Justice Milind A. Jadhav, Bombay High Court held that the Commissioner could give orders under the act after hearing the appeal from the decision of the Commissioner of Welfare of the Persons with Disabilities established under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Facts of the Case
The respondent was working as a bus conductor in a BEST bus run by Brihan Mumbai Electric Supply and Transport Undertaking, a statutory authority. He suffered from an accident on one day due to which he underwent many knee surgeries and had knee plates inserted. Afterwards, he was referred by the authority to have a medical checkup done where they certified that he has 41% permanent disability. Later, he was referred to other hospitals in which Sir J.J. Hospital confirmed that he has a disability of 17%. Then All India Institute of Physical Medical and Rehabilitation refused to give him a disability certificate because he had a disability of less than 40%.
The respondent was later reinstated to a lighter job but was removed by the authority. The respondent filed a writ petition before the High Court but was asked to approach the Commissioner, an authority under the Disabilities Act, 1995, to look into the matter. The Commissioner partly allowed the plea of the respondent and asked the petitioner to reinstate him. The petitioner approached the High Court, asking the court to reconsider the decision of the Commissioner. The case was again sent to Commissioner of the Welfare of the Disabled who again reiterated the decision. The present writ petition was filed to quash the decision of the Commissioner.
The counsel for the petitioner submitted the following arguments:
- The respondent does have a disability of less than 40%. As per the requirement of the act, the disability benefits can be given only to a person who has a minimum of 40% permanent disability.
- The Commissioner does not have the authority to ask the employer to reinstate the respondent. It can only give advice but can’t give orders under the act.
The counsel for the respondent submitted the following arguments:
- The disability certificate issued by Lok Manya Tilak Hospital (the first hospital he was referred to) said that the respondent has a disability of 41%. This was supported by medical officers as well.
- The disability certificate issued by Sir J.J. Hospital, stating that he has a disability of 17% is not valid as the hospital did no proper investigation.
The court analysed the arguments of both the parties in two steps:
Medical Disability certificate
The court observed that when the disability certificate and medical checkup was thoroughly done by the KEM Hospital and Lok Manya Hospital, there was no need to send the respondent to the other hospital. Moreover, the certificate issued by Sir J.J. Hospital cannot be considered as a proper test since no proper identification was present on the certificate, concluding that the respondent has 17% disability. Hence, the report of KEM & Lok Manya Hospitals are reliable.
Authority of the Commissioner under the Disability Act, 1995
The court relied heavily upon the Supreme Court decision in Geetaben Ratilal v. District Primary Education where it was held that upon a combined reading of section 42 and section 62 of the act, it could be seen that the Commissioner is not confined just with the power of taking up the cases, but can also give the required orders.
Going through the provisions of the Disability Act of 1995 and the 2016 act, as well the judgments, and medical certificates, the court safely held that the medical reports of the KEM & Lok Manya Hospitals are valid and that the Commissioner’s decision under the act was accurate.
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