TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 1261
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....ntly incapacitated and stated that he has 100% disability and recommended that he be relieved from service on medical grounds. On 27th October, 2004, a show cause notice was served on the respondent along with a copy of the report of the medical board with a direction to submit his representation, if any, against the proposed invalidation from service on medical grounds. Instead of representing against the show cause notice, the respondent filed writ petition No.30278/2004 challenging the said show cause notice. By an interim order passed on 19th January, 2005, the appellants were directed not to pass any order pursuant to the report given by the medical board against the respondent. 4. Pursuant to an order modifying the stay application, by an order dated 1st July, 2011, the respondent was relieved from service and given invalidation pension as admissible under Rule 38 of the CCS (Pension) Rules of 1972. The respondent filed a second writ petition No.42101 of 2011 challenging the aforesaid order. 5. By the impugned judgment dated 8th January, 2014, the Allahabad High Court held on a construction of Section 47 of the said Act that a Notification dated 10th September, 2002 issued ....
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....uld go against the purpose of the Act. Further, he argued that the exemption notification dated 10th September, 2002 would not apply on facts as the disability was incurred prior to the notification. He also argued that there was discrimination against the respondent in that others with disabilities did not get their service terminated. 9. We have heard learned counsel for the parties. The Preamble of the 1995 Act states as follows:- "An Act to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region Whereas the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region; And Whereas India is a signatory to the said Proclamation; And Whereas it is considered necessary to implement the Proclamation aforesaid." 10. Sections 33, 47 and 73(3) & (4) are set out hereinbelow: "33. Reservation of posts.-Every appropriate Government shall appoint in eve....
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.... or scheme should not be made, the rule, notification or scheme shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, notification or scheme, as the case may be. (4) Every notification made by the State Government under the proviso to Section 33, proviso to sub-section (2) of Section 47, every scheme made by it under Section 27, Section 30, sub-section (1) of Section 38, Section 42, Section 43, Section 67, Section 68, and every rule made by it under sub- section (1), shall be laid, as soon as may be after it is made, before each House of State Legislature, where it consists of two Houses or where such legislature consists of one House before that House." 11. There is no doubt whatsoever that Mr. Mahabir Singh is right in saying that this is a beneficial legislation passed pursuant to a proclamation on the full participation and equality of people with disabilities in the Asian and Pacific region to which India is a signatory. However, we find that for the reasons given hereinafter the impugned judgm....
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....mption cannot be given so far as dispensing with service is concerned, as both are contained in Section 47(1) of the Act. 15. We now come to what appealed to the High Court and was argued most vehemently before us. It was stated that Section 73(3) & (4) made it clear that the proviso is only a proviso to sub-section (2) of Section 47 and that therefore it must be read only as such. To this again there are two answers. 16. It is well settled that the provisions of a statute must be read harmoniously together. However, if this is not possible then it is settled law that where there is a conflict between two Sections, and you cannot reconcile the two, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other. This statement of the law is to be found in Institute of Patent Agents & Ors. v. Joseph Lockwood, 1894 A.C. 347 at 360. Lord Herschell, L.C., stated this, as follows:- "Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision,....
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....esent or in future, to one or more other living persons. In other words, in terms, the definition of the expression "transfer of property" as used in all the sections of the Transfer of Property Act is intended to take in transfers effected by acts of parties inter vivos, and an auction-sale clearly is not such an act. Section 5 would, therefore, appear to exclude auction sales from the purview of s.100 altogether. This result would appear to be consistent with the provision in the preamble of the Act which says that the Transfer of Property Act was enacted because it was thought expedient to define and amend certain parts of the law relating to the transfer of property by act of parties. That is the position which emerges from the reading of s.5 coupled with the preamble; and that naturally raises the question as to how to reconcile these two inconsistent positions. In our opinion, the positive provision contained in s. 2(d) must prevail over the definition of "transfer of property" prescribed by s.5. No doubt, the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of....
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....iso. They cannot be read as divorced from their context" (Thompson v. Dibdin, 1912 AC 533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject- matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction." 21. Viewed at in this light also, one is to read Section 47 as a whole and being read as a whole it is clear from the proviso that it would apply to "type of work" carried on in any establishment and would, therefore, apply to both dispensing with service including reduction in rank as well as promotion. 22. Another interesting facet is brought out by the marginal note of Section 47 and Chapter VIII in which Section 47 falls. Chapter VIII has as its heading "non-discrimination". Equally, the marg....
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.... 47 arose before the court in that case and for the purposes of the present controversy, the ratio of that decision will have little or no bearing. 25. We now come to two other contentions raised by Mr. Mahabir Singh. According to him, the exemption notification dated 10th September, 2002 will not apply for the reason that the accident took place prior to 2002. It is clear that the exemption notification will apply to all cases in which an employee's services are dispensed with. The relevant date, therefore, is the date of dispensing with service and not the date on which the disability is incurred, for Section 47 prohibits an establishment from dispensing with the service of an employee who acquires disability during his service. Since service was dispensed with on 1st July, 2011 (that is long after the date of the exemption notification), the notification will, obviously, apply. 26. The plea of discrimination sought to be made by Mr. Mahabir Singh is based on an averment made in the reply affidavit on behalf of the petitioner (respondent herein) in the Supreme Court. The averment is as follows: "Further the contention of the petitioners that the disabled persons are not b....