Disabled Win Case On Pay-Cut
   Date :02-Nov-2020

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By Adv. R. S. Agrawal :
According to the petitioner, the physically-disabled employees of the Corporation have been discriminated against and arbitrary withdrawal of benefit particularly in the wake of the pandemic evinces lack of sensitivity and compassion and thus, amenable to judicial review by the High Court and liable to be struck down.
A BOMBAY High Court division bench consisting of the Chief Justice Dipankar Datta and Justice G.S. Kulkarni has declared through the judgement in the case – National Association of Blind v. Bombay Municipal Corporation, delivered on October 28, 2020, that the action of the Brihanmumbai Municipal Corporation to withhold the monetary benefits for the lockdown period to its physically disabled employees with retrospective effect, as assailed, to be illegal. In the 63-page detailed judgement authored by the Chief Justice, the court has also held that such employees would be entitled to all normal monetary benefits, which ought not to have been withheld by the Corporation during the period of pandemic.
Also, in view of the law laid down in paragraph 20 of the decision in the case- Comptroller and Auditor General v. K. S. Jagannathan –AIR 1987 SC 537, the HC has held that this is indeed a proper case where, in order to prevent injustice resulting to the concerned parties, the Court ought to pass an order or give directions which the Corporation Should have passed or given had it properly and lawfully exercised its discretion. The petitioner-Association has challenged a circular of May 26, 2020 issued by the Brihanmumbai Mahanagar Palika’s General Administration Department. It was claimed by the petitioner that the effect of the said circular was to withdraw a benefit, which was earlier extended to the 1,150 physically-disabled including 275 visually-challenged employees of the Corporation, with retrospective effect leaving such employees high and dry.
The petitioner also claimed that such an action of the Corporation is an affront to the rights that are made available to the physically-disabled under the Rights of Persons with Disabilities Act, 2016 (RPWD Act) and to equal treatment in public employment under Article 16 of the Constitution of India. According to the petitioner, the physically-disabled employees of the Corporation have been discriminated against and arbitrary withdrawal of benefit particularly in the wake of the pandemic evinces lack of sensitivity and compassion and thus, amenable to judicial review by the HC and liable to be struck down.
After noticing from the respective pleadings the concern expressed by the petitioner as well as the nature of relief claimed by it together with the defence thereto raised by the Corporation and upon hearing the rival contentions the HC formulated and answered basically these 3 questions: 1. Is this PIL maintainable? 2. Should the first question be answered in the affirmative, does the impugned circular of the Corporation warrant judicial interdiction?
3. What relief, if any, ought to follow, provided the second question is also answered in affirmative? Though having said that PIL in service matter does not lie, there is, however, an exception to this rule, the SC has itself carved out. If an appointment of an ineligible candidate is made to a public office, a stranger cannot apply before the Administrative Tribunal to have such appointment set aside based on the law laid down in Dr Duryodhan Sahu v. Jitendra Kumar Mishra –AIR 1999 SC 114; but a writ for quo warranto might lie as has been held in the decision Hari Bansh Lal v. Sahodar Prasad Mahto-(2010) 9 SCC 655. Addressing the concern of the nature voiced in this PIL. The Court said that it is inclined to hold that ratio of the SC’s decision in the case –Bandhua Mukti Morcha v. Union of India –(1984) 3 SCC 161 would be squarely attracted. Therein, the right of everyone in this country to live with human dignity and free from exploitation was recognised and it was held that this right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41and 42. After perusing all the authorities and the tests laid down therein for entertaining a PIL, the High Court has stated that it can safely hold that (a) this PIL is not a camouflage to foster personal disputes;
(b) behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking; (c) this PIL is not intended to besmirch the character of others; (d) the information given in the PIL is sufficient to show the gravity and seriousness involved; (e) this PIL is not mischievous seeking to assail an executive action for oblique motives. Thus, the first question is answered by overruling the objection of the Corporation that this PIL is “not maintainable”. The HC has stated that it finds no justifiable reason to accept Corporation counsel’s contention that additional financial burden is a sound reason that could stand in the Court’s way of granting relief claimed in the PIL. The Court has said that it cannot be oblivious to the fact that God has not been so kind to the physically disabled employees for whose benefit this petition has been filed.
It does not expect that each of these employees would either approach the Court by filing individual petitions to espouse their grievances and for enforcement of their rights, or that they have to authorise the petitioner to plead their cause. This sort of insistence could frustrate whole purpose of a PIL, if such narrow outlook and approach were accepted. The Court sees no reason to agree with the proposition raised. These petitioner-employees cannot be rendered helpless by resorting to technicalities as canvassed on behalf of the Corporation.
The HC has held that the impugned circular of the Corporation of May 26, 2020 cannot, thus, stand judicial scrutiny and this deserves judicial interdiction/intervention. The High Court has granted an order in terms of prayer clause (a) of the PIL, it directed the Corporation to ensure that none of the physically disabled employees, who have not reported for duty during the pandemic are denied pay benefits which they have been entitled to, but for the pandemic and had they reported for duty. The monetary benefits that each employee is entitled shall be calculated and released in their favour in two equal monthly installments as early as possible, the first of which should reach them before Diwali and the second within 45 days of payment of the first installment.