Dignity & Privacy; Union of India Vs. Fancy Babu [Kerala High Court, 03-10-2016]

Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Right to Dignity and Privacy – Disabled Woman – Employer’s insistence on the employee’s physical presence under impossible—and perilous— circumstances should be taken as a display of official hubris.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ.

O.P. (CAT) No. 182 of 2016 (Z)

Dated this the 3rd day of October, 2016

PETITIONER(S)/RESPONDENTS IN MA

1. UNION OF INDIA, REP. BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600 003.

2. DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD.

3. THE DIVISIONAL FINANCE MANAGEER, SOUTHERN RAILWAY, PALAKKAD.

BY ADVS.SRI.TOJAN J.VATHIKULAM,SC,RAILWAYS SRI.G.RAJAGOPAL (SR.)

RESPONDENT(S)

FANCY BABU, KOTTAYAM

R1 BY ADV. SRI.MARTIN G.THOTTAN R1 BY ADV. SRI.M.P.VARKEY

J U D G M E N T

Dama Seshadri Naidu, J.

Introduction

Fate served a cruel blow to a woman in her battle of childbirth. Paralyzed shoulders below, she has become a living lump of meat with unimpaired cognitive faculties, though—only to make herself acutely aware of her vegetative existence. She has all but been finished, save for her spirit to live and for her dignity to hold up as a woman. And now, is her employer bent on completing the job—stifling her spirit to live and destroying her dignity to be a woman?

2. Disabled is a pejorative; differently-abled is a euphemism, but capable of recognizing and, in fact, redeeming the calamitystricken— yet still resilient—spirit of the physically challenged. The Legislature has lent its helping hand: It has brought out Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995  (‘the Act’). The Judiciary, too, has recognised that there is more to a human being than mere locomotion: It has beneficially, expansively interpreted the law. But the employer holds the rule-book and shows its letter but forgets its spirit—even if it were a textualist.

The Dispute

3. This is the second round of litigation involving a disabled woman, who has been paralyzed shoulders below. The first respondent (‘the employee’) has no control not only of her lower limbs but also of her bladder and bowls; she is unable to regulate her primary biological requirements, such as urination, for which a catheter has been fixed on a permanent basis.

4. Initially, in 1998, while the employee was pregnant for the second time, she suffered a ‘traverse myelopathy’ at D4 level. In effect, the progressive degeneration of the lower limbs has eventually resulted in complete paralysis confining her to bed. As a result, in 2002, she proposed to retire voluntarily, and the Indian Railways (‘the employer’) accepted it. Nevertheless, in 2009, having come to know of the beneficial provisions of the Act, the employee approached the Central Administrative Tribunal (‘the Tribunal’) seeking reinstatement and extension of benefits under the Act. The Tribunal, through Annexure MA-1 order dated 05.02.2010, allowed the Original Application, setting aside the order of retirement. The Tribunal, as a result, directed the employee’s reinstatement with effect from 15.02.2002.

5. Though the employer carried the matter in appeal before this Court, it failed: Through judgment dated 25.08.2014 in W.P. (C) No. 15871 of 2010, this Court affirmed the Tribunal’s order.

6. Later, the employee filed 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. Eventually, on an appreciation of the rival contentions, the Tribunal rendered an order on 29.02.2016. Treating it as a special case, the Tribunal has held that the employee need not report to office to receive her salary. Further, the Tribunal has directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. Aggrieved, the employer assails that order in this OP.

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