1 wp8470-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8470 OF 2009 Harishchandra Padmakar Patil .. Petitioner versus The Education Officer & Anr .. Respondents Mr.P.M.Havnur for the petitioner. Ms.P.S.Cardozo, A.G.P for respondent No.2. CORAM : S.C.DHARMADHIKARI, J. 12th August 2011. P.C.: . The petitioner has filed this writ petition challenging the order passed on 6th September 2008 by the Commissioner for the Welfare of Persons with Disabilities, Maharashtra State, Pune, refusing to take cognizance of the complaint made by the petitioner. 2 In the complaint it was specifically stated that the petitioner was appointed as a teacher in primary section of Primary School 2 wp8470-09.doc with Raigad Zilla Parishad. He was given permanent status in the job. It is the case of the original petitioner that he proceeded on leave by giving an application on the ground of his mental illness and stating that he could not resume duties. However, whenever he tried to report for duty, he was told to obtain a fitness certificate. It is not as if the petitioner gave false excuse of his mental illness, because several documents were produced which certified that he was given treatment for his mental disability. It was also pointed out that when he made a complaint to Disabilities Commissioner, during the pendency of the same, a so called disciplinary enquiry initiated against the petitioner was completed and his service was terminated on 15th November 2007. 3 The complaint before the Commissioner was made on 5th August 2006 and during its pendency, this termination order came to be passed. Further, the Commissioner has passed an order refusing to assist the original petitioner-complainant on the ground that he was employed prior to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act coming into force. Secondly, he had remained absent from duty 3 wp8470-09.doc and, therefore, a disciplinary proceeding is initiated against him. Thirdly, that he approached the Commissioner belatedly and after 13 years. Lastly, he failed to produce any records to substantiate his case of mental disability. 4 Mr.Havnur appearing on behalf of the petitioner submits that on each of these counts, the impugned order is vitiated. Firstly, the Act applies even to persons like the original petitioner because the Act must take in its fold, cases of disability of persons on the date on which the Act came into force. They are entitled to its protection, even if the disability occurred prior to the same being brought into the effect. The intent and purpose of the Act should be borne in mind and a hyper technical view such as this would defeat the mandate of the Act itself. 5 There is some substance in this contention of Mr.Havnur that persons with disability and in service are entitled to the benefits under the Act so also protection, even if they have been inflicted with any disability and mental illness prior to the same coming into force. The Act itself makes it clear that disability means mental 4 wp8470-09.doc illness and mental illness means any mental disorder other than mental retardation. It cannot be the intent of the legislature that such a comprehensive legislation would not apply to persons who continue to be disabled on the date on which the Act has been brought in to force. Therefore, that view may not be sustainable. 6 However, in so far as the other reasons are concerned, my attention is invited by Mr.Havnur to the paper book in this petition and particularly page 75 wherein a written application was made to the Commissioner by the original petitioner seeking leave to produce documents including certificates issued by the doctor certifying him to be mentally ill. Further, it appears that during the pendency of the proceedings, the original petitioner had been terminated. In this view of the matter, the complaint could not have been rejected merely by a cryptic order and without taking into account as to whether the person is really disabled or not. The Commissioner in his order observes that, a certificate of disability dated 31st May 2006 is produced, but, that certificate is not enough to conclude that the petitioner was suffering from any mental illness disabling him. There is no document produced for treatment of any 5 wp8470-09.doc mental illness. Therefore, the certificate is not conclusive. The Commissioner should have given opportunity to the original petitioner to produce the record or he could have summoned the record inasmuch as the annexures to the petition would show that there is a letter written by the Education Officer, Raigad Zilla Parishad to the Superintendent of J.J.Hospital on 17th April 2000 seeking a certificate after examining the original petitioner. Therefore, whether such a certificate was indeed issued or the certificate of private doctors and the treatment being given, shows that the original petitioner was mentally ill or not, is something which should have been decided and merely because the original petitioner approached the Commissioner belatedly, was no ground to reject this complaint. 7 Today, the suggestion is that the original petitioner has expired and his heirs are pursuing the petition. In such circumstances, in the larger interest of justice, I am acceding to the request of Mr.Havnur that, at their instance the case may be examined again by the Commissioner and he should pass an appropriate order after hearing them. This exercise be undertaken 6 wp8470-09.doc so that if the services are dispensed with without any justifiable cause and without taking into account the mental illness of the original petitioner, then, they can seek appropriate relief on that basis for the alleged wrongful termination. For all these reasons, the impugned order is set aside. The complaint is restored to the file of the Commissioner of Disabilities for being decided afresh on merits and in accordance with law as expeditiously as possible and within a period of two months from the date of receipt of a copy of this order. The Commissioner should not be influenced by any of the findings and conclusions rendered earlier. All contentions of the parties are kept open. 8 Petition allowed in the above terms. No costs. (S.C.DHARMADHIKARI, J) 7 wp8470-09.doc