The Oriental Insurance Company Ltd v. The Chief Commissioner, Department of Empowerment of Persons with Disabilities

1. The petitioner, ‘The Oriental Insurance Company Limited’ has approached this Court being aggrieved by the order dated 27.08.2018 passed by the respondent no.1/ Ld. Court of Chief Commissioner for department of empowerment of Persons with Disabilities (Divyangjan), Ministry of Social Justice & Employment, Department of Disability Affairs in Case No.8414/1021/2017. Vide the impugned order, the learned Commissioner has not only directed the petitioner grant promotions as due to respondent no. 2 with retrospective effect, but has further directed that his loss should be compensated by promoting him w.e.f. 1997. 2022:DHC:2849

2. Though respondent no.1 is duly represented, despite service, none has been appearing on behalf of the respondent no. 2/complainant for the last many dates. In these circumstances, the writ petition is taken up for final disposal without granting any further opportunity to the respondent no. 2.

3. Learned counsel for the petitioner submits that the impugned directions issued by the respondent no. 1 are beyond the scope of its jurisdiction and in fact amount to deciding inter se disputes between the parties which only an adjudicating authority is entitled to decide. He submits that the functions of the Commissioner have been clearly set out under Section 75 of the Rights of Persons with Disabilities Act, 2016 (‘the Act’) and therefore, the learned Commissioner could not have travelled beyond the scope of those statutory functions assigned to it.

4. In support of his plea that the learned Commissioner had no power to issue such directions which in fact fall within the ambit of the powers of an adjudicating authority, learned counsel for the petitioner places reliance on a decision of this court dated 27.07.2022 in W.P.(C) 11031/2021 titled as “National Small Industries Corporation Ltd. vs. National Commission for Scheduled Castes & Ors.”.

5. On the other hand, learned counsel for the respondent no.1 opposes the petition and contends that this Court ought not to interfere with the just and fair directions issued by the learned Commissioner to safeguard the rights of the persons with disabilities. However, after some arguments, she does not seriously dispute that the Commissioner is only a recommendatory authority having no power to issue directions to any department or organisation in issues relating to or to act in a particular manner in respect of service benefits to an individual.

6. Having considered the submissions of the parties and perused the record, what emerges is that issue raised in the present petition falls within a narrow compass; same being as to the ambit/scope of the powers of the learned Commissioner under the Right of Persons with Disabilities.

7. Before dealing with the rival submissions of the learned counsel for the parties on this aspect, it would be apposite to note the relevant extracts of the impugned order passed by the learned Commissioner. The same read as under: "The Court directed the Respondent that the Complainant should be given promotions as due to him with retrospective effect. His loss should be compensated by promoting him w.e.f 1997. The Respondent is also advised to ensure that the rights of persons with disability are not infringed."

8. In order to appreciate the rival pleas of the parties, it would be necessary to refer to Section 75 of the Act, 2016, which reads as under:

9. A perusal of Section 75 of the Act clearly shows that while the learned Commissioner has very wide powers to take steps to safeguard the interests of the persons with disability including monitoring the implementation of the provisions of the Act, he has no such powers to issue directions to a department or organisation to grant promotion to an employee from a particular date as has been done under the impugned order.

10. At this stage, a reference may also be made to the decision of this Court dated 27.07.2022 in W.P.(C) 11031/2021 “National Small Industries Corporation Ltd. vs. National Commission for Scheduled Castes & Ors.” relied upon by the petitioner wherein it was held as under: “In the present case, the directions issued by the Commission for granting retrospective promotion to respondent no.2 and 3 were clearly beyond the powers of the Commission. I, therefore, have no hesitation in holding that the respondent no.1 Commission, had while issuing a direction that the respondent nos.[2] and 3 be granted promotion from a retrospective date and be paid all consequential benefits, overstepped its jurisdiction. Having said so, there is no doubt that the Commission has the jurisdiction to make recommendations and therefore, the writ petition is partly allowed by clarifying that the impugned order passed by the respondent no.1 will be treated only as a recommendation and not as any direction. In case the respondent no.2 and 3 have any surviving grievance, it will be open for them to approach a competent court/tribunal for redressal thereof. The writ petition alongwith the pending application is, accordingly, disposed of in the aforesaid clarification.”

11. In the light of the aforesaid, I have no hesitation to agree with the learned counsel for the petitioner that the impugned directions whereby the learned Commissioner/respondent no. 1 has directed that the respondent no.2/complainant be given promotion with retrospective effect and be compensated by promoting with effect from 1997, were clearly beyond the scope of his jurisdiction.

12. Even if the plea of learned counsel for respondent no.1 that the learned Commissioner had issued the said directions for promoting the cause of a person with disability is accepted, I am of the considered view that the learned Commissioner could still not overstep its jurisdiction and issue directions which go beyond the scope of its powers as clearly defined under Section 75 of the Act.

13. The writ petition is, accordingly, allowed by clarifying that the impugned order passed by the respondent no.1 will be treated only as a recommendation and not as any direction and therefore the petitioner will not be obliged to abide by the same. It is however made clear that in case the respondent no. 2 has any surviving grievance, it will be open for him to approach a competent court/tribunal for redressal thereof.