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Disability provision won't apply to private firms, says Court by J Venkatesan


The provision on non-discrimination under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 will not apply to private employers, whether individuals, partnerships, proprietary concerns or companies (other than government companies) or unaided schools, the Supreme Court has held.

According to Section 47 ‘Non-discrimination in government employment', no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that the employee, not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits…”

A Bench of Justices R.V. Raveendran, R.M. Lodha and C.K. Prasad, while dealing with the issue whether the provisions of the Act would apply to private institutions, held in a recent judgment that private companies were excluded from the term ‘establishment' under Section 47. With this ruling, the Bench disposed of an appeal, arising from two Bombay High Court judgments, filed by Dalco Engineering Co and others questioning the directions on applicability of the Act to private firms.

Justice Raveendran, writing the judgement, said: “It is clear that the legislative intent was to apply Section 47 only to such establishments as were specifically defined as ‘establishment' under Section 2(k) of the Act and not to other establishments. Private employers are clearly excluded from the ‘establishments' to which Section 47 will apply.”

The Bench said: “If the intention of the legislature was to prevent discrimination of persons with disabilities in any kind of employment, the marginal note [in the legislation] would have simply described the provision as ‘non-discrimination in employment' and Section 47 (1) would have simply used the word ‘any employer' instead of using ‘establishment' and then taking care to define ‘establishment'. The non-use of the words ‘any employer', and ‘any employment' and the specific use of ‘government employment' and ‘establishment' (as defined) demonstrate clear legislative intent to apply the provisions of Section 47 only to employment under the state and not to employment under others.”

On the contention that social economic legislation should be construed liberally, it said: “We agree that the socio-economic legislation should be interpreted liberally. It is also true that courts should adopt different yardsticks and measures for interpreting socio-economic statutes, as compared to penal statutes and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations.”

The Bench said: “There is a clear indication in the statute that the benefit is intended to be restricted to a particular class of employees. Express limitations placed by the socio-economic statute cannot be ignored, so as to include in its application those who are clearly excluded by such statute itself.” Also, the provisions of the Act would apply only to educational institutions belonging to the government or receiving aid from the government and not to unaided private institutions.