Disability protection under Section 47 cannot undo a valid termination for prolonged absenteeism after due disciplinary process.
Section 47(1) of the disability law protects an employee who acquires disability during service and remains in employment; it cannot be invoked after a valid termination for prolonged absenteeism. The employee here remained absent for a long period, did not answer the employer's notices or charge-sheet, failed to produce the required medical certificate, and raised the disability claim only after termination. The belated challenge to the disciplinary action also undermined the Commissioner's interference. The termination of service was upheld, and the order granting reinstatement, continuity of service, and monetary benefits was set aside.
Issues: (i) whether Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 protected an employee whose service had already been terminated for long absenteeism before invoking the disability protection, and (ii) whether the order of the Commissioner setting aside the termination could be sustained despite the belated challenge and the employee's repeated failure to respond to the employer's notices.
Issue (i): whether Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 protected an employee whose service had already been terminated for long absenteeism before invoking the disability protection
Analysis: The protection under Section 47 applies where an employee acquires disability during service and continues to hold employment. Here, the employee had remained absent for a very long period, did not reply to the show-cause notice or charge-sheet, did not produce the required medical certificate, and was terminated on the ground of absenteeism after following the prescribed procedure. The material also showed that the alleged disability protection was invoked only after the termination, when the employee was no longer in service. On these facts, the statutory protection could not be used to undo the termination.
Conclusion: Section 47(1) did not assist the employee, and the termination could not be set aside on that basis.
Issue (ii): whether the order of the Commissioner setting aside the termination could be sustained despite the belated challenge and the employee's repeated failure to respond to the employer's notices
Analysis: The challenge to the termination was raised after more than three years, and the employee had remained silent throughout the disciplinary process despite repeated opportunities. The employer had issued notice, charge-sheet, and further directions to resume duty, but there was no response. In these circumstances, the Commissioner ought not to have interfered with a termination founded on prolonged absenteeism and completed disciplinary action. The order under challenge therefore suffered from error and could not be sustained.
Conclusion: The Commissioner's order was unsustainable and was liable to be quashed.
Final Conclusion: The termination of service was upheld and the order granting reinstatement, continuity, and monetary benefits was set aside.
Ratio Decidendi: The protection against dispensing with service under Section 47 of the disability law applies only to an employee who acquires disability during service and remains in service, and it cannot be invoked to nullify a termination already validly made for prolonged absenteeism after due process.
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