published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40492
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9324 OF 2012
(Arising out of SLP(C)No.7647 of 2011)
GEETABEN RATILAL PATEL …
APPELLANT
VERSUS
DISTRICT PRIMARY EDUCATION OFFICER …
RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal is directed against the order dated
4th November, 2009 passed by the Division Bench of
Gujarat High Court in L.P.A.No. 1988 of 2009 whereby
the Division Bench dismissed the said Letters Patent
Appeal preferred by the appellant and affirmed the
order dated 10th December, 2008 passed by learned
Single Judge in Writ PetitionSpecial Civil
Application No. 27730/2007. In the said writ
1Page 2
petition the order passed by the Commissioner under
Section 62 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995 (hereinafter referred to as
“the Act”) in case No. 253/2007 was set aside.
2. The main question that arises for our
consideration is
whether the Commissioner under
Section 62 of the Act can look into the legality of
the order of dismissal from service of a disabled
person, if it comes to his notice that the said
person with disabilities has been deprived of his
rights.
3. The factual matrix of the case is as
follows:
The appellant who was appointed on 30th July,
1990 as Primary Teacher in Vagara School was
transferred to Primary School, Tal.Manda, Bharuch
from 18th June, 1999. Thereafter, she proceeded on
medical leave from 21st June, 1999 to 30th July, 1999,
and remained on leave upto 7th September, 1999. In
that respect, she had not produced any type of leave
report. Thereafter, from 15th September, 1999, she
2Page 3
again remained absent unauthorisedly without
producing any kind of leave report.
4. In the meantime, on 31st December, 1999, a
notice was issued to the appellant regarding her
time to time absence and she was thereby informed
to explain in writing the grounds for her absence
within seven days. But neither written nor oral
explanation was received by the authorities.
Thereafter, she directly resumed her duties in the
school on 25th November, 2000. The Principal of
Primary School, Manad had informed the same to
Taluka Development Officer, Bharuch, who in turn
intimated the same to the District Panchayat
Committee, Bharuch. After resumption of duty on
25th November, 2000, the appellant went on leave from
time to time without pay. In this respect, by
memorandum letter dated 28th July, 2002 she was
served with a chargesheet and informed to submit
her explanation in writing within 7 days. Since no
explanation was submitted by the appellant, she had
been informed in writing vide letter dated 4th
March, 2003 to submit the medical certificate of a
Civil Surgeon with respect to her illness within 7
3Page 4
days. But neither any medical certificate nor any
explanation in writing or in oral, was submitted.
By letter dated 30th April, 2003 of Taluka
Development Officer, Bharuch, the matter was
referred to the higher authority. Thereafter,
the final notice was issued by letter dated 9th July,
2003 directing the appellant to explain in writing
within 7 days for her continuous absence,
irregularity and carelessness towards her duty. The
appellant failed to submit her reply or explanation
to the said notice within the stipulated period.
Therefore, by giving another opportunity of defence,
a reminder letter was issued on 25th August, 2003
followed by another letter of similar nature dated
28th August, 2003.
Having received no reply again,
vide order dated 15th April, 2004 she was dismissed
from service by the respondent under Section 24 of
the Primary Education Act read with Gujarat
Panchayat Services (Discipline and Appeal) Rules,
1997 on the ground of carelessness towards duty,
absence from duty, irregularity, breach of orders of
the higher authorities and having badly affected the
future of the children.
4Page 5
5. For about three years, no action was taken by
appellant.
In the year 2007 she filed an
application before the Commissioner under Section 62
of the Act.
The said application was registered
as Case No. 253/2007.
In the said application, the
appellant took plea that the order of dismissal
passed by the authorities while she was suffering
from mental illness was in violation of Section
47(1) of the Act.
The appellant requested for her
reinstatement with full backwages.
6. The complaint on behalf of the appellant was
filed and verified by her father. Therefore, the
Commissioner while issuing notice to the respondent
authority also issued notice to the appellant on 30th
June, 2007 calling upon both the parties to be
present on 24th July, 2007 at the time of hearing.
7. At the time of hearing the appellant herself
remained present alongwith her father and on behalf
of the respondent Shri Maganbhai B. Vasava, Head
Clerk and Shri Dilavarshinh A. Raj, Junior Clerk had
remained present.
The appellant contended that
though she was physically healthy at the time of
joining the services because of mental illness that
5Page 6
developed afterwards she was treated by doctors time
to time, who advised her to take rest. She
specifically pleaded that since she was divorced by
her husband in the year 1998, she started suffering
from mental depression which resulted in 40 to 70
per cent mental disability. A certificate issued
by the Medical Board of Government Hospital was also
produced before the Commissioner.
8. On behalf of respondent, it was contended that
the appellant unauthorisedly remained absent from
service from time to time and in spite of giving
opportunity to her, she never replied and because of
her carelessness and negligence towards duty, the
students suffered. It was further submitted that a
charge sheet was also issued to her in this regard
but having received no reply from her, she was
dismissed from service.
9. The Commissioner after hearing the parties and
on perusal of the evidence held that as the
appellant was suffering from 40 to 70 per cent
mental disability at the time of dismissal, the
said order of dismissal was void. It was also held
that if the appellant is not in a position to work
6Page 7
in the large educational interest of the students
then an appropriate post should be created for her
and her appointment to that post be made as per
Section 47 of the Act. It was also directed to
count the intervening period as continuous period
in service without any break and also to select the
place of service of the appellant in such a manner
that she can live with her parents as she
requires constant assistance to become mentally
healthy.
10. The respondent challenged the said order before
the learned Single Judge of the High Court in
Special Civil Application No. 27730/2007. In the
said case, the learned Single Judge passed an
interim order on 11th January, 2008 with following
observation:
“2. Upon hearing the learned Counsel
for both the sides, it prima facie
appears that the respondent was
engaged as a teacher in the year
1990 and it is an admitted position
that she continued in service up to
1999, for a period of about 9
years. In the year 1999, on account
of the divorce, she sustained mental
disability and as a result thereof,
she had undergone a prolonged
treatment. Due to mental
disability, it appears that she
7Page 8
might not have appeared in the
inquiry proceedings initiated by the
petitioner. As per the petitioner,
she remained absent and not even
defended the inquiry proceedings and
the order of dismissal was passed.
It is true that the order of
dismissal is not challenged by the
respondent before the higher forum,
however, she has approached the
Commissioner for physically
Handicapped persons and ultimately,
the Commissioner has passed the
order, setting aside the dismissal
and also interim directions.
3. Whether the Commissioner has no
power to set aside the order of the
dismissal or not deserves
consideration, but at the same
time, it also appears that it is on
account of the mental disability,
the respondent could not defend in
the proceedings and as a result
thereof, the order of dismissal
came to be passed. It is an
admitted position that the
respondent is mentally disabled and,
therefore, had the order of
dismissal not been there, the
respondent otherwise would have been
entitled to the benefits of the
Act, namely;
The Persons with
Disabilities (Equal Opportunities,
etc.) Act, 1995 and more
particularly, Section 47 of the
Act.”
“4. Ms. Mandavia, learned Counsel
appearing for the petitioner,
however, submitted that it is not a
case of dismissal from the service
on account of the mental disability
or reduction in rank and ,
therefore, if the dismissal has
already taken place, it cannot be
set aside by the Commissioner, which
8Page 9
may result into consequential
reinstatement in service with back
wages and other directions. She
also submitted that on account of
the mental disability of the
respondent, she is not at all in a
position to discharge any other
work also.
5. Whereas, Mr. Jani, learned
Counsel appearing for the
respondent submitted that as per the
medical certificate produced on page
60 of the Chief District Medical
Officer and Civil Surgeon, she has
mental disability upto 40 to 70%
and, therefore, she may be in a
position to do minor manual work in
the School, if assigned to her.
6. It appears that if the person
has sustained physical disability,
including that of mental disability
while in service, it would be
required for the authority to extend
benefit of Section 47 of the Act.
Keeping in view the peculiar facts
and circumstances that when the
departmental actions were initiated,
she had already sustained mental
disability, a pragmatic approach is
required to be taken. Further, it
will be for the concerned Doctor to
certify regarding the nature of
duty, which can safely and
conveniently be performed by the
respondent after due examination.
7. Since, at this stage, the
order of dismissal is yet not
finalized by this Court, there may
not be any payment of backwages and
ultimately whether the Commissioner
has power or not is an aspect
finally to be decided at the later
stage. However, it appears that
since the respondent is having
9Page 10
mental disability of 40 to 70 per
cent, it would be just and proper
to allow the operation of the order
passed by the Commissioner so as to
enable the respondent to get regular
salary and after examination by the
competent doctor appropriate duty
may be assigned to her.
8. In view of the aforesaid, I am
inclined to pass the following
order:
RULE
(a)By interim order, there shall be stay
against the impugned order of the
Commissioner to the extent that the
petitioner shall not be required to pay
any backwages to the respondent, but the
petitioner shall reinstate the respondent
in service by paying regular salary to
her from 1.2.2008.
(b)It is further observed that directed
that the petitioner shall get respondent
examined through a Government Doctor of
their choice and if it is so opined by
the doctor, such duty may be assigned
to the respondent at a place or a nearby
place, where she can comfortably and
conveniently, in a safe atmosphere,
discharge duty.”
11. The case was subsequently taken up by another
learned Single Judge on 10th December, 2008 who
finally disposed of the matter. This time the
learned Single Judge neither perused the report of
the government doctor nor noticed the question
10Page 11
whether the interim order passed by the High Court on
11.1.2008 was complied by assigning duty to the
appellant at the nearby place where she can
comfortably and conveniently in safe atmosphere
discharge her duties. Learned Single Judge also
failed to decide the question whether the
Commissioner had jurisdiction to interfere with the
order of dismissal. On 10th December, 2008,
learned Single Judge dismissed the writ petition on
the following grounds and observation:
“14. In the present case, the
respondent has remained on long leave
and she has not responded to any of
the communications by the petitioner.
Her services were terminated in the
year 2004 on the ground of
absenteeism. Though the respondent was
asked to produce certificate she has
failed to comply with the same.
15. In short, after 2004 she was not
in service and therefore, the
respondent cannot rely upon the
provisions of said section which
clearly states that no establishment
shall dispense with, or reduce in
rank, an employee who acquires a
disability during his service. I am
therefore of the view that the said
section would be of no help to the
respondent. Even otherwise, she had
served for only 2 months and she
remained absent from 1990 prior to act
came into force.
11Page 12
16. As regards the contention that the
respondent sick, it is required to be
noted that the respondent was asked to
produce medical certificate which was
not produced. Further it is required
to be noted that she has served only
for 20 months in all.
17. Even otherwise the respondent was
dismissed in the year 2004. She has
challenged the said decision after a
period of more than three years, which
is grossly timebarred. The competent
authority ought to have applied their
mind before passing the impugned
order. The Commissioner has therefore
committed an error in setting aside
the order of termination.
18. In any case the absenteeism is
from the year 1990, prior to the Act
came into force. The provisions of the
Act will apply only during service.
Therefore the contention of the
petitioner cannot be accepted.
19. It is also required to be noted
that the respondent was teacher and
she remained absent unreasonably long
period as a result of which the post
was vacant and the petitioner was not
able to appoint anybody. The ultimate
sufferers were the students. In such
situation, I am of the view that the
competent authority was justified in
dismissing the respondent after
following the proper procedure.”
12. On an appeal, the Division Bench by its impugned
order dated 4th November, 2009 affirmed the order
passed by the learned Single Judge and the same is
12Page 13
under challenge before this Court now.
The Division
Bench also committed the same error as the Single
Judge, by not deciding the question of jurisdiction
of the Commissioner and the question
whether the
appellant was entitled for benefits under Section
47(1) of the Act.
13. The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act was enacted in 1995 pursuant to
meet the following object and reasons:
(i) to spell out the responsibility of the
State towards the prevention of
disabilities, protection of rights,
provision of medical care, education,
training, employment and rehabilitation
of persons with disabilities;
(ii) to create barrier free environment for
persons with disabilities;
(iii)to remove any discrimination against
persons with disabilities in the sharing of
development benefits, visàvis non
disabled persons;
(iv)to counteract any situation of the
abuse and the exploitation of persons with
disabilities;
(v)to lay down a strategy for comprehensive
development of programmes and services and
equalization of opportunities for persons
with disabilities; and
13Page 14
(vi)to make special provision of the
integration of persons with disabilities
into the social mainstream.
14. To decide the present issue, it is also
relevant to notice Section 47 of the Act which deals
with nondiscrimination in Government employment and
reads as follows:
“47 Nondiscrimination in Government
employments (1) No establishment shall
dispense with, or reduce in rank, an employee
who acquires a disability during his service:
Provided that, if an employee, after acquiring
disability is not suitable for the post he was
holding, could 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.
(2) No promotion shall be denied to a person
merely on the ground of his disability:
Provided that the appropriate Government may,
having regard to the type of work carried on
in any establishment, by notification and
subject to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this
section.”
15. The appointment, function and duties of the
Chief Commissioner and Commissioners for Persons
with Disabilities have been laid down under Chapter
XII of the Act.
14Page 15
Under Section 58(c) of the Act the Chief
Commissioner shall take steps to safeguard the
rights and facilities made available to persons
with disabilities.
The Commissioner is empowered under Section 62
of the Act to look into the complaints in respect to
matters relating to deprivation of rights of persons
with disabilities, which reads as follows:
“62 Commissioner to look into
complaints with respect to matters
relating to deprivation of rights of
persons with disabilities. Without
prejudice to the provisions of section 61
the 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) nonimplementation of laws, rules,
byelaws, regulations, executive orders,
guidelines or instructions made or issued
by the appropriate Governments and the
local authorities for the welfare and
protection of rights of persons with
disabilities,
and take up the matter with the
appropriate authorities.”
16. The provisions of Sections 47 and 62 of the
Act, when read together, empower the Commissioner,
to look into the complaint with respect to the
15Page 16
matters relating to deprivation of rights of persons
with disabilities and nonimplementation of laws,
rules, byelaws, regulations, executive orders,
guidelines or instructions issued by the appropriate
Governments or local authorities and to take up the
matter with the appropriate authorities for the
welfare and protection of rights of persons with
disabilities including matter relating to
dispensation with service or reduction in rank. The
power of the Commissioner “to look into the
complaints with respect to the matters relating to
deprivation of rights” as provided under Section 62
of the Act is not an empty formality and the
Commissioner is required to apply his mind on the
question raised by the complainant to find out the
truth behind the complaint. If so necessary, the
Commissioner may suo motu inquire into the matter
and/or after giving notice, hearing the concerned
parties and going through the records may decide the
complaint. If it comes to the notice of the
Commissioner that a person with disability has been
deprived of his rights or that the authorities have
flouted any law, rule, guideline, instruction,
16Page 17
etc. issued by the appropriate Government or local
authorities, the Commissioner is required to take
up the matter with the appropriate authority to
ensure restoration of rights of such disabled person
and/or to implement the law, rule, guideline,
instruction if not followed. A complaint may be made
by any disabled person himself or any person on
behalf of disabled persons or by any person in the
interest of disabled persons. Thus the issue as
involved is decided affirmatively in favour of the
appellant and against the respondent.
17. The appellant was appointed as Primary Teacher
on 30th July, 1990 and continued for nine years
without any complaint till she proceeded on medical
leave on 21st June, 1999. She thereafter, remained
absent from time to time for about 1360 days from
June, 1999 till the date of dismissal.
The
appellant has taken a specific plea that she was
divorced by her husband in the year 1998 and since
then she suffered mental depression.
The Government
Medical Board also held the appellant mentally
disabled as she was suffering from 40 to 70 per cent
mental disability.
The order of dismissal was
17Page 18
passed during her mental disability in violation of
Section 47(1) of the Act. In this background, the
Commissioner having declared the order of dismissal
as void, it was not open to the High Court to
interfere with such order and to restore the illegal
order of dismissal.
18. Whether under Section 62 of the Act, the
Commissioner was competent to declare the order of
dismissal as void, was one of the question framed
by the learned Single Judge by order dated
11.1.2008. But at the time of hearing, the learned
Single Judge failed to notice and decide the
question so raised. The Division Bench also failed to
notice the aforesaid fact and remained silent on the
issue.
19. From the documents on record, we find that
show cause notices were issued to the appellant and
charges were framed but there is nothing on the
record to suggest that any departmental proceeding
was initiated. Neither any inquiry officer was
appointed, nor any notice was issued by any inquiry
officer to the appellant to remain present in the
departmental proceeding. No evidence was relied
18Page 19
upon by the respondent to bring home the charges.
Aforesaid facts also show that the order of dismissal
was passed in violation of rules of natural
justice.
20. Now the question remains about the back wages,
if any, to which the appellant is entitled.
The
appellant remained absent from duty from time to
time for about 1360 days when she was in service.
Therefore, she cannot claim any wages for the said
period. The order of dismissal was passed on
15.4.2004, but she moved before the Commissioner
after a span of three years i.e. in the year 2007.
There being delay on her part, in moving before the
Commissioner, she cannot claim any salary for such
intervening period.
21. Learned Single Judge by interim order dated
11th January, 2008 directed the respondent to
reinstate the appellant and to pay her regular salary
w.e.f 1.2.2008 on the following terms:
“8. RULE
(a)By interim order, there shall be stay
against the impugned order of the
Commissioner to the extent that the
petitioner shall not be required to pay
19Page 20
any backwages to the respondent, but the
petitioner shall reinstate the respondent
in service by paying regular salary to
her from 1.2.2008.
(b)It is further observed that directed
that the petitioner shall get respondent
examined through a Government Doctor of
their choice and if it is so opined by
the doctor, such duty may be assigned
to the respondent at a place or a nearby
place, where she can comfortably and
conveniently, in a safe atmosphere,
discharge duty.”
22. Inspite of the same, the respondent authority
have neither reinstated the appellant nor paid
salary w.e.f. 1.2.2008.
So, they cannot take
advantage of their own wrong and, thereby, cannot
deny the benefit of wages to which the appellant was
entitled pursuant to the order passed by the High
Court on 11th January, 2008.
23. There is nothing on the record to suggest that
the respondent authority got the appellant examined
by a Government Doctor to determine the duty to be
assigned to her.
In view of her reinstatement, now
the respondent authority may get opinion of the
doctor for assigning her duty.
In case the
appellant is not in a position to perform the normal
20Page 21
duty because of her mental condition, the competent
authority will apply Proviso to Section 47(1) of
the said Act.
24. Having regard to the fact that we have upheld
the order passed by the Commissioner, we direct the
authorities to reinstate the appellant in service
immediately and to pay her regular salary every
month.
The appellant shall be entitled to arrears
of salary w.e.f. 1.2.2008 which the respondent shall
pay within three months, else the appellant shall
become entitled to interest at the rate of 6% per
annum with effect from 1.2.2008 till the actual
payment.
25. The appeal is allowed in the manner indicated
above and the orders passed by the learned Single
Judge and the Division Bench of the High Court are
set aside. There shall be no order as to costs.
..……………………………………………..J.
( G.S. SINGHVI )
.……………………………………………….J.
( SUDHANSU JYOTI MUKHOPADHAYA )
NEW DELHI,
JULY 2, 2013.
21Page 22
22
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9324 OF 2012
(Arising out of SLP(C)No.7647 of 2011)
GEETABEN RATILAL PATEL …
APPELLANT
VERSUS
DISTRICT PRIMARY EDUCATION OFFICER …
RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal is directed against the order dated
4th November, 2009 passed by the Division Bench of
Gujarat High Court in L.P.A.No. 1988 of 2009 whereby
the Division Bench dismissed the said Letters Patent
Appeal preferred by the appellant and affirmed the
order dated 10th December, 2008 passed by learned
Single Judge in Writ PetitionSpecial Civil
Application No. 27730/2007. In the said writ
1Page 2
petition the order passed by the Commissioner under
Section 62 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995 (hereinafter referred to as
“the Act”) in case No. 253/2007 was set aside.
2. The main question that arises for our
consideration is
whether the Commissioner under
Section 62 of the Act can look into the legality of
the order of dismissal from service of a disabled
person, if it comes to his notice that the said
person with disabilities has been deprived of his
rights.
3. The factual matrix of the case is as
follows:
The appellant who was appointed on 30th July,
1990 as Primary Teacher in Vagara School was
transferred to Primary School, Tal.Manda, Bharuch
from 18th June, 1999. Thereafter, she proceeded on
medical leave from 21st June, 1999 to 30th July, 1999,
and remained on leave upto 7th September, 1999. In
that respect, she had not produced any type of leave
report. Thereafter, from 15th September, 1999, she
2Page 3
again remained absent unauthorisedly without
producing any kind of leave report.
4. In the meantime, on 31st December, 1999, a
notice was issued to the appellant regarding her
time to time absence and she was thereby informed
to explain in writing the grounds for her absence
within seven days. But neither written nor oral
explanation was received by the authorities.
Thereafter, she directly resumed her duties in the
school on 25th November, 2000. The Principal of
Primary School, Manad had informed the same to
Taluka Development Officer, Bharuch, who in turn
intimated the same to the District Panchayat
Committee, Bharuch. After resumption of duty on
25th November, 2000, the appellant went on leave from
time to time without pay. In this respect, by
memorandum letter dated 28th July, 2002 she was
served with a chargesheet and informed to submit
her explanation in writing within 7 days. Since no
explanation was submitted by the appellant, she had
been informed in writing vide letter dated 4th
March, 2003 to submit the medical certificate of a
Civil Surgeon with respect to her illness within 7
3Page 4
days. But neither any medical certificate nor any
explanation in writing or in oral, was submitted.
By letter dated 30th April, 2003 of Taluka
Development Officer, Bharuch, the matter was
referred to the higher authority. Thereafter,
the final notice was issued by letter dated 9th July,
2003 directing the appellant to explain in writing
within 7 days for her continuous absence,
irregularity and carelessness towards her duty. The
appellant failed to submit her reply or explanation
to the said notice within the stipulated period.
Therefore, by giving another opportunity of defence,
a reminder letter was issued on 25th August, 2003
followed by another letter of similar nature dated
28th August, 2003.
Having received no reply again,
vide order dated 15th April, 2004 she was dismissed
from service by the respondent under Section 24 of
the Primary Education Act read with Gujarat
Panchayat Services (Discipline and Appeal) Rules,
1997 on the ground of carelessness towards duty,
absence from duty, irregularity, breach of orders of
the higher authorities and having badly affected the
future of the children.
4Page 5
5. For about three years, no action was taken by
appellant.
In the year 2007 she filed an
application before the Commissioner under Section 62
of the Act.
The said application was registered
as Case No. 253/2007.
In the said application, the
appellant took plea that the order of dismissal
passed by the authorities while she was suffering
from mental illness was in violation of Section
47(1) of the Act.
The appellant requested for her
reinstatement with full backwages.
6. The complaint on behalf of the appellant was
filed and verified by her father. Therefore, the
Commissioner while issuing notice to the respondent
authority also issued notice to the appellant on 30th
June, 2007 calling upon both the parties to be
present on 24th July, 2007 at the time of hearing.
7. At the time of hearing the appellant herself
remained present alongwith her father and on behalf
of the respondent Shri Maganbhai B. Vasava, Head
Clerk and Shri Dilavarshinh A. Raj, Junior Clerk had
remained present.
The appellant contended that
though she was physically healthy at the time of
joining the services because of mental illness that
5Page 6
developed afterwards she was treated by doctors time
to time, who advised her to take rest. She
specifically pleaded that since she was divorced by
her husband in the year 1998, she started suffering
from mental depression which resulted in 40 to 70
per cent mental disability. A certificate issued
by the Medical Board of Government Hospital was also
produced before the Commissioner.
8. On behalf of respondent, it was contended that
the appellant unauthorisedly remained absent from
service from time to time and in spite of giving
opportunity to her, she never replied and because of
her carelessness and negligence towards duty, the
students suffered. It was further submitted that a
charge sheet was also issued to her in this regard
but having received no reply from her, she was
dismissed from service.
9. The Commissioner after hearing the parties and
on perusal of the evidence held that as the
appellant was suffering from 40 to 70 per cent
mental disability at the time of dismissal, the
said order of dismissal was void. It was also held
that if the appellant is not in a position to work
6Page 7
in the large educational interest of the students
then an appropriate post should be created for her
and her appointment to that post be made as per
Section 47 of the Act. It was also directed to
count the intervening period as continuous period
in service without any break and also to select the
place of service of the appellant in such a manner
that she can live with her parents as she
requires constant assistance to become mentally
healthy.
10. The respondent challenged the said order before
the learned Single Judge of the High Court in
Special Civil Application No. 27730/2007. In the
said case, the learned Single Judge passed an
interim order on 11th January, 2008 with following
observation:
“2. Upon hearing the learned Counsel
for both the sides, it prima facie
appears that the respondent was
engaged as a teacher in the year
1990 and it is an admitted position
that she continued in service up to
1999, for a period of about 9
years. In the year 1999, on account
of the divorce, she sustained mental
disability and as a result thereof,
she had undergone a prolonged
treatment. Due to mental
disability, it appears that she
7Page 8
might not have appeared in the
inquiry proceedings initiated by the
petitioner. As per the petitioner,
she remained absent and not even
defended the inquiry proceedings and
the order of dismissal was passed.
It is true that the order of
dismissal is not challenged by the
respondent before the higher forum,
however, she has approached the
Commissioner for physically
Handicapped persons and ultimately,
the Commissioner has passed the
order, setting aside the dismissal
and also interim directions.
3. Whether the Commissioner has no
power to set aside the order of the
dismissal or not deserves
consideration, but at the same
time, it also appears that it is on
account of the mental disability,
the respondent could not defend in
the proceedings and as a result
thereof, the order of dismissal
came to be passed. It is an
admitted position that the
respondent is mentally disabled and,
therefore, had the order of
dismissal not been there, the
respondent otherwise would have been
entitled to the benefits of the
Act, namely;
The Persons with
Disabilities (Equal Opportunities,
etc.) Act, 1995 and more
particularly, Section 47 of the
Act.”
“4. Ms. Mandavia, learned Counsel
appearing for the petitioner,
however, submitted that it is not a
case of dismissal from the service
on account of the mental disability
or reduction in rank and ,
therefore, if the dismissal has
already taken place, it cannot be
set aside by the Commissioner, which
8Page 9
may result into consequential
reinstatement in service with back
wages and other directions. She
also submitted that on account of
the mental disability of the
respondent, she is not at all in a
position to discharge any other
work also.
5. Whereas, Mr. Jani, learned
Counsel appearing for the
respondent submitted that as per the
medical certificate produced on page
60 of the Chief District Medical
Officer and Civil Surgeon, she has
mental disability upto 40 to 70%
and, therefore, she may be in a
position to do minor manual work in
the School, if assigned to her.
6. It appears that if the person
has sustained physical disability,
including that of mental disability
while in service, it would be
required for the authority to extend
benefit of Section 47 of the Act.
Keeping in view the peculiar facts
and circumstances that when the
departmental actions were initiated,
she had already sustained mental
disability, a pragmatic approach is
required to be taken. Further, it
will be for the concerned Doctor to
certify regarding the nature of
duty, which can safely and
conveniently be performed by the
respondent after due examination.
7. Since, at this stage, the
order of dismissal is yet not
finalized by this Court, there may
not be any payment of backwages and
ultimately whether the Commissioner
has power or not is an aspect
finally to be decided at the later
stage. However, it appears that
since the respondent is having
9Page 10
mental disability of 40 to 70 per
cent, it would be just and proper
to allow the operation of the order
passed by the Commissioner so as to
enable the respondent to get regular
salary and after examination by the
competent doctor appropriate duty
may be assigned to her.
8. In view of the aforesaid, I am
inclined to pass the following
order:
RULE
(a)By interim order, there shall be stay
against the impugned order of the
Commissioner to the extent that the
petitioner shall not be required to pay
any backwages to the respondent, but the
petitioner shall reinstate the respondent
in service by paying regular salary to
her from 1.2.2008.
(b)It is further observed that directed
that the petitioner shall get respondent
examined through a Government Doctor of
their choice and if it is so opined by
the doctor, such duty may be assigned
to the respondent at a place or a nearby
place, where she can comfortably and
conveniently, in a safe atmosphere,
discharge duty.”
11. The case was subsequently taken up by another
learned Single Judge on 10th December, 2008 who
finally disposed of the matter. This time the
learned Single Judge neither perused the report of
the government doctor nor noticed the question
10Page 11
whether the interim order passed by the High Court on
11.1.2008 was complied by assigning duty to the
appellant at the nearby place where she can
comfortably and conveniently in safe atmosphere
discharge her duties. Learned Single Judge also
failed to decide the question whether the
Commissioner had jurisdiction to interfere with the
order of dismissal. On 10th December, 2008,
learned Single Judge dismissed the writ petition on
the following grounds and observation:
“14. In the present case, the
respondent has remained on long leave
and she has not responded to any of
the communications by the petitioner.
Her services were terminated in the
year 2004 on the ground of
absenteeism. Though the respondent was
asked to produce certificate she has
failed to comply with the same.
15. In short, after 2004 she was not
in service and therefore, the
respondent cannot rely upon the
provisions of said section which
clearly states that no establishment
shall dispense with, or reduce in
rank, an employee who acquires a
disability during his service. I am
therefore of the view that the said
section would be of no help to the
respondent. Even otherwise, she had
served for only 2 months and she
remained absent from 1990 prior to act
came into force.
11Page 12
16. As regards the contention that the
respondent sick, it is required to be
noted that the respondent was asked to
produce medical certificate which was
not produced. Further it is required
to be noted that she has served only
for 20 months in all.
17. Even otherwise the respondent was
dismissed in the year 2004. She has
challenged the said decision after a
period of more than three years, which
is grossly timebarred. The competent
authority ought to have applied their
mind before passing the impugned
order. The Commissioner has therefore
committed an error in setting aside
the order of termination.
18. In any case the absenteeism is
from the year 1990, prior to the Act
came into force. The provisions of the
Act will apply only during service.
Therefore the contention of the
petitioner cannot be accepted.
19. It is also required to be noted
that the respondent was teacher and
she remained absent unreasonably long
period as a result of which the post
was vacant and the petitioner was not
able to appoint anybody. The ultimate
sufferers were the students. In such
situation, I am of the view that the
competent authority was justified in
dismissing the respondent after
following the proper procedure.”
12. On an appeal, the Division Bench by its impugned
order dated 4th November, 2009 affirmed the order
passed by the learned Single Judge and the same is
12Page 13
under challenge before this Court now.
The Division
Bench also committed the same error as the Single
Judge, by not deciding the question of jurisdiction
of the Commissioner and the question
whether the
appellant was entitled for benefits under Section
47(1) of the Act.
13. The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act was enacted in 1995 pursuant to
meet the following object and reasons:
(i) to spell out the responsibility of the
State towards the prevention of
disabilities, protection of rights,
provision of medical care, education,
training, employment and rehabilitation
of persons with disabilities;
(ii) to create barrier free environment for
persons with disabilities;
(iii)to remove any discrimination against
persons with disabilities in the sharing of
development benefits, visàvis non
disabled persons;
(iv)to counteract any situation of the
abuse and the exploitation of persons with
disabilities;
(v)to lay down a strategy for comprehensive
development of programmes and services and
equalization of opportunities for persons
with disabilities; and
13Page 14
(vi)to make special provision of the
integration of persons with disabilities
into the social mainstream.
14. To decide the present issue, it is also
relevant to notice Section 47 of the Act which deals
with nondiscrimination in Government employment and
reads as follows:
“47 Nondiscrimination in Government
employments (1) No establishment shall
dispense with, or reduce in rank, an employee
who acquires a disability during his service:
Provided that, if an employee, after acquiring
disability is not suitable for the post he was
holding, could 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.
(2) No promotion shall be denied to a person
merely on the ground of his disability:
Provided that the appropriate Government may,
having regard to the type of work carried on
in any establishment, by notification and
subject to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this
section.”
15. The appointment, function and duties of the
Chief Commissioner and Commissioners for Persons
with Disabilities have been laid down under Chapter
XII of the Act.
14Page 15
Under Section 58(c) of the Act the Chief
Commissioner shall take steps to safeguard the
rights and facilities made available to persons
with disabilities.
The Commissioner is empowered under Section 62
of the Act to look into the complaints in respect to
matters relating to deprivation of rights of persons
with disabilities, which reads as follows:
“62 Commissioner to look into
complaints with respect to matters
relating to deprivation of rights of
persons with disabilities. Without
prejudice to the provisions of section 61
the 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) nonimplementation of laws, rules,
byelaws, regulations, executive orders,
guidelines or instructions made or issued
by the appropriate Governments and the
local authorities for the welfare and
protection of rights of persons with
disabilities,
and take up the matter with the
appropriate authorities.”
16. The provisions of Sections 47 and 62 of the
Act, when read together, empower the Commissioner,
to look into the complaint with respect to the
15Page 16
matters relating to deprivation of rights of persons
with disabilities and nonimplementation of laws,
rules, byelaws, regulations, executive orders,
guidelines or instructions issued by the appropriate
Governments or local authorities and to take up the
matter with the appropriate authorities for the
welfare and protection of rights of persons with
disabilities including matter relating to
dispensation with service or reduction in rank. The
power of the Commissioner “to look into the
complaints with respect to the matters relating to
deprivation of rights” as provided under Section 62
of the Act is not an empty formality and the
Commissioner is required to apply his mind on the
question raised by the complainant to find out the
truth behind the complaint. If so necessary, the
Commissioner may suo motu inquire into the matter
and/or after giving notice, hearing the concerned
parties and going through the records may decide the
complaint. If it comes to the notice of the
Commissioner that a person with disability has been
deprived of his rights or that the authorities have
flouted any law, rule, guideline, instruction,
16Page 17
etc. issued by the appropriate Government or local
authorities, the Commissioner is required to take
up the matter with the appropriate authority to
ensure restoration of rights of such disabled person
and/or to implement the law, rule, guideline,
instruction if not followed. A complaint may be made
by any disabled person himself or any person on
behalf of disabled persons or by any person in the
interest of disabled persons. Thus the issue as
involved is decided affirmatively in favour of the
appellant and against the respondent.
17. The appellant was appointed as Primary Teacher
on 30th July, 1990 and continued for nine years
without any complaint till she proceeded on medical
leave on 21st June, 1999. She thereafter, remained
absent from time to time for about 1360 days from
June, 1999 till the date of dismissal.
The
appellant has taken a specific plea that she was
divorced by her husband in the year 1998 and since
then she suffered mental depression.
The Government
Medical Board also held the appellant mentally
disabled as she was suffering from 40 to 70 per cent
mental disability.
The order of dismissal was
17Page 18
passed during her mental disability in violation of
Section 47(1) of the Act. In this background, the
Commissioner having declared the order of dismissal
as void, it was not open to the High Court to
interfere with such order and to restore the illegal
order of dismissal.
18. Whether under Section 62 of the Act, the
Commissioner was competent to declare the order of
dismissal as void, was one of the question framed
by the learned Single Judge by order dated
11.1.2008. But at the time of hearing, the learned
Single Judge failed to notice and decide the
question so raised. The Division Bench also failed to
notice the aforesaid fact and remained silent on the
issue.
19. From the documents on record, we find that
show cause notices were issued to the appellant and
charges were framed but there is nothing on the
record to suggest that any departmental proceeding
was initiated. Neither any inquiry officer was
appointed, nor any notice was issued by any inquiry
officer to the appellant to remain present in the
departmental proceeding. No evidence was relied
18Page 19
upon by the respondent to bring home the charges.
Aforesaid facts also show that the order of dismissal
was passed in violation of rules of natural
justice.
20. Now the question remains about the back wages,
if any, to which the appellant is entitled.
The
appellant remained absent from duty from time to
time for about 1360 days when she was in service.
Therefore, she cannot claim any wages for the said
period. The order of dismissal was passed on
15.4.2004, but she moved before the Commissioner
after a span of three years i.e. in the year 2007.
There being delay on her part, in moving before the
Commissioner, she cannot claim any salary for such
intervening period.
21. Learned Single Judge by interim order dated
11th January, 2008 directed the respondent to
reinstate the appellant and to pay her regular salary
w.e.f 1.2.2008 on the following terms:
“8. RULE
(a)By interim order, there shall be stay
against the impugned order of the
Commissioner to the extent that the
petitioner shall not be required to pay
19Page 20
any backwages to the respondent, but the
petitioner shall reinstate the respondent
in service by paying regular salary to
her from 1.2.2008.
(b)It is further observed that directed
that the petitioner shall get respondent
examined through a Government Doctor of
their choice and if it is so opined by
the doctor, such duty may be assigned
to the respondent at a place or a nearby
place, where she can comfortably and
conveniently, in a safe atmosphere,
discharge duty.”
22. Inspite of the same, the respondent authority
have neither reinstated the appellant nor paid
salary w.e.f. 1.2.2008.
So, they cannot take
advantage of their own wrong and, thereby, cannot
deny the benefit of wages to which the appellant was
entitled pursuant to the order passed by the High
Court on 11th January, 2008.
23. There is nothing on the record to suggest that
the respondent authority got the appellant examined
by a Government Doctor to determine the duty to be
assigned to her.
In view of her reinstatement, now
the respondent authority may get opinion of the
doctor for assigning her duty.
In case the
appellant is not in a position to perform the normal
20Page 21
duty because of her mental condition, the competent
authority will apply Proviso to Section 47(1) of
the said Act.
24. Having regard to the fact that we have upheld
the order passed by the Commissioner, we direct the
authorities to reinstate the appellant in service
immediately and to pay her regular salary every
month.
The appellant shall be entitled to arrears
of salary w.e.f. 1.2.2008 which the respondent shall
pay within three months, else the appellant shall
become entitled to interest at the rate of 6% per
annum with effect from 1.2.2008 till the actual
payment.
25. The appeal is allowed in the manner indicated
above and the orders passed by the learned Single
Judge and the Division Bench of the High Court are
set aside. There shall be no order as to costs.
..……………………………………………..J.
( G.S. SINGHVI )
.……………………………………………….J.
( SUDHANSU JYOTI MUKHOPADHAYA )
NEW DELHI,
JULY 2, 2013.
21Page 22
22
