Wednesday, November 16, 2016

Right to Dignity - a Consititutional Right of the Female Disabled Employee will Prevail over Employer's Right to Take Work, says Kerala HC [Judgement Included]

Dear Colleagues,

Here is a classic case where the Indian Railways has been wasting the exchequer's money in unnecessary legal battle against a female disabled employee who was seeking protection under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of  Rights & Full Participation) Act 1995 since the year 2002.

Brief history
 
While serving in the Railways, in the year 1998, Ms. Fancy Babu suffered transverse myelopathy (inflammation of spinal cord) at D4 level, which eventually resulted in complete paralysis confining her to bed. In 2002, she proposed to retire voluntarily and the Indian Railways accepted it. In 2009, having come to know of the beneficial provisions of benefit of Section 47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995, the employee approached the Central Administrative Tribunal, Ernakulam Branch seeking reinstatement and extension of benefits under the Act in OA/49/2009. The Tribunal, allowed the original application, setting aside the order or retirement and directed the employee’s reinstatement with effect from 15.02.2002. But Railways went against it before the High Court in  WP(C) No. 15871 of 2010 [click here to read the judgement dt 25 Aug 2014], wherein the said order was confirmed by the High Court by dismissing the appeal preferred by the Railways. 

Facts leading to instant case
 
However, in the year 2015, Ms. Fancy Babu had to again approach CAT  & file MA No. 180 of 2015 under Rule 24 of the CAT (Procedure) Rules 1987 complaining that the Tribunal’s order, as has been confirmed by this Court, has not been implemented by the Indian Railways.  Ms. Babu cited Kunal Singh v. Union of India (2003) 4 SCC 524 and Bhagwan Dass and another v. Punjab State Electricity Board (2008) 1 SCC 579 on protections available to employees under Section 47 of the Act.

The Tribunal, treating it as a special case, held that the employee need not report to office to receive her salary and it directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. 

The Indian Railways again preferred an appeal  OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu, before the Kerala High Court against this order of the Tribunal.  The contention put forth by the Indian Railways was that that since it is in trust of public money; it would be against the public interest to let a person draw salary without her discharging any function—without even attending the office. On the part of employee, it was urged that, where an employee has been totally incapacitated and has been rendered immobile, it is inequitable and unconscionable to compel the employee to attend office, much less discharge functions. 

Dismissing the challenge against the CAT order, the division bench comprising Justices PR Ramachandra Menon and Dama Seshadri Naidu, observed: “Given the modesty of women, the employer, still, expects a crippled woman employee to visit the work place, and, if necessary, discharge the functions to be assigned to her—all this with a urinary catheter permanently fixed and also with bowel incontinence: her modesty exposed and privacy invaded.” 

Strongly worded judgement authored by Justice Dama Seshadri Naidu discusses judicial recognition of human dignity in various countries. The bench also observed that employer’s insistence that she should physically mark her attendance daily in office violates her privacy. “The doctrine of dignity takes into its fold ‘privacy’, too, for it is a facet of a woman’s dignity,” the court held. “The employer seems to have understood that keeping an employee on the rolls, as if she had been in service, must mean that she should perform the ritual of attending office. We are afraid it is misplaced, if not perverse,” the bench said. 

 Dismissing the appeal and upholding the CAT order, the bench remarked: “Here is a conflict, as it seems, between the employee’s constitutional right—right to dignity and privacy—and the employer’s right—right to compel an employee to discharge the allotted functions. Need we say, it is the constitutional right that prevails? Nevertheless, we hasten to add, it may be a constitutional canon but needs the facts to justify it. Here, the facts, we think, justify this conclusion.”

Click here to read the judgement  dated 03 Oct 2016 in OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu passed by the Kerala High Court.



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