mandatory duty on an employer not to terminate an employee who acquires disability during service. If the employee cannot continue in the original post, the employer must provide alternate employment with the same pay and service benefits, or keep the employee on a supernumerary post until a suitable post becomes available or superannuation. The Bombay High Court noted that this statutory protection cannot be defeated by a request for compassionate appointment for a family member or by delay, and it sustained the Industrial Court's view that termination without such protection was unlawful.
Issues: (i) Whether an employee who acquired disability during service could be terminated without being provided alternate employment or kept on a supernumerary post under Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; (ii) whether the employee's conduct in seeking compassionate appointment for his son or the alleged delay in approaching the forum disentitled him to relief.
Issue (i): Whether an employee who acquired disability during service could be terminated without being provided alternate employment or kept on a supernumerary post under Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Analysis: Section 47(1) imposes a mandatory obligation on the employer not to dispense with or reduce in rank an employee who acquires disability during service. If the employee is not suitable for the original post, the employer must shift him to another post carrying the same pay and service benefits. If no post is available, the employee must be kept on a supernumerary post until a suitable post becomes available or until superannuation. The termination of service on the ground of disability, without complying with this mandate, amounts to violation of the statute and supports the finding of unfair labour practice.
Conclusion: The termination was contrary to Section 47(1), and the finding that the employer failed to provide the legally required protection to the disabled employee was in law and against the petitioner.
Issue (ii): Whether the employee's conduct in seeking compassionate appointment for his son or the alleged delay in approaching the forum disentitled him to relief.
Analysis: The statutory protection under Section 47(1) cannot be defeated by the employee's request for compassionate appointment to a family member. The obligation to provide alternate employment is on the employer and is not dependent on such a request. The delay argument also did not assist the petitioner because the facts did not show a waiver of the statutory right or any legal basis to ignore the mandatory duty created by the Act.
Conclusion: The objections based on compassionate appointment and delay were rejected and did not bar relief to the employee.
Final Conclusion: The writ petition failed, the Industrial Court's order was sustained, and costs were imposed on the employer for breach of the statutory protection afforded to an employee who acquires disability during service.
Ratio Decidendi: Section 47(1) of the 1995 Act creates a mandatory, non-derogable duty to protect an employee who acquires disability during service by providing alternate employment or supernumerary placement, and that protection cannot be defeated by collateral considerations such as a request for compassionate appointment or mere delay.
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