1 SEPTEMBER 2022

Employer's Failure to Meet the Needs of Disabled Persons Breaches Norms of "Reasonable Accommodation": Tripura High Court

BY PRIYA JAGADEESH


Facts of the case


The Petitioner met with an accident while discharging his duties in employment and became disabled. Due to such disability, he could not attend his duties.  However, the Petitioner was willing to join his duties to commensurate to his disability. Upon reference to it, the Standing Medical Board submitted a report dated 18.02.2020 that the Petitioner was not in a position to perform his official and field level activities. The Board also observed that the condition of the Petitioner may improve.


Treating his absence from duty as unauthorized, the Petitioner was paid salary only up to 16.03.2020 and  thereafter, he was not paid salary and other allowances. Challenging this, the Petitioner filed a writ petition before the Hon’ble High Court of Tripura. The High Court allowed the writ filed by the Petitioner.


Order


The Hon’ble High Court relied on the Office Memo dated 25th February, 2015 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, and noted that the Office Memo mandated the State-employer to create conditions in which the barriers posed by disability can be overcome. The Court also noted the fact that the Petitioner’s joining report and leave application was refused by the Respondent on the ground that the Petitioner did not report to the joining authority in person. The Court held that the conduct of the Respondent is not in consonance with the Rights of Persons with Disabilities Act, 2016 (RPwD Act).


The Court further observed that the Respondents should have realized the challenge the Petitioner has been facing and should have accommodated him with a humane approach. The High Court directed the Respondents to "reasonably accommodate" the Petitioner and further ordered that:

a)     The Respondents to pay all the cumulative dues such as salary, allowances, etc payable to the Petitioner under his service conditions within a period of three month from the date of order.

b)     The Respondents to regularize the Petitioner’s service conditions by recalling all the earlier orders treating his absence from duty as unauthorized absence.

c)     If the Petitioner is found eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the Petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned such suitable duties which he would be able to discharge.

d)     If the Petitioner is not able to perform any kind of duties, then, the Respondents are under obligation to pay all service benefits including the promotion to the Petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation. (A supernumerary post is a post created for accommodating a permanent officer till he is absorbed substantively in a regular permanent post)

e)     The Respondents shall utilize the capacity of the Petitioner by providing an amiable environment and reasonable accommodations.

f)      The Petitioner to appear before the constituted Medical Board of the State Government within 7(seven) days from the date of order. The Medical Board shall examine and issue certificate mentioning the extent of his disability in consonance with the RPwD Act; and

g)     To refrain from sending the Petitioner to the Medical Board time and again.


Pacta’s Analysis on the Impact of the Order


Reasonable accommodation as defined under the RPwD Act means appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure persons with disabilities enjoy or exercise their rights equally with others. The RPwD Act also imposes obligations on the State and private parties to afford additional support to persons with disabilities to facilitate their full participation, such as ensuring accessible buildings, transport facilities and quota in public sector employment.


The recently released Draft Policy for Persons with Disabilities (Divyangjan), 2021 also identifies various provisions for the full participation of disabled persons. The policy proposes a national level employment portal for disabled persons for reporting vacancies, eligibility criteria, recruitment process, counselling etc., and to develop an e-platform for skilling the disabled persons. Despite several laws and policies that affirm the rights of people with disability, justice still remains elusive, often requiring court proceedings such as this to affirm their rights.


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