Protection under the RPWD Act is contingent upon having a certified disability of 40% or more; disciplinary actions based on mental illness must follow this criterion.

Judgment

[W.A.No.756 of 2024]

Sushrut Arvind Dharmadhikari, J.

The present intra court appeal under Section 5 of the Kerala High Court Act, 1958 assails the judgment dated 25^th March 2024 passed in WPC No.6443 of 2023 whereby the Writ Petition filed by the respondent has been allowed. Respondents 1 to 3 in the Writ Petition are the appellants in this Writ Appeal whereas the re-spondent herein was the petitioner in the Writ Petition.

2. The respondent had filed the Writ Petition claiming for the following reliefs:

i) To declare that the entire disciplinary proceedings initiated against the petitioner and the tentative opinion formed to im- pose compulsory retirement are in violation of protection and benefits guaranteed under the Right of Persons with Disabilities Act, 2016 (RPWD Act), 2016 and also the Fundamental Rights un- der Articles 14, 16, 19 and 21 of the Constitution.

ii) To call for the records leading up to Ext.P9 and quash the same and all further proceedings pursuant to it by issuing a writ of certiorari or any other appropriate writ, order or direction.

iii) To issue a writ of mandamus or any other appropriate writ, or- der or direction commanding the respondents to reinstate the petitioner forthwith in service and provide her the protection available under Sec.20 of Right of Persons with Disabilities Act, 2016 (RPWD Act), 2016.

iv) To issue any other appropriate writ, order or direction as this Hon’ble Court may deem fit and proper in the facts and circum- stances of the case.

3. The brief facts of the case are that the respondent, while working as Assistant in the Divisional Office of the Life Insurance Corporation of India under the third appellant, was issued with suspension order dated 29.12.2021. Thereafter a charge sheet was issued to her. She made a representation to the third appellant to drop the disciplinary proceedings against her in view of her men- tal illness. In response, she was directed to appear before the Gov- ernment Medical Board to obtain Medical Report regarding men- tal condition. The disciplinary proceedings initiated against the respondent culminated into imposition of the punishment of com- pulsory retirement. The respondent had filed the representation claiming the protection and benefits as guaranteed under the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as ‘RPwD’ Act) as also violation of fundamental rights as guar- anteed under Articles 14,16,19 and 21 of the Constitution of India. Further direction was sought to reinstate her as per the protection available under Section 20 of the RPwD Act. The appellants herein rejected the representation and issued a show cause notice dated 30^th January 2023 calling the respondent to file reply as to why penalty of ‘Compulsory Retirement’ under Rule 39(i)(h) of Life In- surance Corporation of India (Staff) Rules, 1960 as amended on 19.10.2020 may not be imposed upon her. Being aggrieved, the respondent had filed the Writ Petition.

4. The learned Single Judge allowed the Writ Petition as follows:

9. The learned counsel for the respondent submitted that a per- son who is mentally ill cannot be a accommodated in any of the posts in any of the offices that she has been creating all sorts of troubles to the co-employees and it is without taking a hard steps that an order of compulsory retirement was ordered that too taking into consideration the request of the employee.

When the employer