Friday, November 16, 2012

Forcefully retired while on leave, cancer patient granted pension

Dear colleagues,

We have seen in the past that several persons with disabilities have been removed from service by forcing them voluntary retirement on acquiring disabilities in contravention to Section 47 of the Persons with Disabilities Act.

The instant case is of an employee with State Bank of India (Chennai Circle) who was a cancer patient and was forcefully "voluntary retired" while she was on leave undergoing treatment for cancer some 12 year back. The irony is that she continued to fight till 2005 when her gratuity and PF were settled after prolonged representations. However, she was denied her pension and she had to approach the court.

Now after several years of protracted legal battle, the Madras High court has allowed her appeal granting her the pension. Though this is not directly related to a person with disability, however is a good case law in cases where employers take unilateral actions removing employees from service without even informing them. Here is the report.


For cancer patient, a protracted battle for pension is finally won;  Court says voluntary retirement had been forced on the petitioner.

A cancer patient who was ‘voluntarily’ retired by a nationalised bank has won a legal battle for pension with the Madras High Court declaring she is entitled to the benefit.

A Division Bench comprising Justices C. Nagappan and M. Sathyanarayanan granted a declaration on an appeal by Premila Kiruba Augustus. She had joined State Bank of India as a clerk-cum-typist at the Bangalore Main Branch and on her request was transferred to Chennai Circle in January 1981. She was posted as an electronic machine operator from May 1990. When she was on leave for personal reasons, the bank ‘voluntarily retired’ her from service on March 31, 1999. She challenged the order by raising an industrial dispute and after it failed, asked for a reference before the Labour Ministry. This was declined on grounds of a delay. She then made several requests for her pension to be settled. She had completed 25 years of pensionable service. Her gratuity and provident fund were settled in 2005. However, her request for pension was not considered.

Hence, she filed a writ petition. She was not guilty of delay because the bank failed to respond to her representations, it said. She could not pursue her pension claim as her husband underwent a bypass surgery and her father, who was living with her, also underwent a hip replacement surgery and later died. She was diagnosed with cancer and was undergoing treatment. She sought to declare the bank’s action in not sanctioning pension after retiring her, illegal.

The bank contended that the petitioner had voluntarily abandoned her service. Therefore, in terms of a bipartite settlement, she was voluntarily retired from service. Since, she did not make a request seeking voluntary retirement, she could not claim pension.

In June last year, a single Judge disposed of the writ petition with a direction to settle the pensionary benefits. The settlement was to be made depending upon the outcome of another case before the Supreme Court. This case arose out of a Punjab and Haryana High Court ruling that the settlement in question had undergone a change. Mrs. Augustus and the bank preferred appeals against the single Judge’s order.

The petitioner’s counsel, S. Vaidyanathan, said the case pending before the Supreme Court had nothing to do with the facts of the present case. Since the bank itself had voluntarily retired the petitioner from service, it amounted to deemed voluntary retirement. As a corollary, the petitioner was entitled to pension as she had put in the required number of years of pensionable service.

Writing the common judgment for the Bench, Justice M. Sathyanarayanan said considering the facts and circumstances and the Supreme Court’s decision in Syndicate Bank vs Satya Srinath, which was applicable to the present case, it was of the view that voluntary retirement had been forced on the petitioner. The bank’s contention that she had voluntarily abandoned the service could not be sustained.

There was no necessity to await the Supreme Court’s judgment. The Bench allowed her appeal and dismissed the bank’s appeal.

Woman had completed 25 years of bank service;  She had then been ‘voluntarily’ retired;  Court says voluntary retirement had been forced on the petitioner.

Source: The Hindu

Thursday, November 15, 2012

Non discrimination, UN CRPD and Disabled Soldiers in India

Dear Friends,


The two most enabling sections of the The Persons with Disabilities Act 1995 i.e. section 33 (Employment Chapter) and section 47 (Non Discrimination Chapter) have been made redundant by their disabling proviso which I call as Black proviso i.e.  "Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."



This black provisio continues in the new draft Right of Persons with Disabilities Bill 2012  ready to be tabled in the parliament in different sections. The biggest victim of this proviso under Section 47,  have been those brave citizen of this vast nation who risked their lives to preserve the integrity of their motherland while being in defense forces, para-military forces & police departments and acquired disabilities - both minor or severe. The effect of this black proviso has been catastrophic on the morale of those who are out there on the borders to defend the nation or stationed in troubled areas to control the  law and order and save the democracies.



What will happen to me and my family if I become disabled during the course of duty or during my job? Am I being treated like my civilian counter parts when it comes to the social protection or non-discrimination? .... such questions plague the psyche of the ordinary officers of our forces - thanks to the black proviso and the subsequent notification by the Govt. of India under the said proviso declaring the defense forces to be kept out of the ambit of the protections available under this section.



Civilian Employees Versus Combatant Employees



Lets understand how the two employees - one civilian and one from the forces is treated under section 47 of the disabilities Act:



The section mandates as below:



"47. Non-discrimination 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.  (Black proviso)



Now if it was a civilian employee under the government, on acquiring a disability due to any reason, his pay scale and service benefits remain protected even if the disability sustained limits the functional capacities of the person to an extent that he/she can not be adjusted against any existing post. Such a person remains on a supernumerary post until a post is found out or till he attains age of superannuation.



On the contrary, an employee from the forces, on acquiring a disability - whether during the course of duty or during any mishap when not on duty is invariably  medically  boarded out with a paltry disability pension and left to fend for himself in the grim employment scenario. The family members and dependents suffer due to sudden calamity and the person becomes a liability for the family in absence of strong social security provisions. 



Why the talented youth is not attracted to Forces any more



Given an option, any talented young person would prefer a civil employment to an employment in the forces since the forces have not thought to respect for the sacrifices or say the human rights, social security and non-discrimination clauses of the central laws and international human right conventions. The youth of today knows there is no future in the forces. Worst - in case of a mishap - death or disability is inevitable. And both  will take away the bread winner of the family with no social protections.



Need to think out of box in light of UN CRPD



We as a nation has to think what we offer to our sons and daughters  who risk their lives for the country in comparison to a civilian on duty. Also we have to walk the talk since India is among first few handful countries  who signed the UN Convention on Rights of Persons with Disabilities on the very first day of its opening for signature and subsequently ratified the same. However, we continue to discriminate on the basis of disability when it comes to government employment in forces.



The UN Convention defines "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;



Some possibilities worth considering



Not all jobs in the forces are of combatant nature and many involve desk jobs such administration, logistics, equipment, stores, purchase and several others. This means that the exemption given under the garb of black proviso, can be easily withdrawn and combatants acquiring disabilities can be adjusted in non-combatant jobs/branches. 



If the Government feels that it may compromise with the war preparedness of the forces, it may also consider keeping all such severely disabled combatant employees on supernumerary posts with full pay scale and other benefits. While those who are with disabilities that allow sufficient functional abilities to be gainfully occupied in the desk operations, should be accommodated in the base units/formations.



This can help fill up the huge shortfall in the forces by motivating the youth and assuring them that they would not be discriminated if they become disabled while in service- whether the injury was or not attributable to service.



This would ensure that our forces do not discriminate on the basis of disability and are in conformity with the UN Convention on the Rights of Persons with Disabilities. There have been several examples in the defence forces where combatants who acquired disability during action were retained and such a trend is very good, however, one should not be forced to go to Armed Forces Tribunal each time to obtain right to equality before the law and equal protection of the law (Art 14 of the Constitution) and Article 5 (equality and non-discrimination) of the UNCRPD. 



We don't need to wait for the new draft law to come in to being to enforce this and it can be simply done by withdrawing the "Black Proviso" and the Notification of Exemption accordingly encapsulating the above.


Friday, October 5, 2012

Court rules severely disabled woman wasn't raped because she didn't 'bite, kick or scratch' her assailant

This outrageous judgement from Connecticut State Supreme Court is only going to encourage crimes against disabled women! This indicates the prejudices, negative attitudes, lack of awareness about the disabling conditions that many of us live with in the community, especially among certain sections of the judiciary!

Court Rules Severely Disabled Woman Wasn't Raped Because She Didn't 'Bite, Kick or Scratch' Her Assailant

October 3, 2012    

In a 4-3 ruling Tuesday afternoon, the Connecticut State Supreme Court  overturned the sexual assault conviction of a man who had sex with a woman who “has severe cerebral palsy, has the intellectual functional equivalent of a 3-year-old and cannot verbally communicate.” The Court held that, because Connecticut statutes define physical incapacity for the purpose of sexual assault as “unconscious or for any other reason. . . physically unable to communicate unwillingness to an act,” the defendant could not be convicted if there was any chance that the victim could have communicated her lack of consent. Since the victim in this case was capable of “biting, kicking, scratching, screeching, groaning or gesturing,” the Court  ruled that that victim could have communicated lack of consent despite her serious mental deficiencies:

When we consider this evidence in the light most favorable to sustaining the verdict, and in a manner that is consistent with the state’s theory of guilt at trial, we, like the Appellate Court, ‘are not persuaded that the state produced any credible evidence that the [victim] was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault.’

According to the Rape, Abuse, and Incest National Network (RAINN), lack of physical resistance  is not evidence of consent , as “many victims make the good judgment that physical resistance would cause the attacker to become more violent.” RAINN also notes that lack of consent is implicit “if you were under the statutory age of consent, or if you had a mental defect” as the victim did in this case.

Anna Doroghazi, director of public policy and communication at Connecticut Sexual Assault Crisis Services,  worried that the Court’s interpretation of the law ignored these concerns: “By implying that the victim in this case should have bitten or kicked her assailant, this ruling effectively holds people with disabilities to a higher standard than the rest of the population when it comes to proving lack of consent in sexual assault cases. Failing to bite an assailant is not the same thing as consenting to sexual activity.” An amicus brief filed by the Connecticut advocates for disabled persons  argued that this higher standard “discourag[ed] the prosecution of crimes against persons with disabilities” even though “persons with a disability had an age-adjusted rate of rape or sexual assault that was more than twice the rate for persons without a disability.”

Source: www.alternet.org 

Thursday, October 4, 2012

Disabled Students must get same admission benefits as SC/ST, rules Delhi HC

Dear  Colleagues,

In a path breaking judgement, a Bench of Delhi High Court has held that  the people suffering
from disabilities are equally socially backward, if not more, as those belonging to SC/ST categories and therefore, as per the Constitutional mandates, they are entitled to at least the same benefit of relaxation as given to SC/ST candidates.

This puts to rest the debate of whether Constitutions favours only the SC/ST and not disabled since Disability is not specifically included in the Constitution.

For detailed judgement  passed on 12 September 2012 in this case titled Writ Petition (C) No.4853 of 2012 ANAMOL BHANDARI Versus Delhi Technological University, please click here.

Below is the news report from Indian Express.

regards
Subhash C Vashishth, Advocate

Disabled students as socially backward as SC/ST, must get same admission benefit: HC

Jayant Sriram : New Delhi, Sun Sep 16 2012, 01:34 hrs

Holding that people suffering from disabilities are also equally socially backward, if not more, as SC/ST candidates, the Delhi High Court has directed the Delhi Technological University (DTU) to provide the same concession in marks for admitting disabled persons as applicable for SC/ST candidates.

“We hold that the provision of giving only 5 per cent concession in marks to persons with disabilities (PWD) candidates as opposed to 10 per cent relaxation provided to SC/ST candidates is discriminatory and PWD candidates are entitled to same treatment,” a bench of Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw said.

The court’s order came on a petition by Anamol Bhandari, a physically disabled student, who challenged the disparity in treatment between the two categories.

In his petition, Bhandari said he had passed his CBSE exam with 52.66 per cent. He said DTU had fixed its cut-off for general candidates at 60 per cent but had provided a relaxation of 10 per cent for SC/ST candidates and 5 per cent for PWD candidates.

The petitioner said though he had cleared his All India Engineering Entrance exam with a rank sufficient to gain admission to DTU, he could not get admission on the basis that his Class XII marks did not meet the cut-off.

He said if the relaxation given to PWD candidates was on  par with SC/ST candidates, then he have been eligible for admission.

The university contended that they were free to frame their own admission guidelines, being an autonomous body. It argued that the petitioner was aware when applying that he would be eligible for a 5 per cent relaxation.

However, when the bench asked the counsel for DTU whether there was any rational basis for fixing the limit of relaxation at 5 per cent for PWD candidates, no clear answer was given and the counsel merely said it was a “policy decision”.

Tuesday, September 25, 2012

Court of CCPD issues notices to Department of Disability Affairs, GOI

Dear Colleagues,


Even after more than 16 years of the Persons with Disabilities Act 1995, there is no Uniform Guideline for availing scribes and writers by the persons with Low Vision and Blindness. The candidates continue to suffer in absence of such guidelines and are often on the mercy of the institution/ departments  both in the matter of studies as well as employment.

A recent PIL by the undersigned against ICAI for putting forth unreasonable guidelines for blind students was just an example in the recent past of such hardships faced by the visually impaired students/persons. Please see my earlier posts dated 26 April 2012 and 02 May 2012 on the subject. The court did solve the problem with its pro-active Order the same day for visually impaired students of ICAI but how many students and how many times will be able to afford going to knock the doors of judiciary?

In the year 2005, All India Confederation of Blind had also drafted a detailed guideline for the scribe highlighting the issues and shared with the Chief Commissioner Disabilities and the  concerned Ministry. This was also discussed during the annual meeting of the State Commissioner's Disabilities in subsequent year. However, it remained pending for a long time due to inaction of the then Disability Division (now Department of Disability Affairs).

Through a consultative process lead by Score Foundation, over 70 organisations working with the Persons with disabilities in India (especially Low Vision and Blind) to which I have been a party myself, had suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons" and sent to  of Social Justice & Empowerment for their acceptance. However, it seems the Ministry has some other priorities than the every day sufferings of the stakeholders for which it exists.

The Department of Disability Affairs, Ministry of Social Justice & Empowerment is the nodal department to coordinate the implementation of the Disabilities Act but have not acted on the issue in the interest of justice to alleviate the hardships of the stakeholders and sitting over the above guidelines for a pretty long time leading to untold miseries and hardships to the stakeholders.

In an unprecedented manner, the Court of Chief Commissioner Disabilities has issued notice to the sister department i.e. Department of Disability Affairs, under the same Ministry and sought explanation in the following unequivocal words:

"Take this show cause notice and explain as to why the Department of Disability Affairs, Ministry of Social Justice and Empowerment, Govt, of India, should not be directed to finalise, issue & circulate to all concerned comprehensive and uniform guidelines/norms for conduct of all examinations (both academic & recruitment related) as soon as may be keeping in mind, among other things, the suggestions of the complainants; and, pending finalisation, issuance and circulation of such comprehensive guidelines/norms, to circulate to all concerned the proposed guidelines/norms submitted by Score Foundation vide their letter dated 06.06.2012 for persons with blindness and persons with low vision and evolved by several organisations including Score Foundation on or before 20.10.2012 under intimation to this Court. The respondent department's reply should also explain reasons for the inordinate delay in finalisation, issuance and circulation of such comprehensive and uniform guidelines/norms for all persons with disabilities.

The Chief Commissioner for Persons with Disabilities has further directed the respondent Department to appear before the Court of the Chief Commissioner for Persons with Disabilities in person or through a representative (not below the level of Group 'A (Class-l officer) or a counsel well versed with the case and with all the related documents on 02/11/2012 at 3.00 p.m. to present the case unless uniform and comprehensive policy for conduct of all kinds of examinations for all persons with disabilities is duly finalised and notified before that date."

To read/download the Show Cause Notice click here.

I congratulate Mr. PK Pincha, Chief Commissioner for Persons with Disabilities, Govt of India for rising up to the expectations in discharge of his constitutional duties under the law. I am hopeful that the officials of the Disability Division will not take it as an adversorial litigation like many other cases in which they keep defending the Ministry's (in)actions in the Delhi High Court and other forums- issue of sign language interpreter being just one odd example that is being contested by the Ministry for over two years now at the Government's expense!

It is an apathy on the part of the Ministry that the stakeholders- the persons with disabilities continue to suffer and it has to defend cases due to its in-actions in various courts and now face this show cause from a constitutional authority like CCPD. Hope the Department of Disability Affairs will notify the guideline without any delay before the next date of hearing in the court of CCPD i.e. 02nd November 2012.

regards

Adv Subhash C Vashishth



Mumbai HC panel to evaluate the prototype of Accessible Railway Station

Dear Colleagues,

This is further to my earlier post on 29th Jan 2012 titled Bombay High Court directs Railways to be Sensitive to Disabled.

There is some development in the case pending in the Mumbai High Court against the Indian Railways, however, this doesn't seems encouraging as an important member of the High Court appointed panel Mr. Sudhir Badami feels, "The railways should have involved us right at the stage of drawings. I have visited these facilities but they are not up to the mark," 

The Railways have put up a prototype of disabled-friendly low-height booking counters, a separate toilet and drinking water dispensing facility has been set up at Dadar station. 

"If the panel appointed by the high court gives its approval, Central Railway will start constructing similar facilities at other stations," said a senior Railways official. Western Railway has created a such facilities at Bandra Terminus. Currently, there are only six disabled-friendly toilets at 109 local stations in Mumbai. 

This is a result of a petition  filed by the India Centre for Human Rights and Law in the Bombay HC seeking directives to the railways to provide "accessible facilities at stations and on suburban trains"  which is pending adjudication in the Mumbai High Court. 

Delhi High Court directs the private schools to make their schools barrier free & inclusive

Dear Colleagues,

After its earlier order directing all private and government schools in Delhi to appoint Special educators for children with disabilities and provide necessary teaching and learning material, the Delhi High Court, on a petition by Social Jurist has now ordered to make all private schools barrier free for the disabled. 

It was brought to the notice of the court that private schools do not have adequate physical and academic infrastructure for children with disabilities and thus children forced in to these institution continued to face discrimination.

It was pointed out in the petition that there are 2039 unaided recognized private schools (1260 recognized by Directorate of Education (DoE), GNCTD and 779 recognized by MCD) and 258 aided recognized private schools (214 aided by DoE, GNCTD and 44 aided by MCD) in Delhi and most of them do not have the provisions of basic physical as well as academic infrastructure, including Special Educators as required for the education of the children with disabilities; These schools also did not provide barrier free infrastructure to the children with disabilities. This violated Right of Children to Free and Compulsory Education (RTE) Act, 2009 of such children as guaranteed under Articles 14,15,21, 21-A & 38 of the Constitution of India as well as contrary to the provisions of Delhi School Education Act, 1973, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, U.N. Convention on Rights of Child (1989) and U.N. Convention on Rights of Persons with Disabilities (2006).

The bench of Hon'ble Acting Chief Justice and Hon'ble Mr. Justice Rajiv Sahai Endlaw while hearing the petition W.P.(C) No.4618/2011 titled  Social Jurist, A civil rights group versus Govt. of NCT of Delhi directed all recognised, aided and unaided private schools in Delhi to appoint special educators and to make their buildings/school premises barrier-free for children with disabilities. The Director of Education has been directed to ensure that the Court Orders were followed and to de-recognise any school that has not made its premises disabled-friendly.

The court has now granted time up until March 31, 2013, to the schools to make their premises barrier-free and to appoint special educators with the next two years.

“Schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for special educators...no school shall refuse admission to children with disability for the reason of not employing special educators or not providing barrier-free access on the school premises,” the court order says.

The court has also clarified that the capital expenditure on making the school building and premises barrier free so as to allow free movement to children with disability has to be incurred by the schools from their own coffers and is not reimbursable by the Government as Section 19 of the RTE Act requires all schools, as a condition for their recognition, to provide a barrier free access in their buildings.

The Court ordered that the schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for Special Educators and further ordain that no school shall refuse admission to children with disability for the reason of not employing Special Educators or not providing barrier free access in the school premises. 

It may be pertinent to mention here that earlier a Division Bench of the Delhi High Court in matter Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi 163 (2009) DLT 489 had directed the GNCTD as well schools run by local bodies namely NDMC, MCD and Cantonment Board to ensure that each school shall have at least two special educators and that necessary teaching aids and reading materials are provided to children with disability. However, this did not cover the Private schools.

Those who want to go through the detailed order, Click here. W.P.(C) No.4618/2011

Media Coverage


regards
Adv Subhash Vashishth

Friday, September 14, 2012

Railways submits Scheme for Online Concessional Rail Ticket booking for persons with Disabilities to Delhi HC [Judgement Included]

Dear Readers,

The present case challenged the discriminatory policy of Indian Railways that denied the persons with disabilities right to book railway tickets online while the same service is readily provided to other persons. Case was successfully fought by Mr. Pankaj Sinha, an advocate with visual impairment with Human Rights Law Network.

The petition pointed out that whereas senior citizens could book their railway tickets at concessional rate on the internet as mentioned in the policy, persons with disabilities could not avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centers.

Petition challenged the existing rules of Indian Railways and sought parity in extension of benefits that are currently available to senior citizens. The lawyer for the petitioner argued that denying such benefits violates Article 14 of the Constitution of India and also contravenes the provisions contained in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as well as the decision in Satyawati Sharma v. Union of India, AIR 2008 SC 3148.

Respondents argued that if such a service were offered, it would be abused.  It is pertinent to mention that the Railway Administration has already issued a warning  that if a concession certificate is obtained without meeting the required parameters, an enquiry can be launched as to how the person obtained that ticket. Additionally, the original documents that substantiate the plea of disability are required to be produced upon examination.

The policy for online ticket booking of senior citizens said- "In case of tickets booked through internet no concession is permitted except senior citizen."

Thus, as per this impugned policy, a person with disability was not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

In response to the petition, the Railway Board, Ministry of Railways, Government of India were forced to prepare broad outline as under :-
• A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility. • The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities. • This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms. • The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification. • A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

Subsequently, the Govt. of India has earmarked suitable budget for implementing the above scheme. 

Judgement dated 12 Sep 2012 in W.P.(C) 2145 OF 2011 titled Praveen Kumar G vs Union Of India and Ors. 


Text of the Judgement


IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 2145 OF 2011

 Judgments Reserved on:22.8.2012
 Judgment Delivered on:12.09.2012


PRAVEEN KUMAR G                                    . . . PETITIONER
Through : Mr. Pankaj Sinha, Advocate.

                                 VERSUS

UNION OF INDIA and ORS.                               ... RESPONDENTS

Through: Mr. Rajeeve Mehra, ASG with Mr. R.V. Sinha, Mr. R.N. Sinha, Mr. Ashish Virmani, Advocates for UOI.

CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE:

1. This petition filed in public interest by a blind person alleges, in this petition the discrimination between disabled persons and senior citizens in the Policy of IRCTC which provides facilities and services for issuing the railway ticket on internet, or at the reservation counters. It is pointed out that whereas senior citizens can book their railway tickets at concessional rate on the internet as mentioned in the policy, disabled persons cannot avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centres.

2. The policy of senior citizens is as under:-
"In case of tickets booked through internet no concession is permitted except senior citizen." Thus, a person with disability is not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

3. The petitioner filed an application under Right to Information Act, 2005 to the Public Information Officer of the Indian Catering and Tourism Corporation limited on 18.9.2009 seeking information for travel concessions for completely blind persons on the website of IRCTC. The said application was replied by the IRCTC on 12.10.2009 stating that the travel concessions for blind persons for online ticket booking is a policy matter and needs to taken up by the Ministry. Hence, IRCTC shirked off its responsibility from this vital issue and no initiative was taken by the same regarding introducing the system of online ticket booking at concessional rate. The petitioner filed a representation to the Railway Board dated 3.6.2010 requesting the facility of concessional booking of tickets on IRCTC to be extended to the handicaps as is already done for the senior citizens. The said representation was replied by the Railway Board on 13.9.2010 stating that the concessional booking of ticket on IRCTC website has been extended where the physical document is not required to be submitted in advance as it might lead to misuse of the electronic reservation slip and hence, handicaps are not allowed to do the same. It is submitted that no effort has been made by the Ministry of railway to make the policy disabled friendly and have arbitrarily denied the facility to them. The Policy of IRCTC was formulated to provide as a feature to the public at large. Later, the internet ticket booking facility was introduced at concessional rates for the senior citizens. The said policy is formulated and issued by the Railway Board, which is under the Ministry of Railway. Thus, the said policy is exclusively for the public at large and the same is highlighted as the sole Eligibility Criteria on the website of the said department except the senior citizens, who are entitled for ticket booking through internet at concessional rate.

4. The submission of the petitioner is that the persons with disability cannot access this concession facility though provided to senior citizen and, therefore, it amounts to discrimination qua the disabled persons. With this, though the concessional facility is required, it cannot be effectively availed. It is submitted that the system of online ticket booking helps to save time and resources and also help the public at large to avoid long queue at the reservation counter. The said system has also helped the system of ticket booking more accessible and easy to handle. In this context it would be pertinent to mention that such a system for ticket booking would be magnanimously useful and beneficial for the persons with disability for whom the reservation counter in most of the occasions is inaccessible. The petitioner therefore calls for amendment to the Policy.

5. Notice in this petition was issued. Initially, the respondent filed the counter affidavit contesting the petition, pointing out the difficulties which may face by introducing this facility for disabled persons as well. The main apprehension of the Railways is that it may lead to misuse. Since it is a matter in public interest and not adversarial in nature and the intention was to find a solution, when it came up for argument on 21.12.2012, Mr. Chandhiok, learned ASG took time to enable the respondent to have a re-look in the matter and to find a solution as to who the facility of online ticketing with concession could be available, at the same time, scheme be devised that it prevents any misuse. Thereafter, the Railway Board, Ministry of Railway, Government of India prepared broad outline and placed before us. These are as under:-

  • A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility.
  • The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities.
  • This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms.
  • The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification.
  • A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

6. The petitioner has filed response to the aforesaid Draft Scheme dated 3.8.2012. Attempt is made to show that there can be a better system, as suggested by the petitioner, without any misuse. Since it is for the Government to devise the procedure and system and it is making endeavour in this behalf, we direct the respondents to take into consideration the suggestions given by the petitioner in its response dated 30.8.2012 and on that basis, further amendments in this scheme that may be feasible can be carried out. Mr. Rajeeve Mehra, learned ASG appearing for the Government submitted that there is always scope for improvement and these suggestions will be taken into consideration. The Railway Board can deliberate on these suggestions and come out with further recommendations if so required in the Draft Scheme suggested by it. If the petitioner still feels aggrieved, he is given liberty to approach again.

7. Writ petition stands disposed with these directions.

ACTING CHIEF JUSTICE                                                     (RAJIV SAHAI ENDLAW)
                                                                                                  JUDGE
SEPTEMBER 12, 2012 

Thursday, September 6, 2012

Delhi High Court directs Private Schools to appoint 2 special educators

Dear colleagues,

Division Bench of the Delhi High Court has directed private schools to appoint two special educators to respect the mandate of the RTE Act. The court had already directed the Govt. of Delhi to appoint 2 Special educators in all government schools. This is a welcome step and calls for drastic changes in the way we look at education of children with disabilities.

Here is the news report from the Time of India.


'Special educators must in private schools’
Abhinav Garg, TOI



NEW DELHI: Disabled students enrolled in private schools received a unique gift from the Delhi high court on Teachers' Day - special educators.

A division bench comprising acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw directed all private unaided schools in the capital to hire two qualified special educators as per the mandate of the Right to Education Act (RTE).

The bench made it clear that special educators are required not just in government-run or aided schools but should also in private schools as they too enroll disabled students with special needs. HC was hearing a plea by civil rights organization Social Jurist which sought to extend appointment of special educators to private schools.

The court has already directed the government schools to appoint special educators for disabled children in 2009. It re-iterated the ruling earlier this year while hearing a contempt plea against the government for its failure to fill up vacancies for special educators.

The PIL, filed through advocate Ashok Agarwal, highlighted that 2039 unaided private schools and 258 aided schools lack basic physical and academic infrastructure, including special educators for those suffering from blindness, hearing impairment or mental retardation. "The failure on the part of these unaided and aided schools to have these facilities in place violates the fundamental and human right to education of the children with disabilities as guaranteed to them by the Constitution, RTE Act (2009) and UN Convention on the Rights of the Persons with Disabilities (2008)," the PIL had argued.

On its part, the state government agreed with the need to have special educators and said all the unaided private schools of Delhi are required to make provisions for special educators for children with special needs. Earlier HC had directed the action committee of unaided private schools to file affidavit explaining about their position on recruitment of special educators, availability of provisions of ramps and special toilets etc. for the children with disabilities.

Source: Times of India

Monday, May 21, 2012

Deaf and Speech Impaired can be Key Witnesses in Criminal Trial : SC

Dear Friends,

I firmly believe that exposure and practice can make you aware of things you wouldn't have ever believed or done. If you remember the much hyped Driving Licence for the Hearing Impaired case that I updated earlier on this blog several times on  20 September 2009,  09 November 2009 and 15 February 2011,  Hon'ble Justice Dipak Misra, then Chief Justice at the Delhi High Court headed the bench that heard the case. In the instant case, the deaf were declared competent to drive the private vehicles if they cleared the driving test like any body else by the Hob'ble Court.

Subsequently Chief Justice Dipak Misra  was elevated to the Hon'ble Supreme Court. The learnings from the above Deaf Driving case found their reflection in the judgement below that was pronounced by a bench of Justice B.S. Chauhan and Justice Dipak Misra yesterday (i.e. 21 May 2012) in Criminal Appeal No. 870 of 2007 titled State of Rajasthan Versus Darshan Singh in Hon'ble Supreme Court.

In the instant case the High Court  of Judicature for  Rajasthan at Jodhpur set aside the judgment and order dated 15.1.2003 of the Additional  Sessions  Judge  (Fast  Track)  Hanumangarh, convicting the respondent  of  the offences punishable under Section  302  of  Indian  Penal  Code,  1860 and imposing the punishment to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- in default to further undergo one month simple imprisonment. This was on the basis of the evidence of the sole eye witness who was speech & hearing impaired and was the wife of the victim. She gave her evidence with the help of her father who acted as her interpreter.

The High Court did not found favour with the evidence of the sole eye witness as the court it raised questions over the competence of the deaf witness and process of recording the evidence and that the father of the eye witness who acted as interpreter was an interested party in the case.

Good points in the Judgement: 

Though I don't agree with the language used to refer to Speech and Hearing Impaired persons- where both our media and judiciary need to sit and take a note of, I am happy that the judgement looks promising and is a step towards progressive realization reiteration from the apex court of India that the deaf or the hearing impaired persons are no less competent when it comes to act as star witness in a criminal case.

Stating that a court can bank on a "deaf and dumb"  (read hearing and speech impaired) as a star witness in a criminal trial, the Justices refereed to Evidence Act that has changed to embrace the scientific fact that such people are "generally found more intelligent and susceptible to higher culture than one was once supposed". Section 119 of The Evidence Act mandates that a person unable to speak can use signs or write his or her testimony, which would be deemed oral evidence, if made in open court.

The court further explained, "Language is much more than words... A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures."  It further observed, "Like all other languages, communication by way of signs has some inherent limitations since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his or her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.


The operative paras of the judgement

"21. To sum up, a deaf and dumb person is a competent witness.   If in the opinion of the Court, oath can be  administered to him/her, it   should be so done.  Such a witness,  if able to read and write, it is   desirable to record his statement giving him  questions in writing and  seeking answers in writing.  In case the witness is not able to read  and write, his statement can be recorded in sign language with the aid  of  interpreter,  if  found  necessary.   In  case  the  interpreter  is  provided, he should be a person of  the same surrounding but should  not have any interest in the case and he should be administered oath."

22.    In the instant case, there is sufficient material on record that Geeta (PW.16) was able to read and write and this fact stood proved in the trial court when she wrote the telephone number of her father. We fail to understand as to why her statement could not be recorded in writing, i.e., she could have been given the questions in writing and an opportunity to reply the same in writing.

23. Be that as it may, her statement had been recorded with the  help of her father as an interpreter, who for the reasons given by the  High Court, being an interested witness who had assisted during the  trial,  investigation and was  examined without administering oath,  made  the  evidence  unreliable.  In  such  a  fact-situation,  the  High  Court  has  rightly  given  the  benefit  of  doubt  and  acquitted  the  respondent.

24.     We are fully aware of our limitation to interfere with an order  against  acquittal.  In exceptional cases where there are compelling  circumstances  and  the  judgment  under  appeal  is  found  to  be perverse, the appellate court can interfere with the order of acquittal.  The  appellate  court  should  bear  in  mind  the  presumption  of  innocence of the accused and further that the trial Court’s acquittal
bolsters the presumption of his innocence. Interference in a routine  manner where the other view is possible should be avoided, unless there are good reasons for interference.

25.  If we examine the judgment of the High Court in light of the  aforesaid legal  proposition,  we  do not  find it  to be a  fit  case  to  interfere with the order of acquittal.  The appeal lacks merit and, is accordingly, dismissed."


The lacunae in the judgement

No two views are alike and the law presumes innocence unless convicted. However in the instant case my considered view is that the Hon'ble Bench could have also done justice then showing just ways on following three counts:

(a) The Bench presumed that the Deaf Witness Geeta was able to write the telephone number so she was educated enough and could give her evidence in writing. Merely being able to write a phone number doesn't mean the witness could answer in writing and could read and write. The bench may not have been exposed to the kind of education the deaf children get in the country. While they may be able to write or remember telephone number, only a small fragment can write coherent sentences .. such is the state of affairs of the deaf education in Delhi- the capital of the Nation.

(b) If the Judges felt that the evidence wasn't foolproof and was unreliable due to the chances of father acting as an interpreter and also claimed to be an interested party and if there were procedural errors in collecting the evidence by the prosecution, in my considered view,  this was the fit case to be remanded back to the trial court to recollect the evidence keeping the legal formalities of an independent interpreter or re-appreciating the signs recorded at the time of evidence and through in camera recording of the evidence. The sole witness is alive and the Hon'ble court has already declared that she is the star witness and should not be discredited only due to her disability. Today there are enough sign language interpreters who could have assisted the trial court. On the contrary, the Hon'ble court chose to give the benefit of the doubt to the convict who had himself accepted that he killed the victim and it stood corroborated with the entire evidence on record and recovery of the murder weapon at his instance.

(c) The language in the entire judgement refers to the witness as "deaf and dumb" which is not an acceptable noun to refer to a person with Hearing and Speech impairment. The apex court should atleast set precedent in the use of proper language in light of the The Persons with Disabilities (equal opportunities, protection of rights and full participation)  Act 1995 as well as The UN Convention on the Rights of Persons with Disabilities 2006 that Indian is a proud signatory to.


Read the coverage by the Indian Express  today here.

Read the Coverage by The Times of India here.

Regards,
Subhash Chandra Vashishth
Advocate- Disability Rights
subhashcvashishth@gmail.com


Wednesday, May 16, 2012

Madrash High Court questions Commissioner Disability on unfilled backlogs and shoddy implementation of PWD Act

Dear Colleagues,

I am very pleased to inform you that Hon'ble Justice S. Manikumar of  Madras High Court has taken the State Government and even the Commissioner Disabilities to task for not implementing reservations in employment and not clearing the backlog in employment of Persons with Disabilities. Hon'ble Justice has further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

One wonderful intitiative on the part of the Hon'ble Justice! And mind you, almost all dailies today are singing about what Ms. Jaylalita's Government has done for the disabled, to name a few:

(a) 20 early intervention centres for Visually Impaired childrein in age group of 0-6 years in 20 districts at 2 crores rupees cost
(b) Age limit of 45 reduced to 18 years to avail pension.
(c) Free vocational training in all 32 districts benefiting 2400 disabled
(d) Cash awad to pursue high education to Hearing impaired students
(e) Monthly maintennace allowance from Rs. 500 to 1000 to severally disabled

 You will appreciate there is nothing about employment for the disabled and filling up the backlog vacancies reserved for them under the Persons with Disabilities Act 1995. The Government seems only wanted to keep the disabled alive on some paltry sum of pensions an some vocational training. The education grants of no use if the Government is not serious in including them in the employment which is evident from the records.

I welcome this step and congratulate the residents with disabilities of Tamilnadu to have such a progressive Justice in the High Court of Madras.

Here is the media coverage from the Hindu:


Court takes on the role of messiah

MOHAMED IMRANULLAH S

Thousands of physically challenged people awaiting government jobs could heave a sigh of relief now as the Madras High Court has taken upon itself the task of making every State Government department, undertaking, university and other such organisations follow the statutory reservation of 3 per cent in letter and spirit.

Passing interim orders in a batch of writ petitions, Justice S. Manikumar has directed the Commissioner for Differently Abled to submit in court by June 9 an exhaustive list of details including the backlog vacancies that need to be filled up in every government institution ever since the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force in February 1996.

The judge also wanted the Commissioner to explain why the reservations for the physically challenged had not been implemented uniformly across all government controlled institutions even after 16 years since the Central enactment was passed.

He further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

Expressing deep concern over this attitude of the government officials, the judge said: “If some vacancies meant for Scheduled Castes or Scheduled Tribes or Most Backward Classes are left unfilled, many organisations, associations and even political parties would raise their voice, protest and agitate. But it is not so in the case of the differently abled. May be because, they do not command such a position in politics.”

He pointed out that as of March 31, 2011, a whopping number of 98,295 physically challenged people were in the ‘live register' of Employment Exchanges awaiting their chance for a government job. But unfortunately, they have been denied of their statutory right despite many court orders including the one passed by the First Bench of the High Court in a public interest litigation petition on February 17, 2011.

Mr. Justice Manikumar pointed out that the State Government had taken 10 years, since the legislation was enacted, even to begin identifying the posts meant for the physically challenged in Group A and B categories in the State Civil Services. The work began only in 2005 though it should have been kick started in 1996 itself and reviewed at periodic intervals not exceeding three years.

Thereafter, a series of meetings were held by the Union Ministry of Social Welfare and details were called from heads of various departments and boards, corporations and companies owned and controlled by the government. But many of them evaded from submitting the details.

It was also found that certain universities and educational institutions, in particular, had not followed the reservation policy.

“Right to live with dignity is a human right. Many of the disabled in India live in poverty and without employment, though educationally qualified. Delayed implementation of the statute is a deprivation of their statutory and Constitutional rights… Let us not forget that even a differently abled person would earnestly believe and expect that the words spoken and written be honoured,” the judge said.

He concluded by quoting Hellen Keller who said: “Science may have found a cure for most evils; but it has found no remedy for the worst of them all — the apathy of human beings.”

Though the present batch of writ petitions related to approval of three teachers appointed in C.S.I. High School for the Deaf at Kottaram in Kanyakumari district, the judge went beyond the scope of the case in order to ensure strict implementation of the 1996 Act.

Source: The Hindu

Saturday, May 5, 2012

Karnataka HC orders 3 pc quota in PG for disabled doctors in pre-clinical, para-clinical and clinical courses


Bangalore, May 2 2012, DHNS:


The High Court of Karnataka on Wednesday directed the State government to complete the formalities regarding the seat matrix for the Postgraduate Common Entrance Test within three days.

Justice Bhaktavatsala told the government to announce the seat matrix within three days and asked it to provide three per cent reservation to physically challenged doctors during counselling for allotment of seats to eligible candidates in various disciplines of the postgraduate medical courses of the Rajiv Gandhi University of Health Sciences, as per the guidelines issued by the Medical Council of India.

The court was hearing a petition by physically challenged doctors - Veeresh Hallur and Mahajid Pasha - demanding three per cent reservation in the allotment of seats.

The petitioners said that the government had come up with a separate seat matrix, reserving postgraduate medical seats for doctors with locomotor disability in the range of 50 per cent to 70 per cent. They said such a reservation in seat matrix was only to offer seats in least preferred courses. The petitioners sought directions from the court to the government to provide three per cent horizontal reservation to physically challenged doctors in the pre-clinical, para-clinical and clinical courses.

Source: Deccan Herald