HEM CHAND Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner was appointed on the post of Staff Car Driver on 31.7.1999 by respondent No. 2. On 9.4.2001, the services of the petitioners were terminated by order, Annexure P-5. It is submitted by the learned counsel for the petitioner that the respondents could not have terminated the services of the petitioner on account of permanent disability. During service, the petitioner met with an accident. On account of the accident, right leg of the petitioner was amputated from thigh downwards. Therefore, the Medical Board, Jind assessed his disability to the tune of 80% in the certificate dated 21.3.2001. The petitioner was entitled to the salary equivalent to the driver working in Punjabi University, Patiala in the scale of Rs. 4020-120- 6200.

(2.) Learned counsel for the petitioner submitted that the action of the respondents in terminating the services of the petitioner is illegal, arbitrary, discriminator) and contrary to the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Act"). According to the learned counsel, the petitioner would be entitled to be shifted to some other post with the same pay scale and service benefit, under Section 47 of the Act. If no such post was available, the petitioner had to be kept on supernumerary post until a suitable post becomes available or he attains the age of superannuation. The order of termination has been passed without giving any opportunity of hearing to the petitioner. Therefore, the respondents have acted in breach of rules of natural justice.

(3.) The case put forward by the petitioner has been controverted by the respondents. Respondent No. l has filed a short reply and respondents No. 2 to 4 have filed a detailed written statement. The respondents have taken preliminary objection to the effect that the Army Institute of Laws is being run by the Army Welfare Education Society which is not an instrumentality of the State under Article 12 of the Constitution of India, Therefore, the writ petition is not maintainable. In support of the submission, the respondents have relied on a judgment of the Division Bench of the High Court of Jammu & Kashmir rendered in W.P. (Service) No. 1415 of 1996 (Mrs. Asha Khosa v. Chairman Army Public School and Ors.) decided on 17.2.1997. The judgment delivered by the High Court of Jammu and Kashmir is attached as Annexure R.I. to the reply. In the aforesaid judgment, it has been held that the Army Welfare Education Society is not an instrumentality of the Stale under Article 12 of the Constitution of India. Against the aforesaid judgment, the petitioner therein had filed Special Leave to Appeal (Civil) No. 6482 of 1997 which was dismissed on 31.3.1997 with the following order-"Upon hearing the counsel court made the following order: The Special Leave Petition is dismissed."