Hello friends,
I am pasting below the copy of verdict givwen by the CCPD Please go
through
the whole judgement then give your valueable suggestions.
In my view CCPD Made for us for protect our rights and interests. But this
judgement clearly showed That CCPD is pro Govt. Specially Dhariyal.
We have to move high court against this order not alone We have faught
this
battle unitedly.
Please give your views and suggestions.
Case No.126/1028/10-11 Dated : 14.01.2013
Dispatch No.....
In the matter of :
Shri Subhash Chandra,
C-4/F3, Ramprastha Colony,
P.O.. Chander Nagar,
Distt. Ghaziabad
Ghaziabad - 201011 Complainant .....
Versus
Department of Financial Services
Through : The Director,
Ministry of Finance,
Jeevan Deep Building,
Parliament Street,
New Delhi
Respondent ...
Dates of hearing : 01.05.2012, 06.06.2012 and 21.08.2012
Present :
01.05.2012
1. Shri Subhash Chandra, the Complainant.
2. Shri Rakesh Kumar Gupta, Under Secretary and Shri A.K. Sharma, Section
Officer for Dept. of Financial Services, for Respondent
06.06.2012
1. Shri Subhash Chandra, the Complainant and Shri Nawal Kishore.
2. Shri Rakesh Kumar Gupta, Under Secretary, Shri Ashok Kumar Sharma,
Section Officer
for Dept. of Financial Services, for Respondent and Shri Kulbhushan,
Punjab
National Bank.
21.08.2012
1. Shri Subhash Chandra, the Complainant.
2. None appeared on behalf of Respondent
O R D E R
The above named Complainant, a person with 80% locomotor disability (both
lower limbs) filed a complaint dated 06.10.2010 under the Persons with
Disabilities (Equal
-2-
Opportunities, Protection of Rights and Full Participation) Act, 1995,
hereinafter referred to as the Act, regarding discrimination against
employees with disabilities of Public Sector Banks with regard to payment
of
transport allowance.
2. The complainant submitted that the employees of Public Sector Banks are
being discriminated against in payment of conveyance allowance. The
conveyance allowance to persons with disabilities was never be a Bipartite
settlement as it was admissible as per Department of Expenditure's
guidelines. He further submitted that Ministry of Finance, Department of
Expenditure issued revised guidelines in this regard vide their O.M. No.
21(1)97-E-II(B) dated 29.8.2008 applicable w.e.f. 1.1.2006. The Dearness
Allowance also required to be paid on the Transport Allowance and these
guidelines are required to be implemented by the Department of Financial
Services.
3. The matter was taken up with the Respondent vide letter dated
08.11.2010
under Section 59 of the Act.
4. The Respondent vide their letter No. 3/2/2011-SCT (B) dated 04.03.2011
sought the opinion/views of the Indian Banks Association. Vide letter No.
3/2/2011-SCT(B) dated 21.03.2011 submitted that O.M. No.21(1)/97-E-II(B)
dated 03.10.1997 & O.M. 21(2)/2008-E-II(B) dated 29.08.2008 were
applicable
to Central Government employees. The said OMs were issued by the
Department
of Expenditure and not by Department of Financial Services. The
recommendations/provision of 5th/6th Pay Commission are for the employees
of
the Central Government and thus do not ipso facto are applicable to
employees of Public Sector Banks (PSBs). The conveyance allowance
admissible
to employees with disabilities in PSBs cannot be treated at par with the
employees of Central Government. Therefore, the transport allowance
admissible to Central Government employees with disabilities cannot be
extended to employees with disabilities in PSBs. The Respondent further
submitted that the pay and allowances of employees of PSBs are governed by
their industry level settlement. Ministry of Finance vide letter
No.3/5/2007-SCT (B) dated 18.02.2009 revised the rate of conveyance
-3-
allowance for employees with disabilities ( blind and orthopaedically
handicapped) in public
sector banks from Rs.200/- to Rs.400/- p.m. in addition to the regular
transport allowance of Rs.105/- being paid to award staff. This regular
transport allowance was increased to Rs.225/- p.m. for award staff upto
15th
stage of scale of pay and Rs.275/- p.m. from 16th stage of scale of pay in
IX Bipartite Settlement.
5. The copy of respondent's reply was forwarded to the complainant vide
letter dated 15.04.2011 for his comments.
6. The complainant vide letter dated 15.05.2011 submitted the rejoinder
pointing out the . following;
a) that the Conveyance allowance is being paid to handicapped employees of
PSBs w.e.f. 1978. The Bipartite settlements are in operation since 1966.
But
the Conveyance Allowance of handicapped employees has never been the
subject
matter of bipartite settlements and therefore the Dept. of Financial
Services has tried to confuse the issue.
b) that there was no provision of Conveyance Allowance to workmen
employees
of the Banks upto 5th Bipartite Settlement signed on 10.04.1989.
c) that the Conveyance Allowance was made applicable to workmen employees
of
banks only in 6th Bipartite Settlement signed on 14.02.1995 and it was in
no
way related to the Conveyance Allowance admissible to the handicapped
employees. The 6th settlement and subsequent settlements provided for such
allowance to workmen employees only and not to officer employees.
d) that the Conveyance Allowance to handicapped employees was admissible
in
terms of Department of Expenditure's OM dated 31.12.1978 amended from time
to time and it was applicable to workmen as well as Officer cadre
-4-
employees. The Department of Financial Services was, therefore, wrong and
unjustified in linking this issue to the Bipartite Settlements.
e) that, 6th Bipartite Settlement and subsequent settlements up to 9th
Bipartite made the specific provision that the provision by itself will
not
preclude the payment of any existing allowance, of this nature paid as a
result of Government guidelines/Bank level statements.
f) that are no government guidelines for payment of any other Conveyance
Allowance to workmen employees of Banks except for physically handicapped
employees under Department of Expenditure's OM dated 31.12.1978 amended
from
time to time which were implemented by the Dept. of Financial Services
upto
1997. Thereafter the same was also continued in an unjustified manner.
7. Upon considering the written submissions of the parties, a personal
hearing was scheduled for 01.05.2012.
8. During the hearing on 01.05.2012, reiterating the written submissions,
the complainant stated that the conveyance allowance which was applicable
to
the Central Government employees as well as employees of the public sector
banks till 1997 was without any differentiation. However, after the
conveyance allowance was converted into Transport Allowance by Government
of
India in respect of Central Government employees, the Banking Division did
not alter the quantum of allowance in respect of bank employees. The
complainant further pointed out that the industrial level settlement has
been in force since 1966 and the conveyance allowance formed part of the
settlement only for workmen staff since 1987 which is not applicable to
the
officers. In essence, the contention of the complainant was that the
Deptt.
of Expenditure, Government of India, have never differentiated between the
Central Government employees vis-à-vis public sector bank employees as far
as the conveyance allowance was concerned. For them, all the employees
with
disability were alike. Therefore, as the same transport allowance was
being
paid to the bank employees from 1978 to 1997, it
-5-
should continue. The complainant also said that there was no provision of
Transport Allowance for bank officers in any industry wise settlement. An
officer with disability in a bank also gets the same amount i.e. Rs.400/-
as
is being paid to an award staff. He also submitted that the
Banking Division has no authority to change the transport allowance which
has been allowed by Dept. of Expenditure to the Central Government
employees.
9. The representatives of the respondent submitted that Ministry of
Finance,
Dept. of Financial Services (Banking Division) vide letter no.
3/5/2007-SCT(B) dated 18.02.2009 had increased the conveyance allowance in
respect of the employees with blindness and the locomotor disability in
the
Banks from Rs.200/- to Rs.400/- per month in addition to the regular
transport allowance of Rs.105/- to all award staff. As regards other
officers, they did not have the information right at the time of hearing,
which they said, would intimate within a week. They were also directed to
submit the rationale behind the increase of the conveyance allowance to
Rs.400/- and the reasons why the employees with locomotor disability of
lower extremities and blindness in the banks should not be given double
the
normal rate of conveyance allowance / transport allowance or by whatever
nomenclature it is known.
10. During the next date of hearing on 06.06.2012, the representative of
Department of Financial Services submitted a written statement dated
31.05.2012 to which the complainant was directed to submit his comments.
The
complainant submitted his written statement dated 20.06.2012. Upon
considering the same, a hearing in the matter was scheduled for 21.08.2012
when the complainant sought time for submission of additional arguments
within 15 days and prayed that the order may be passed after considering
his
written arguments. He submitted the same vide his e-mail dated 11.09.2012.
11. The Department of Financial Services also submitted a written
statement
vide letter dated 25.09.2012 in which their said Department reiterated
that
the Transport Allowance to employees with disability of public sector
banks
cannot be increased as also communicated by their letter dated 31.05.2012.
The complainant who is an officer in Punjab National Bank ( an award
member)
who is getting Rs.400/- extra in addition to the regular Transport
Allowance
of Rs.105/- is being paid to the award staff. The respondent further
submitted that in case the
-6-
complainant is not satisfied with the existing rates, he may approach his
employer or the DoP&T who is a nodal agency for framing rules and
regulations with regard to facilities and concessions to persons with
disabilities.
12. Upon considering the written and oral submissions of the parties, the
issues that emerge are as under ;
Point (i) Whether the Department of Financial Services or the Banks are
obliged to follow/to replicate the orders of the Dept. of Expenditure
meant
for Central Government employees with regard to pay and allowances of the
public sector employees with disabilities.
Point (ii) Whether the practice followed in the past for over 20 years,
necessarily needs to be followed in future also in the light of the fact
that the Public Sector Banks have the freedom to evolve their own norms
such
as non transport allowance to their employees including the employees with
disabilities.
Point (iii) Whether the Chief Commissioner for Persons with Disabilities
has
the power under the Act to set aside instructions/orders issued by Dept.
Financial Services or Public Sector Banks.
Point (iv) Whether in this particular case there is non-implementation of
orders//instructions/policies/by-laws issued by the appropriate
authorities.
13. The opinion of this Court with respect to the above points is as
under;
(1) & (2) Keeping in view the autonomy of the public sector banks in
relation to the pay and allowance to be paid to their employees, in our
opinion they are not obliged to follow the pattern of pay and allowances
being paid by the Central Government to its employees. It is for the
concerned bank to decide about the pay and allowance and other facilities
for its employees. They are also no obliged to follow a policy for ever.
It
would depend upon the management / and or the agreements between the
management and employees to continue or discontinue any
-7-
policy in this regard. As already pointed out by the Department of
Financial
Services vide their letter dated 21.03.2011, the pay and allowance of the
employees of public sector banks are governed by their industry level
settlement. However, every employer particularly in the public
sector is expected to give due and reasonable consideration to the
situation
of an employee with disability.
3. Section 59 of the Persons with Disabilities Act provides as under. In
the
light of this Chief Commissioner has no power under the act to set aside
the
instruction/order issued by DoP&T by Dept. of Financial Services or public
sector banks relating to the pay and allowance to its employees with
disabilities. The Chief Commissioner can of course make his observations
and
give advice with regard to a particular benefit that may be given to an
employee with disability.
(4) In this particular case there appears no violation under Section 58 of
Persons with Disabilities Act, 1995.
Sector 59 of the Persons with Disability Act, 1995, provides as under ;
'Without prejudice to the provisions of section 58 the Chief Commissioner
may of his own motion or on the application of any aggrieved person or
otherwise look into complaints with respect to matters relating to -
(a) deprivation of rights of persons with disabilities;
(b) non-implementation of laws, rules, by-laws, regulations, executive
orders, guidelines or instructions made or issued by the appropriate
Governments and the local authorities for the welfare and protection of
rights or persons with disabilities, and take up the matter with the
appropriate authorities."
14. On the similar issue this Court has already passed an order dated
22.01.2012 in case no. 183/1028/11-12 in the case of Shri Laxmikant
Vijayvargiya vs Bharat Heavy Electricals Limited. In this case this issue
was brought before the Chief Commissioner in 2004. An order was passed by
this Court which was challenged by Shri Laxmikant Vijayvargiya in the
Hon'ble High Court of Delhi by way of Writ Petition No.6529 of 2007. The
Hon'ble High Court of Delhi disposed of the said Writ Petition vide order
dated 04.04.2011 with the following directions.
-8-
"19. On a perusal of the aforesaid conclusions, it is not very clear
whether
the Commissioner has, after issuing notice to all concerned, determined
whether the conveyance allowance paid by the respondent is apart from the
benefit available under the Office
Memoramdum which has been extended to the other Central Government
Undertakings and Enterprises. As is manifest from the order, the
Department
of Public Enterprises was made a party before the said authority. The
purpose of the scheme, the extension of the benefit of the scheme, the
scheme of the respondent No.1 are required to be addressed in a
comprehensive manner to arrive at the conclusion whether compensation, as
put forth by the petitioner, payable under the Central Government Scheme
is
imperative, despite anything being paid as a conveyance allowance to an
employee. The same having not been appositely addressed, we would direct
the
Chief Commissioner to address the same from that perspective and record a
finding. We may hasten to clarify that we are not setting aside the order
as
certain benefits have been given to the likes of the petitioner and the
others and that would not be fair, hence, we direct for limited
reconsideration. To elaborate, the said authority would only exclusively
address with regard to the facet, whether despite the benefit given by the
respondent, No.1 towards conveyance allowance, for which possession of a
vehicle by a physically handicapped is a prerequisite, and the
compensation
has to be paid in addition to the same; whether the person can opt for
either of the schemes and whether the amount given is adequate and further
same deserves to be revised and can be revised as a policy matter. We may
hasten to clarify that we have not expressed any opinion from any aspects
with regard to the limited grounds for reconsideration. We may further
proceed to state that we have been compelled to direct for reconsideration
of the matter, as we feel there can be an appropriate discussion in the
forum of Chief Commissioner where parties can address the grievance from
all
aspects and the authority can decide the matter by taking note lf all
aspects including comparative schemes in vogue."
15. After a meticulous consideration of the submissions of the parties,
the
following order was passed on 22.01.2012 .( from para 6 to be copied here)
(I) The complainant and other eligible employees with blindness and
locomotor disabilities of lower extremities in BHEL who are following IDA
pattern of pay-scale, be paid Conveyance Allowance/Reimbursement of
Conveyance Expenditure at double the normal rate. The complainant be paid
the arrears of the said allowance with effect from 05.09.2003 when
-9-
DPE's OM dated 05.09.2003 was made effective. In case his perquisites in
allowances exceeded 50% of his basis pay at any point of time, BHEL should
decide payment at double the
normal rate in consultation with the administrative ministry and DPE as
required under the said OM.
(II) Since the higher rate of Conveyance Allowance/Reimbursement of
Conveyance Expenditure is given to eligible employees with disabilities to
compensate them for the extra expenditure as they are forced to incur for
commuting to the office and back to their residence, DPE may consider
excluding such portion of the allowance from the basket of perquisites
that
are considered for the purpose of 50% ceiling.
(iii) If the respondent do not wish to pay double the normal Conveyance
Allowance / Reimbursement of Conveyance Expenditure / Transport Allowance
or
any other nomenclature used for the purpose, then Rs.200/- per month being
paid as Special Conveyance Allowance to employees with blindness and
locomotor disabilities of lower extremities be substantially increased
with
effect from 05.09.2003 in respect of the complainant and other eligible
employees with disabilities. The basis of arriving at such an amount must
be
the cost of extra expenditure an eligible employee with disability is
required to incur in consultation with the representatives of the
employees
with disabilities. The basis for arriving at a reasonable amount should be
such as the wages of a driver. It should also be ensured that the
additional
conveyance allowance or by whatever nomenclature is being known, be
adequately enhanced each time the conveyance allowance for rest of the
employees of BHEL and other CPSEs is increased. The decision in this
regard
be taken within a period of 90 days from the date of receipt of this
order.
(a) The Order in the case no. 183/1028/11-12 of Shri Laxmikant
Vijayvargiya
versus Ministry of Heavy Industries & Public Enterprises, Ministry of
Finance and Bharat Heavy Electricals Limited.
'( I ) The complainant and other eligible employees with blindness and
locomotor disabilities of lower extremities in BHEL who are following IDA
pattern of pay-scale, be paid Conveyance Allowance/Reimbursement of
Conveyance Expenditure at double the normal rate.
-10-
The complainant be paid the arrears of the said allowance with effect from
05.09.2003 when DPE's OM dated 05.09.2003 was made effective. In case his
perquisites in allowances
exceeded 50% of his basis pay at any point of time, BHEL should decide
payment at double the normal rate in consultation with the administrative
ministry and DPE as required under the said OM.
(II) Since the higher rate of Conveyance Allowance/Reimbursement of
Conveyance Expenditure is given to eligible employees with disabilities to
compensate them for the extra expenditure as they are forced to incur for
commuting to the office and back to their residence, DPE may consider
excluding such portion of the allowance from the basket of perquisites
that
are considered for the purpose of 50% ceiling.
(iii) If the respondent do not wish to pay double the normal Conveyance
Allowance / Reimbursement of Conveyance Expenditure / Transport Allowance
or
any other nomenclature used for the purpose, then Rs.200/- per month being
paid as Special Conveyance Allowance to employees with blindness and
locomotor disabilities of lower extremities be substantially increased
with
effect from 05.09.2003 in respect of the complainant and other eligible
employees with disabilities. The basis of arriving at such an amount must
be
the cost of extra expenditure an eligible employee with disability is
required to incur in consultation with the representatives of the
employees
with disabilities. The basis for arriving at a reasonable amount should be
such as the wages of a driver. It should also be ensured that the
additional
conveyance allowance or by whatever nomenclature is being known, be
adequately enhanced each time the conveyance allowance for rest of the
employees of BHEL and other CPSEs is increased. The decision in this
regard
be taken within a period of 90 days from the date of receipt of this
order."
16. In the light of the above discussion, it will not be desirable for
this
Court to issue any directions to the Respondent Bank to implement the
policy
framed for employees with disabilities in the Central Government. It is
also
not within the jurisdiction of this Court to restrain the Dept. of
Financial
Services from letting the banks to apply a particular kind of policy
within
their power to do so. This Court can take up with the concerned
authorities
if a policy already framed for the benefit of employees with disabilities
is
not implemented by the
-11-
concerned establishments. . This Court feels that Rs.400/- p.m. as an
additional amount to compensate for the extra money that an employee with
disability has to incur is certainly not
sufficient and hence cannot be treated as a reasonable amount. The public
sector banks, therefore, should consider granting a reasonable amount
which
can compensate their employees with disabilities at different level for
the
extra expenses that they are required to incur.
( P.K. PINCHA )
Chief Commissioner for
Persons with Disabilities
Hello friends,
I am pasting below the copy of verdict givwen by the CCPD Please go
through
the whole judgement then give your valueable suggestions.
In my view CCPD Made for us for protect our rights and interests. But this
judgement clearly showed That CCPD is pro Govt. Specially Dhariyal.
We have to move high court against this order not alone We have faught
this
battle unitedly.
Please give your views and suggestions.
Case No.126/1028/10-11 Dated : 14.01.2013
Dispatch No.....
In the matter of :
Shri Subhash Chandra,
C-4/F3, Ramprastha Colony,
P.O.. Chander Nagar,
Distt. Ghaziabad
Ghaziabad - 201011 Complainant .....
Versus
Department of Financial Services
Through : The Director,
Ministry of Finance,
Jeevan Deep Building,
Parliament Street,
New Delhi
Respondent ...
Dates of hearing : 01.05.2012, 06.06.2012 and 21.08.2012
Present :
01.05.2012
1. Shri Subhash Chandra, the Complainant.
2. Shri Rakesh Kumar Gupta, Under Secretary and Shri A.K. Sharma, Section
Officer for Dept. of Financial Services, for Respondent
06.06.2012
1. Shri Subhash Chandra, the Complainant and Shri Nawal Kishore.
2. Shri Rakesh Kumar Gupta, Under Secretary, Shri Ashok Kumar Sharma,
Section Officer
for Dept. of Financial Services, for Respondent and Shri Kulbhushan,
Punjab
National Bank.
21.08.2012
1. Shri Subhash Chandra, the Complainant.
2. None appeared on behalf of Respondent
O R D E R
The above named Complainant, a person with 80% locomotor disability (both
lower limbs) filed a complaint dated 06.10.2010 under the Persons with
Disabilities (Equal
-2-
Opportunities, Protection of Rights and Full Participation) Act, 1995,
hereinafter referred to as the Act, regarding discrimination against
employees with disabilities of Public Sector Banks with regard to payment
of
transport allowance.
2. The complainant submitted that the employees of Public Sector Banks are
being discriminated against in payment of conveyance allowance. The
conveyance allowance to persons with disabilities was never be a Bipartite
settlement as it was admissible as per Department of Expenditure's
guidelines. He further submitted that Ministry of Finance, Department of
Expenditure issued revised guidelines in this regard vide their O.M. No.
21(1)97-E-II(B) dated 29.8.2008 applicable w.e.f. 1.1.2006. The Dearness
Allowance also required to be paid on the Transport Allowance and these
guidelines are required to be implemented by the Department of Financial
Services.
3. The matter was taken up with the Respondent vide letter dated
08.11.2010
under Section 59 of the Act.
4. The Respondent vide their letter No. 3/2/2011-SCT (B) dated 04.03.2011
sought the opinion/views of the Indian Banks Association. Vide letter No.
3/2/2011-SCT(B) dated 21.03.2011 submitted that O.M. No.21(1)/97-E-II(B)
dated 03.10.1997 & O.M. 21(2)/2008-E-II(B) dated 29.08.2008 were
applicable
to Central Government employees. The said OMs were issued by the
Department
of Expenditure and not by Department of Financial Services. The
recommendations/provision of 5th/6th Pay Commission are for the employees
of
the Central Government and thus do not ipso facto are applicable to
employees of Public Sector Banks (PSBs). The conveyance allowance
admissible
to employees with disabilities in PSBs cannot be treated at par with the
employees of Central Government. Therefore, the transport allowance
admissible to Central Government employees with disabilities cannot be
extended to employees with disabilities in PSBs. The Respondent further
submitted that the pay and allowances of employees of PSBs are governed by
their industry level settlement. Ministry of Finance vide letter
No.3/5/2007-SCT (B) dated 18.02.2009 revised the rate of conveyance
-3-
allowance for employees with disabilities ( blind and orthopaedically
handicapped) in public
sector banks from Rs.200/- to Rs.400/- p.m. in addition to the regular
transport allowance of Rs.105/- being paid to award staff. This regular
transport allowance was increased to Rs.225/- p.m. for award staff upto
15th
stage of scale of pay and Rs.275/- p.m. from 16th stage of scale of pay in
IX Bipartite Settlement.
5. The copy of respondent's reply was forwarded to the complainant vide
letter dated 15.04.2011 for his comments.
6. The complainant vide letter dated 15.05.2011 submitted the rejoinder
pointing out the . following;
a) that the Conveyance allowance is being paid to handicapped employees of
PSBs w.e.f. 1978. The Bipartite settlements are in operation since 1966.
But
the Conveyance Allowance of handicapped employees has never been the
subject
matter of bipartite settlements and therefore the Dept. of Financial
Services has tried to confuse the issue.
b) that there was no provision of Conveyance Allowance to workmen
employees
of the Banks upto 5th Bipartite Settlement signed on 10.04.1989.
c) that the Conveyance Allowance was made applicable to workmen employees
of
banks only in 6th Bipartite Settlement signed on 14.02.1995 and it was in
no
way related to the Conveyance Allowance admissible to the handicapped
employees. The 6th settlement and subsequent settlements provided for such
allowance to workmen employees only and not to officer employees.
d) that the Conveyance Allowance to handicapped employees was admissible
in
terms of Department of Expenditure's OM dated 31.12.1978 amended from time
to time and it was applicable to workmen as well as Officer cadre
-4-
employees. The Department of Financial Services was, therefore, wrong and
unjustified in linking this issue to the Bipartite Settlements.
e) that, 6th Bipartite Settlement and subsequent settlements up to 9th
Bipartite made the specific provision that the provision by itself will
not
preclude the payment of any existing allowance, of this nature paid as a
result of Government guidelines/Bank level statements.
f) that are no government guidelines for payment of any other Conveyance
Allowance to workmen employees of Banks except for physically handicapped
employees under Department of Expenditure's OM dated 31.12.1978 amended
from
time to time which were implemented by the Dept. of Financial Services
upto
1997. Thereafter the same was also continued in an unjustified manner.
7. Upon considering the written submissions of the parties, a personal
hearing was scheduled for 01.05.2012.
8. During the hearing on 01.05.2012, reiterating the written submissions,
the complainant stated that the conveyance allowance which was applicable
to
the Central Government employees as well as employees of the public sector
banks till 1997 was without any differentiation. However, after the
conveyance allowance was converted into Transport Allowance by Government
of
India in respect of Central Government employees, the Banking Division did
not alter the quantum of allowance in respect of bank employees. The
complainant further pointed out that the industrial level settlement has
been in force since 1966 and the conveyance allowance formed part of the
settlement only for workmen staff since 1987 which is not applicable to
the
officers. In essence, the contention of the complainant was that the
Deptt.
of Expenditure, Government of India, have never differentiated between the
Central Government employees vis-à-vis public sector bank employees as far
as the conveyance allowance was concerned. For them, all the employees
with
disability were alike. Therefore, as the same transport allowance was
being
paid to the bank employees from 1978 to 1997, it
-5-
should continue. The complainant also said that there was no provision of
Transport Allowance for bank officers in any industry wise settlement. An
officer with disability in a bank also gets the same amount i.e. Rs.400/-
as
is being paid to an award staff. He also submitted that the
Banking Division has no authority to change the transport allowance which
has been allowed by Dept. of Expenditure to the Central Government
employees.
9. The representatives of the respondent submitted that Ministry of
Finance,
Dept. of Financial Services (Banking Division) vide letter no.
3/5/2007-SCT(B) dated 18.02.2009 had increased the conveyance allowance in
respect of the employees with blindness and the locomotor disability in
the
Banks from Rs.200/- to Rs.400/- per month in addition to the regular
transport allowance of Rs.105/- to all award staff. As regards other
officers, they did not have the information right at the time of hearing,
which they said, would intimate within a week. They were also directed to
submit the rationale behind the increase of the conveyance allowance to
Rs.400/- and the reasons why the employees with locomotor disability of
lower extremities and blindness in the banks should not be given double
the
normal rate of conveyance allowance / transport allowance or by whatever
nomenclature it is known.
10. During the next date of hearing on 06.06.2012, the representative of
Department of Financial Services submitted a written statement dated
31.05.2012 to which the complainant was directed to submit his comments.
The
complainant submitted his written statement dated 20.06.2012. Upon
considering the same, a hearing in the matter was scheduled for 21.08.2012
when the complainant sought time for submission of additional arguments
within 15 days and prayed that the order may be passed after considering
his
written arguments. He submitted the same vide his e-mail dated 11.09.2012.
11. The Department of Financial Services also submitted a written
statement
vide letter dated 25.09.2012 in which their said Department reiterated
that
the Transport Allowance to employees with disability of public sector
banks
cannot be increased as also communicated by their letter dated 31.05.2012.
The complainant who is an officer in Punjab National Bank ( an award
member)
who is getting Rs.400/- extra in addition to the regular Transport
Allowance
of Rs.105/- is being paid to the award staff. The respondent further
submitted that in case the
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complainant is not satisfied with the existing rates, he may approach his
employer or the DoP&T who is a nodal agency for framing rules and
regulations with regard to facilities and concessions to persons with
disabilities.
12. Upon considering the written and oral submissions of the parties, the
issues that emerge are as under ;
Point (i) Whether the Department of Financial Services or the Banks are
obliged to follow/to replicate the orders of the Dept. of Expenditure
meant
for Central Government employees with regard to pay and allowances of the
public sector employees with disabilities.
Point (ii) Whether the practice followed in the past for over 20 years,
necessarily needs to be followed in future also in the light of the fact
that the Public Sector Banks have the freedom to evolve their own norms
such
as non transport allowance to their employees including the employees with
disabilities.
Point (iii) Whether the Chief Commissioner for Persons with Disabilities
has
the power under the Act to set aside instructions/orders issued by Dept.
Financial Services or Public Sector Banks.
Point (iv) Whether in this particular case there is non-implementation of
orders//instructions/policies/by-laws issued by the appropriate
authorities.
13. The opinion of this Court with respect to the above points is as
under;
(1) & (2) Keeping in view the autonomy of the public sector banks in
relation to the pay and allowance to be paid to their employees, in our
opinion they are not obliged to follow the pattern of pay and allowances
being paid by the Central Government to its employees. It is for the
concerned bank to decide about the pay and allowance and other facilities
for its employees. They are also no obliged to follow a policy for ever.
It
would depend upon the management / and or the agreements between the
management and employees to continue or discontinue any
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policy in this regard. As already pointed out by the Department of
Financial
Services vide their letter dated 21.03.2011, the pay and allowance of the
employees of public sector banks are governed by their industry level
settlement. However, every employer particularly in the public
sector is expected to give due and reasonable consideration to the
situation
of an employee with disability.
3. Section 59 of the Persons with Disabilities Act provides as under. In
the
light of this Chief Commissioner has no power under the act to set aside
the
instruction/order issued by DoP&T by Dept. of Financial Services or public
sector banks relating to the pay and allowance to its employees with
disabilities. The Chief Commissioner can of course make his observations
and
give advice with regard to a particular benefit that may be given to an
employee with disability.
(4) In this particular case there appears no violation under Section 58 of
Persons with Disabilities Act, 1995.
Sector 59 of the Persons with Disability Act, 1995, provides as under ;
'Without prejudice to the provisions of section 58 the Chief Commissioner
may of his own motion or on the application of any aggrieved person or
otherwise look into complaints with respect to matters relating to -
(a) deprivation of rights of persons with disabilities;
(b) non-implementation of laws, rules, by-laws, regulations, executive
orders, guidelines or instructions made or issued by the appropriate
Governments and the local authorities for the welfare and protection of
rights or persons with disabilities, and take up the matter with the
appropriate authorities."
14. On the similar issue this Court has already passed an order dated
22.01.2012 in case no. 183/1028/11-12 in the case of Shri Laxmikant
Vijayvargiya vs Bharat Heavy Electricals Limited. In this case this issue
was brought before the Chief Commissioner in 2004. An order was passed by
this Court which was challenged by Shri Laxmikant Vijayvargiya in the
Hon'ble High Court of Delhi by way of Writ Petition No.6529 of 2007. The
Hon'ble High Court of Delhi disposed of the said Writ Petition vide order
dated 04.04.2011 with the following directions.
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"19. On a perusal of the aforesaid conclusions, it is not very clear
whether
the Commissioner has, after issuing notice to all concerned, determined
whether the conveyance allowance paid by the respondent is apart from the
benefit available under the Office
Memoramdum which has been extended to the other Central Government
Undertakings and Enterprises. As is manifest from the order, the
Department
of Public Enterprises was made a party before the said authority. The
purpose of the scheme, the extension of the benefit of the scheme, the
scheme of the respondent No.1 are required to be addressed in a
comprehensive manner to arrive at the conclusion whether compensation, as
put forth by the petitioner, payable under the Central Government Scheme
is
imperative, despite anything being paid as a conveyance allowance to an
employee. The same having not been appositely addressed, we would direct
the
Chief Commissioner to address the same from that perspective and record a
finding. We may hasten to clarify that we are not setting aside the order
as
certain benefits have been given to the likes of the petitioner and the
others and that would not be fair, hence, we direct for limited
reconsideration. To elaborate, the said authority would only exclusively
address with regard to the facet, whether despite the benefit given by the
respondent, No.1 towards conveyance allowance, for which possession of a
vehicle by a physically handicapped is a prerequisite, and the
compensation
has to be paid in addition to the same; whether the person can opt for
either of the schemes and whether the amount given is adequate and further
same deserves to be revised and can be revised as a policy matter. We may
hasten to clarify that we have not expressed any opinion from any aspects
with regard to the limited grounds for reconsideration. We may further
proceed to state that we have been compelled to direct for reconsideration
of the matter, as we feel there can be an appropriate discussion in the
forum of Chief Commissioner where parties can address the grievance from
all
aspects and the authority can decide the matter by taking note lf all
aspects including comparative schemes in vogue."
15. After a meticulous consideration of the submissions of the parties,
the
following order was passed on 22.01.2012 .( from para 6 to be copied here)
(I) The complainant and other eligible employees with blindness and
locomotor disabilities of lower extremities in BHEL who are following IDA
pattern of pay-scale, be paid Conveyance Allowance/Reimbursement of
Conveyance Expenditure at double the normal rate. The complainant be paid
the arrears of the said allowance with effect from 05.09.2003 when
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DPE's OM dated 05.09.2003 was made effective. In case his perquisites in
allowances exceeded 50% of his basis pay at any point of time, BHEL should
decide payment at double the
normal rate in consultation with the administrative ministry and DPE as
required under the said OM.
(II) Since the higher rate of Conveyance Allowance/Reimbursement of
Conveyance Expenditure is given to eligible employees with disabilities to
compensate them for the extra expenditure as they are forced to incur for
commuting to the office and back to their residence, DPE may consider
excluding such portion of the allowance from the basket of perquisites
that
are considered for the purpose of 50% ceiling.
(iii) If the respondent do not wish to pay double the normal Conveyance
Allowance / Reimbursement of Conveyance Expenditure / Transport Allowance
or
any other nomenclature used for the purpose, then Rs.200/- per month being
paid as Special Conveyance Allowance to employees with blindness and
locomotor disabilities of lower extremities be substantially increased
with
effect from 05.09.2003 in respect of the complainant and other eligible
employees with disabilities. The basis of arriving at such an amount must
be
the cost of extra expenditure an eligible employee with disability is
required to incur in consultation with the representatives of the
employees
with disabilities. The basis for arriving at a reasonable amount should be
such as the wages of a driver. It should also be ensured that the
additional
conveyance allowance or by whatever nomenclature is being known, be
adequately enhanced each time the conveyance allowance for rest of the
employees of BHEL and other CPSEs is increased. The decision in this
regard
be taken within a period of 90 days from the date of receipt of this
order.
(a) The Order in the case no. 183/1028/11-12 of Shri Laxmikant
Vijayvargiya
versus Ministry of Heavy Industries & Public Enterprises, Ministry of
Finance and Bharat Heavy Electricals Limited.
'( I ) The complainant and other eligible employees with blindness and
locomotor disabilities of lower extremities in BHEL who are following IDA
pattern of pay-scale, be paid Conveyance Allowance/Reimbursement of
Conveyance Expenditure at double the normal rate.
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The complainant be paid the arrears of the said allowance with effect from
05.09.2003 when DPE's OM dated 05.09.2003 was made effective. In case his
perquisites in allowances
exceeded 50% of his basis pay at any point of time, BHEL should decide
payment at double the normal rate in consultation with the administrative
ministry and DPE as required under the said OM.
(II) Since the higher rate of Conveyance Allowance/Reimbursement of
Conveyance Expenditure is given to eligible employees with disabilities to
compensate them for the extra expenditure as they are forced to incur for
commuting to the office and back to their residence, DPE may consider
excluding such portion of the allowance from the basket of perquisites
that
are considered for the purpose of 50% ceiling.
(iii) If the respondent do not wish to pay double the normal Conveyance
Allowance / Reimbursement of Conveyance Expenditure / Transport Allowance
or
any other nomenclature used for the purpose, then Rs.200/- per month being
paid as Special Conveyance Allowance to employees with blindness and
locomotor disabilities of lower extremities be substantially increased
with
effect from 05.09.2003 in respect of the complainant and other eligible
employees with disabilities. The basis of arriving at such an amount must
be
the cost of extra expenditure an eligible employee with disability is
required to incur in consultation with the representatives of the
employees
with disabilities. The basis for arriving at a reasonable amount should be
such as the wages of a driver. It should also be ensured that the
additional
conveyance allowance or by whatever nomenclature is being known, be
adequately enhanced each time the conveyance allowance for rest of the
employees of BHEL and other CPSEs is increased. The decision in this
regard
be taken within a period of 90 days from the date of receipt of this
order."
16. In the light of the above discussion, it will not be desirable for
this
Court to issue any directions to the Respondent Bank to implement the
policy
framed for employees with disabilities in the Central Government. It is
also
not within the jurisdiction of this Court to restrain the Dept. of
Financial
Services from letting the banks to apply a particular kind of policy
within
their power to do so. This Court can take up with the concerned
authorities
if a policy already framed for the benefit of employees with disabilities
is
not implemented by the
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concerned establishments. . This Court feels that Rs.400/- p.m. as an
additional amount to compensate for the extra money that an employee with
disability has to incur is certainly not
sufficient and hence cannot be treated as a reasonable amount. The public
sector banks, therefore, should consider granting a reasonable amount
which
can compensate their employees with disabilities at different level for
the
extra expenses that they are required to incur.
( P.K. PINCHA )
Chief Commissioner for
Persons with Disabilities
Tribute to Rahul Cherian, our salutation to the ever shining soul
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