Summary
A CRPF constable-driver who lost his sight in service was medically invalidated in 1998, while Section 47 of the Persons with Disabilities Act, 1995 still applied to the CRPF. His invalidation breached the employer's mandatory duty to give him an alternate or supernumerary post. The 2002 notification exempting combatant personnel is prospective and could not validate the earlier invalidation. No waiver was shown, and the High Court could grant Section 47 relief though it was not pleaded. As reinstatement was no longer possible, the Court awarded Rs. 1.25 crore.
Issues
- Whether the High Court could grant relief under Section 47 of the PwD Act when the writ petition neither pleaded nor prayed for it and sought only disability pension.
- Whether the respondent waived his rights under Section 47 by seeking and accepting invalid pension and terminal benefits.
- Whether the notification of 10.09.2002 exempting combatant personnel of the Central Para Military Forces from Section 47 applied to the respondent's invalidation of 11.03.1998.
- Whether Section 47 protection depends on the disability being attributable to or aggravated by service, and what relief should follow now that the respondent has passed superannuation age.
Provisions considered
- Section 47(1) and provisos, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995Read as a mandatory prohibition on dispensing with or reducing in rank an employee who acquires a disability in service. The employer must shift the employee to another post with the same pay and benefits or keep him on a supernumerary post until superannuation, without waiting to be asked, and whatever the cause of the disability. (¶¶ 31, 32, 58, 64, 65, 74, 75, 76)
- Section 47(2), proviso (exemption by notification), Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995An exemption notification ends the employer's duty and the employee's protection only from the date it takes effect. The notification of 10.09.2002 had no retrospective words and was strictly construed, so it could not validate the 1998 invalidation. (¶¶ 31, 54, 55, 56, 57, 58, 59, 60, 61)
- Article 226, Constitution of IndiaDescribed as a plenary, equitable jurisdiction not bound by the Code of Civil Procedure. In an exceptional case, a High Court may grant relief wider than that pleaded or prayed for where the record clearly shows entitlement and the opponent has notice and suffers no prejudice. (¶¶ 35, 37, 38, 39, 40, 41, 42, 43, 44)
- Order VII (rule against travelling beyond pleadings), Code of Civil Procedure, 1908Noted as embodying the rule that a court cannot make out a case not pleaded; the Court held that this rule guides but does not rigidly bind writ courts. (¶¶ 36, 41)
Held
- High Courts in writ jurisdiction should ordinarily keep to the pleadings and prayers, but the rule is not inflexible. Where the record clearly shows that the petitioner is entitled to more than he claimed (owing to ignorance, bona fide mistake or poor drafting), the opponent has notice and no answer and suffers no prejudice, and is using a technicality to shield its own statutory breach, the court may grant the wider relief. This exception must be used sparingly. (¶¶ 34, 35, 36, 37, 42, 43, 44)
- Waiver is the intentional giving up of a known right. The party pleading it must prove that the other side had the right, clearly knew of it and voluntarily gave it up; mere silence, inaction or delay is not enough, and waiver of statutory rights under welfare legislation is disfavoured. Waiver had not been pleaded, the respondent was found to be unaware of Section 47, and he was never told of it, so the plea failed. (¶¶ 46, 47, 48, 49, 50, 52)
- Delegated legislation, including an exemption notification, is ordinarily prospective unless it clearly says otherwise, and an exemption from beneficial legislation must be strictly construed. The 2002 notification ended the duty under Section 47 only from its date. Section 47 applied fully to the CPMFs from 1995 to 10.09.2002, so the 1998 invalidation was void when made and could not be validated later. Dileep Kumar Singh, which concerned an invalidation after 2002, was distinguished. (¶¶ 55, 56, 57, 58, 59, 60, 61)
- Section 47 is mandatory. An employer must offer an alternate post with the same pay and benefits, or create a supernumerary post personal to the employee, and must not wait to be asked; by not doing so, the appellants failed as a model employer. (¶¶ 62, 64, 68, 74, 75, 77)
- Section 47 protection is not limited to disabilities attributable to or aggravated by service; it applies however the disability was acquired. The relevant question is whether the employer explored alternatives before ending service, and the law should lean towards retention over ouster. (¶ 76)
- Since the respondent had passed superannuation age, reinstatement was not possible. The appellants, who failed to provide an alternate post, could not rely on the principle of 'no work, no pay' for non-employment of their own making, and the respondent was entitled to full back wages. The Court rejected the plea to limit dues to the date of the 2002 notification. (¶¶ 80, 81, 82)
Result
Appeal dismissed with modification: instead of reinstatement, the respondent was awarded Rs. 1,25,00,000 inclusive of back wages, interest and costs, payable by electronic transfer within eight weeks; the State or District Legal Services Authority was directed to guide him on safe investment of part of the amount and to oversee his future medical needs.