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Bombay High Court

Mon, 07/23/2012 - 12:37 -- admin

Court judgements: Bombay High Court


Edward Swalin D’ Cunha v. Commissioner for Persons with Disabilities and Shipping Corporation of India through its Chairman

2010 (112) BomLR 1293

Writ Petition No. 716 of 2008

Decided on: 18.03.2010

Bombay High Court

Judges: Ranjana Desai and A. A. Sayed, JJ.

Facts:  The petitioner who worked as a 3rd officer in the Shipping Corporation of India SCI suffered from mental illness during the course of his employment. He resigned from his post on the assurance given by his employer that he would be entrusted onshore job considering his mental health condition. Subsequently, he was denied the same on the grounds that firstly, the petitioner resigned out of his own volition and secondly, the policy of the SCI prevented any floating cadre staff from holding any onshore post. Hence, the present petition came up before the High Court for decision. 

Held: The High Court held that any policy of the employer which prevents a 3rd officer of floating staff from holding the off shore cadre post cannot over-ride Section 47 of the Persons with Disabilities (Equal Opportunity, Protection and Rights and Full Participation) Act, 1995 and therefore the employer in this case should entrust the petitioner with an onshore job.

Ratio Decidendi: The court pointed out that, “Person acquiring disability during course of service entitled to transfer to some other post with same pay scale and service benefits and this mandate cannot be overlooked by any establishment or organisation in the garb of their inability or policy of not providing alterative jobs under Disabilities Act.”

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The National Federation of Blind v. State of Maharashtra

2005 (1) BomCR 740

Public Interest Litigation No. 129 of 2003

Decided on: 22.07.2004

Bombay High Court

Judges: A. P. Shah, Acting C. J. and S. U. Kamdar, J.

Facts: The petition was filed by the National Federation for Blind (NFB) on the ground of total inaction on the part of the respondent Government as far as implementation of the provisions of the Persons with Disabilities (Equal Opportunity, Protection and Rights and Full Participation) Act, 1995 for the physically handicapped is concerned.

Held: The High Court issued the following directions to the State Government:

1.)    The Commission / Committee constituted by the State Government for the purposes of identification of posts (for the purpose of reserving them for the physically challenged) in various government and semi-government organizations shall be reconstituted. The Committee/ Commission had to be headed by a person who is closely connected to one of the leading organization of handicapped institutions or the person himself is suffering from such handicap provided such a person is qualified and eligible to head the said Commission.

2.)    It was further directed that on the said Commission, there shall be an officer from the Law and Judiciary Department of the State Government whose responsibility will be to see the effective implementation of the provisions of the Act are carried out by the Commission.

3.)    Also there had to be a representative from the Social Welfare Department and representatives of three of the public sector enterprises or semi-government organizations whose job would be to identify the posts for the physically handicapped.

4.)    Further, it was directed that there shall be 3 members from NGO which carries on work in the field of physically handicapped, and while doing so, the Commission shall not restrict the identification of the post only to the lower categories such as lower division clerk and upper division clerks but they have to have reservation at roster point 1, 34 and 67 at every stage where there is recruitment to be effect.

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Dhawal S.Chotai v. Union Of India

(2003) 4 Maharashtra Law Journal 699
Writ Petition No. 1256/2003
Decided on: 30.04.2003
Bombay High Court
Judge: H.L.Gokhale, J

Fact: Dhawal S. Chotai, a physically handicapped person suffering from ‘cerebral palsy’, was denied three extra hours to write papers of Intermediate Examination for Foundation Course for Chartered Accountants Examination known as “Professional Education- II” by Kanga and Company.

Held: The respondent institution is a statutory authority and it would fall amongst other authorities under Article 12 of the Constitution and would also be bound by Article 21 of the Constitution which provided for right to life which means right to have a decent life. The right to receive education and facilities for it will have to be read in it. Earlier he was granted such permission for his B.Com examination by University of Mumbai Petitioner had established that he would require three hours and had annexed disability certificate. Petitioner ought to be granted required time.

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