Friday, July 18, 2008

Laws against Discrimination against the Disabled that apply to the disabled also apply to their carers

Dear Friends,

There is some good legal interpretation happening here. The European Union's Highest Court has ruled that Employers can be found guilty of discriminating against the parent of a disabled child under the EU equality laws.

I feel this indicates a paradigm shift in the interpretation of Equality laws and shows higher sensitivity of the Court to relate the stress of the carer as related to disability.

The European Court of Justice says laws against the discrimination of the disabled also apply to their carers. It says in a recommendation issued Thursday for a British court case that a London law firm was wrong to refuse legal secretary Sharon Coleman her previous job after she gave birth to a son with breathing problems.

Coleman claims her employers said she was lazy when she asked for time off to care for her child. She says other workers with non-disabled children received better treatment and more flexible working hours.

Saturday, July 5, 2008

Chennai High Courts finaly delivered its judgement on Rajiv Rajan's Case against Min. of Civil Aviation

Dear Friends,

We often see the impact of Cases indirectly. Of late we have been seeing some enormous amount of activity in the DGCA and Ministry of Civil Aviation and their engaging very constructively with the Disability Sector in bringing about a Civil Aviation Requirement on carriage of People with Disability.

In this regard, I refer to a case filed by Mr. L.K. Venkat & Rajiv Rajan against the Ministry of Civil Aviation, Air Sahara and Jet Airways etc. on the issue of lack of provisions for dignified flying for the disabled. The ministry drew flake for some time but this case surely was one of the factor in pushing the CAR guidelines more quickly from the tables of Ministry of Civil Aviation.

I am appending the judgement (courtesy Disability Legislation Unit-South) for your information and comments.

QUOTE

In the High Court of Judicature at Madras

Dated: 30-06-08

Coram:

The Honourable Mr. Justice P.K.MISRA
And
The Honourable Mr. Justice M.SATHYANARAYANAN

Writ Petition No.23379 of 2007

1.Mr. L.K.Venkat

2. Rajiv Rajan ..Petitioners

Versus

The Ministry of Civil Aviation
Chennai Airport,
Mennambakkam, Chennai.

The Secretary to Government
Ministry of Civil Aviation,
Rajiv Gandhi Bhavan,
Safdarjung Airport, New Delhi.

Air Sahara Airlines,
Kamarajar Domestic Terminal,
No.1, Link Building,
Trisulam, Meenambakkam,
Chennai-600 022

Chief Executive
Air Sahara (now known as Jet Lite)
S.M.Centre, Andheri Koria Road
Andheri (East), Mumbai-400 059

Chief Executive Officer,
Jet Airways (India) Ltd,
S.M.Centrem Andheri Koria Road
Andheri (East), Mumbai-400 059*

Director General of Civil Aviation
Opposite to safdurjung Airport
New Delhi
Chief Commissioner for Disablilities,
Govt. of India,
Sarojini House, No.6, Bhagawandoss Road,
New Delhi-110 001
(Cause title amended as per order dt.13.2.2008 in M.P.No.1 of 2007 in w.p.23379 of 2007) …Respondents

Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus as stated therein.

For Petitioners ….. Mr. P.B.Suresh Babu for Petitioners.
For Respondents …. Mr. P.Wilson, Asst. Solicitor General for
R1, R2,R6 & R7.
M/S Guptha & Ravi for R3 to R5.



(Order of the Court was made by M.SATHYANARAYANAN, J)

The writ petition is filed in public interest for the issuance of writ of mandamus directing the respondents 1 to 3 to strictly implement the provisions of the persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (in short “the Act”). Thereafter M.P.No1 of 2007 was filed to implead the second petitioner and respondents 4 to 7, it was ordered on 13.2.2008 and accordingly, second petitioner and respondents 4 to 7 came to be impleaded as parties to this writ petition.

2. The first petitioner is a physically challenged person and he is a Postgraduate degree holder in Master of Arts and also did graduation in Law. The petitioner is doing social services in the name of Makkal Thalaivar Iyya Moopanar Peravai by conducting Blood Donation Camps, Eye Camps, Aids Awareness kProgrammes and other social services especially in rural areas of all over Tamil Nadu.


3. The first petitioner through newspaper reports came to know that the third respondent refused to board to board the second petitioner who is similarly affected buy a Polio Syndrome like the petitioner, on account of the fact that he is a physically challenged person. The second petitioner approached the third respondent to find out the reason why he was not allowed to board the aircraft and he was informed that unless he obtained fitness certificate from a doctor and accompanied by a healthy person to assist him during air travel, he will not be allowed to board aircraft.

4. According to the petitioner, the attitude of the third respondent is in violation of Article 14 of the Constitution of India and also clear contravention to the above said Act. The petitioner also sent a notice through his lawyer on 23.06.2007 calling upon the respondents to implement the provisions of the above said Act and he was not favoured with any response. Therefore, the petitioner has filed this writ petition.

5. Mr. P.B.Suresh Babu, learned counsel appearing for the petitioners had made his submissions based on the averments made in the affidavit filed in support of the writ petition. The learned counsel for the petitioners also filed a memorandum in reply to the counter affidavit filed by the respondents 1 to 4. It is submitted by the learned counsel appearing for the petitioners that there were similar incidents pertaining to aircraft Sahara and Jet Airways and complaints have been lodged with Chief Commissioner, Disabilities and the said complaints are pending adjudication. It is further submitted by the learned counsel for the petitioner that persons with disabilities are facing discrimination and degrading treatment wherever they go., The rights of the disabled persons was first declared in U.N. Declaration on the rights of persons with disabilities in the plenary meeting held on 19.12.1975 and the said declaration is yet to be given full effect.

6. It is also submitted by the learned counsel appearing for the petitioner that the provisions of the Aircraft Act 1934 and the Indian Aircraft Rules 1937 have to be reviewed in the light of the Constitution of India and the various commitments with the Government of India as made in the International Forums. In spite of the existing law, the facts would now disclose that the degrading treatment shown by the airliners are give recurrent and had been in different forms. Therefore, the writ petitioner has prayed for a declaration that the persons with disabilities constitute a separate class by themselves distinct from the medical ill or temporarily disabled persons and for a direction to review the Legislation and Rules relating to Civil Aviation and the lines of this understandings and also for the other consequential reliefs.

7. The respondents 1 and 2 had filed counter affidavit. It is stated in the counter that as per Rule 24 A of Aircraft Rules 1937, the persons suffering from any mental disorder are prevented to be carried on board of the aircraft and it is subject to the provision which is as follows:-

“(a) has not taken or used any alcoholic drink or preparation within 12 hours of the commencement of the flight;
(b) is kept under proper sedative; if in a state of excitement, during the flight and stops enroute; and
(c) is accompanied by an attendant, provided that in case he has been in a state of excitement requiring sedation within the 2 weeks preceding the date of commencement of the flight, he shall be accompanied by a registered medical practitioner and adequate escort who shall individually and collectively be responsible for ensuring that no alcoholic drink or preparation is taken by the person in their charge and that such person is kept suitable sedated during the flight and shops en-route.”

It is further state in the counter that the said rule which allows disabled person to travel in an aircraft and the disabilities Act 1995, is already implemented in the Civil Aviation Sector and no discrimination is made against any disabled person. The Airport and aircraft have suitably been designed to have easy access to Airport and aircraft for the benefit of physically challenged persons. The Civil Aviation Requirement is being suitable amended in consonance with the Persons with Disabilities (Equal Opportunities Act) and necessary directions are contemplated to be issued to all the Airliners to facilitate the carriage of physically challenged passenger by air by virtue of the powers conferred under Rule 133-A of the Aircraft Rules, 1937.

8. During the course of arguments Mr. P.Wilson, learned Assistant Solicitor General has produced a circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation, New Delhi, wherein the Civil Aviation requirements in respect of carriage by Air to persons with disability and or persons with reduced mobility came to be issued. The salient features of the said circular are as follows:-

“4.2 The airlines shall formulate a detailed procedure for carriage of disable persons or persons with reduced mobility and publish the same on their website.
4.6 Many persons with disabilities do not require constant assistance for their activities. Therefore, if the passenger declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of a n escort.
4.9. Persons with disabilities not holding any certificate shall also be provided necessary assistance as well as the aids such as wheel chairs, ambulifts etc. In such cases during ticketing / check-in the individuals’ degree of disability and his need for assistance may be confirmed. Airlines shall not refuse carriage in such cases. However, cost of such facilities may be borne by passengers requiring them.

Medical Clearance:-

5.1: No Medical clearance or special forms shall be insisted from persons with disabilities or persons with reduced mobility who only require special assistance at the airport for assistance in embarking /disembarking and a reasonable accommodation in flight, who otherwise do not require any additional assistance.
5.2: A medical clearance by the airline may be required only when the airline has received information that the passenger
a) suffers from any disease, which is believed to be actively contagious and communicable:
b) who, because of certain disease, or incapacitation may have or develop and adverse physical condition which could have an adverse effect during flight and on safety and emergency evacuation procedures:
c) would require medical attention and / or special equipment to maintain their health during the flights;
d) there exists a possibility of medical condition aggravated during or because of the flight;
Note: Persons with specific disabilities should plan to have all required forms for assistance ready in advance, to avoid flight delays. Forms and information will be made available on each airline’s website.
5.3: Any passenger having any of the conditions mentioned in
5.2(a) through 5.2(d) be subjected to prior clearance for air travel by the medial departments /advisors of the carrying airlines. In case the passenger has a connecting flight with another airline, this medical clearance should be accepted at the first point of check-in and the information transmitted by the first Airlines to the connecting airlines so that the passenger is not required to furnish the same again and again.
5.4: Before refusing carriage of any such passengers, the airlines shall refer to their medical departments /advisors for advise/clarification in accordance with a procedure, which shall be documented by the airlines. For such clearance the airline may seek the necessary medical information from the passenger(s) concerned or their representatives. Any forms for such information to be provided to the passengers by the airline staff will be made available on the airline’s website.
5.5: The airline shall enter for each person with disabilities or person with reduced mobility or incapacitated passenger the information sheet requiring special assistance.
Notes:1 – The airline shall establish a procedure for expeditious clearance by their medical departments, where required, to avoid delays causing inconvenience to passengers. Airlines shall provide necessary forms and procedures on their web-sites and through their call-centers/ agencies to make the process simple. The passengers should pre=clear themselves with the airline in advance.
Notes:2 - The airline shall ensure that at time of check in airline staff is alerted and shall verify that all needs required by such passenger in advance in the relevant forms have been made available.
Notes:3 – The procedures involving medical clearance shall be documented and published in each airline’s web-sites.
Boarding, Seating and Briefing:-
7.1: Boarding
a) The presence of all categories of incapacitated passengers and persons with disabilities or reduced mobility with their escorts and any special arrangements made for them while on board, shall always be referred to the captain/senior cabin crew member.
b) Incapacitated passengers and persons with disabilities or reduced mobility and their escorts shall be offered pre-boarding facilities.
c) If passengers for any reason have to be offloaded, the highest possible priority for transportation shall be given to persons with disability or persons with reduced mobility, and to their escorts.
9. The said circular also provides for complaint procedure. As per the said procedure, a disabled person or person with reduced mobility who considers that this regulation has been infringed may bring to the attention of the managing body of airlines, airport or other concerned authorities, as the case may be and on receipt of such a complaint, shall ensure speedy and proper redressal of these complaints.
10. Mr.P.Wilson, learned Assistant Solicitor General of India has submitted that in view of the said circular which came to be issued with affect from 1.5.2008, the grievance expressed by the petitioners and persons similarly placed have been taken into account and appropriate remedial measures have been provided and hence nothing survives in the writ petition.
11. Mr. Ravi, learned counsel appearing for the respondents 3 to 5 has drawn the attention of this court to the averments made in the counter affidavit filed by the third respondent. According to the learned counsel, when the second petitioner was brought to check-in counter the shift in-charge of the third respondent attended him and found that the passenger was not fit to travel by air and that nobody had accompanied him and that he was asked for a fitness certificate. However, he gave irrelevant answers and also later started shouting at the staff in an abnormal way. It is further submitted by the learned counsel appearing for the respondents 3 to 5 that the respondents 3 to 5 had fully complied with the provisions of Indian Aircraft Rules 1937 as well as IATA medical manual. It is further submitted by the learned counsel that the second petitioner had invoked the jurisdiction of the State Consumer Redressal Forum by filing C.C.NO.37 of 2007 claiming compensation and the same was dismissed for default. As respondents 3 to 5 had complied with the laws applicable to them, the learned counsel for the respondents 3 to 5 submits that the present writ petition lacks merits and is liable to the dismissed.

12. We have considered the submissions made by the respective counsel appearing for the parties and also perused the affidavit filed in support of the writ petition, counter affidavits, reply to the counter affidavit filed by the parties and also the circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation.

13. A perusal of the circular dated 2.5.2008 issued by the Director General of Civil Aviation would reveal that positive steps have been taken to alleviate the grievances of physically challenged persons in right earnest by the Director General of Civil Aviation and we hope and trust that further progress will definitely be made by the concerned authorities to redress the day to day problems faced by the physically challenged persons while they travel by air.

14. The second petitioner herein has filed a complaint before the State Consumer Disputes Redressal Forum, Chennai in C.C.No. 37 of 2007, which came to be dismissed for default after the filing of this writ petition. The second petitioner was under the bona fide belief that he can get all reliefs in this writ petition and hence, allowed the said complaint to be dismissed for default. The alleged agony undergone by the second petitioner on 18.06.2007 was seriously disputed by the third respondent in its counter affidavit and aggrieved by the same, originally the second petitioner had filed the above said complaint before the State Consumer Disputed Redressal Form, which came to be dismissed for default as the second petitioner felt that in view of his impleadment in the writ petition, he cannot prosecute the said complaint.

15. The question as to whether such person would be entitled to receive compensation obviously depends upon many factual findings based on evidence and the High Court is ill-equipped to deal with those aspects. However, we feel that the second petitioner should not suffer on that account and in the interest of justice, we feel; that without any application, the complaint in C.C.No. 37 of 2007 which was dismissed for default, can be restored to file and decided on its own merits.

16. We heard the learned counsel appearing for the respondents 3 to 5, who very fairly submitted that such an order of restoration can be passed in this writ petition itself. Accordingly, C.C.No.37 of 2007 filed by the second petitioner before the State Consumer Disputes Redressal Forum, Chennai, which was dismissed for default, stands restored to its file and it can be disposed of on its own merits.
17. The circular dated 2.5.2008, issued by the Director General of Civil Aviation is an effective step in a right earnest. We feel that more effective steps have to be taken to alleviate the grievance of persons who are physically challenged and we hop and trust that such steps will definitely be on the cards. The writ petition is disposed of on the above terms. In the circumstances, there will be no order s to costs.

Sd/
Asst. Registrar

/true copy/
Sub Asst.Registrar

Gr.

To
1. The Ministry of Civil Aviation, Chennai Airport,
Meenambakkam, Chennai.

2. The Secretary to Government, Ministry of Civil Aviation, Rajiv Gandhi Bhavan,
Safdarjung Airport, New Delhi.

3. Air Sahara Airlines, Kamarajar Domestic Terminal.
No.1, Link Building, Trisulam, Meenambakkam,Chennai-600 022

4. Chief Executive, Air Sahara (now known as Jet Lite). S.M.Centre, Anhjeri Koria Road, Andheri (East), Mumbai – 400 059.

5. Chief Executive Officer, Jet Airways (India) Ltd., S.M.CentreAndheri Koria Road, Andheri (East), Mumbai-400 059.

6. Director General of Civil Aviation opposite to Safdurjung Airport, New Delhi.

7. Chief Commissioner for Disabilities , Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi – 110 001.

1 cc To Mr. P.Wilson, Advacate, SR.33533.
1 cc To Mr. Gupta & Ravi, Advocate, SR.33150
1 cc To Mr. P.B.Suresh Babu, Advocate, SR. 33188.

w.p.no.23379 of 2007
nsm(co)
RVL 11.07.2008