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IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 12.10.2017 Pronounced on: 30.10.2017
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LPA 142/2017 & CM No.7912/2017 CHITRA SHARMA Through:
..... Appellant Mr. Ashwarya Sinha, Advocate
versus AIRLINE ALLIED SERVICES LTD & ANR. ..... Respondents Through: Mr. Abhinav Agnihotri & Ms. Abhilasha Singh, Advocates for respondent No.1 Ms. Anjana Gosain & Ms. Rabiya Thakur, Advocates for respondent No.2 CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUNIL GAUR MR. JUSTICE S. RAVINDRA BHAT 1.
The appellant is aggrieved by the dismissal of her writ petition,
by a learned single judge, through his judgment, dated 30 November 2016. She had claimed a direction to the respondent Airlines Allied Services Ltd (hereafter “Airlines Allied”) a Central public sector company and a subsidiary of Air India Ltd. Airlines Allied provides support services to Indian Airlines such as air transport services; it also provides air transport services under the name "Alliance Air" to renew her contract as Air-hostess.
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2.
The appellant had responded and successfully participated in a
process for recruitment, to the position of Airhostess that complied with the mandate of Article 14 and 16 of the Constitution of India. The recruitment/selection process began through an advertisement, in August 1996. The policies of Airlines Allied at that time were such that recruits to such posts were given contractual employment. The Petitioner was contractually employed on 07.11.1996 for a period of three years. Upon expiry of the contract period, Airlines Allied renewed the period by a like period; the last three year renewal was on 1.12.2011 for 3 years, which then expired on 30.11.2014. In the meanwhile, Airlines Allied promoted the Petitioner to the post of Check Cabin Crew in 2000. In the year 2006, apparently, she was reverted from the position of Check Cabin Crew which led to her filing WP No. 1375/2007 on 17.07.2007 before this Court. By order, dated 01.07.2008 the court held that the reversion order was illegal and directed the respondent to reinstate her to the post of Check Cabin Crew. The issue of seniority in Alliance Air and benefits given to the crew was apparently a bone of contention; the Airlines Allied issued a circular wherein it reiterated its stand that the AASL Cabin Crew will be flying as junior most in regard to NACIL now Air India Limited. That circular led to the filing of Writ Petition 5071/ 2010, which is pending consideration before this court. 3.
It is stated that on 08.01.2013 the appellant reported sick due to
excruciating pain in her back. She went to the Artemis Hospital, Gurgaon, where the X-ray of her backbone was carried out. She
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consulted one Dr. Patro in the hospital who diagnosed lumber disc prolapsed and advised her for strict bed rest for 30 days. She again consulted Dr. Patro on 18.01.2013 and 2.2.2013. The doctor diagnosed the Petitioner with UTI and advised her to get ultrasound of the abdomen, which was carried out on 03.02.2013. The appellant states that despite medication around February 2013 her condition did not improve and she had constant high fever. On 21.02.2013 she consulted one Dr. J.S. Guleria at Sitaram Bhartia Hospital, who advised for X ray of the chest and a CT Scan. Dr. Guleria diagnosed the Petitioner with Bone Tuberculosis and started the medication. The appellant states that tuberculosis of the bone or also known as “Potts spine” and is an extra pulmonary form of tuberculosis, which is likely to attack the spine and the ends of the long bones. If not treated, the spinal segment (vertebrae) may collapse and cause paralysis in one or both legs. Dr. Patro confirmed the initial diagnosis of tuberculosis of the bone in his opinion on 25.02.2013. She was advised, and took medication and underwent bed rest. Her course of treatment was altered slightly when she consulted an Airlines panel doctor, Dr. Deepak Choudhary, who advised her liver and other tests. The appellant states that she repeatedly visited and consulted the Airlines doctor, on several dates i.e. 15.03.2013, 30.03.2013, 24.04.2013, 09.05.2013, 22.06.2013 and 01.10.2013. 4.
On 16.11.2013 the appellant again visited Dr. Choudhary who
issued her a Fitness Certificate to join duty, further advising her to continue the medication. After the fitness clearance from the doctor,
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on 18.11.2013, she reported to her employer airline to resume her duties. The appellant submits that the procedure for joining back the duty of the cabin crew after sick leave is to report to the respective department or unit, where an official verifies and writes on the medical certificate the period of sick leave, subsequent to which they have to obtain a certificate of fitness from the doctor appointed by the Airlines. Whatever may be the Airlines doctor's observation and remarks, the crew- member has to report back to her department. It is only after the Airlines doctor declares the cabin crew fit, they can be put on flying duties. In August 2014 the prescribed period of therapy was completed, however the Petitioner was asked to continue her medication for another 2 months. After completion of the medication she consulted Dr. Deepak Chaudhary. On 7.11.2014 after full recovery, she reported to her Inflight Services Department, as per procedure, who stated the period for which she was sick, signed and stamped it and told her to report to the Airlines doctor. The Airlines Doctor saw all her reports, medical certificates, studied the case and gave his remarks as 'fit to fly'. Thereafter she reported back to her department and submitted her medical certificate. The appellant was instructed by the concerned department to inform the roster section and the training section. She relies on a copy of the medical certificate dated 06.11.2014 along with the remark of the Airlines Doctor. 5.
On 01.12.2014 the fixed term agreement ended. However no
intimation was given to the appellant by the airlines regarding the said lapse. She was not paid salary since 07.11.2014. On 01.12.2014, the
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appellant was telephonically asked to meet the Executive Director (Customer Services) (hereinafter referred as “ED”). Pursuant to the telephonic directions on 2 December 2014 she met the ED and briefed about her Medical History. She also informed the ED about the remark of the Airlines doctor not allowing her to join the service in the month of November. Thereafter the ED told her that the requirement of normal recurrent training which is for 3 days has lapsed and she will have to undergo initial "ab-initio training" for 2 months. The appellant expressed her willingness to this course too, to the ED and also again informed the latter that she had got Fitness certificate to fly by the Airlines doctor. She requested to issue the agreement in continuation for 3 years. 6.
On 09.12.2014, the appellant received a mail from the office
and was directed to be present in front of medical review board, which she did. The Medical Review Board told her that they have given her fitness to fly since 07.11.2014. It is further submitted that as per the monthly activity report, which has to be maintained by the Airlines as prescribed under their rules, the Airline duly recorded the fact that the appellant was undergoing medical treatment and has been advised to take therapy for 18 months from February 2013 till August 2014. That activity report maintains the list of all the crew available for flying duties on a monthly basis. 7.
The appellant/petitioner adverts to e-mail communications
dated 08.03.2013, 20.03.2013, 03.04.2013, 22.04.2013, 04.06.2013, 27.06.2013,
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01.07.2013,
13.08.2013,
10.12.2013,
17.12.2013,
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07.01.2015 and 09.01.2015 to Alliance Air, to argue that her illness and treatment were never withheld and on the other hand, it was specifically stated that she was on sick leave. It was argued that the employer, on the other hand ignored these emails and chose, deliberately to ask her to show cause. It is stated that the appellant had met the Deputy General Manager (INFLIGHT SERVICES) and informed him about her condition. She also gave a copy of the medical certificate to him. Thereafter, she met the General Manager (inflight Services) Ms.Aruna Rajgopalan, in person, and discussed her medical condition. 8.
The appellant was informed that she could resume her duties
upon being certified as "Fit for Flying" duties by the airlines doctor. The grievance made by her was that no intimation, was given to her by the airlines regarding the lapsing of the agreement. It is alleged that the appellant was not even paid salary since 07.11.2014. On 01.12.2014, the appellant was telephonically directed to meet the Executive Director (Customer Services) and on 02.12.2014 she met the ED and briefed about her Medical History. She also informed the ED about the remark of the Airlines doctor not allowing her to join the service in the November 2013. Thereafter the ED told her that the requirement of normal recurrent training which is for 3 days has lapsed and she would have to undertake initial "ab-initio training" for 2 months. The appellant told the ED that she was ready for the Airlines requirement training and was issued a Fitness certificate to fly by the Airlines doctor. Therefore, she requested for the agreement,
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continuing her in employment, on a three year contract. Later, on 09.12.2014, she received a mail from the office and was directed to be present in front of medical review board, which she did. She was told by the Medical Review Board that it had given her fitness to fly since 07.11.2014. 9.
It is submitted that the monthly activity reports, maintained by
the Airlines as prescribed under its rules, the duly recorded the fact that the appellant was undergoing medical treatment and was advised to take therapy for 18 months from February 2013 till August 2014. The said activity report maintains the list of all the crew available for flying duties on a monthly basis. A copy of the relevant extract of the monthly activity was produced in the writ proceedings (Annexure P/7). The appellant approached the court, stating that though she was fit to fly and the fixed term contract which was renewed automatically was all of a sudden, terminated by the airlines. She was working for the airlines since 1996 and has got promotions and an unblemished record. The appellant contended that the denial of renewal of her contract amounted to an arbitrary termination of employment; she cited the case of Salome Singsit v Airline Allied Services Ltd. 2012 LLR 980 where the employee challenged the non renewal of her FTA on the ground of absenteeism which was solely attributable to medical reasons. The court directed the respondent airline to constitute a medical board and assess her fitness and grant a position accordingly. 10.
On the basis of these assertions, the appellant challenged the
non- renewal of her contract as arbitrary. Her counsel relied on
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State of Haryana and Others Vs. Piara Singh and others, (1992) 4 SCC 118, to urge that one contractual employee cannot be substituted by another contractual employee by an instrumentality of the State as long as the contractual post continues and the need for an employee for the contractual services continues. The only way in which a person's contractual services cannot be continued is, if valid reasons are given by the employer for not continuing of the contractual employment. 11.
Airlines Allied, in its return, and in the submissions before the
single judge, stated that in terms of Clause 2.1, the FTEA (i.e. the fixed term contract/agreement) automatically expire/ terminated on 30.11.2014 unless the same were extended / renewed by mutual written consent of both the parties. It was averred, inter alia: “7. There is no obligation on the part of the Respondent No.1 to mandatorily renew the contract / FTEA executed between the Respondent No.1 and the Petitioner and the same is the discretion of the Respondent No.1 being a matter of contract. The Respondent No.1 is well within its rights not to extend / renew the contractual employment granted to the Petitioner and in terms of the contract governing the employment of the Respondent No.1 with the Petitioner the Respondent No.1 is also not required to convey any reasons for the non renewal of the FTEA. 8. Though the Respondent No.1 is not obligated to convey any reasons for non renewal of the FTEA, however, in the present case, the FTEA was not renewed in terms of the guidelines/ policy of the
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Respondent No.1 pertaining to renewal / extension of fixed term employment agreements of the cabin crew [contained in the internal instructions/ letter dated 22.09.2014 issued by the General Manager (Personnel) of Air India Limited to the Chief Executive Officer of the Respondent No.1] in terms of which the fixed term employment agreements of such cabin crew is not to be renewed who indulge in unauthorized absence. Copy of the letter/ instructions dated 22.09.2014 is annexed herewith and marked as Annexure R-1. 9. It is submitted that the Petitioner from January, 2013 stopped reporting from her duties without applying for any medical leave. The Respondent No.1 had not sanctioned any medical leave to the Petitioner and the Petitioner abstained from her work from January, 2013 till the nonrenewal of her contract. The Petitioner was thus, guilty of unauthorized absence, which was in complete breach of contractual obligations. It is submitted that as the petitioner never reported for work from January, 2013 she was not paid her salary or any other amounts in terms of the FTEA since January, 2013. 10. It is submitted that as Clause 4.2 of the FTEA, it is specifically provided that no leave can be claimed by the Petitioner as a matter of right and grant of any leave shall be at the sole discretion of the Respondent No.1, The said clause further provides that any unauthorized absence without sanctioned leave shall be without pay and for which the Petitioner will be liable for disciplinary action. Further, Clause 4.6 provides in detail the procedure for applying for any
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leave and terms and conditions governing the grant or refusal for such leave. It is submitted that in the present case, the Petitioner followed no procedure as prescribed under the contract for availing medical leave and merely resorted to unauthorized absence resulting in non renewal of her contract.” 12.
The learned single judge declined to interfere and issue any
directions. The impugned judgment reasoned as follows: “It is argued that the petitioner did not report for duty without even applying for medical leave. Reliance by the respondent no. 1 is placed upon the terms and conditions of employment contained in paragraph 4.2 and 4.6 which read as under:"4.2. LEAVE No leave can be claimed as a right and Grant of any leave shall be at the sole discretion of the management. Any absence without authorised or sanctioned leave shall be leave without pay and the employee will be liable for disciplinary action. All leave will be granted at the discretion the Company and can only be availed, after the Competent Authority has approved/sanctioned the leave request. XXXXX XXXXX 4.6
CONDITIONS OF LEAVE
With reference to above, some of other main terms and conditions of the leave rules framed by the Company as applicable are follows: (i) Prior written permission of the Competent Authority
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has to be obtained to leave station when availing leave. Permissible to leave station when on sick leave will only be granted if it is necessary for medical reasons. (ii) Leave for more than 2 days, on sickness grounds shall be supported by a Medical Certificate from a specialist Doctor/Registered Medical Practitioner under Allopathic stream. Moreover, the leave on medical grounds for more than 5 consecutive days shall also require medical fitness certificate from the doctor/Registered Medical Practitioner from Allopathic stream. (iii) Any casual cum sick leave standing to the credit of the Employee as on 31st March shall lapse automatically and no accumulation will be permitted. (iv) Not more than 3 days of casual leave can be availed at a time with prior permission. (v) All types of leave will be entered in leave card and approved in advance except 4 sick leave( to be intimated at the earliest) which can be updated immediately on joining" 5. It is argued that the petitioner cannot say that she is her own master and that because she suffered from a medical condition, she need not report for duties without applying for and getting sanctioned medical leave. Medical leave has to be applied for and sanctioned, failing which, an employee will be taken to be an in-disciplined employee that is guilty of indiscipline in being on leave without any medical leave being applied for or sanctioned by the respondent no. 1/employer.
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6. I have put it to counsel for the petitioner as to whether the petitioner had any sanctioned medical leave or petitioner at least had applied for sanction of medical leave, and to which query it could not be disputed on behalf of the petitioner that the petitioner had not even applied for sanction of medical leave, what to talk of medical leave being sanctioned. 7. In such facts as aforesaid, in my opinion, the respondent no.1/employer was hence justified in finding the petitioner being an in- disciplined employee for not continuing with her contractual employment. 8. The present petition is accordingly dismissed.” 13.
It is argued, for the appellant that the decision not to renew the
contract, having regard to the facts, was not only unfair and unreasonable, but also palpably arbitrary having regard to Article 14 of the Constitution of India. Counsel submitted that all materials on record showed that the appellant had duly intimated about her medical condition. Reliance was placed on the email communications to Airlines
Allied,
22.04.2013,
dated
08.03.2013,
20.03.2013,
03.04.2013,
04.06.2013,
27.06.2013,
01.07.2013,
13.08.2013,
10.12.2013, 17.12.2013, 07.01.2015 and 09.01.2015 and urged that these were never disputed. It was argued that even the medical documents, particularly the diagnosis, reports and recommendations were made available to the Airlines Allied; the stamp and seal of the Assistant General Manager was fixed in token of receipt. That the appellant could not, by reason of her serious illness, attend to her duties was also known and acted upon by the respondent management,
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which changed the roster. Having regard to these facts, the conclusions of the single judge that no relief could be given because the appellant was not on authorized leave, is unsustainable as it affords the opportunity to a public employer to terminate an employment, arbitrarily. Counsel submitted that the reasons for absence not only were known, but were notified; they were never disputed. Rather, the rationale was accepted, because the airlines doctor initially did not certify the appellant as fit to fly, but later did so. The record of treatment was available. 14.
It is submitted that the employment policy of engaging
airhostesses on contractual basis, exposes female employees to the likelihood of arbitrary termination. By using the general pretext of non renewal of contract, the Airlines‟ proclivity to get rid of older and experienced staff, when they fall ill, is effectively masked, thus hiding the arbitrariness writ large in such behavior. It was submitted that even if the respondents‟ contentions about unauthorized absence were to be accepted, there is no explanation why, in such case, the amount payable as salary for leave accumulated was not paid for the period she remained absent. 15.
Counsel for Airlines Allied argued that the single judge‟s
impugned judgment is well reasoned and should not be interfered with. It was argued that though the airlines doctor had examined the appellant and intimation in that regard was given, those facts alone did not obviate the necessity of applying and securing sanctioned leave. The appellant might have sent a few mails, to higher management
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level officers. However, those were again not proof of the fact that such absence was permitted and leave, sanctioned. In these circumstances, the finding that the non-renewal was justified because of unauthorized absence of the appellant. It was highlighted that being contractual, the appellant, or for that matter any other such employee, had no right to claim it as a matter of course; nor could renewal be taken for granted. Analysis and Conclusions 16.
It is evident from the factual discussion that Airlines Allied, the
employer, does not employ cabin crew such as airhostesses on a permanent basis; they are engaged on three-year contract. The materials on record suggest that at the end of the contractual (3 year) period, the management renews the engagement automatically (presumably exceptions being indifferent record or complaints against employees, etc). This is evidenced by the fact that in the case of such renewals, the concerned airhostess or employee is given a brief three day orientation or training, as opposed to a full course of 3 months. The appellant was first engaged in 1996; she continued and her contract was renewed several times. Her woes started in the beginning of 2013, when she went for treatment of nagging backache; initially misdiagnosed as UTI, later as a disc problem, the subsequent medical opinion established that she had tuberculosis of the back. She was advised complete rest for 18 months. 17.
The evidence on record clearly shows she had intimated the
management of her illness, and sought to avail medical privilege leave LPA No.142/2017
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to avail benefits. At least 3 emails of March 2013 reveal that she had clarified that the charge of unauthorized leave was incorrect as she had sought leave, due to illness. On 3 April, 2013, she again addressed a mail, which reads as follows: “I am chitra snarmaaasi (nov 1996 I am on report sick. Last month I got a show cause notice from Madame TanuVe for absentism. Then I spoke to and you and informed you I am still undergoing my treatment so 1 request you to look time my name does not figure in absentee list. The moment i report back since 1 have 150 days P/L will I'equest you to treat it as medical p/L. Thanking you” The appellant has annexed an entire series of email correspondence, to evidence that her condition was reported to Airlines Allied. The email dated 17 December, 2013, addressed to the AGM, reads as follows: “Subject: - CL Good afternoon madam, It was indeed a pleasure to meet you in person for the first even though the circumstances were not very| positive due to the unfortunate illness since jan 2013 and demise of my father. You came across as a very supportive and a sharp team leader who could immediately gauge my ill heath by figuring typhoid and empathize with my this bad
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phase. I have send my medical certificate and have even shown to company doctor Bhagat who are of same opinion I am with aasl since 1996 and have 180 days of privilege leave which I would request that can be adjusted as I need remuneration as its 11 months.” 18.
There is no denial by Airlines Allied that it had been provided
with the medical records, including the record of examination, by its doctor. Such doctors also advise both employees and the airlines about the fitness levels and capability of each employee, to undertake flying. The airlines‟ objection, however is that it did not sanction the leave. Now, the appellant really was in a Catch 22 situation here, so to say. One may well wonder, when email communications were repeatedly addressed to the airlines authorities and her superior officials, did their sphinx-like and stony silence mean that she had to deduce that leave had been refused and report back to duty? If so, the answer would obviously be in the negative, because she would then have been not permitted to fly. That is precisely what happened; though the sequence was different. Upon being told of her illness and the diagnosis endorsed by the airlines doctor, she heeded the advise and then sought leave. In other words, the entire sequence of events suggests that the appellant did all that she reasonably could have, under the circumstances, of notifying the airlines about her inability to attend duties. It is another matter that the airlines chose not to reply and then, when the occasion to renew the contract arose, used its silence to say that she was unauthorizedly absent.
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19.
Article 42 provides that “the State shall provide conditions for
securing just and humane conditions of work and for maternity relief”. The appellant‟s condition or disability was a temporary one; but it was severe and serious enough for her to be kept away from work. Our country waited for five decades before legislative intervention secured equality, and created affirmative rights in favour of persons with disabilities. Courts had, however, on several occasions, even before the Act came into force, stepped in and innovatively interpreted Article 14 of the Constitution of India, in favour of such individuals (Ref Rakesh Chandra Narayan v. State of Bihar 1986 (Supp) SCC 576; B.R. Kapoor v. Union of India AIR 1990 SC 662 and National Federation of Blind v. Union Public Service Commission 1993 (2) SCC 411). This approach is best epitomized in the following observations of the Supreme Court, in Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42, (rendered in a different context; nevertheless containing an undeniable universality): “19. In a developing society like ours steeped with unbridgeable and ever-widening gaps of inequality in status and of opportunity, law is catalyst, rubicon to the poor etc. to reach the ladder of social justice. Justice K. Subba Rao, the former Chief Justice of this Court, in his Social Justice and Law at page 2, had stated that: “Social justice is one of the disciplines of justice and the discipline of justice relates to the society.” What is due cannot be ascertained by absolute standard which keeps changing depending upon the time, place and circumstance. The constitutional concern of social justice as an elastic
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continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing and to secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets of human activity. The concept of social justice embeds equality to flavour and enliven practical content of „life‟. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results. 20. Article 1 of the Universal Declaration of Human Rights asserts human sensitivity and moral responsibility of every State that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The Charter of the United Nations thus reinforces the faith in fundamental human rights and in the dignity and worth of human person envisaged in the Directive Principles of State Policy as part of the Constitution. The jurisprudence of personhood or philosophy of the right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality.” 20.
The obdurate refusal by Airlines Alliance, to deal with the
appellants‟ request for sick leave, on the one hand, and its insistence
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that she was on unauthorized leave, to say that she did not deserve renewal of contract, is clearly unfair and unreasonable. Its attempt to use instructions, dated 22.09.2014 as a policy decision to deny renewal to her is also arbitrary. This refusal to renewal has, resulted in the appellant, who has worked faithfully for 5 consecutive terms, being discriminated against, for falling ill. In this context, it would be useful to consider a US Supreme Court judgment, which had occasion to consider one such disability or impairment, which led to termination of employment of a teacher who had suffered from tuberculosis, in School Bd. of Nassau County v. Arline 480 U.S. 273 (1987). In a remarkably incisive analysis of the issues, the court held as follows: “Arline suffered tuberculosis "in an acute form in such a degree that it affected her respiratory system," and was hospitalized for this condition. Arline thus had a physical impairment as that term is defined by the regulations, since she had a "physiological disorder or condition . . . affecting [her] . . . respiratory [system]." 45 CFR § 84.3(j)(2)(i) (1985). This impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment. Thus, Arline's hospitalization for tuberculosis in 1957 suffices to establish that she has a "record of . . . impairment" within the meaning of 29 U.S.C. § 706(7)(B)(ii), and is therefore a handicapped individual. Petitioners concede that a contagious disease may constitute a handicapping condition to the extent that it leaves a person with "diminished physical or mental capabilities,", and concede that Arline's hospitalization LPA No.142/2017
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for tuberculosis in 1957 demonstrates that she has a record of a physical impairment, see Tr. of Oral Arg. 52-53. Petitioners maintain, however, that Arline's record of impairment is irrelevant in this case, since the school board dismissed Arline not because of her diminished physical capabilities, but because of the threat that her relapses of tuberculosis posed to the health of others. We do not agree with petitioners that, in defining a handicapped individual under § 504, the contagious effects of a disease can be meaningfully distinguished from the disease's physical effects on a claimant in a case such as this. Arline's contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment. Nothing in the legislative history of § 504 suggests that Congress intended such a result. That history demonstrates that Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual. Congress extended coverage, in 29 U.S.C. § 706(7)(B)(iii), to those individuals who are simply "regarded as having" a physical or mental impairment. The Senate Report provides as an example of a person who would be covered under this subsection "a person with some kind of visible physical impairment which in fact does not substantially limit that person's functioning." Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment.
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Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of "handicapped individual" to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of "handicapped individual" is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were "otherwise qualified."
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21.
No doubt, the Persons with Disabilities (Equal Opportunity
Protection of Rights and Full Participation) Act, 1995 did not provide anything specific for those suffering from serious or chronic ailments, but for mid to short-term periods. However, the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as „the Act‟) that replaced that enactment, has conferred broader rights. Section 2 (h) defines “discrimination” in broad terms: “„discrimination‟ in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation;” The term “person with disability” is defined as follows, by Section 2 (s): “(s) “person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;” Section 3 (3) of the Act enacts a general right against discrimination on the ground of disability: "(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.”
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Section 20 (4) of the Act gives an important right; it states as follows: “(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. “ Under Section 2 (k) of the Act, a body or company owned by the government or a government authority, or a government company, is a “government establishment”. 22.
The court is aware that the above provisions came into effect
after the appellant‟s grievance arose. Yet, the principles, which underline the provisions of the said enactment, are based on equality and non-discrimination. As a state agency, bound by Article 14 of the Constitution of India, it was incumbent upon Alliance Airlines to reasonably accommodate the appellant and ensure that her contract was renewed, without the period of her illness coming in the way of consideration of her case. Its refusal to do so clearly amounts to hostile and discriminatory treatment, not justified by the reasons given to the court. It also amounts to an indirect method to get rid of older employees – perhaps to prefer younger personnel.
LPA No.142/2017
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23.
In view of the foregoing conclusions, this court sets aside the
judgment and order of the learned single judge. The denial of renewal of fresh term to the appellant despite her being declared fit to fly is therefore, held to be arbitrary. The respondent airline is therefore directed to renew the contract, in the usual terms, as is done in the case of the others, with the appellant, within four weeks from today. The appeal and consequently, the writ petition preferred by the appellant, are allowed in the above terms. No costs.
S. RAVINDRA BHAT, J
OCTOBER 30, 2017
LPA No.142/2017
SUNIL GAUR, J
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