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.