Gauhati High Court
Ravinder Kumar Dhariwal & Anr vs The Union Of India & 3 Ors on 19 August, 2016
WP(C) 4598/2015
I.A. 1266/2016
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
19.08.2016
Heard Mr. A.M. Bujorbaruah, learned senior counsel representing the
petitioner, assisted by Ms. D. Ghosh, Advocate. Also heard Ms. A. Das,
learned counsel representing all the respondents.
2. For the purpose of determination of this case, Mr. Bujorbaruah places strong reliance in the statute called "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995".
3. Facts emerging is that way back in the year 2001 the petitioner was appointed as the Assistant Commandant in 45 Bn. CRPF. He served in areas rife with insurgency activities, starting with Dima Hasao District in the State of Assam, the Maoist areas of Chattisgarh and also at Jammu & Kashmir. In course of his service his devotion to his duties also received commendations of various authorities. While posted at Rajasthan, the petitioner developed psychiatric problems and on one such occasion the DIGP, Group Centre-1, CRPF, Ajmer (Rajasthan) had lodged First Information Report before the concerned Police Station informing that the mental condition of the petitioner was not sound and from his conduct it could be gathered that he is capable of taking life of others and as well as his own life. While at Rajasthan, Departmental Enquiry was initiated against the petitioner with issuance of the Memorandum dated 08.07.2010, complete with the Articles of Charges and the Statement of Imputations. As many as 6(six) charges were levelled against the petitioner alleging that he failed to maintain absolute devotion to duty and had acted in a manner which was unbecoming of a Government servant. In this respect, it was alleged that he had violated the relevant provisions under the Central Civil Service (Conduct) Rules, 1964. The said departmental enquiry was completed with the Report dated 03.10.2013 of the Inquiry Officer. But before the Disciplinary Authority could take any decision on the basis of the Enquiry Report, the petitioner instituted the present proceedings and by Order dated 07.08.2015, this Court, while issuing Notice had passed an interim order directing the respondents that further decision of the disciplinary proceeding shall not be taken. This Court had also taken note of the fact that the CRPF Authorities at Guwahati had also referred the petitioner for further medical treatment at New Delhi.
4. In so far as the disability suffered by the petitioner is concerned, it appears from the Signal dated 27.07.2015 that the petitioner had been suffering from Obsessive & Compulsive Disorder (OCD) since long and he has been on regular medication. Also, no significant improvement was noticed with regard to his treatment by Psychiatrics of Composite Hospital, CRPF, Guwahati. It was also observed that the petitioner required treatment at higher medical centres at New Delhi. On 31.07.2015, the Medical Hospital, CRPF, Guwahati, under the signature of the Chief Medical Officer (OGI Psychiatrics) referred the petitioner to Composite Hospital, CRPF, Delhi for his better management at higher centres in New Delhi. In turn, the Composite Hospital, CRPF, New Delhi referred the petitioner for treatment at Dr. Ram Manohor Lohia Hospital, New Delhi for opinion and further treatment. The disability Certificate issued by Dr. Ram Manohor Lohia Hospital, New Delhi, which is a Government Hospital, rendered opinion on the physical condition of the petitioner with remarks that his mental disability is to the extent between 40 to 70 percent.
5. On the above facts, Mr. Bujorbaruah submits that the petitioner is a person suffering from disability within the meaning of Section 2(i) (viii) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He submits that the petitioner suffers from mental illness with more than 40% disability, as had been assessed by a competent medical authority. Mr. Bujorbaruah has placed reliance in Section 47 of the aforesaid Act of 1995 to say that the final decision of the Disciplinary Authority on the basis of the Enquiry Report cannot proceed any further as the petitioner is now protected under the provisions of Section 47 of the Act. For better appreciation of Section 47, more particularly sub-section (1) thereof, the same is reproduced here under:
"47. Non-discrimination 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 any 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 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."
6. In this context, reliance is also placed in the case of Kunal Singh v. Union of India & Another, reported in (2003) 4SCC 524.
7. Ms. A. Das, learned counsel representing the respondents submits that having regard to the seriousness of the charges that has been duly found established against the petitioner, the same requires to reach its logical conclusion at the hands of the Disciplinary Authority. In that respect, Ms. Das submits that no interference is warranted to the disciplinary proceeding and/or the Enquiry Report dated 03.10.2013.
8. I have heard the learned counsels for the parties and have also perused the materials on record. Section 47 of the Act, as reproduced above, mandates that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. Protection is clearly afforded to such category of persons under Section 47. The said provisions further provides that if after acquiring disability, an employee is not suitable for the post he was holding, he can be shifted to some other posts with the same pay-scale and service benefits and, in case, it is not possible to adjust the employee against any post, he is to be kept on a supernumerary post until such time a suitable post is available or he attains the age of superannuation, whichever is earlier. In the instant case, there is no dispute to the fact that the petitioner had acquired disability during his service and the extent of his disability has been assessed at 40 to 70 percent. The disability Certificate issued from Dr. Ram Mohan Lohia Hospital, New Delhi is sufficient material to show that the petitioner is suffering from Obsessive & Compulsive Disorder and his mental disability is over 40%.
9. In the case of Kunal Singh (supra) the Apex Court have held that going by the frame and content of Section 47, it is clearly mandatory in nature. It contains a clear direction that the employer shall not dispense with or reduce in rank, an employee who acquires disability during his service. The Apex Court has also held that the Act of 1995 being a special enactment dealing with persons with disabilities, it would have an overriding effect and the doctrine of generalia specialibus non derogant would apply.
10. Having regard to the provisions under Section 47 of the Act of 1995 and the present mental status of the petitioner, it would now be incumbent upon the State respondents to revisit the issue as to whether any action on the basis of the Enquiry Report would at all serve any purpose having regard to the clear directive under Section 47 prescribing that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The State respondents are now to deal with the case of the petitioner in strict terms of Section 47 of the Act of 1995. To reiterate, Section 47 as an overriding effect and is a special legislation with Section 47 being mandatory in nature.
11. From the discussion above and having regard to the provisions under the Act of 1995 as well as the law laid down by the Apex Court in the case of Kunal Singh (supra), a direction is made to the State respondents to consider the case of the petitioner vis-a-vis the mandatory provisions under Section 47 thereof and to abide by the frame and content of the said provisions. The process for bringing the disciplinary proceedings to a conclusion shall be first subject to a decision taken by the respondents in respect of Section 47 of the Act of 1995.
In view of the above, writ petition stands accordingly disposed of.
sds JUDGE