A Tale of Empowerment of People with Mental Disability: Part 2

In Ravindra Kumar Dhariwal v Union of India, the Supreme Court grappled with a vital question whether initiation of disciplinary proceedings for misconduct against a Central Reserve Police Force Assistant Commandant, who acquired a mental disability during the course of his employment, was discriminatory or not. Besides, the Court was also required to examine whether the case of the Appellant be governed by Persons with Disability Act, 1995 (PwD Act) or a comparatively more progressive Rights of Persons with Disabilities Act, 2016 (RPwD Act).

Factual Background of the Case

The appellant was in Central Reserve Police Force since November 2001. A complaint was lodged against him alleging that he had stated that he was obsessed with either killing or being killed, and made a threat that he could shoot. This resulted in an enquiry against him. A number of charges were levelled against him, inter alia, of trying to intentionally cause an accident and assaulting a Deputy Commandant, leading to his suspension. Upon the completion of the departmental inquiry, a notice was issued to him. Subsequently, a second enquiry was initiated against Mr. Dhariwal on the charge that he left the Headquarters without depositing the pistol and ammunition. Upon the completion of enquiry, the punishment of withholding two increments was awarded to him. A third enquiry followed, on the charge that after the suspension he remained absent from the headquarters without permission.

After prolonged treatment of more than seven years after joining services, a government hospital certified Mr. Dhariwal as permanently disabled with 40% to 70% disability.  A medical report declaring him to be unfit for duty was issued.

Initially, by a standing order, the department had constituted a Rehabilitation Board to determine the physical and mental capacity, aptitude and job requirement among others of the affected person, however, the same was altered subsequently. Besides, the Ministry of Social Justice and Empowerment exempted CRPF from the provisions of Section 47 of the PwD Act 1995, obligating the establishment not to demote or dismiss the employee of government establishments acquiring disability during the course of employment in respect of all categories of “combatant personnel” by a notification in 2002. However, the 1995 Act was replaced by the RPwD Act, 2016, and along with the same the exemption notification also got repealed.

The Legal Battle

The appellant challenged the inquiry report and the notice dated August 7^th 2015, issued in the first enquiry in a writ proceeding. The single-judge bench of the Gauhati High Court, relying on Section 47 of the PwD Act 1995, passed an Interim Order in favour of the Appellant restraining any further action in the impugned disciplinary proceedings.

Aggrieved, the respondents appealed to the Division Bench, inter alia, contending that the appellant resorted to the ground of mental disability only at the time of filing the writ petition. The appellant resisted by arguing that his attempts to communicate his disability to the Enquiry Committee were frustrated by the officials. Partly allowing the appeal, the Division Bench restored the enquiry proceedings to the stage of recording of evidence and provided opportunity to the appellant to prove his disability. Against this Order of the Division Bench, Mr. Dhariwal filed a Special Leave Petition under Article 136 before the Supreme Court. In the meanwhile, CRPF got exemption from the provisions of Section 20, of RPwD Act 2016, obligating government establishments to provide reasonable accommodation to every disabled employee and not to discriminate in employment on the ground of any disability in August 2021.

Reasoning of the Court

Dilemma of Applicability of the Appropriate  Law

Against this complex factual scenario, the Supreme Court was required to deal with the aforementioned question. The decision of the Supreme Court on the question of applicability of one of the two laws would be extremely crucial for an outcome of this case.

As the proceedings began much earlier to the enactment of 2016 Act, the respondents contended that the case should be governed by the PwD Act 1995. The Court, however, rejected  this contention by adopting a novel course with the infusion of inclusive equality in Article 14 of the Constitution of India with juristic acumen.

The Court noted that since CRPF got exemption from the obligations of Section 47 towards employees acquiring disability during the course of employment, it was required to examine whether any right or privilege accrued to the respondent as a consequence of the 2002 exemption. Upon examination of the relevant authorities on the point and interpretation of Section 6 of the General Clauses Act, 1897, the Court concluded, “The privilege that the respondent possesses under the 2002 notification would be an abstract or inchoate privilege…” The same led the Court to hold that the privilege to demote or terminate the employee cannot accrue on the initiation of the disciplinary proceedings and it would accrue “only when the privilege-holder does an act as required under the statute or otherwise to avail of the privilege.” Dealing with arguments based on the saving clause under the RPwD Act 2016, i.e. Section 102(2), the Court held that the 2002 Notification will be saved under Section 102(2) only if there is a provision in the RPwD Act mirroring  Section 47 of the PwD Act, 1995.

Comparing PwD and RPwD Acts

On the comparison between Section 47 of PwD Act and Section 20 of the RPwD Act, the Court observes that Section 47 of the PwD Act provides for only a limited guarantee to an employee to not be demoted, terminated, or denied promotion due to disability and reasonable accommodation thereof by adjusting posts. On the other hand, Section 20 of the RPwD Act not only provides for non-discrimination of the employee on the ground of disability in any matter relating to employment along the lines of the equality mandate in Article 5 of CRPD but it also saddles the State with the responsibility of ensuring reasonable accommodation and free conducive work environment to persons with disabilities. The same led the Court to hold that scope of obligation to provide reasonable accommodation widened considerably by Section 20 of the RPwD Act and went well beyond the narrow obligations under Section 47 of the PwD Act.

The Court  clarified that “under Section 20(2), the employer has a duty—in view of the principle of reasonable accommodation—to post a person suffering from disability at a place closer to home. This form of reasonable accommodation is not provided under Section 47, though it may flow through the PwD Act.”

The Court opined that if Section 20 of the RPwD Act is taken as a corresponding provision to Section 47 of the PwD Act, the exemption notification issued under the latter would exempt even the other rights that are provided by the former to the disabled employees.

Accordingly, the Court concluded that in absence of  a corresponding provision to Section 47 of PWD Act 1995 in RPwD Act 2016, , the exemption notification issued under Section 47 of the PwD Act will lose the force of law vis–a-vis the import of Section 6 of the GCA and Section 102 of the RPwD Act, and therefore the proceeding in the present case would not be governed by  2002 exemption Notification. According to the Court, the principle of non-discrimination and reasonable accommodation were overarching and ran through the letter and spirit of the 1995 Act, though the obligation to provide reasonable accommodation was not expressly contained in any of its provisions.

These obligations stemmed from India’s commitment to international human rights law standards flowing from Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, 1992 and UNCRPD, 2006, India being a member-state to both. Reading these overarching principles of reasonable accommodation and non-discrimination on the ground of disability in the structure of PwD Act, the Court made these principles applicable to the case of Appellant right from the stage of filing of the writ petition before the single-judge bench of the High Court.

Error By the High Court

The Supreme Court further held that the High Court erred in applying Section 47 to the dispute because it would kick in only at the stage of penalty. Rather, the learned Judge should have confined his jurisdiction to address the limited question whether the disciplinary proceedings against the appellant were in violation of principle of non-discrimination and reasonable accommodation and thereby infracting the PwD Act. Put differently, the SC held that the High Court did not address whether the alleged misconduct of Mr. Dhariwal due to his mental disability was worth visiting with the initiation of disciplinary action.

The Court rightly found that at relevant point of time, when Mr. Dhariwal appealed to the Division bench, RPwD Act had already been enforced. As no privilege had accrued to the respondents under the PwD Act, henceforth his case would be governed by RPwD Act, 2016. The same resulted in entitling Mr. Dhariwal to all the rights stemming from RPwD Act 2016. The Supreme Court held that as the Division Bench was fully aware of the mental disability of the Appellant, it would be nothing less than travesty of justice to restore the disciplinary proceedings de novo. Thus, Chief Justice D. Y. Chandrachud, pointedly noted that the Division Bench also repeated the folly of the single-judge bench.

The same led the Court to conclude that the case of the appellant would be covered by Section 20 of RPwD Act 2016 as at the relevant point of time of filing the Special Leave Petition the exception notification was yet to be notified. We will deal with the takeaways of thus judgement in the third and concluding post.

Dr. Sanjay Jain is a Professor at NLSIU, Bengaluru. Ms. Malika Jain is an LL.M. Candidate at NLSIU, Bengaluru.

The opinions expressed in this publication are those of the authors.