IMPORTANT POINT
Commissioner under the Act 1995 is competent to look into violation of Section 47(1) thereof.

JUDGMENT

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 Petition-Special Civil Application No. 27730/2007. In the said writ 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 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 charge-sheet 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 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.

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