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2010 (3) TMI 912

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....ear). 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. 2. 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 ser....

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....on 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." 5. 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,-. . . (k)'establishment' means a corporation established by or under a Central, Provincial or State Act, ....

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....crucial. According to him, "a corporation established by an Act" would refer to a corporation brought into existence by an Act ; and a "Corporation established under an Act" would refer to a company incorporated under the Companies Act. On the other hand, the employer contends that the term "Corporation established by or under a Central, Provincial or State Act" refers to a statutory Corporation which is brought into existence by a statute, or under a statute and does not include a company which is registered under the Companies Act. It is submitted that the Companies Act merely facilitates and lays down the procedure for incorporation of a company which, when incorporated, will be governed by the provisions of the said Act and therefore, a company registered under the Companies Act, is not a corporation established under an Act. 10. The words "a Corporation established by or under a Central, Provincial or State Act" is a standard term used in several enactments to denote a statutory corporation established or brought into existence by or under statute. For example, it is used in sub-clause (b) of clause Twelfth of section 21 of the Indian Penal Code, 1860 ("the IPC" for short) an....

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....cooperative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature. A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership . . . The term 'corporation' is, therefore, wide enough to include private corporations. But in the context of clause Twelfth of section 21 of the Indian Penal Code, the expression 'corporation' must be given a narrow legal connotation. Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a company under the Companies Act or a Society under the Societies R....

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....r under an Act", the emphasis should be on the word "established" in addition to the words "by or under". The word "established" refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between "established by a Central Act" and "established under a Central Act" ? The difference is best explained by some illustrations. A corporation is established by an Act, where the Act itself establishes the corporation. For example, section 3 of the State Bank of India Act, 1955, provides that a bank to be called the State Bank of India shall be constituted to carry on the business of banking. Section 3 of the Life Insurance Corporation Act, 1956, provides that with effect from such date as the Central Government may by notification in the Official Gazette appoint, there shall be established a corporation called the Life Insurance Corporation of India. The State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act". We may next refer to the State Financial Corpor....

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...."establishment" so as to be synonymous with the definition of "State" under article 12 of the Constitution of India. Private employers, whether individuals, partnerships, proprietary concerns or companies (other than Government companies) are clearly excluded from the "establishments" to which section 47 of the Act will apply. 16. There is yet another indication in section 47, that private employers are excluded. The caption/marginal note of section 47 describes the purport of the section as non-discrimination in Government employment. The word "Government" is used in the caption, broadly to refer to "State" as defined in article 12 of the Constitution. If the intention of the Legislature was to prevent discrimination of persons with disabilities in any kind of employment, the marginal note would have simply described the provision as "non-discrimination in employment" and sub-section (1) of section 47 would have simply used the word "any employer" instead of using the word "establishment" and then taking care to define the word "establishment". The non-use of the words "any employer", and "any employment" and specific use of the words "Government employment" and "establishment" (....

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....eping the said objects in view, the term "establishment" should be extended to all corporations incorporated under the Companies Act, 1956, irrespective of whether they are in the public sector or private sector. 19. He also relied upon the following principle of contextual interpretation enunciated by this court in Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd. [1987] 1 SCC 424/61 Comp. Cas. 663 "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at in the context of its enactment, with the glasses of the statute-maker provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without t....

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....employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." (p. 529) 22. We agree that the socio-economic legislations should be interpreted liberally. It is also true that courts should adopt different yardsticks and measures for interpreting socio-economic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the Legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intende....

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....s, the section makes it clear that only Government educational institutions and educational institutions receiving aid from the Government shall reserve not less than three per cent. seats for persons with disabilities. It is well recognised that an aided private school would be included within the definition of 'State' in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the Government or receiving aid from the Government and not to unaided private educational institutions. Further, section 39 of the Act, does not use the word "establishment". Reference is next made to section 44 which requires non-discrimination in transport. This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons with disabilities. The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of section 2(k) of the Act or non-statutory corporations, or even individuals operating in the transport sector should comply w....