2021 Supreme(SC) 837

SUPREME COURT OF INDIA
(From the Gauhati High Court)
DHANANJAYA Y. CHANDRACHUD, SURYA KANT, VIKRAM NATH, JJ.
Ravinder Kumar Dhariwal & Anr. - Appellants
Versus
The Union of India & Ors. - Respondents
Civil Appeal No. 6924 of 2021
Decided on : 17-12-2021

IMPORTANT POINTS
(1) A person with a disability is not required to prove that discrimination occurred solely on the basis that they had a disability. Disability needs to be one of factors that led to discriminatory act.
(2) Principle of reasonable accommodation is one of means for achieving substantive equality, pursuant to which disabled individuals must be reasonably accommodated based on their individual capacities – Disability, as a social construct, precedes medical condition of an individual.

Headnote:

(A) General Clauses Act, 1897 – Section 6 – Repeal of enactment – For Section 6 of GCA to be applicable, two conditions need to be fulfilled – Firstly, respondent must possess a ‘right, privilege, obligation, or liability’; and secondly, ‘right, privilege, obligation, or liability’ must have accrued before repeal of old enactment or provision – Section 6 of GCA only protects accrual of rights and privileges and not mere hope or expectation of accrual. (Paras 20 and 21)

(B) Constitution of India – Article 14 – Right to equality – Right to equality under Indian Constitution has two facets - formal equality and substantive equality – While formal equality means that every person, irrespective of their attributes must be treated equally and must not be discriminated against; substantive equality is aimed at producing equality of outcomes through different modes of affirmative action – Principle of reasonable accommodation is one of means for achieving substantive equality, pursuant to which disabled individuals must be reasonably accommodated based on their individual capacities – Disability, as a social construct, precedes medical condition of an individual – Sense of disability is introduced because of absence of access to facilities – Since principle of substantive equality (of providing equal outcomes through affirmative action and reasonable accommodation) is premised on principle of non-discrimination, there is no reason to hold that principle of non-discrimination, of treating every person equally irrespective of her disability does not guide entire statute. (Para 28)

(C) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Sections 47 [Now, Rights of Persons with Disabilities Act, 2016 – Section 20] – General Clauses Act 1897 – Section 6 – Disciplinary proceedings – Initiation of – Appellant had developed mental health issues on being continuously posted in areas where anti-insurgency operations were being conducted – When writ petition seeking to quash disciplinary proceedings was instituted before High Court, PwD Act and 2002 notification were in force – However, intra-court appeal against Judgment of Single Judge was filed in 2017, after RPwD Act came into force – If any right has been accrued to either appellant or respondent under Section 47 or any other provisions of PwD Act, then repeal of Act would not affect legal proceedings – Section 47 of PwD Act is a protective provision available to employees who are disabled in course of their employment – Employee has a right to not be punitively punished for their disability (and a right to be reasonably accommodated), while employer has a duty not to impose such punitive punishments (and a duty to reasonably accommodate) – However, when 2002 notification was notified exempting CRPF from application of provision, employee lost right to claim that they should not be punitively punished – Privilege that CRPF holds under 2002 notification is a non-conditional abstract privilege that it always possesses – In context of Section 6 of GCA, these abstract privileges are accrued or acquired only when privilege-holder does an act as required under statute or otherwise to avail of privilege. (Paras 16, 17, 20 and 24)

(D) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995[Now, Rights of Persons with Disabilities Act, 2016] – Sections 47 and 20(4) – Central Civil Services (Classification, Control and Appeal) Rules 1965 – Rule 11 – Disciplinary proceedings – Initiation of – Even though PwD Act does not have an express provision laying down general principle of non-discrimination against disabled persons, it must still have to be read in statute – Section 47 only provides persons with disability with right against specific forms of discrimination and not general right of non-discrimination which runs through entire statute but which cannot be located in a specific provision – Accordingly, 2002 notification will also only exempt CRPF from duty against those specific forms of discrimination mentioned in Section 47 – Correspondingly, 2002 notification only grants employer privilege of discriminatory conduct in employment with respect to those acts specified under Section 47 of PwD Act – Under 2002 notification, CRPF has privilege to terminate, demote, or deny promotion to employees with disabilities – It also has privilege to not abide by principle of reasonable accommodation in re-assigning post of an employee with a disability – However, it does not have privilege to discriminate against a disabled employee in any other matter relating to employment – At relevant point of time, when intra-court appeal was filed against judgment of Single Judge, RPwD Act had come into force – However, since no privilege had accrued to respondent under PwD Act, and 2002 notification was not saved under Section 102 of RPwD Act, Division Bench should have decided intra-court appeal on provisions of RPwD Act – This would entail that appellant became entitled to rights under Section 20 of RPwD Act at the time when intra-court appeal was being heard – It was not appropriate for High Court to restore disciplinary proceeding on the ground that a factual determination of disability of appellant is to be established through such a proceedings. (Paras 32, 33, 34 and 40)

(E) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995[Now, Rights of Persons with Disabilities Act, 2016] – Sections 47 and 20(4) – Central Civil Services (Classification, Control and Appeal) Rules 1965 – Rule 11 – Disciplinary proceedings – Initiation of – Appellant has been undergoing treatment for mental health disorders for a long time, since 2009 – He has been diagnosed with 40 to 70 percent of permanent disability by a government hospital – While all CRPF personnel may be subject to disciplinary proceedings on charges of misconduct, appellant is more vulnerable to engage in behaviour that can be classified as misconduct because of his mental disability – He is at a disproportionate disadvantage of being subjected to such proceedings in comparison to his able-bodied counterparts – Disciplinary proceeding against appellant is discriminatory and must be set aside. (Paras 98 and 107)

(F) Mental Healthcare Act, 2017 – Sections 18 and 20 – Mental illness – Mental health disorders are recognised as a disability as long as they fulfil defining criteria – Duty of providing reasonable accommodation to persons with disabilities is sacrosanct – All possible alternatives must be considered before ordering dismissal from service – However, there are accepted defences to this principle – Well-recognised exception to this rule is that duty to accommodate must not cause undue hardship or impose a disproportionate burden on employer. (Paras 65 and 89)

(G) Interpretation of Statute – If two interpretations are possible, then interpretation which is in consonance with international law or gives effect to international law must be used. (Para 32)

Facts of the case:

Division Bench of the Gauhati High Court allowed an appeal against the judgment of the Single Judge of the High Court in a petition under Article 226 of the Constitution challenging the disciplinary proceedings initiated against the appellant. Single Judge had directed the State to consider the case of the petitioner in view of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. Allowing the appeal against order of the Single Judge, the Division Bench set aside the enquiry report and restored the proceedings to the stage of evidence.

Findings of Court:

Disciplinary proceedings against the appellant relating to the first enquiry are set aside. The appellant is also entitled to the protection of Section 20(4) of RPwD Act in the event he is found unsuitable for his current employment duty. While re-assigning the appellant to an alternate post, should it become necessary, his pay, emoluments and conditions of service must be protected. The authorities will be at liberty to ensure that the assignment to an alternate post does not involve the use of or control over fire-arms or equipment which may pose a danger to the appellant or others in or around the work-place.

Result : Civil Appeal allowed.