RAVINDER KUMAR DHARIWAL & ANR. versus THE UNION OF INDIA & ORS.
[2021] 13 S.C.R. 823, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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RAVINDER KUMAR DHARIWAL & ANR.
v.
THE UNION OF INDIA & ORS.
(Civil Appeal No. 6924 of 2021)
DECEMBER 17, 2021
[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANT
AND VIKRAM NATH, JJ.]
Rights of Persons with Disabilities Act 2016 – s. 20 – Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act 1951 – s. 47 – Non-discrimination in Government
employments – Disciplinary proceedings initiated against the
appellant-Assistant Commandant in CRPF – Challenge to –
Complaint against appellant alleging that he had stated that he
was obsessed with either killing or being killed and made a threat
that he could shoot – Conduct of enquiries – In the first enquiry he
was suspended and Notice was issued, in the second his two
increments were withheld and in the third, he was issued a
memorandum – Thereafter, the appellant was categorized as
permanently disabled having 40-70% disability, and declared unfit
for duty, placing him under S5(P) category – Writ petition
challenging the inquiry report and the notice issued in the first
enquiry – During pendency, the PwD Act repealed and RPwD Act
of 2016 was enacted – When the disciplinary proceedings were
initiated, the PwD Act was in force and the 2002 notification issued
thereunder, exempted the CRPF from the application of the provision
– Single Judge of the High Court allowed the writ petition and
directed the State to consider the case of the petitioner in view of s.
47
whereby no establishment would dispense with or reduce in rank
an employee who acquires disability during service – However,
Division Bench set aside the enquiry report and restored the enquiry
proceedings to the stage of the recording evidence to enable the
appellant to prove his mental disability by submission of material
documents – On appeal, held: Validity of the disciplinary
proceedings would be determined against the provisions of the
RPwD Act instead of the PwD Act – 2002 notification not saved by
s. 102 of the RPwD Act since s. 20 of the RPwD Act is not
corresponding to s. 47 of the PwD Act and no privilege accrued the
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employer under the 2002 notification in terms of s. 6 of the General
Clauses Act – Disciplinary proceedings are discriminatory and
violative of the provisions of the RPwD – Person with a disability is
entitled to protection under the RPwD Act as long as the disability
was one of the factors for the discriminatory act – Mental disability
of a person need not be the sole cause of the misconduct that led to
the initiation of the disciplinary proceeding – Initiation of
disciplinary proceedings against persons with mental disabilities is
a facet of indirect discrimination – Such persons suffer a
disproportionate disadvantage due to the impairment and are more
likely to be subjected to disciplinary proceedings – Thus, the
disciplinary proceedings against the appellant set aside – General
Clauses Act, 1897.
General Clauses Act, 1897: s. 6 – Effect of repeal under –
Accrual of privilege – Held: Where a central enactment repeals
another enactment, the repeal shall not affect the any legal
proceeding or investigation with respect to an accrued right, unless
a different intention appears from a repealing statute – Privilege is
accrued only when the privilege holder does an act required to
avail the privilege – It is not the mere hope or expectation of accrual.
Constitution of India: Art. 14 – Right to Equality – Principle
of Reasonable Accommodation – Held: Is one of the 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
the medical condition of an individual, and sense of disability is
introduced because of the absence of access to facilities.
Interpretation of statutes: Rule of interpretation – Held: If
two interpretation possible, the interpretation which furthers
international law or gives effect to international law must be
preferred – Since Art. 5 of the Convention places the States under
an obligation to provide both formal and substantive equality, an
interpretation of the PwD Act that furthers the principles mentioned
in Art. 5 must be undertaken, India being the signatory and having
ratified the Convenion – Thus, even though the PwD Act does not
have an express provision laying down the general principle of
non-discrimination against disabled persons, it must still have to be
read in the statute – United Nations Convention on the Rights of
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Persons with Disabilities – Art. 5 – Rights of Persons with
Disabilities Act 2016 – Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act 1951.
Mental Health: Rights of persons with mental disability vis-
à-vis employment discrimination – Foreign jurisprudence –
Comparative study of position in India, United States, Canada,
European Union and South Africa – Discussed.
Allowing the appeal, the Court
HELD: 1.1 (i) The validity of the disciplinary proceedings
would be determined against the provisions of the Rights of
Persons with Disabilities Act 2016 (RPwD Act) instead of the
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act 1995 (PwD Act) for the following
reasons:
(a) The respondent holds a privilege under the 2002
notification to not comply with the principles of non-discrimination
and reasonable accommodation provided under Section 47 of the
PwD Act. However, for a privilege to accrue in terms of Section 6
of the GCA Act 1897, mere expectation or hope is not sufficient.
Rather, the privilege-holder must have done an act to avail of the
right. The privilege provided by the 2002 notification would
accrue only when one of the punishments provided under Section
47 has been imposed. However, in the instant case, the
disciplinary proceedings were challenged even before the
punishment stage could be reached. Therefore, the privilege
available to the respondent under the
2002 notification did not
accrue in terms of Section 6 of the General Clauses Act 1897
(GCA Act);
(b) Section 47 of the PwD Act is not the sole source of the
right of equality and non-discrimination held by persons with
disability. The principle of non-discrimination guides the entire
statute whose meaning and content find illumination in Article 5
of the United Nations Convention on the Rights of Persons with
Disabilities. An interpretation that furthers international law or
gives effect to international law must be preferred. Therefore,
even though the PwD Act does not have an express provision
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laying down the principle of equality vis-à-vis disabled persons,
it will have to be read into the statute; and
(c) The 2002 notification is not saved by Section 102 of the
RPwD Act since Section 20 of the RPwD Act is not corresponding
to Section 47 of the PwD Act;
(ii) The disciplinary proceedings are discriminatory and
violative of the provisions of the RPwD since a person with a
disability is entitled to protection under the RPwD Act as long as
the disability was one of the factors for the discriminatory act;
and the mental disability of a person need not be the sole cause
of the misconduct that led to the initiation of the disciplinary
proceeding. Any residual control that persons with mental
disabilities have over their conduct merely diminishes the extent
to which the disability contributed to the conduct. The mental
disability impairs the ability of persons to comply with workplace
standards in comparison to their able-bodied counterparts. Such
persons suffer a disproportionate disadvantage due to the
impairment and are more likely to be subjected to disciplinary
proceedings. Thus, the initiation of disciplinary proceedings
against persons with mental disabilities is a facet of indirect
discrimination. [Para 106][921-B-G; 922-A-E]
1.2 The 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 the 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 would 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.
[Para 107][922-E-G]
2.1 Section 6 of the GCA provides that where a central
enactment repeals another enactment, the repeal shall not affect
any legal proceeding or investigation with respect to an accrued
right, unless a different intention appears from the repealing
statute. The general rule of interpretation is that a newly enacted
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statute has prospective application. Section 6 of the GCA provides
an exception to this rule, where a pending legal proceeding or
investigation would be guided by the old enactment, if any ‘right,
privilege, obligation or liability’ has accrued to the parties under
the repealed law. [Para 17]860-G-H; 861-A]
2.2 Section 47 of the PwD Act states that no employee
working in a Government establishment, who acquires a disability
during the course of service shall be (i) terminated from
employment; (ii) reduced in rank; or (iii) denied promotion.
Section 47 protects disabled employees from punitive actions on
the ground of disability. Since the 2002 notification exempts the
CRPF from the application of Section 47, it is to be examined if
any right or privilege has accrued to the CRPF under the 2002
notification. It is to be considered whether an exemption from a
protective provision such as Section 47 results in the accrual of a
right or privilege in favour of the CRPF to continue pending
proceedings under the PwD Act in terms of Section 6 of the GCA
Act 1897. [Para 18][861-F-H]
2.3 For Section 6 of the GCA to be applicable, two conditions
need to be fulfilled. Firstly, the respondent must possess a ‘right,
privilege, obligation, or liability’; and secondly, the ‘right,
privilege, obligation, or liability’ must have accrued before the
repeal of the old enactment or provision. Section 47 of the PwD
Act is a protective provision available to employees who are
disabled in the course of their employment. The provision places
an obligation on the employer to not impose punitive punishments
such as termination of employment, reduction in rank, and denial
of promotion. Therefore, the employee has a right to not be
punitively punished for their disability (and a right to be reasonably
accommodated), while the employer has a duty not to impose
such punitive punishments (and a duty to reasonably
accommodate). However, when the 2002 notification was notified
exempting the CRPF from the application of the provision, the
employee lost the right to claim that they should not be punitively
punished. By corollary, it would mean that the CRPF has been
exempted from its duty under Section 47, and thus holds a
privilege to impose punitive punishments against persons with
disabilities. [Para 20][863-B, C-F]
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W.N Hohfeld, Fundamental Legal Conceptions as
applied in Judicial Reasoning and other legal essays,
(W.W. Cook ed., Yale University Press, 1919 –
referred to.
2.4 For the application of Section 6 of the GCA Act 1897,
the privilege should have accrued to the respondent under the
2002 notification before the repeal of the PwD Act. It is settled
law that Section 6 of the GCA Act 1897 only protects accrual of
rights and privileges and not the mere hope or the expectation
of accrual. [Para 21][863-F-G]
Hamilton Gell v. White (1922) 2 KB 422; Director of
Public Works v. Ho Po Sang 2 (1961) 2 All ER 721;
Abbot v. Minister for Lands (1895) AC 425 – referred
to.
M.S Shivanda v. KSRTC (1980) 1 SCC 149 : [1980] 1
SCR 684; Bansidhar & Ors. v. State of Rajasthan &
Ors. (1989) 2 SCC 557 : [1989] 2 SCR 152; Lalji Raja
Sons v. Firm Hansraj Nathuram [1971] 3 SCR 815;
Thyssen Stahlunion Gmbh v. Steel Authority of India
Ltd. (1999) 9 SCC 334 : [1999] 3 Suppl. SCR 461 –
referred to.
2.5 The principles for the application of Section 6 of the
GCA Act 1897 are that the party must possess a right and the
right ought to have accrued; that only specific rights and not
abstract or inchoate rights are saved under Section 6 of the GCA
Act 1897; that an abstract right becomes a specific right, only
when the party does an act to avail himself of the right; and that
the action necessary to avail an abstract right is dependent on
the nature of the
right and the text of the statute. [Para 23]
[866-C-E]
2.6 The privilege that the respondent possesses under the
2002 notification would be an abstract or inchoate privilege unless
the privilege has been acted upon by the respondent. It cannot
be argued that the privilege to demote or terminate the employee
is accrued on the initiation of the disciplinary proceedings. The
privilege that the CRPF holds under the 2002 notification is a
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non-conditional abstract privilege that it always possesses. In
the context of Section 6 of the GCA, these abstract privileges
are accrued or acquired only when the privilege- holder does an
act as required under the statute or otherwise to avail of the
privilege. [Para 24][866-E-G; 867-A]
Hamilton Gell v. White (1922) 2 KB 422 – referred to.
3.1 The privilege is only accrued when the privilege- holder
does an act required under the statute to avail of the privilege.
To answer whether the privilege has accrued to the appellant,
the nature of the privilege granted by the 2002 notification would
first have to be determined since the accrual of a privilege would
depend on the nature and content of the privilege itself.
[Para 25][867-B-C]
3.2 The marginal note to Section 47 of the PwD Act reads
as ‘Non- discrimination in Government Employment’. A pertinent
question that arises for consideration is whether the 2002
notification exempts the employer from its duty of non-
discrimination on the ground of disability, or whether it only
exempts the specific forms of discrimination expressly mentioned
in Section 47 of the PwD Act. [Para 26][867-C-D]
3.3 The facets of non-discrimination that guide the PwD
Act are threefold: (i) right to formal equality, where no person
shall be discriminated based on her disability; affirmative action
in pursuance of substantive equality under Section 33; and
reasonable accommodation of persons with disabilities such as
provided
under Section 47. There may be no specific provision
in the PwD Act-unlike the RPwD Act-which provides persons
with disability the right of non-discrimination. However, since
the principle of substantive equality (of providing equal outcomes
through affirmative action and reasonable accommodation) is
premised on the principle of non-discrimination, there is no reason
to hold that the principle of non- discrimination, of treating every
person equally irrespective of her disability does not guide the
entire statute. [Para 28][869-G; 870-A-C]
3.4 By no stretch of imagination, can it be said that the
principle of non-discrimination is limited to Section 47 of the PwD
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Act. Section 47 only provides the right of non- discrimination
with regard to specific forms of discrimination during the course
of employment. The general right against discrimination runs
through the entire statute. The limited nature of Section 47
becomes apparent when it is compared with Section 20 of the
RPwD Act. Section 47 of the PwD Act, unlike Section 20 of the
RPwD Act, does not contain a provision in the nature of sub-
Section (1) of Section 20 which provides that a government
establishment cannot discriminate against a person with a disability
in “any matter” relating to employment. While the contours of
“any matter” used in Section 20 of the RPwD Act are not
interpreted in the instant case, it would suffice to say that Section
20 of the RPwD Act casts a net of protection wider than Section
47 of the PwD Act. [Paras 29, 30][870-D-F; 871-D-E]
3.5 It is settled law that if two interpretations are possible,
then the interpretation which is in consonance with international
law or gives effect to international law must be used. Since Article
5 places the States under an obligation to provide both formal
and substantive equality, an interpretation of the PwD Act that
furthers the principles mentioned in Article 5 must be undertaken.
Therefore, even though the PwD Act does not have an express
provision laying down the general principle of non-discrimination
against disabled persons, it must still have to be read
in the
statute. Therefore, Section 47 only provides persons with
disability with the right against specific forms of discrimination
and not the general right of non- discrimination which runs through
the entire statute but which cannot be located in a specific
provision. Accordingly, the 2002 notification will also only exempt
the CRPF from the duty against those specific forms of
discrimination mentioned in Section 47. Correspondingly, the
2002 notification only grants the employer the privilege of
discriminatory conduct in employment with respect to those acts
specified under Section 47 of the PwD Act. Thus, under the 2002
notification, the CRPF has the privilege to terminate, demote, or
deny promotion to employees with disabilities. It also has the
privilege to not abide by the principle of reasonable
accommodation in re-assigning the post of an employee with a
disability. However, it does not have the privilege to discriminate
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against a disabled employee in any other matter relating to
employment. The privilege under the 2002 notification will accrue
only when the disciplinary proceedings reach the stage of
punishment and the respondent imposes one of the punishments
mentioned in Section 47. The privilege can only accrue on the
happening of one or more events that are necessary for the
accrual. The accrual of the privilege cannot be based on an
assumption, hope or expectation of exercising the privilege. When
the disciplinary proceedings reach the punishment stage, the
appellant could have still been imposed other punishments
prescribed under the Service Rules which are not included within
the purview of Section 47 of the PwD Act. Therefore, no privilege
is accrued to the respondent under Section 47 of the PwD Act.
[Paras 32-34][872-D-G; 873-A-D]
Vikas Kumar v. Union Public Service Commission
(2021) 5 SCC 370; Rajive Raturi v. Union of India
(2018) 2 SCC 413 : [2017] 12 SCR 827; Disabled
Rights Group v. Union of India (2018) 2 SCC 397; Jeeja
Ghosh v. Union of India (2016) 7 SCC 761 : [2016] 4
SCR 638; Apparel Export Promotion Council v. A.K.
Chopra (1999) 1 SCC 759 : [1999] 1 SCR 117; Githa
Hariharan v. Reserve Bank of India (1999) 2 SCC 228
: [1999] 1 SCR 669; Justice Khanna in ADM Jabalpur
v. Shivakant Shukla (1976) 2 SCC 521 : [1976] 0 Suppl.
SCR 172 – referred to.
Commission for Social Development, Interim Report
of the Secretary General: Implementation of the World
Programme of Action concerning Disabled Persons
(1999), available at https://www.un.org/esa/socdev/enable/
disecne5.htm#VI – referred to.
4.1 Section 102(2) of the RPwD Act states that anything
done, or any action taken under the PwD Act shall be deemed to
have been done or taken under the ‘corresponding provisions’
of the RPwD Act. The 2002 notification was issued under Section
47 of the PwD Act. The 2002 notification would be saved under
Section 102 (2) only if there is a provision in the RPwD Act that
is ‘corresponding’ to Section 47 of PwD Act. [Para 35][873-D-E]
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4.2 Section 20 of the RPwD Act covers a wider ambit when
compared to Section 47 of the PwD Act. Section 20(1) provides
for non-discrimination based on disability, which is a provision in
pursuance of the equality mandate in Article 5 of United Nations
Convention on the Rights of Persons with Disabilities. Section
20(2) states that reasonable accommodation and a conducive
environment free from barriers must be provided to persons with
disabilities. However, the provisions of Section 47 of the PwD
Act only provide a right to the employee to not be demoted,
terminated, or denied promotion because of disability, and
reasonable accommodation by adjusting posts. The principle of
reasonable accommodation provided under Section 20(2) is not
restricted to the accommodations mentioned in Section 47. Under
Section 20(2), the employer has a duty – in view of the principle
of reasonable accommodation- to post a person suffering from
disability at a place closer to home. This form of reasonable
accommodation is not provided under Section 47, though it may
flow through the PwD Act. Therefore, Section 20 of the RPwD
Act is not corresponding to Section 47 of the PwD Act. If any
other interpretation is placed, then the 2002 notification would
be deemed to exempt other rights that are available to disabled
persons under Section 20 of the RPwD Act, which were not
otherwise exempted under the PwD Act. Since there is no
corresponding
provision, the exemption notification issued under
Section 47 of the PwD Act would lose the force of law. Therefore,
in view of the discussion on both Section 6 of the GCA Act 1897
and Section 102 of the RPwD Act, the provisions of the PwD Act
and the 2002 notification are not applicable to the instant
proceedings. [Para 38][875-A-E]
4.3 Since, the writ petition was filed before the Single Judge
of the High Court in 2015, before the enactment of the RPwD
Act, the validity of the disciplinary proceedings could have only
been decided on the anvil of the provisions of the PwD Act.
However, the Single Judge ought not to have entered into the
issue of the applicability of Section 47 of the PwD Act when the
disciplinary proceedings were challenged at the initial stage since
Section 47 applies only at the punishment stage. The only question
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before the High Court was whether it was justified for CRPF to
have initiated disciplinary proceedings against the appellant for
the alleged misconduct which was connected to his mental
disability and whether the initiation of such proceedings was
discriminatory. At the relevant point of time, when the intra-court
appeal was filed against the judgement of the Single Judge, the
RPwD Act had come into force. However, since no privilege had
accrued to the respondent under the PwD Act, and the 2002
notification was not saved under Section 102 of the RPwD Act,
the Division Bench should have decided the intra-court appeal
on the provisions of the RPwD Act. This would entail that the
appellant became entitled to the rights under Section 20 of the
RPwD Act at the time when the intra-court appeal was being heard.
When the appellant was before the Division Bench of the High
Court, he was already diagnosed with a permanent disability of
40 to 70 percent by the government hospital. Further, the
Composite Hospital by a report dated 18 July 2016, declared the
appellant unfit for duty and placed him under the S5(P) category
due to his partial and limited response to all modalities of
treatment since 2009. The Division Bench also noted that the
documents issued by the CRPF’s hospital indicate that the
appellant has had a mental disability for a long time. In such
circumstances, it was not appropriate for the High Court to
restore the disciplinary proceeding on the ground
that a factual
determination of the disability of the appellant is to be established
through such a proceedings. [Paras 39, 40][875-F-H; 876-A-D]
Pankajakshi (dead) through LRs’ v. Chandrika (2016)
6 SCC 157 : [2016] 3 SCR 1018; Kalpana Kothari v.
Sudha Yadhav (2002) 1 SCC 203 : [2001] 4 Suppl.
SCR 598 – referred to.
5.1 Section 3 of the RPwD Act states that persons with
disabilities must not be discriminated against on the ground of
disability, and the appropriate government shall ensure that
persons with disability enjoy the right to live with dignity. Section
2(h) of the RPwD Act defines discrimination. Section 20 of the
RPwD Act states that no government establishment shall
discriminate against any person with a disability in matters relating
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to employment. The disabled employee also has a right to
reasonable accommodation and to access a workplace without
barriers. It further provides that no disabled employee shall be
terminated, reduced in rank, or denied promotion because of the
disability. On the repeal of the PwD Act by the RPwD Act, the
2002 Notification also lost its force of law. Between 27 December
2016, when the RPwD Act had come into force and 18 August
2021, when the 2021 notification was issued, there was no
exemption notification in force. The Special Leave Petition was
instituted on 5 October 2020. It has been held that when a lis
commences, all rights and obligations of the parties get
crystallised on that date. Therefore, the rights of the parties would
freeze as on the date of filing the Special Leave Petition. In the
Special Leave Petition filed before this Court, it was submitted
that the initiation of disciplinary proceedings is discriminatory
and violative of the provisions of the RPwD Act. Therefore, the
right to non-discrimination in matters of employment provided
under Section 20, accrued to the appellant on the filing of the
Special Leave Petition since the 2021 notification had not been
notified at the relevant time. Thus, the 2021 notification would
have no application to the facts of the instant case. [Para 41]
[876-E-F, G-H; 877-A-D]
Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.
(2001) 8 SCC 397 : [2001] 2 Suppl. SCR
195 – referred
to.
5.2 On a combined reading of the definitions provided in
Section 2(s) and 2 (c) of the Act, it is evident that the RPwD –
similar to the 2017 Act – defines disability as a social construct
and not solely as a medical construct. The Act does not define a
mental impairment to solely constitute a disability. Rather, it
defines disability based on the interaction of the impairment with
the barriers which in effect hamper the effective participation of
an individual. [Para 49][881-H; 882-A-B]
6. When the interaction with the barriers causes a person
to feel ‘disabled’, it is extremely important to not stigmatize or
discriminate against persons having mental health issues or any
other form of disability. Such discrimination would only further
entrench the feeling of being ‘disabled’. [Para 54][885-F]
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Common Cause v. Union of India (2018) 5 SCC 1 :
[2018] 6 SCR 1; Navtej Singh Johar v. Union of India
(2019) 3 SCC 39; Accused X v. State of Maharashtra
(2019) 7 SCC 1 : [2019] 6 SCR 1; Mahendra KC v.
The State of Karnataka 2021 SCC OnLine SC 1021 –
referred to.
7.1 The jurisprudence in Indian law relating to mental
disability and employment discrimination has revolved around
Section 47 of the PwD Act. This Court while interpreting Section
47 has held that the provision is applicable when the mental
disability is acquired during service. While applying Section 47,
the Court did not enter into an analysis of whether the mental
disability was a factor or had a direct causal connection with the
alleged misconduct that led to the dismissal. Thus, a different
standard applies to cases governed by Section 47. It is important
to clarify that the analysis undertaken in examining whether
disciplinary proceedings can constitute discrimination against
persons with disabilities would not influence the jurisprudence
on Section 47 of the PwD Act. Section 47 comes into play only at
the stage of impositions of sanctions, where an employee cannot
be dispensed with or reduced in rank. Since the jurisprudence
on this issue is yet to evolve in India, the legal policies and
practices adopted by other jurisdictions in relation to the rights
of persons with mental disabilities against employment
discrimination are analysed. It has also been specifically examined
how courts in
other jurisdictions have adjudicated misconduct
charges when the alleged conduct is found to be connected to
the mental disability of the employee. [Paras 67-69][892-G-H;
893-A-B, C-E]
7.2 On basis of the foreign jurisdictions on Disabilities Act
in United States, Canada, European Union, South Africa it is
concluded that:
(i) Mental health disorders are recognised as a disability
as long as they fulfil the defining criteria;
(ii) The duty of providing reasonable accommodation to
persons with disabilities is sacrosanct. All possible alternatives
must be considered before ordering dismissal from service.
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However, there are accepted defences to this principle. The well-
recognised exception to this rule is that the duty to accommodate
must not cause undue hardship or impose a disproportionate
burden on the employer – the interpretation of these concepts
may vary in each jurisdiction. In the US, the duty to accommodate
is also to be balanced with ensuring the safety of the workplace
(the direct risk defence) provided that the threat to safety is based
on an objective assessment and not stereotypes. In Canada, the
minority concurring opinion in Stewart’s case observed that
accommodating a person with substance dependency would cause
undue hardship to the employer in a safety-sensitive workplace.
The Court of Justice of EU also recognised workplace safety as
a legitimate occupational requirement for imposing certain
occupational standards. However, it ruled that the standard should
be proportionate to the objective of workplace safety that is sought
to be achieved. It would be useful to refer to the minority opinion
in Stewart’s case which emphasizes that the duty to accommodate
is individualized. The employer must be sensitive to how the
individual’s capabilities can be accommodated. The Committee
on the Rights of Persons with Disabilities in General Comment
Six expressly notes that the duty to accommodate is an
“individualised reactive duty” and “requires the duty bearer to
enter into dialogue with the individual with
a disability”. Thus, a
blanket approach to disability-related conduct will not suffice to
show that the employer has discharged its individualized duty to
accommodate. It must show that it took the employee’s individual
differences and capabilities into account;
(iii) Mental health disorders pose a unique challenge in
disability rights adjudication. Very often, persons are not aware
of or are in denial of their mental disability. Even if they hold the
awareness, to avoid stigma and discrimination, they tend to not
disclose their mental illness before an incident of purported
misconduct. Thus, they may fall foul of the requirement to request
a reasonable accommodation. In the US, the requirement to
provide reasonable accommodation is prospective. In Canada,
the majority in Stewart’s case observed that despite the substance
dependency, the employee had the ability to make a prior
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disclosure of the dependency to the employer and could have
availed of the reasonable accommodation. However, the minority
opinion, emphatically observed that self-reporting cannot be
construed as accommodation for persons who are in denial of
their disability. The Committee on the Rights of Persons with
Disabilities in General Comment Six notes that the duty to
accommodate also arises in cases where the duty bearer “should
have realized that the person in question had a disability that
might require accommodations to address barriers to exercising
rights”; and
(iv) As regards, the examination of misconduct charges
against persons with mental health disorders, there are two
strands of argument. One argument is that mental disability often
manifests as atypical behaviour that may fall within the ambit of
misconduct. If such conduct is causally connected to the disability,
then dismissal on grounds of misconduct is discrimination based
on disability. This argument has been accepted by a few courts in
the US. In the minority opinion in Stewart’s case, it was observed
that making a distinction between the disability and the disability-
related conduct is akin to making a distinction between a
protected ground and conduct that is intertwined with the
protected ground. On the other hand, it is argued that while
mental health disorders may diminish the control a person has
over their actions, it does not necessitate that the persons have
completely lost their
ability to comply with acceptable standards
of workplace conduct. In the US, most courts have held that
misconduct is not protected under ADA. In Stewart’s case, the
majority opinion of the Canadian Supreme Court held that the
employee with substance dependency retained some control to
comply with the policy of making prior disclosure of dependency.
Thus, non-compliance with standards of workplace conduct can
rightfully lead to dismissals and would not constitute
discrimination. South Africa adopts a middle ground in this debate.
In Legal Aid South Africa’s case, the court observes that a two-
pronged enquiry is required. It must first be considered based
on the evidence whether the mental health disorder is so
incapacitating that the person is not able to appreciate the
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wrongfulness of the conduct or is unable to conduct themselves
in accordance with the required standard. Alternatively, if the
evidence suggests that the person can appreciate the
wrongfulness of their conduct and act accordingly, then their
culpability stands diminished because of the mental health
disorder, and sanctions should be imposed accordingly.
[Para 89][910-B-H; 911-A-H; 912-A-E]
Geetaben Ratilal Patel v. District Primary Education
Officer (2013) 7 SCC 182 : [2013] 17 SCR 900 –
referred.
Borgialli v. Thunder Basin Coal Co. 235 F.3d 1284,
1290 (10 th Cir.2000); Office of the Senate Sergeant
at Arms v. Office of Senate Fair Employment Practices,
95 F.3d 1102, 1107 (Fed. Cir. 1996); Bugg-Barber v.
Randstad US, L.P. 271 F. Supp. 2d 120, 130 (D.D.C.
2003); Burmistrz v. City of Chi. 186 F. Supp. 2d 863,
875 (N.D. Ill. 2002); Hamilton v. Southwestern Bell
Telephone Co. 136 F.3d 1047, 1052 (5th Cir. 1998);
Teahan v. Metro-North Commuter Railroad 951 F.2d
511 (2d Cir. 1991); Den Hartog v. Wasatch Academy
129 F.3d 1076, 1086 (10th Cir. 1997); Raytheon Co.
v. Hernandez 540 U.S. 44 (2003); Martin Johnson and
Jane Doe on behalf of themselves and all other similarly
situated v. Frank Kendall, Secretary of the Air Force;
Entrop v. Imperial Oil (2000) 50 OR (3d) 18; British
Columbia (Public Service Employee Relations
Commission) v. BCGSEU [1999] 3 SCR 3; HK Danmark
v. Dansk Almennyttigt Boligselskab DAB and HK
Danmark v.
Pro Display A/S in Konkurs 11 April 2013,
joined cases C-335/11 and C-337/11; Standard Bank
of SA v. CCMA 3 (2008) 29 ILJ 1239 (LC); Smith v.
Kit Kat Group(Pty) Ltd. (2017) 38 ILJ 483(LC);
Pharmaco Distribution (Pty) Ltd. v. EWN (2017) 38 ILJ
2496 (LAC); New Way Motor & Diesel Engineering
(Pty) Ltd v. Marsland (2009) 30 ILJ 2875 (LAC); Legal
Aid South Africa v. Ockert Jansen (2020) 41 ILJ 2580
(LAC) – referred to.
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G Gururaj, M Varghese et. al., National Mental Health
Survey of India, 2015-16: Prevalence, patterns and
outcomes, (2016) NIMHANS Publication No 129,
available at http://indianmhs.nimhans.ac.in/Docs/
Report2.pdf; Richard M Duffy, Bredan D Kelly,
Concordance of the Indian Mental Healthcare Act 2017
with the World Health Organization’s Checklist on
Mental Health Legislation, 11(1) International Journal
of Mental Health Systems 48 (2017), available at
https://ijmhs.biomedcentral.com/articles/10.1186/
s13033-017-0155-1; Committee on Rights of Persons
with Disabilities, General Comment 1, available at
https://documents-dds-ny.un.org/doc/UNDOC/GEN/
G14/031/20/PDF/G1403120.pdf?OpenElement; H
Kranz, Calling in Depressed: A Look at the Limitations
of Mental Illness in the Workplace, SayNoToStigma
(2012), available at http://saynotostigma.com/2012/06/
calling-in-depressed-a-look-at-the-limitations-of-
mental-illness-in-the-workplace; Heather Stuart,
Mental illness and employment discrimination, 19(5)
Current Opinion in Psychiatry 522–526 (2006);
Arunima Kapoor, Depressed People Need Not Apply:
Mental Health Stigma Decreases Perceptions of
Employability of Applicants with Depression, 7 Yale
Review of Undergraduate Research in Psychology 84-
94 (2017), available at https://cpb-us-w2.wpmucdn
.com/campuspress.yale.edu/dist/a/1215/files/2017/06/
Arunima-1amuxqj.pdf; Jayna Kothari, The UN
Convention on Rights of Persons with Disabilities: An
Engine for Law Reform in
India, 45(18) Economic and
Political Weekly 65-72 (2010); Committee on Rights
of Persons with Disabilities, General Comment 1,
available at https://documents-dds-ny.un.org/doc/
UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?
OpenElement; Brendan D. Kelly, Mental Capacity,
Human Rights, and the UN’s Convention of the Rights
of Persons with Disabilities, 49(2) Journal of the
American Academy of Psychiatry and the Law Online
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152-156 (2021), available at http://jaapl.org/content/
jaapl/49/2/152.full.pdf; Committee on the Rights of
Persons with Disabilities, General Comment 6,
available at https://tbinternet.ohchr.org/layouts/15/
treatybodyexternal/Download.aspx?symbolno=
CRPD/C/GC/6&Lang=en; International Labour
Organization, Managing Disability in the Workplace:
ILO Code of Practice, available at https://www.ilo.org/
global/topics/safety-and-health-at-work/normative-
instruments/code-of-practice/WCMS_107777/lang—
en/index.htm; Brendan D. Kelly, Mental Health,
Mental Illness, and Human Rights in India and
Elsewhere: What are we aiming for?, 58 (Suppl 2)
Indian Journal of Psychiatry S168-S174 (2016),
available at https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC5282611/; Major William E. Brown & Major
Michele Parchman, The Impact of the Americans with
Disability Amendments Act of 2008 on the Rehabilitation
Act and Management of Department of the Army Civilian
Employees, 1 Army Lawyer 43 (2010); US Equal
Employment Opportunity Commission, Enforcement
Guidance on Reasonable Accommodation and Undue
Hardship under the ADA, available at https://
www.eeoc.gov/laws/guidance/enforcement-guidance-
reasonable-accommodation-and-undue-hardship-
under-ada#N_13_; Regulations To Implement The
Equal Employment Provisions Of The Americans
With Disabilities Act; EEOC, Depression, PTSD, &
Other Mental Health Conditions in the Workplace:
Your Legal Rights,
available at https://www.eeoc.gov/
laws/guidance/depression-ptsd-other-mental-health-
conditions-workplace-your-legal-rights; Laura F.
Rothstein, The Employer’s Duty to Accommodate
Performance and Conduct Deficiencies of Individuals
with 
Mental 
Impairments 
Under 
Disability
Discrimination Laws, 47 Syracuse Law Review 931,
967, 973 (1997); Jeffrey Swanson et al, Justice
Disparities: Does the ADA Enforcement System Treat
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People with Psychiatric Disabilities Fairly?, 66(1)
Maryland Law Review 94 (2007); Kelly Cahill
Timmons, Accommodating Misconduct Under the
Americans with Disabilities Act, 57 Florida Law Review
187, 188-89 (2005); O’Brien, Christine Neylon and
Darrow, Jonathan J., The Question Remains after
Raytheon Co. v. Hernandez: Whether No Rehire Rules
Disparately Impact Alcoholics and Former Drug
Abusers, 7 Journal of Business Law 157 (2004); Bally
Thun, Disability Rights Framework in Canada, 12(4)
Journal of Individual Employment Rights 351-371
(2007); Faisal Bhabha, Stewart v. Elk Valley: The Case
of Cocaine Using Coal Miner, All Papers 323 (2018),
available at https://digitalcommons.osgoode.yorku.ca/
all_papers/323; Ferri, Delia, The Unorthodox
Relationship between the EU Charter of Fundamental
Rights, the UN Convention on the Rights of Persons
with Disabilities and Secondary Rights in the Court of
Justice Case Law on Disability Discrimination, 16(2)
European Constitutional Law Review 275–305
(2020); Estie Gresse, Melvin L.M Mbao, An Analysis
of the Duty to Reasonably Accommodate Disabled
Employees: A Comment of Jansen v. Legal Aid South
Africa, 24(1) Law, Democracy and Development 109
(2020); Bassuday K & Rycroft A, ‘Incapacity or
disability? The Implications for Jurisdiction Ernstzen v
Reliance Group Trading (Pty) Ltd (C727/13) [2015]
ZALCCT 42, 36(4) Industrial Law Journal 2516-2521
(2015); Matilda Mbali Ngcobo, Court’s Treatment of
Depression in the
Workplace: Incapacity, Poor
Performance, Misconduct and Disability, available at
https://researchspace.ukzn.ac.za/bitstream/handle/
10413/18678/Ngcobo Matilda Mbali 2019.pdf?
sequence=1&isAllowed=y.; Rangata, The “Invisible”
Illness Challenge, Employment Law, (2015), available at
https://maponya.co.za/wp-content/uploads/2018/03/The-
invisible-illness-challenge-Without-Prejudice.pdf –
referred to.
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8.1 Section 3 of the RPwD Act provides a general guarantee
against non-discrimination and equality to persons with a
disability. Section 20 specifically provides that no government
establishment shall discriminate against any person who has
acquired a disability in any matter relating to employment.
Discrimination has been given an expansive definition under
Section 2(h) of the RPwD Act. Section 2(h) prohibits
discrimination on the basis of disability. The provision does not
use the phrase ‘only’ on the basis of disability. While a causal
connection may need to be established between the ground for
discrimination and the discriminatory act, it is not required to be
shown that the discrimination occurred solely on the basis of the
forbidden ground. As long as it can be shown that the forbidden
ground played a role in the discriminatory action, the action will
violate the guarantee against non-discrimination. [Paras 90,
91][912-F-G; 913-B-C]
Navtej Singh Johar v. Union of India (2019) 3 SCC
39; Anuj Garg v. Hotel Association of India (2008) 3
SCC 1 : [2007] 12 SCR 991; Patan Jamal Vali v. State
of Andhra Pradesh 2021 SCC OnLine SC 343 –
referred to.
8.2 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 the factors that led to the
discriminatory act. Thus, in the instant case, the appellant is only
required to
prove that disability was one of the factors that led to
the institution of disciplinary proceedings against him on the
charge of misconduct. A related enquiry then is to examine
whether the conduct of the employee with a mental disability must
be solely a consequence of their disability or it is sufficient to
show that the disability was one of the factors for the conduct.
[Para 94][915-D-F]
8.3 An interpretation that the conduct should solely be a
result of an employee’s mental disability would place many persons
with mental disabilities outside the scope of human rights
protection. It is possible that the appellant was able to exercise
some agency over his actions. But the appellant was still a person
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who was experiencing disabling effects of his condition. Thus in
any event his agency was diminished. The over-emphasis on the
choice or agency of a person with a mental health disorder furthers
the stigma against them. This is not to say that persons with mental
health disorders are never in control of their actions. This may
perpetuate another stereotype that such persons are
“dangerous”, who are more prone to commit violent or reckless
acts. Studies indicate that there is no direct link between mental
health disorders and violence. There is no substantial difference
between the patterns of violent conduct exhibited by persons
with mental health disorders and others without such disorders.
Persons with mental disabilities are not static entities. Thus, what
is required is a nuanced and individualized approach to mental
disabilities- related discrimination claims, which requires
understanding the nature of the disadvantage that such persons
suffer. [Paras 95-96][915-F-G; 916-A-C]
Stewart v. Elk Valley Coal Corp. [2017] 1 SCR 591 –
referred to.
Linda A. Teplin, The Criminality of Mentally Ill: A
Dangerous Conception, 142(5) American Journal of
Psychiatry 593-599 (1985). Claire Wilson, Raymond Nairn
et. al., Constructing Mental Illness as Dangerous: A Pilot
Study, 33(2) Australian and New Zealand Journal of
Psychiatry 240-247; Lesli Bisgould, Human Rights Code
v. Charter: Implications of Tranchemontagne Twists and
Turns and Seventeen Volumes of Evidence,
or How
Procedural Developments Might Have Influenced
Substantive Human Rights Law, 9 JL & Equality 33
(2012) – referred to.
8.4 A person with a mental disability is entitled to the
protection of the rights under the RPwD Act as long they meet
the definitional criteria of what constitutes a ‘person with a
disability’ under Section 2(s). Having regard to the complex nature
of mental health disorders, any residual control that persons with
mental disabilities have over their conduct merely diminishes
the extent to which the disability contributed to the conduct, it
does not eliminate it as a factor. The appellant has been undergoing
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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, the appellant is more vulnerable to engage in
behavior 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. Thus, the disciplinary proceeding against the
appellant is discriminatory and must be set aside. [Paras 97-
98][916-F-G; 917-A-C]
Ltd. Col. Nitisha and Ors. v. Union of India 2021 SCC
OnLine SC 261 – referred to.
8.5 Sub-Section (4) of Section 20 advances the guarantee
of reasonable accommodation to persons with mental disabilities.
The Government establishment has a positive obligation to shift
an employee who acquired a disability during service to a suitable
post with the same pay scale and service benefits. The provision
further states that if it is not possible to adjust the employee
against any post, he may be kept on a supernumerary post until a
suitable post becomes available or when they attain the age of
superannuation, whichever is earlier. Reasonable accommodation
is a component of the right to equality and discrimination. In light
of Section 20(4) and the general guarantee of reasonable
accommodation that
accrues to persons with disabilities, the
appellant is entitled to be reassigned to a suitable post having
the same pay scale and benefits. The CRPF may choose to assign
him a post taking into consideration his current mental health
condition. The suitability of the post is to examined based on an
individualised assessment of the reasonable accommodation that
the appellant needs. The authorities can ensure that the post to
which the appellant is accommodated does not entail handling or
control over firearms or equipment which can pose a danger to
himself or to others in or around the workplace. [Paras 100-
101][917-G-H; 918-A-B, D-F]
Vikas Kumar v. Union Public Service Commission
(2021) 5 SCC 370; Avni Prakash v. National Testing
Agency Civil Appeal No. 7000 of 2021 – referred to.
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8.6 The instant case involves a complex question of
balancing competing interests. This entails the right of persons
with mental disabilities against discrimination in the course of
employment and the interest of the CRPF in ensuring a safe
working environment and maintaining a combat force that can
undertake security operations. While balancing the two, the role
assigned to the CRPF as a para-military force must also be
recognized. Rights are rarely of an absolute nature. Constitutions
often provide the possibility of limiting those rights through
acceptable justifications. The proviso to sub-Section (1) of Section
20 of the RPwD Act provides a justification for violating the right
against discrimination in employment. It provides that the
appropriate government, may, having regard to the type of work
carried on in any establishment exempt such an establishment
from the provisions of Section 20. The key words are “having
regard to the type of work”. This indicates that the government’s
right to exempt an establishment from the provisions of Section
20 which deals with employment discrimination is not absolute.
In an appropriate case, a standard for reviewing the justification
given by the government may have to be developed.
[Para 102][918-G-H; 919-A, C-D]
Tarunabh Khaitan, Beyond Reasonableness – A
Rigorous Standard of Review for Article 15
Infringement, 50(2) Journal of the Indian Law Institute
177-208 (2008) – referred to.
8.7 This Court at the very
inception of the constitutional
republic had observed that a measure that limits rights must have
a proportional relationship to the right. With the passage of time,
this Court has evolved a test for applying proportionality analysis
to a rights-limiting measure. A version of the proportionality test
was used by this Court in the context of anti-discrimination
analysis. Since then, the proportionality analysis has been used
in many other judgments in relation to other rights. [Para
103][919-E-F; 920-B]
Chintaman Rao v State of MP AIR 1951 SC 118; VG
Row v State of Madras AIR 1952 SC 196; Modern
Dental College and Research Centre v State of Madhya
Pradesh (2016) 7 SCC 353 : [2016] 3 SCR 579; Anuj
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Garg v. Hotel Association of India (2008) 3 SCC 1 :
[2007] 12 SCR 991; Puttaswamy v Union of India
(2017) 10 SCC 1 : [2017] 10 SCR 569; Puttaswamy
(II) v Union of India (2019) 1 SCC 1 : [2018] 8 SCR 1;
Anuradha Bhasin v Union of India (2020) 3 SCC 637;
Internet and Mobile Association of India v. Reserve
Bank of India (2020) 10 SCC 274 : [2020] 2 SCR 297;
Akshay N Patel v. Reserve Bank of India Civil No. 6522
of 2021 – referred to.
8.8 Sub-Section (3) of Section 3 of the RPwD Act itself
contemplates undertaking a proportionality analysis for a rights-
limiting measure. The jurisprudence of Sections 3 and 20 of the
RPwD Act would have to evolve. The journey has begun. This
Court has pondered over the possible trappings which a standard
of judicial review may adopt. Such an enquiry is rooted in, “the
idea that something protected as a matter of right may not be
overridden by ordinary considerations of policy. Reasons justifying
an infringement of rights have to be of a special strength”.
[Paras 104-105][920-B-C; F-G; 921-A]
Mattias Kumm, Political Liberalism and the Structure of
Rights : On the place and limits of the proportionality
requirement, in L AW , R IGHTS AND D ISCOURSE :
T HEMES FROM THE L EGAL P HILOSOPHY OF
R OBERT A LEXY 131-166 (George Pavlakos ed.,
Hart 2007) – referred to.
Kunal Singh v. Union of India (2003) 4 SCC 524 :
[2003] 1 SCR 1059 – referred to.
Case Law Reference
[2003] 1 SCR 1059
referred to
Para 11(iii)
[2001] 2 Suppl. SCR 195
referred to
Para 19
[1980] 1 SCR 684
referred to
Para 22
[1989] 2 SCR 152
referred to
Para 22
[1999] 3 Suppl. SCR 461
referred to
Para 22
(2018) 2 SCC 397
referred to
Para 28

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[2017] 12 SCR 827
referred to
Para 28
[2016] 4 SCR 638
referred to
Para 28
(2021) 5 SCC 370
referred to
Para 28, 99
[1999] 1 SCR 117
referred to
Para 32
[1999] 1 SCR 669
referred to
Para 32
[1976] 0 Suppl. SCR 172
referred to
Para 32
[2016] 3 SCR 1018
referred to
Para 36
[2001] 4 Suppl. SCR 598
referred to
Para 37
[2018] 6 SCR 1
referred to
Para 50
(2019) 3 SCC 39
referred to
Para 51, 84
[2019] 6 SCR 1
referred to
Para 52
[2013] 17 SCR 900
referred to
Para 67
[2007] 12 SCR 991
referred to
Para 92
[2016] 3 SCR 579
referred to
Para 103
[2017] 10 SCR 569
referred to
Para 103
[2018] 8 SCR 1
referred to
Para 103
[2020] 2 SCR 297
referred to
Para 103
AIR 1951 SC 118
referred to
Para 103
AIR 1952 SC 196
referred to
Para 103
(2020) 3 SCC 637
referred to
Para 103
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6924
of 2021.
From the Judgment and Order dated 15.11.2018 of the High Court
of Gauhati in Civil Writ Appeal No.294 of 2017.
Rajiv Raheja, Adv. for the Appellants.
Ms. Madhavi Divan, ASG, Ayush Puri, Nachiketa Joshi, T. A.
Khan, Ms. Vimla Sinha, Ms. Priyanka Das, Ms. Preeti Rani, Ms. Nidhi
Khanna, Advs. for the Respondents.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A
Factual Background.....................................................3
B.
Submissions of Counsel..............................................10
C.
Analysis....................................................................17
C.1
Changing legal Regimes and the continuing quest for
Justice..............................................................17
C.1.1 Section 6 of GCA: Accrual of Privilege.....19
C.1.2 Section 102 of the RPwD Act: The Savings
Clause...................................................... 35
C.1.3 A New Dawn: Appellant’s Rights under the
RPwD Act..............................................39
C. 2
Mental Disability and Discrimination...................41
C.2.1 The Indian Legal Framework....................41
C.2.2 Mental Health in the Disability Rights
Framework..............................................45
C.2.3 A Global Outlook on Employment and Mental
Health.................................................... .51
C.4
Discipline and Punish: The Validity of the Disciplinary
Proceedings......................................................59
C.4.1 Foreign Jurisdictions..................................60
C.4.2 Disciplinary Proceedings against the
Appellant..................................................83
C.4.3 Reasonable Accommodation of the
Appellant.................................................90
D.
Epilogue....................................................................91
E.
Conclusion................................................................94
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1. The 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. The 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 19951. Allowing the appeal against the order
of the Single Judge, the Division Bench set aside the enquiry report and
restored the proceedings to the stage of evidence.
A  Factual Background
2. The appellant joined the Central Reserve Police Force2 in
November 2001. In 2003, he was appointed as Assistant Commandant
and served in the Darrang and Haflong Districts of Assam. Between
the years 2005 to 2007, he served as Assistant Commandant in
Chhattisgarh, and between 2007 to 2008, he served in Srinagar.
Subsequently, he was transferred to Ajmer where he was serving till
2010. On 18 April 2010, while the appellant was serving in Ajmer, the
Deputy Inspector General of Police3 lodged a complaint against him in
the Alwar Gate police station alleging that the appellant had stated that
he was obsessed with either killing or being killed and made a threat that
he could shoot. The complaint reads as follows:
“It is to mention that in pursuance to the above referred letter,
Sub Inspector Udai Singh came in the chamber
of DIGP and when
sitting with Sh V K Kaundal Commandant (staff) and with Sh.
Sarwar Khan, Asstt. Comdt. Then only Sh. RK Dhariwal who
was posted in this Group Centre threatened that he is obsessed
with either to kill or being killed and he can even shoot. Thus it is
evident that the mental state of this officer is not sound and he
can take life of anybody and can commit suicide and likewise.”
3. An enquiry was initiated against the appellant. A memorandum
was issued on 8 July 2010 whereby the President proposed to hold an
enquiry against the appellant under Rule 14 of the Central Civil Services
(Classification, Control and Appeal) Rules 1965. Six charges were framed
1 “PwD Act”
2 “CRPF”
3 “DIGP”
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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against him which were that he remained absent from morning marker,
used unparliamentary language, appeared in television channels and other
print media without the prior approval of the Department, did not give
parade report, tried to intentionally cause an accident, and assaulted a
Deputy Commandant. The appellant was placed under suspension with
effect from 8 October 2010 with the declared headquarter. The
departmental enquiry was completed, and the enquiry officer submitted
the enquiry report dated 3 October 2013. Pursuant to the enquiry report,
notice was issued to the appellant on 7 August 2015.
4. A second enquiry was initiated against the appellant through a
memorandum dated 6 April 2011 on the charge that the petitioner without
depositing the pistol and ammunition proceeded to Mukhed. The enquiry
has been completed and the punishment of withholding two increments
was awarded.
5. A third enquiry was initiated against the appellant. The
memorandum was issued on 17 February 2015 on the charges that when
the appellant was placed under suspension with the declared headquarter
pursuant to the initiation of the first enquiry report, he remained absent
without obtaining permission.
6. It is also necessary that we advert to the medical history of the
appellant to understand the full purport of the issues before us. The
appellant started facing obsessive compulsive disorder4 and secondary
major depression in 2009. He
visited a private psychologist at Kota,
Rajasthan in 2009 and 2010. He also attended Kochhar psychiatric
Centre, Delhi in 2011 and 2012. In 2012-2013, he received treatment in
PGIMS, Rohtak. He was also treated at the Government Multi-Specialty
Hospital at Chandigarh in 2013. In 2015, he visited Gauhati Medical
College for psychiatric treatment. He also visited the Composite Hospital,
Gauhati in 2015 and was referred to the Composite Hospital in Delhi,
where he was admitted for treatment between 4 August 2015 to 7 August
2015. He was subsequently referred to Dr Ram Manohar Lohia Hospital,
Delhi where he was categorized as permanently disabled, having 40 to
70 percent disability. The Composite Hospital by a report dated 18 July
2016, declared the appellant unfit for duty and placed him under the
S5(P) category due to his partial and limited response to all modalities of
treatment since 2009.
4 “OCD”
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7. The Ministry of Social Justice and Empowerment, in exercise
of powers under Section 47 of the PwD Act issued a notification on 10
September 2002,5 exempting all categories of ‘combatant personnel’ of
the CRPF from the provisions of the Section. The notification reads as
follows:
“ NOTIFICATION
New Delhi, the 10th September, 2002
S.O.995(1)- In exercise of the powers conferred by proviso to
Section 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights, and Full Participation) Act 1995 (I of 1996)
the Central Government having regard to the type of work carried
on hereby exempt all categories of posts of ‘combatant personnel’
only of the Central Para Military Forces (CPMFs) namely Central
Reserve Police Force (CRPF), Border Security Force (BSF), Indo
Tibetan Border Police (ITBP), Central Industrial Security Force
(CISF) and Assam Rifles from the provisions of the said Section.”
8. The PwD Act was repealed by the Rights of Persons with
Disabilities Act 20166. The Ministry of Social Justice and Empowerment,
in exercise of powers conferred by the proviso to Section 20 of the
RPwD Act issued a notification dated 18 August 2021, similar to the
2002 notification:
“NOTIFICATION
New Delhi, the 18th August, 2021
S.O. 3367(E).—In exercise of the powers conferred by the proviso
to sub-section (1) of section 20 and the second proviso to sub-
section (1) of section 34 of the Rights of Persons with Disabilities
Act, 2016 (49 of 2016), the
Central Government, in consultation
with the Chief Commissioner for Persons with Disabilities, having
regard to the nature and type of work, hereby exempts all
categories of posts of combatant personnel of Central Armed
Police Forces, namely, Border Security Force, Central Reserve
Police Force, Central Industrial Security Force, Indo-Tibetan
Border Police, Sashastra Seema Bal and Assam Rifles from the
provisions of the said sections.”
5 “2002 notification”
6 “RPwD Act”
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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9. A standing order on the rehabilitation of force personnel was
issued by the Directorate General, CRPF on 27 July 2011. According to
the order, a rehabilitation Board would be constituted which will subject
the concerned person to critical examination to determine their physical
and mental capacity, aptitude and job requirement among others. Pursuant
to the examination, it would be determined by the Board if the person
can be rehabilitated within the force or whether he should be declared
unfit. The order provided a list of jobs that can be given to persons
required to be rehabilitated which included duties such as light duty, line
men, and hospital attendants. As for persons who hold the rank of an
ASI or above, they are to be posted in comparatively less operational
activities. The above standing order was amended on 14 August 2012
altering the list of rehabilitative jobs.
10. The appellant challenged the inquiry report and the notice
dated 7 August 2015 issued in the first enquiry in a writ proceeding. The
Single Judge of the High Court by an order dated 7 August 2015 issued
notice and passed an interim order directing that no further decision
shall be taken in the disciplinary proceedings initiated in the first enquiry.
The contentions raised by the appellant were:
(i)
He has a disability within the meaning of Section 2(i) (vii)
of the PwD Act. He is suffering from a mental illness with
a disability of more
than 40 percent; and
(ii)
He is protected under Section 47 of the PwD Act which
provides that a person shall not be demoted or denied
promotion on the grounds of disability. In view of Section
47, the disciplinary proceedings cannot proceed any further.
The CRPF submitted that the Court should not interfere with the
disciplinary proceedings in view of the seriousness of the charges, and
the enquiry must be allowed to be completed.
11. The Single Judge of the Gauhati High Court by a judgment
dated 19 August 2016 allowed the writ petition and directed the respondent
to consider the case of the petitioner in terms of the provisions of Section
47 of the PwD Act. The reasons which guided the Single Judge are as
follows:
(i)
Section 47 of the PwD Act states that no establishment
shall dispense with or reduce in rank, an employee who
acquires a disability during his service. The provision also
vests a positive obligation on the employer to reasonably
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accommodate an employee, who owing to his disability is
no more suitable for the post that he is holding. The provision
states that he could be shifted to another post in the same
pay-scale, and in case it is not possible to shift him to another
post, he is to be kept on a supernumerary post until a suitable
post is available;
(ii)
There is no dispute that the petitioner had acquired disability
during his service. The mental disability certificate from
Dr. Ram Mohan Lohia Hospital, New Delhi is sufficient to
establish that the appellant has a mental disability of over
forty percent;
(iii)
The Supreme Court in Kunal Singh v. Union of India7
held that Section 47 of the PwD Act is mandatory; and
(iv)
In view of the above, the respondent should revisit the issue
as to whether any action based on the enquiry report would
serve any purpose in view of the mandatory directive under
Section 47.
12. The respondents filed an intra-court appeal against the judgment
of the Single Judge. The respondents contended that the appellant raised
the contention of mental disability for the first time in the writ petition. It
was argued that this contention had neither been raised in the reply to
the charge sheet nor in the reply to the enquiry report. The appellant
argued that his wife had tried to bring the mental health issues faced by
him to the notice of the enquiry committee. However, the committee did
not permit her to place the submissions. The appeal was partly allowed
by the Division Bench by a judgment dated 15 November 2018, by which
the enquiry proceedings were restored to the stage of recording evidence
to enable the appellant to prove his mental disability by submission of
material documents. The reasons which guided the Division Bench were
as follows:
(i)
The issue of whether the appellant is suffering from mental
disability cannot be decided in a writ proceeding since it
would require the evaluation of evidence, which cannot be
undertaken by the High Court in an Article 226 proceedings.
In these circumstances, the application of the provisions of
the PwD Act is faulty;
7 (2003) 4 SCC 524.
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(ii)
Even if the PwD Act is held applicable to the disciplinary
proceedings, an argument has been made that the 2002
notification had been issued exempting the CRPF from the
application of Section 47 of the PwD Act. However, the
applicability of the provisions of the PwD Act is dependent
on an affirmative finding on the mental disability of the
appellant; and
(iii)
On a prima facie perusal of the material, it appears that
the appellant has a mental disability. The medical reports
submitted by the appellant from the respondent’s hospital
indicate that he had OCD and depression for a long time.
However, this is a defence that must be put forth by the
appellant during the enquiry.
B Submissions of Counsel
13. Mr Rajiv Raheja, learned counsel appearing on behalf of the
appellant, has made the following submissions:
(i)
The appellant was continuously posted in areas where anti-
insurgency operations were being conducted from 2003 to
2010. As a consequence, he developed mental health issues
in 2008;
(ii)
The appellant is diagnosed with OCD, secondary major
depression, and bipolar affective disorder, which he
developed during service. Dr Ram Manohar Lohia Hospital
categorized the appellant as having a permanent disability
in the range of 40-70 percent;
(iii)
The appellant started taking treatment from a psychiatrist
in 2009-2010. He has taken treatments from Apollo Hospital
Delhi, Rohtak Medical College, Government Hospital
Chandigarh, Dr Ram Manohar Lohia Hospital Delhi, and
Gauhati Medical College;
(iv)
The events which led to the initiation of departmental
enquiries took place between April 2010 and July 2012. An
FIR was registered against the appellant at the behest of
the DIGP under whom the appellant was serving in Ajmer.
It was alleged in the complaint that the appellant’s mental
state is not sound, and he threatened to kill people and
commit suicide. Instead of sending the appellant for medical
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treatment, the DIGP initiated criminal action against him.
Thereafter, three enquiries were instituted against the
appellant;
(v)
The departmental enquiries were initiated against the
appellant for acts committed by him after developing severe
mental illnesses;
(vi)
The first and third enquiries against the appellant are pending.
The first enquiry has been restored to the stage of evidence
by the High Court in the impugned judgment. The second
enquiry is completed and the punishment of withholding two
increments has been awarded to the appellant;
(vii)
Section 18 (5) (b) and (d) of the Mental Healthcare Act
2017 mandates that persons with mental illness should be
posted in their native places and where good treatment
facilities are available. The appellant was being treated in
Delhi in 2010 but was posted to Mudkhed in Maharashtra
making it impossible for him to avail of medical care every
fortnight or even every month. In October 2014, the
appellant was first posted in Gauhati and thereafter in
Silchar. These locations are far from his hometown and
treatment centers;
(viii) The Composite Hospital, CRPF, Delhi admitted that the
appellant has OCD and secondary major depression.
Further, it acknowledged that the appellant has taken various
treatments and was subjected to anti-anxiety agents, anti-
depressants, anti-psychotics, sedatives, hypnotics,
psychotherapy, behavior therapy, and electroconvulsive
therapy;
(ix)
The appellant showed only partial
response to the treatment
and is still symptomatic. He was categorized as S-3 but
was eventually classified as S-5 (permanent disability from
the psychiatric side, 100 percent unfit) by the Medical
Directorate of CRPF;
(x)
On 14 April 2019, even the Court of Enquiry noted that the
appellant has been diagnosed with OCD and secondary
major depression. The appellant was directed to appear for
review before medical officers;
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(xi)
The behavior report issued by DIG, GC, CRPF, Gauhati
dated 9 January 2019 stated that no duty was assigned to
the officer due to “mental disorder” and that the “officer
caught mental disorder on duty”. In another behavior report
dated 27 January 2018, it was noted that the “officer has
not been performing any duties since he is psychiatric
patient”. DIG, GC, CRPF, Silchar in the behavior report
dated 5 January 2019 observed that the “officer lacks proper
reasoning and in making proper conclusive opinion [sic]”.
Thus, while the CRPF concluded that the appellant has a
severe mental illness, it still chose to proceed with
departmental enquiries;
(xii)
The appellant made several requests for being transferred
to the place where he was undergoing treatment. The last
such request was made on 16 March 2020;
(xiii) The principles of natural justice were not followed in the
departmental enquiries. Further, it is unreasonable to expect
a person undergoing severe mental health issues to lead
evidence and defend himself;
(xiv) The appellant is entitled to the protection granted under
Section 20 of the RPwD Act, which is pari materia to
Section 47 of the PwD Act;
(xv)
The exemption granted to CRPF from the application of
provisions of Section 47 under the PwD Act in terms of the
notification dated 10 September 2002 does not have any
effect once the RPwD Act 2016 came into force; and
(xvi) The order of the Department of
Personnel and Training
dated 25 February 2015 nullifies the exemption granted to
the CRPF by the 2002 notification.
14. Ms Madhavi Divan, the learned Additional Solicitor General
appearing on behalf of the respondents, has urged that:
(i)
The appellant was involved in various acts of misconduct
during 2010 and 2011, for which three different departmental
enquiries were initiated against him;
(ii)
Both the pending departmental enquiries have been put on
hold till the appellant’s mental condition improves;
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(iii)
The appellant was transferred from time to time following
the transfer policy. The good work done by the appellant in
the past has no relevance to the specific charges of
misconduct against him;
(iv)
Exposure to insurgency does not result in the development
of mental health issues. Innumerable officers are posted in
such areas and are performing their duties;
(v)
The acts of misconduct were committed by the appellant
when he was posted at a peaceful station in Ajmer. He
was residing near his hometown and was availing of static/
home posting. Rajasthan is his home state. If he had any
grievance against a senior officer, he should have followed
proper procedure for registering such a grievance;
(vi)
The DIG, Ajmer CRPF was constrained to register an FIR
against the appellant because there was an apprehension
that the appellant will commit an untoward act;
(vii)
The appellant did not produce himself before the medical
officer of the force for treatment. There is no indication
from the reports of medical officers that he has any mental
ailment;
(viii) According to AMR reports dated 20 October 2008, 28
October 2009 and 26 June 2014, the appellant was placed
in the medical category S-1 and was declared fit for duty.
These reports do not indicate that the appellant has any
mental illness;
(ix)
The appellant actively participated in the first and second
departmental enquiries which were conducted from 2010
to 2014. He cross-examined witnesses and submitted
a
defence. He never claimed that he had a mental health
disorder. When the first departmental enquiry was
completed by the Investigating Officer and the Union Public
Service Commission advised that he be removed from
service, the appellant claimed that he had mental illnesses
to avoid the penalty;
(x)
The Mental Healthcare Act was enacted in 2017, while the
acts of misconduct relate to 2010 and 2011 when he was
posted in Ajmer;
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
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(xi)
The appellant has been deployed in peaceful stations since
2014. He was posted in Gauhati from 2014 to 2018 and in
Silchar from 2018 onwards. Adequate medical facilities are
available in these areas. Family accommodation is also
available;
(xii)
The appellant was sent for Review Medical Examination in
Composite Hospital, CRPF, Delhi where he was placed in
the S-5 category on 31 August 2016. He was declared unfit
for duty on account of being diagnosed with OCD and
secondary depression. It was recommended that his service
be invalidated. To avoid such invalidation, the appellant
produced two medical certificates issued by Gauhati Medical
College and Hospital, which declared him fit for any activity
stating that he had no symptoms of a mental illness;
(xiii) The appellant has taken contradictory stands. In the first
enquiry, he claimed that he had a mental illness to avoid a
penalty but when he was declared unfit for duty, he claimed
to be medically fit. It is clear that the ploy of mental illness
is being used to mislead the department and the Court;
(xiv) On the order of the High Court dated 15 November 2018, a
Review Medical Examination was conducted which placed
the appellant in the medical category of S-3 because of
OCD and secondary depression. At the time, the appellant
was asymptomatic and was not on any medication.
However, because he had a record of mental illness, he
was placed under observation in
medical category S-3 for
24 weeks. Thereafter, Review Medical Examinations were
conducted from 23 December 2019 to 30 December 2019
in Composite Hospital, CRPF. The appellant was placed in
medical category S-3 on 31 December 2019;
(xv)
The appellant has been evading Review Medical
Examinations because he is aware that if he is upgraded to
the S-1 category, then the pending departmental enquiries
will recommence and if he is downgraded to S-5 category,
he will be boarded out of service;
(xvi) The Review Medical Examinations conducted from 20
January 2021 to 29 January 2021 place him in medical
category S-2;
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(xvii) The contention of the appellant that the exemption granted
to the CRPF from the application of Section 47 of the PwD
Act was overruled by order of Department of Personnel
and Training dated 25 February 2015 is incorrect;
(xviii) After the enactment of the RPwD Act, a proposal was
submitted to the Central Government to exempt the CRPF
from the provisions of Section 20 of the RPwD Act. A
notification to this effect was issued in 2021; and
(xix) According to the department standing orders, when CRPF
personnel with mental illness are placed in medical category
S-3 for a maximum of 48 weeks and are not upgraded to S-
2 within 48 weeks, they are downgraded to S-5 and declared
permanently unfit for service. Under the rehabilitation policy
relating to disabled force personnel, persons having a mental
illness are immediately invalidated from service irrespective
of their fitness at the time of recruitment. They cannot be
retained or rehabilitated within the force since the job profile
of the CRPF personnel involves handling firearms.
C Analysis
15. The PwD Act was repealed and the RPwD Act was enacted
in 2016 during the pendency of the writ proceedings. Therefore, we first
determine the law applicable to the validity of the disciplinary proceedings.
We would then discuss the legal frameworks on mental health. The final
section discusses whether the initiation of disciplinary proceedings against
the appellant was discriminatory.
C.1 Changing legal Regimes
and the continuing quest for
Justice
16. When the writ petition seeking to quash the disciplinary
proceedings was instituted before High Court, the PwD Act and the
2002 notification were in force. However, the intra-court appeal against
the judgment of the Single Judge was filed in 2017, after the RPwD Act
came into force. An exemption corresponding to the 2002 notification
was issued under the RPwD Act in August 2021 when the Special Leave
Petition was pending before this Court. Therefore, the primary issue is
to decide the law that would apply to the proceedings before this Court.
17. The disciplinary proceedings were initiated by issuing a
memorandum of charges in 2010. The enquiry report was submitted in
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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2013, and the notice was issued in 2015. Thus, when the disciplinary
proceedings were initiated, the PwD Act was in force. The 2002
notification was issued by the respondent under the proviso to Section
47, exempting the CRPF from the application of the provision. The RPwD
Act came into force on 27 December 2016. If any right has been accrued
to either the appellant or the respondent under Section 47 or any other
provisions of the PwD Act, then the repeal of the Act would not affect
the legal proceedings unless a different intention appears from a reading
of the RPwD Act, by virtue of Section 6 of the General Clauses Act
18978. Section 6 of the GCA reads as follows:
“6. Effect of repeal – Where this Act, or any [Central Act] or
Regulation made after the commencement of this Act, repeals
any enactment hitherto made or hereafter to be made, then, unless
a different intention appears, the repeal shall not –
(a) revive anything not in force or existing at the time at which
the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or
anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued
or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect
of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in
respect
of any such right, privilege, obligation, liability, penalty, forfeiture
or punishment as aforesaid, and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment may be imposed
as if the repealing Act or Regulation had not been passed.”
Section 6 provides that where a central enactment repeals another
enactment, the repeal shall not affect any legal proceeding or investigation
with respect to an accrued right, unless a different intention appears
from the repealing statute. The general rule of interpretation is that a
newly enacted statute has prospective application. Section 6 of the GCA
provides an exception to this rule, where a pending legal proceeding or
investigation would be guided by the old enactment, if any ‘right, privilege,
8 “GCA”
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obligation or liability’ has accrued to the parties under the repealed law.
The issue which needs to be considered is whether any right, privilege,
obligation or liability has accrued to the respondent in view of the 2002
notification which exempts the CRPF from its duty to not discriminate
against disabled employees under Section 47 of the PwD Act.
C.1.1 Section 6 of GCA: Accrual of Privilege
18. Section 47 of the PwD Act reads as follows:
“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 an 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 the 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;
(2) No promotion shall be denied to a person merely on the ground
of his disability:
Provided that the appropriate Government may, having regard to
the type of work carried on in any establishment, by notification
and subject to such conditions, if any, as may be specified in such
notification, exempt any establishment from the provisions of this
section.”
Section 47 states that no employee working in a Government
establishment, who acquires a
disability during the course of service
shall be (i) terminated from employment; (ii) reduced in rank; or (iii)
denied promotion. Section 47 protects disabled employees from punitive
actions on the ground of disability. Since the 2002 notification exempts
the CRPF from the application of Section 47, we will have to examine if
any right or privilege has accrued to the CRPF under the 2002 notification.
This requires us to consider whether an exemption from a protective
provision such as Section 47 results in the accrual of a right or privilege
in favour of the CRPF to continue pending proceedings under the PwD
Act in terms of Section 6 of the GCA.
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
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19. In Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal &
Co.9, the issue before a two judge Bench of this Court was whether the
court of Rent Controller constituted under the Delhi Rent Control Act
1958, or the ordinary civil court would have the jurisdiction to decide the
eviction proceedings instituted by the landlord against the tenant. Section
3 was amended to exclude tenancies whose monthly income exceeded
Rs. 3500 from the application of the Delhi Rent Control Act. In that
case, the monthly rent was Rs. 8625. The eviction petition was filed by
the landlord in 1985 before the amendment of Section 3. While the petition
was pending, Section 3 was amended, which excluded such tenancies
from the purview of the Act. The High Court had held that in view of the
amendment, only the ordinary civil court and not the Rent Controller
would have jurisdiction over the eviction proceedings. The tenant
contended that since the tenant did not possess any vested right under
the Act before the amendment came into force, the Rent Controller
would not have jurisdiction. The landlord contended that even if the tenant
did not possess any vested right, the landlord possessed a vested right,
and that in view of Section 6 of GCA, the pending proceedings should
continue under the pre-amended Rent Control Act. This Court held that
the tenant did not have any vested right under the Act. Furthermore, the
Court also held that the landlord does
not have an accrued ‘right’ under
Section 14 of the Delhi Rent Control Act. Section 14 of the Delhi Rent
Control Act provides a general protective right to the tenant against
eviction. The proviso to Section 14 lists specific grounds on which the
tenant could be evicted. The Court held that since Section 14 is a
protective right conferred upon the tenant, it cannot be construed to
provide a right to the landlord. In this context, it was observed:
“The right which is sought to be referred as vested right is only
under its proviso. Proviso cannot enlarge the main section. When
main section is only a protective right of a tenant, various
subclauses of its proviso cannot be construed as it gives vested
right to a landlord. The right if at all could be said of the landlord.
It flows only under the protective tenant’s umbrella which cannot
be enlarged into a vested right of a landlord.”
However, it was observed that Section 14 provides a ‘privilege’
to the landlord, and if the privilege has been accrued or acquired as
required under Section 6 of GCA, then the Rent Controller would retain
9 (2001) 8 SCC 397.
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the jurisdiction to decide the proceedings. It was held that on the filing of
the eviction petition, the privilege accrued to the landlord in view of
Section 6(c) of the GCA, and the pending proceeding was saved.
20. For Section 6 of the GCA to be applicable, two conditions
need to be fulfilled. Firstly, the respondent must possess a ‘right, privilege,
obligation, or liability’; and secondly, the ‘right, privilege, obligation, or
liability’ must have accrued before the repeal of the old enactment or
provision. According to WN Hohfeld, one of the greatest hindrances in
the clear understanding of legal problems is the readiness to terms all
legal relations as ‘rights’. According to him, a right signifies an affirmative
claim against another, and the correlative of right is duty. On the other
hand, privilege indicates freedom from the right or claim of another; it
denotes an absence of duty.10 Hohfeld states that the correlative of
privilege is ‘no right’. Section 47 of the PwD Act is a protective provision
available to employees who are disabled in the course of their
employment. The provision places an obligation on the employer to not
impose punitive punishments such as termination of employment,
reduction in rank, and denial of promotion. Therefore, the employee has
a right to not be punitively punished for their disability (and a right to be
reasonably accommodated), while the employer has a duty not to impose
such punitive punishments (and a duty to
reasonably accommodate).
However, when the 2002 notification was notified exempting the CRPF
from the application of the provision, the employee lost the right to claim
that they should not be punitively punished. By corollary, it would mean
that the CRPF has been exempted from its duty under Section 47, and
thus holds a privilege to impose punitive punishments against persons
with disabilities.
21. For the application of Section 6 of the GCA, the privilege
should have accrued to the respondent under the 2002 notification before
the repeal of the PwD Act. It is settled law that Section 6 of the GCA
only protects accrual of rights and privileges and not the mere hope or
the expectation of accrual. In Hamilton Gell v. White11, a landlord had
given a notice to quit to the tenant under the Agriculture Holdings Act
1908. Under the Act, on receipt of the notice to quit, the tenant is entitled
to compensation in such cases. Section 11 of the Act stipulates the
10 W.N Hohfeld, Fundamental Legal Conceptions as applied in Judicial Reasoning and
other legal essays, (W.W. Cook ed., Yale University Press, 1919).
11 (1922) 2 KB 422.
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following two conditions to claim the right to compensation: (i) notice
must be given to the landlord to claim compensation; and (ii) the
compensation must be claimed within three months of quitting the tenancy.
The tenant, in this case, had fulfilled the first condition, but before he
could comply with the second condition, the Agriculture Holdings Act
was repealed. The Court of Appeal was tasked to decide whether the
tenant’s right to claim compensation accrued under Section 38 of the
Interpretation Act 1889, which is pari materia to the provisions of Section
6 of the GCA. It was held that a right had accrued to the tenant under
the Act. Three concurring opinions were given. Justice Bankes held that
the tenant’s right to compensation depended on the act of the landlord,
that is, the landlord giving notice to the tenant to quit. Once the notice is
given, the right to compensation is accrued to the tenant, subject to him
complying with the conditions of the statute in so far as he could comply
prior to the repeal. Scrutton LJ in his opinion states that the conditions
imposed in Section 11 were conditions of enforcement of the right and
not its acquisition. It was held that as soon as the tenant gave the
notice to claim compensation, he was entitled to have the claim
investigated by the arbitrator since Section 38 of the Interpretation Act
saves investigation with respect to the accrued right. Atkin L.J
differentiated
between an abstract right and a specific right, and held
that the tenant had acquired the right of compensation when he quit his
holding. It was held that only specific rights and not abstract rights are
protected under Section 38 of the interpretation Act:
“It is obvious that that provision was not intended to preserve the
abstract rights conferred by the repealed Act, such for instance
as the right of compensation for disturbance conferred upon
tenants generally under the Act of 1908, for if it were the repealing
Act would be altogether inoperative. It only applies to the specific
rights given to an individual upon the happening of one or other of
the events specified in the statute.”
The diverse and contradictory views on when the right to
compensation accrued to the tenant, indicate that accrual of rights
depends upon identifying when the right was accrued based on the
construction placed on the statute.
22. In Director of Public Works v. Ho Po Sang12, the
interpretation of Section 10 of the Interpretation Ordinance of Hong
12 (1961) 2 All ER 721.
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Kong, which corresponds to Section 38 of the Interpretation Act 1889,
and Section 6 of the GCA, was in issue. In this case, the Crown lessee
of premises in Hong Kong applied for a renewal of his lease. Section 3
A-E of the Landlord and Tenant Ordinance provided that if the Director
of Public Works gave a rebuilding certificate, then the lessee was entitled
to call the tenants to quit. The lessee applied for the rebuilding certificate,
and the Director notified him of his intention to give the certificate. The
lessee served notice to the tenants under Section 3B(1) of the Ordinance;
the tenants appealed to the Governor in Council under Section 3B(2);
and the lessee cross-petitioned under Section 3B(3). When the cross-
petition was pending, Section 3A-E of the Ordinance was repealed by
the Landlord and Tenant (Amendment) Ordinance 1957. However, after
the repeal, the Director intended to give the lessee a rebuilding certificate.
In pursuance of his intention, the tenants were served with a notice to
quit. The tenants challenged the issuance of notice on the ground that on
the repeal of the provision, the Director did not have the legal authority
to issue a rebuilding certificate. The challenge was allowed by the Judicial
Committee, on appeal from the Supreme Court of Hong Kong. It was
held that on the date of the repeal, the lessee did not have a right to a
rebuilding certificate. The lessee only had a hope to receive the
certificate, and it was thus not an
accrued right. The Court also
differentiated between an investigation in respect of rights and an
investigation to decide whether some right should or should not be given.
In this context, it was observed:
“It may be, therefore, that under some repealed enactment a right
has been given but that in respect of it some investigation or legal
proceedings is necessary. The right is then unaffected and
preserved. It will be preserved even if a process of quantification
is necessary. But there is a manifest distinction between an
investigation in respect of right and an investigation which is to
decide whether some right should or should not be given.”
The above observation on accrual has been referred to with
approval in M.S Shivanda v. KSRTC13 and Bansidhar & Ors. v.
State of Rajasthan & Ors.14 In Lalji Raja Sons v. Firm Hansraj
Nathuram15, a Constitution Bench of this Court affirmed the observations
13 (1980) 1 SCC 149.
14 (1989) 2 SCC 557.
15 [1971] 3 SCR 815.
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of Atkin L.J in Hamilton Gell (supra) where it was held that only specific
rights and not abstract rights would be saved. This Court also endorsed
the observations made in Abbot v. Minister for Lands16 where it was
held that the “the mere right (assuming it to be properly so-called) existing
in the members of the community or any class of them to take advantage
of an enactment, without any act done by an individual towards availing
himself of that right, cannot properly be deemed to be a ‘right accrued’
within the meaning of the enactment.” In this context, in Thyssen
Stahlunion Gmbh v. Steel Authority of India Ltd.17 this Court affirmed
the observations in Abbott (supra) and termed abstract rights as inchoate
rights.
23. The principles for the application of Section 6 of the GCA are
summarised below:
(i)
The party must possess a right and the right ought to have
accrued;
(ii)
Only specific rights and not abstract or inchoate rights are
saved under Section 6 of the GCA;
(iii)
An abstract right becomes a specific right, only when the
party does an act to avail himself of the right; and
(iv)
The action necessary to avail an abstract right is dependent
on the nature of the right and the text of the statute.
24. The privilege that the respondent possesses under the 2002
notification would be an abstract or inchoate privilege unless the privilege
has been acted upon by the respondent. It cannot be argued that the
privilege to demote or terminate the employee is accrued on the initiation
of the disciplinary proceedings. As observed by Atkin L.J in Hamilton
Gell (supra), if such an interpretation was to be provided, then all
provisions of the repealing Act which are contradictory to the repealed
Act would be inoperative. There are two classes of rights or privileges –
conditional and non-conditional. The exercise of a conditional privilege
is dependent on the fulfilment of certain conditions specified in the statute.
On the other hand, a party could hold a privilege merely by being an
actor in law without having to fulfil any conditions. Abstract privileges
are conditionally or unconditionally available, based on the provisions of
the law. The privilege that the CRPF holds under the 2002 notification is
16 (1895) AC 425.
17 (1999) 9 SCC 334.
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a non-conditional abstract privilege that it always possesses. In the
context of Section 6 of the GCA, these abstract privileges are accrued
or acquired only when the privilege-holder does an act as required under
the statute or otherwise to avail of the privilege.
C.1.1.1 The Right of Non-discrimination and the PwD Act
25. As discussed above, the privilege is only accrued when the
privilege-holder does an act required under the statute to avail of the
privilege. To answer whether the privilege has accrued to the appellant,
the nature of the privilege granted by the 2002 notification will first have
to be determined since the accrual of a privilege would depend on the
nature and content of the privilege itself.
26. The marginal note to Section 47 of the PwD Act reads as
‘Non-discrimination in Government Employment’. A pertinent question
that arises for our consideration is whether the 2002 notification exempts
the employer from its duty of non-discrimination on the ground of disability,
or whether it only exempts the specific forms of discrimination expressly
mentioned in Section 47 of the PwD Act. To answer this question, a
reference must be made to the general structure of the PwD Act.
27. The PwD Act was enacted to give effect to the ‘Proclamation
on the Full Participation and Equality of the People with Disabilities in
the Asian and Pacific Region’ to which India is a signatory. In April
2002, the Economic and Social Commission for Asia and the
Pacific
proclaimed the decade (1993 -2002) as the Asian and Pacific Decade of
Disabled Persons. The proclamation aimed to promote the human rights
of disabled persons by providing an accessible environment, social
security, safety nets and employment, and sustainable livelihoods,
premised on equality and non-discrimination.18 Chapter VII of the PwD
Act is titled ‘Affirmative Action’, and Chapter VIII is titled ‘Non-
Discrimination’. Sections 42 and 43 in Chapter VII stipulate that the
appropriate Governments must formulate schemes to provide aids and
preferential allotment of land to persons with disabilities. Sections 44 to
47 in Chapter VIII provide for special measures in transportation, roads,
built environment and employment for persons with disabilities. For
instance, Section 44 states that special measures must be taken to make
18 Commission for Social Development, Interim Report of the Secretary General:
Implementation of the World Programme of Action concerning Disabled Persons
 (1999), available at https://www.un.org/esa/socdev/enable/disecne5.htm#VI.
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transport vehicles such as buses and trains, and toilets in such transport
vehicles accessible to persons with disability. Section 45 stipulates that
the appropriate government must endeavour to, inter alia, make walking
on the roads for disabled persons more accessible by installing auditory
signals, and engraving on the zebra crossing. Section 46 provides that a
built-in environment, conducive to persons with disabilities must be
provided. While Sections 44 to 46 impose positive obligations on the
State to reasonably accommodate persons with disabilities, Section 47
imposes both positive and negative obligations on the Government. Sub-
sections (1) and (2) of Section 47 state that the government employer
must not terminate, demote or deny promotion on the ground of disability.
The proviso provides a positive obligation on the employer that if the
post is not suitable to the employee after acquiring disability, then he
could be shifted to another post with the same pay and service benefits.
However, if it is not possible to adjust the employee against any post,
then he may be kept on a supernumerary post until he obtains
superannuation.
28. Article 14 of the Indian Constitution states that “the State
shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India”. The right to equality under the
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. The principle of reasonable
accommodation is one of the 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 the medical condition of an individual. The sense of disability is
introduced because of the absence of access to facilities. This Court in
Vikas Kumar v. Union Public Service Commission19, recognised
the social construction of disability and the necessity to provide reasonable
accommodation to such persons to comply with the full purport of the
equality provisions under the Constitution. One of us (DY Chandrachud,J)
writing for the three- judge Bench observed:
“45 The principle of reasonable accommodation acknowledges
that if disability as a social construct has to be remedied, conditions
19 (2021) 5 SCC 370.
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have to be affirmatively created for facilitating the development
of the disabled. Reasonable accommodation is founded in the norm
of inclusion. Exclusion results in the negation of individual dignity
and worth or they can choose the route of reasonable
accommodation, where each individuals’ dignity and worth is
respected. Under this route, the “powerful and the majority adapt
their own rules and practices, within the limits of reason and short
of undue hardship, to permit realization of these ends.”
The provisions under Chapters VII and VIII are in furtherance of
the principle of reasonable accommodation which is a component of the
guarantee of equality. This has been recognised by a line of precedent.
This Court in multiple cases has held that the principle of reasonable
differentiation, recognizing the different needs of persons with disabilities
is a facet of the principle of equality.20 In Jeeja Ghosh v. Union of
India21, Justice A K Siri observed:
“40. In international human rights law, equality is founded upon
two complementary principles: non-discrimination and reasonable
differentiation. The principle of non-discrimination seeks to ensure
that all persons can equally enjoy and exercise all their rights and
freedoms. Discrimination occurs due to arbitrary denial of
opportunities for equal participation. For example, when public
facilities and services are set on standards out of the reach of
persons with disabilities, it leads to exclusion and
denial of rights.
Equality not only implies preventing discrimination
(example, the protection of individuals against unfavourable
treatment by introducing anti-discrimination laws), but goes
beyond in remedying discrimination against groups
suffering systematic discrimination in society. In concrete
terms, it means embracing the notion of positive rights,
affirmative action and reasonable accommodation.”
(emphasis supplied)
The facets of non-discrimination that guide the PwD Act are
threefold: (i) right to formal equality, where no person shall be discriminated
based on her disability; (ii) affirmative action in pursuance of substantive
20 Rajive Raturi v. Union of India, (2018) 2 SCC 413; Disabled Rights Group v. Union
of India, (2018) 2 SCC 397.
21 (2016) 7 SCC 761.
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equality under Section 33; and (iii) reasonable accommodation of persons
with disabilities such as provided under Section 47. There may be no specific
provision in the PwD Act – unlike the RPwD Act – which provides persons
with disability the right of non-discrimination. However, since the principle
of substantive equality (of providing equal outcomes through affirmative
action and reasonable accommodation) is premised on the principle of
non-discrimination, there is no reason to hold that the principle of non-
discrimination, of treating every person equally irrespective of her disability
does not guide the entire statute.
29. The headings of all the provisions in Chapter III of the PwD
Act use the phrase ‘non-discrimination’. Section 44 reads, non-
discrimination in transport; Section 25 reads as ‘non-discrimination on
roads’; Section 46 reads as ‘non-discrimination in the built environment’;
and Section 46 reads as ‘non-discrimination in Government employment’.
As discussed above, all these provisions are premised on the principle of
reasonable accommodation in public places and places of employment.
The intent behind using the phrase ‘non-discrimination’ in the marginal
note is to emphasise that reasonable accommodation is a facet of equality
and non-compliance with the principle of reasonable accommodation
would amount to discrimination. By no stretch of imagination, can it be
said that the principle of
non-discrimination is limited to Section 47 of the
PwD Act. Section 47 only provides the right of non-discrimination with
regard to specific forms of discrimination during the course of
employment. The general right against discrimination runs through the
entire statute. The limited nature of Section 47 becomes apparent when
it is compared with Section 20 of the RPwD Act. Section 20 of the
RPwD Act reads thus:
“Section 20 - Non-discrimination in employment
(1) No Government establishment shall discriminate against
any person with disability in any matter relating to
employment:
Provided that the appropriate Government may, having regard to
the type of work carried on in any establishment, by notification
and subject to such conditions, if any, exempt any establishment
from the provisions of this section.
(2) Every Government establishment shall provide reasonable
accommodation and appropriate barrier free and conducive
environment to employees with disability.
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(3) No promotion shall be denied to a person merely on the ground
of disability.
(4) No Government establishment shall dispense with or reduce
in rank, an employee who acquires a disability during his or her
service
Provided that, if an employee after acquiring disability is not suitable
for the post he was holding, shall be shifted to some other post
with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the 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.
(5) The appropriate Government may frame policies for posting
and transfer of employees with disabilities.”
(emphasis supplied)
30. Section 47 of the PwD Act, unlike Section 20 of the RPwD
Act, does not contain a provision in the nature of sub-Section (1) of
Section 20 which provides that a government establishment cannot
discriminate against a person with a disability in “any matter” relating to
employment. While we are not interpreting the contours of “any matter”
used in Section 20 of the RPwD Act in the present case, it would suffice
to say that Section 20 of the RPwD Act casts a net of protection wider
than Section 47 of the PwD Act.
31. Moreover, India is a signatory to and has ratified the United
Nations Convention on the Rights of Persons with Disabilities22. Article
5 of CRPD incorporates the principles of non-discrimination and
equality,
in both its formal and substantive forms. Article 5 reads as follows:
“5. Equality and Non-Discrimination:
1. States Parties recognise that all persons are equal before and
under the law and are entitled without any discrimination to the
equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis
of disability and guarantee to persons with disabilities equal and
effective legal protection against discrimination on all grounds.
22 “CRPD”; India ratified the Convention on 1 October 2007.
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3. In order to promote equality and eliminate discrimination, States
Parties shall take all appropriate steps to ensure that reasonable
accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve
de facto equality of persons with disabilities shall not be considered
discrimination under the terms of the present Convention.”
(emphasis supplied)
Clause 2 stipulates that the State parties must prohibit discrimination
on the basis of disability, and ensure protection against discrimination to
persons with disability. Clauses 3 and 4 state that to ensure de facto
equality, the States shall promote equality and non-discrimination by taking
appropriate steps for reasonable accommodation, and such steps taken
shall not be considered as discrimination.
32. It is settled law that if two interpretations are possible, then the
interpretation which is in consonance with international law or gives effect
to international law must be used.23 Since Article 5 places the States under
an obligation to provide both formal and substantive equality, an interpretation
of the PwD Act that furthers the principles mentioned in Article 5 must be
undertaken. Therefore, even though the PwD Act does not have an express
provision laying down the general principle of non-discrimination against
disabled persons, it must still have to be read in the statute.
33. Therefore, Section 47 only provides persons with
disability
with the right against specific forms of discrimination and not the general
right of non-discrimination which runs through the entire statute but which
cannot be located in a specific provision. Accordingly, the 2002
notification will also only exempt the CRPF from the duty against those
specific forms of discrimination mentioned in Section 47. Correspondingly,
the 2002 notification only grants the employer the privilege of
discriminatory conduct in employment with respect to those acts specified
under Section 47 of the PwD Act.
34. Thus, under the 2002 notification, the CRPF has the privilege
to terminate, demote, or deny promotion to employees with disabilities.
It also has the privilege to not abide by the principle of reasonable
accommodation in re-assigning the post of an employee with a disability.
However, it does not have the privilege to discriminate against a disabled
23 Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759; Githa
Hariharan v. Reserve Bank of India, (1999) 2 SCC 228; Justice Khanna in ADM
Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
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employee in any other matter relating to employment. The privilege under
the 2002 notification will accrue only when the disciplinary proceedings
reach the stage of punishment and the respondent imposes one of the
punishments mentioned in Section 47. The privilege can only accrue on
the happening of one or more events that are necessary for the accrual.
The accrual of the privilege cannot be based on an assumption, hope or
expectation of exercising the privilege. Rule 11 of the Central Civil
Services (Classification, Control and Appeal) Rules 1965 under which
the disciplinary proceedings were initiated provides that the government
may either impose major penalties such as compulsory retirement,
reduction to lower pay scale, or minor penalties such as censure, or
withholding increments. When the disciplinary proceedings reach the
punishment stage, the appellant could have still been imposed other
punishments prescribed under Rule 11 which are not included within the
purview of Section 47 of the PwD Act. Therefore, no privilege is accrued
to the respondent under Section 47 of the PwD Act.
C.1.2 Section 102 of the RPwD Act: The Savings Clause
35. Section 102(2) of the RPwD Act states that anything done, or
any action taken under the PwD Act shall be deemed to have been done
or taken under the ‘corresponding provisions’ of the RPwD Act. The
2002 notification was issued under Section 47 of the PwD Act. The 2002
notification will be saved under Section 102 (2)
only if there is a provision
in the RPwD Act that is ‘corresponding’ to Section 47 of PwD Act.
36. A Constitution Bench of this Court in Pankajakshi (dead)
through LRs’ v. Chandrika,24 had to decide a preliminary issue of
whether Section 23 of the Tranvancore-Cochin High Court Act is
‘corresponding’ to Section 9 of the Kerala High Court Act 1958. Section
20(1) of the 1951 amendment to the Code of Civil Procedure stated, “If
immediately before the date on which the said Code comes into force in
any Part B State, there is in force in that State any law corresponding to
the said Code, that law shall on that date stand repealed”. It was held
that the test that needs to be applied to identify if two statutes are
‘corresponding’ is whether firstly, the subject- matter of the two statutes
is essentially the same; and secondly, the main object and purpose are
substantially similar. It was held that both the Acts are not substantially
similar since the object of the Travancore Act is to lay down the
jurisdiction and powers of the High Court, while the object of the Civil
Procedure Code was to lay down the procedure in civil matters alone.
24 (2016) 6 SCC 157.
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37. In Kalpana Kothari v. Sudha Yadhav25, one of the issues
before the two-Judge Bench of this Court was whether Section 8 of the
Arbitration and Conciliation Act 199626 corresponds to Section 34 of the
Arbitration Act 1940. Section 34 provided for staying legal proceedings
instituted when there is an arbitration proceeding. However, Section 8
of the 1996 Act deals with the power to refer parties to arbitration where
there is an arbitration agreement. Therefore, it was held that both the
provisions do not correspond to each other.
38. The test laid down in Pankajakshi (supra) is to identify
corresponding statutes. That test cannot be applied to identify
corresponding provisions, since a much more specific analysis will have
to be undertaken. A provision is corresponding to another not merely if
the provision deals with the same subject matter. Rather, the test must
be whether both the provisions are essentially similar. If Section 47 of
the PwD Act corresponds to Section 20 of the RPwD Act, then the
2002 notification will be deemed to have been issued under Section 20,
and would hold the force of law. A comparison of Section 47 of the
PwD Act and Section 20 of the RPwD Act is given below:
25 (2002) 1 SCC 203.
26 “1996 Act”
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Section 20 of the RPwD Act covers a wider ambit when
compared to Section 47 of the PwD Act. Section 20(1) provides for
non-discrimination based on disability, which is a provision in pursuance
of the equality mandate in Article 5 of CRPD. Section 20(2) states
that reasonable accommodation and a conducive environment free
from barriers must be provided to persons with disabilities. However,
the provisions of Section 47 of the PwD Act only provide a right to
the employee to not be demoted, terminated, or denied promotion
because of disability, and reasonable accommodation by adjusting
posts. The principle of reasonable accommodation provided under
Section 20(2) is not restricted to the accommodations mentioned in
Section 47. For example, under Section 20(2), the employer has a
duty – in view of the principle of reasonable accommodation – to
post a person suffering from disability at a place closer to home.
This form of reasonable accommodation is not provided under Section
47, though it may flow through the PwD Act. Therefore, Section 20
of the RPwD Act is not corresponding to Section 47 of the PwD
Act. If any other interpretation is placed, then the 2002 notification
would be deemed to exempt other rights that are available to disabled
persons under Section 20 of the RPwD Act, which were not otherwise
exempted under the PwD Act. Since there is no corresponding
provision, the exemption notification issued under Section 47 of the
PwD Act will lose the force
of law. Therefore, in view of the
discussion on both Section 6 of the GCA and Section 102 of the
RPwD Act, the provisions of the PwD Act and the 2002 notification
are not applicable to the proceedings before us.
39. Since, the writ petition was filed before the Single Judge of
the High Court in 2015, before the enactment of the RPwD Act, the
validity of the disciplinary proceedings could have only been decided on
the anvil of the provisions of the PwD Act. However, the Single Judge
ought not to have entered into the issue of the applicability of Section 47
of the PwD Act when the disciplinary proceedings were challenged at
the initial stage since as observed above, Section 47 applies only at the
punishment stage. The only question before the High Court was whether
it was justified for CRPF to have initiated disciplinary proceedings against
the appellant for the alleged misconduct which was connected to his
mental disability and whether the initiation of such proceedings was
discriminatory.
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40. At the relevant point of time, when the intra-court appeal was
filed against the judgement of the Single Judge, the RPwD Act had
come into force. However, since no privilege had accrued to the
respondent under the PwD Act, and the 2002 notification was not saved
under Section 102 of the RPwD Act, the Division Bench should have
decided the intra-court appeal on the provisions of the RPwD Act. This
would entail that the appellant became entitled to the rights under Section
20 of the RPwD Act at the time when the intra-court appeal was being
heard. When the appellant was before the Division Bench of the High
Court, he was already diagnosed with a permanent disability of 40 to 70
percent by Dr Ram Manohar Lohia Hospital, which is a government
hospital. Further, the Composite Hospital by a report dated 18 July 2016,
declared the appellant unfit for duty and placed him under the S5(P)
category due to his partial and limited response to all modalities of
treatment since 2009. The Division Bench also noted that the documents
issued by the CRPF’s hospital indicate that the appellant has had a mental
disability for a long time. In such circumstances, it was not appropriate
for the High Court to restore the disciplinary proceeding on the ground
that a factual determination of the disability of the appellant is to be
established through such a proceedings.
C.1.3 A New Dawn: Appellant’s Rights under the RPwD
Act
41. Section 3
of the RPwD Act states that persons with disabilities
must not be discriminated against on the ground of disability, and the
appropriate government shall ensure that persons with disability enjoy
the right to live with dignity. Section 2(h) of the RPwD Act defines
discrimination as follows:
“(h) “discrimination” in relation to disability, means any distinction,
exclusion, restriction on the basis of disability which is the purpose
or effect of impairing or nullifying the recognition, enjoyment or
exercise on an equal basis with others of all human rights and
fundamental freedoms in the political, economic, social, cultural,
civil or any other field and includes all forms of discrimination and
denial of reasonable accommodation;”
Section 20 of the RPwD Act states that no government
establishment shall discriminate against any person with a disability in
matters relating to employment. The disabled employee also has a right
to reasonable accommodation and to access a workplace without barriers.
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It further provides that no disabled employee shall be terminated, reduced
in rank, or denied promotion because of the disability. Before proceeding
to the merits of the case on the validity of the disciplinary proceedings
vis-a-vis the provisions of the RPwD Act, the applicability of the 2021
notification to the facts of the present case will have to be determined.
As explained above, on the repeal of the PwD Act by the RPwD Act,
the 2002 Notification also lost its force of law. Between 27 December
2016, when the RPwD Act had come into force and 18 August 2021,
when the 2021 notification was issued, there was no exemption notification
in force. The Special Leave Petition was instituted on 5 October 2020.
In Ambalal (supra), it was held that when a lis commences, all rights
and obligations of the parties get crystallised on that date. Therefore, the
rights of the parties would freeze as on the date of filing the Special
Leave Petition. In the Special Leave Petition filed before this Court, it
was submitted that the initiation of disciplinary proceedings is
discriminatory and violative of the provisions of the RPwD Act. Therefore,
the right to non-discrimination in matters of employment provided under
Section 20, accrued to the appellant on the filing of the Special Leave
Petition since the 2021 notification had not been notified at the relevant
time. Thus, the 2021 notification would have no application to the facts
of this case.
C. 2 Mental Disability
and Discrimination
Before proceeding to analyse the validity of the disciplinary
proceedings under the provisions of the RPwD Act, we find it imperative
to refer to the national and international legal framework governing the
rights of persons with mental disabilities.
C.2.1 The Indian Legal Framework
42. The National Mental Health Survey of India 2015-16
(Prevalence, Pattern and Outcomes), was a study undertaken by the
Ministry of Health and Family Welfare, Government of India in
collaboration with the National Institute of Mental Health and Neuro
Sciences, Bengaluru. The survey estimated that nearly 150 million
individuals in India suffer from one or more mental illnesses.27 The Indian
Lunacy Act 1912 was enacted to provide treatment and care for lunatic
27 G Gururaj, M Varghese et. al., National Mental Health Survey of India, 2015-16:
Prevalence, patterns and outcomes, (2016) NIMHANS Publication No 129, available
at http://indianmhs.nimhans.ac.in/Docs/Report2.pdf.
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persons. Section 3(5) defined a ‘lunatic’ as an idiot or a person of unsound
mind. The Act dealt with the treatment of lunatics in asylums, and the
procedure for the ‘treatment’ of such persons. The Act proceeded on
the premise that ‘lunatics’ are dangerous for the well-being of society
and the fellow humans who inhabit the planet. Section 13 of the Act
provided wide powers to the police officers to arrest persons whom
they have reason to believe to be ‘lunatics’.
43. The Mental Health Act 198728 was enacted, as the Preamble
states, ‘to consolidate and amend the law relating to the treatment
and care of mentally ill persons, to make better provision with respect
to their property and affairs”. This Act replaced the Indian Lunacy
Act. The 1987 Act was a huge transformative leap from the Lunacy
Act which did not confer any right to live a life of dignity to mentally
ill persons. However, even the 1987 Act did not confer any agency
or personhood to mentally ill persons. The Act did not provide a rights-
based framework for mental disability but was rather restricted to
only establishing psychiatric hospitals and psychiatric nursing homes,
and administrative exigencies of such establishments. Under the Act,
the ‘mentally ill person’ was defined as a person ‘who is in need of
treatment by reason of any mental disorder other than mental
retardation’.
44. The Mental Healthcare Act 201729 was enacted by Parliament
in
pursuance of India’s obligations under CRPD, repealing the 1987 Act.
Section 2 (s) of the 2017 Act defines ‘mental illness’ as follows:
“(s) “mental illness” means a substantial disorder of thinking, mood,
perception, orientation or memory that grossly impairs judgment,
behaviour, capacity to recognise reality or ability to meet the
ordinary demands of life, mental conditions associated with the
abuse of alcohol and drugs, but does not include mental retardation
which is a condition of arrested or incomplete development of
mind of a person, specially characterised by subnormality of
intelligence;”
Section 2(o) of the Act defines ‘mental healthcare’ to include
both the diagnosis of the mental health condition of persons and
rehabilitation for such persons with mental illness:
28 “1987 Act”
29 “2017 Act”
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“(o) “Mental healthcare” includes analysis and diagnosis of a
person’s mental condition and treatment as well as care and
rehabilitation of such person for his mental illness or suspected
mental illness;”
Section 18(1) provides that every person shall have a right to
access mental healthcare and treatment in Government-run or funded
hospitals. Sub-Section (2) of Section 18 states that the right to access
mental health care shall be available to everybody equally, without any
discrimination based on gender, sex, caste, political belief or such. It
further states that the treatment shall be provided in the manner that is
acceptable by the persons having mental illness and their caregivers.
Sub-Section (1) of Section 19 states that every person with mental illness
shall have a right to live in, be part of and not be segregated from society.
Section 20 of the Act states that every person with mental illness shall
have a right to live with dignity, and shall have a right to be protected
from inhuman treatment in mental healthcare establishments. Section
30 stipulates that the appropriate government shall take measures to
ensure that the provisions of the Act are given wide publicity through
various forms of media. Clause (b) of Section 30 states that programmes
to reduce the stigma associated with mental illness must be planned and
implemented. Section 30(c) states that ‘appropriate government officers
including police officers and other officers must be
provided appropriate
awareness and sensitization on mental health’. Section 115 of the 2017
Act states that notwithstanding anything in Section 309 of the Indian
Penal Code, any person who attempts to commit suicide shall be
presumed, unless proved otherwise, to have severe stress and shall not
be tried and punished under the Penal Code.
45. The 2017 Act provides a rights-based framework of mental
healthcare and has a truly transformative potential. In stark difference
from the provisions of the 1985 Act, the provisions of the 2017 Act
recognise the legal capacity of persons suffering from mental illness to
make decisions and choices on treatment, admission, and personal
assistance. Section 2(o) includes within the definition of mental healthcare
– diagnosis, treatment, and rehabilitation. Section 4 of the Act states that
every person with mental illness shall be ‘deemed’ to have the capacity
to make decisions regarding their mental healthcare and treatment if
they are able to understand the relevant information, and the reasonably
foreseeable consequence of their decision. Sub-Section (3) of Section 4
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states that merely because the decision by the person is perceived
inappropriate or wrong by ‘others’, it shall not mean that the person
does not have the capacity to make decisions. The recognition of the
capacity of persons living with mental illness to make informed choices
is an important step towards recognizing their agency. This is in pursuance
of Article 12 of CRPD which shifts from a substitute decision-making
model to one based on supported decision-making.30 Article 12 of CRPD
reads as follows:
“Article 12 – Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the
right to recognition everywhere as persons before the law.
2. States Parties shall recognise that persons with disabilities enjoy
legal capacity on an equal basis with others in all aspects of
life.
3. States Parties shall take appropriate measures to provide access
by persons with disabilities to the support they may require in
exercising their legal capacity.[…]”
(emphasis supplied)
46. Explanation 1 to Article 12 issued by the United Nations
Committee on the Rights of Persons with Disabilities discusses the
‘universal legal capacity’ where all persons inherently possess legal
capacity regardless of disability or decision-making skills.31 They may
however be provided with support (and not substitution) to exercise
their legal capacity. This shift from the substituted legal capacity model
to the
supported legal capacity model is important for two reasons. It
recognises the agency held by disabled persons; and adopts a social
model of disability. It has been recognised by various scholars that the
2017 Act is one of the most robust rights-based frameworks to tackle
mental health concerns.32
30 Explanation 1 to Article 12 CRPD by UN CRPD.
31 ibid
32 Richard M Duffy, Bredan D Kelly, Concordance of the Indian Mental Healthcare Act
2017 with the World Health Organization’s Checklist on Mental Health Legislation,
11(1) International Journal of Mental Health Systems 48 (2017), available at https://
ijmhs.biomedcentral.com/articles/10.1186/s13033-017-0155-1
32 (2018) 5 SCC 1.
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47. The Indian mental healthcare discourse has undergone a
substantial and progressive change. Persons living with mental illness
were considered as ‘lunatics’ under the Indian Lunacy Act 1912 and
were criminalized and subject to harassment. There was a moderate
shift in the mental health discourse with the repeal of the Lunacy Act
1912 and the enactment of the 1987 Act. However, the transformation
in the mental health rights framework was profound when the 2017 Act
was enacted since it placed a person having mental health issues within
the rights framework.
C.2.2 Mental Health in the Disability Rights Framework
48. Section 2(i) of the PwD Act defines the phrase ‘disability’ to
mean mental retardation and mental illness among others. Section 2(q)
defines mental illness as a mental disorder other than mental retardation.
Section 2(r) defines mental retardation as a condition of incomplete
development of a person which is especially characterized by sub-normal
intelligence. On the other hand, mental illness is classified as a specified
disability under the RPwD Act. The schedule to the Act provides an
expansive and clearer definition of mental illness, which is pari materia
to the definition of mental illness under the 2017 Act. It is defined as
follows:
“(s) “mental illness” means a substantial disorder of thinking, mood,
perception, orientation or memory that grossly impairs judgment,
behaviour, capacity to recognise reality or ability to meet the
ordinary demands of life, mental conditions associated with the
abuse of alcohol and drugs, but does not include mental retardation
which is a condition of arrested or incomplete development of
mind of a person, specially characterised by subnormality of
intelligence;”
49. Section 2(s) of the RPwD Act defines the word ‘person with
disability’ as ‘person with a long term physical, mental, intellectual or
sensory impairment which, in interaction with barriers, hinders his full
and effective participation in the society equally with others’. Section 2
(c) defines barrier to mean ‘any factor including communicational,
cultural, economic, environmental, institutional, political, social, attitudinal
or structural factors which hampers the full and effective participation
of persons with disabilities in society.’ On a combined reading of the
definitions provided in Section 2(s) and 2 (c) of the Act, it is evident that
the RPwD – similar to the 2017 Act – defines disability as a social
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construct and not solely as a medical construct. The Act does not define
a mental impairment to solely constitute a disability. Rather, it defines
disability based on the interaction of the impairment with the barriers
which in effect hamper the effective participation of an individual.
50. The Indian judiciary has also been cognizant of the discourse
surrounding mental illness and the social construction model of mental
disability. In Common Cause v. Union of India33, while deciding on
the constitutional validity of passive euthanasia, the Constitution Bench
made pertinent observations on Section 115 of the 2017 Act which renders
Section 309 of the Indian Penal Code largely ineffective, emphasising
the necessity to view the act of committing suicide as an act of
circumstances (or in other words ‘barriers’). It was observed:
“366. [..]It mandates (unless the contrary is proved by the
prosecution) that a person who attempts to commit suicide is
suffering from severe stress. Such a person shall not be tried and
punished under the Penal Code. Section 115 removes the element
of culpability which attaches to an attempt to commit suicide under
Section 309. It regards a person who attempts suicide as a victim
of circumstances and not an offender, at least in the absence of
proof to the contrary, the burden of which must lie on the
prosecution. Section 115 marks a pronounced change in our law
about how society must treat an
attempt to commit suicide. It
seeks to align Indian law with emerging knowledge on suicide, by
treating a person who attempts suicide needing care, treatment
and rehabilitation rather than penal sanctions.”
51. In the concurring opinion authored by one of us (Dr DY
Chandrachud, J) in Navtej Singh Johar v. Union of India34, the mental
health concerns of the LGBT community were highlighted. A reference
was made to global psychiatric scholarship which emphasized that there
is a clear correlation between the political and social environments, and
the mental health of an individual. Observing that laws persecuting sexual
minorities and the societal stigma psychologically affect the well-being
of the community, it was said:
“95. […]The repercussions of prejudice, stigma and discrimination
continue to impact the psychological well-being of individuals
33 (2018) 5 SCC 1.
34 (2019) 3 SCC 39.
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impacted by Section 377. Mental health professionals can take
this change in the law as an opportunity to re- examine their own
views of homosexuality.
96. Counselling practices will have to focus on providing support
to homosexual clients to become comfortable with who they are
and get on with their lives, rather than motivating them for change.
Instead of trying to cure something that isn’t even a disease or
illness, the counsellors have to adopt a more progressive view
that reflects the changed medical position and changing societal
values. There is not only a need for special skills of counsellors
but also heightened sensitivity and understanding of LGBT lives.
The medical practice must share the responsibility to help
individuals, families, workplaces and educational and other
institutions to understand sexuality completely in order to facilitate
the creation of a society free from discrimination 228 where LGBT
individuals like all other citizens are treated with equal standards
of respect and value for human rights.”
Justice Nariman in his concurring opinion, commented on Section
115 of the 2017 Act. He highlighted the affirmative duty of the Government
to provide care, treatment and rehabilitation to persons having mental
health issues. The judgment also observed that Section 115 of the 2017
Act has been enacted in furtherance of constitutional values:
“76. This Parliamentary declaration under Section 115 again is in
keeping with the present
constitutional values, making it clear that
humane measures are to be taken by the Government in respect
of a person who attempts to commit suicide instead of prosecuting
him for the offence of attempt to commit suicide.”
52. In Accused X v. State of Maharashtra35, a three judge Bench
of this Court was deciding whether post-conviction mental illness could
be a mitigating factor for commuting the punishment from death sentence
to life imprisonment. Holding that post-conviction mental illness could be
a mitigating factor, it was observed:
“59. All human beings possess the capacities inherent in their
nature even though, because of infancy, disability, or senility, they
may not yet, not now, or no longer have the ability to exercise
35 (2019) 7 SCC 1.
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them. When such disability occurs, a person may not be in a position
to understand the implications of his actions and the consequence
it entails. In this situation, the execution of such a person would
lower the majesty of law.”
53. In Mahendra KC v. The State of Karnataka36, a first
information report was lodged against the accused person on the charge
of abetment to suicide under Section 306 of the Indian Penal Code 1860.
A petition to quash the proceedings was filed under Section 482 CrPC.
The Single Judge of the High Court, while quashing the proceedings
against the accused made observations diminishing the importance of
mental health. The High Court had observed as follows:
“37. It is not the case of the deceased that the accused had deprived
him of his wealth or have committed acts that have shattered his
hopes in life or separated him from his family and friends.
[…]
41. [..] It is not the case of the prosecution that the deceased was
running away from or escaping the petitioner or his henchmen,
but as is his habit, to visit his parents and to spend time with his
friends. If the deceased had really felt threatened, he would have
definitely approached the police. It is not that he was naive or not
worldly-wise. If his employment with the petitioner was true, then
the Police Commissionerate was only a stone’s throw away. It is
not that the deceased was a weakling. The deceased by profession,
is a driver. A
profession where, accidents causing loss of life and
limb are a daily occurrence and every driver is aware that he
could be involved in an accident at any time.
43. His act of attending a relatives marriage in a different town
and his interacting with friends and relatives are all actions of a
normal person and not of a person under severe duress. The
contention that this criminal case would jeopardize his career
progression also cannot be brushed aside. It is also not forthcoming
as to how he sourced the poison.”
A two judge Bench of this Court, of which one of us was a part
(DY Chandrachud, J), observed that these remarks of the Single Judge
gravely undermined the mental health discourse in India. It was observed:
36 2021 SCC OnLine SC 1021.
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“The Single Judge has termed a person who decided to commit
suicide a ‘weakling’ and has also made observations on how the
behavior of the deceased before he committed suicide was not
suitable of a person who is depressed and suffering from mental
health issues. Behavioural scientists have initiated the discourse
on the heterogeneity of every individual and have challenged the
traditional notion of ‘all humans behave alike’. Individual personality
differences manifest as a variation in the behavior of people.
Therefore, how an individual copes up with a threat- both physical
and emotional, expressing (or refraining to express) love, loss,
sorrow and happiness, vary greatly in view of the multi-faceted
human mind and emotions. Thus, observations describing the
manner in which a depressed person ought to have behaved deeply
diminishes the gravity of mental health issues.”
Since disability is a social construct dependent on the interplay
between mental impairment with barriers such as social, economic and
historical among other factors, the one – size fits all approach can never
be used to identify the disability of a person. Disability is not universal
but is an individualistic conception based on the impairment that a person
has along with the barriers that they face. Since the barriers that every
person faces are personal to their surroundings – inter-personal and
structural, general observations on ‘how a person ought to have behaved’
cannot be made.
54.
The legislative framework and decisions of this Court on the
impact of ‘barriers’ or circumstances on the mental health of an individual
have been discussed above. When the interaction with the barriers causes
a person to feel ‘disabled’, it is extremely important to not stigmatize or
discriminate against persons having mental health issues or any other
form of disability. Such discrimination would only further entrench the
feeling of being ‘disabled’.
C.2.3 A Global Outlook on Employment and Mental Health
55. International conventions like the CRPD recognise mental
health disorders as psychosocial disabilities.37 Psychosocial disability is
sometimes characterised as an “invisible disability” because it is not
always obvious, unlike other disabilities that are observable. Employees
37 Committee on Rights of Persons with Disabilities, General Comment 1, available at
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/
G1403120.pdf?OpenElement
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often do not disclose their mental health disorders, which leads to the
invisibilization of psychosocial disabilities.38 The World Health
Organisation and the World Psychiatric Association identify stigma as a
major cause of discrimination against persons with mental health
disorders. Many people with mental health disorders are willing and able
to work. However, socio-structural barriers impede their participation in
the workforce. People diagnosed with mental health disorders are less
likely to be employed or are relegated to low-paying jobs that are not
commensurate with their qualifications and interests. Exclusion from
the workforce not only creates conditions of material deprivation, but it
also impacts self-confidence, and results in isolation and marginalization
which exacerbates mental distress. To escape stigma and discrimination,
persons with mental health issues painstakingly attempt to hide their
illnesses from co-workers and managers. Disclosure of mental health
status carries with it the possibility of being demoted, laid off, or being
harassed by co-workers. Resultantly, persons with mental health disorders
deprive themselves of workplace assistance and effective treatments
that can improve their mental health.39
56. The stigmatization of mental health disorders is rooted in the
characterization of individuals with mental illness as “violent and
dangerous, dependent and incompetent, and
irresponsible.”40 Such
characterization not only influences how persons with mental health
disorders are perceived by others but also influences their self-worth.
Mental health disorders are often attributed to an internal cause, for
which the person is held responsible. This aggravates the stigma and
prejudice. Even if a person with a mental health disorder learns to cope
with it or goes into remission, past episodes and possibilities of future
episodes put them at a disadvantage in securing and sustaining
employment.41
38 H Kranz, Calling in Depressed: A Look at the Limitations of Mental Illness in the
Workplace, SayNoToStigma (2012), available at http://saynotostigma.com/2012/06/
calling-in-depressed-a-look-at-the-limitations-of-mental-illness-in-the-workplace.
39 Heather Stuart, Mental illness and employment discrimination, 19(5)Current Opinion
in Psychiatry522–526(2006).
40 Arunima Kapoor, Depressed People Need Not Apply: Mental Health Stigma Decreases
Perceptions of Employability of Applicants with Depression, 7 Yale Review of
Undergraduate Research in Psychology 84-94 (2017), available at https://cpb-us-
w2.wpmucdn.com/campuspress.yale.edu/dist/a/1215/files/2017/06/Arunima-
1amuxqj.pdf
41 Ibid
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57. Thus, while the stigma and discrimination against persons with
mental health disorders are rampant in society, as the highest constitutional
court of the country, it falls upon us to ensure that societal discrimination
does not translate into legal discrimination. International conventions
provide a framework through which States can shape their laws and
policies upholding the rights of persons with mental disabilities in tandem
with internationally recognised standards.
58. CRPD is an international human rights treaty of the United
Nations which is intended to promote, protect and ensure the full and
equal enjoyment of all human rights and fundamental freedoms by all
persons with disabilities.42 It also aims to promote respect for their
inherent dignity.43 It is a holistic treaty that combines civil and political
rights provided by anti-discrimination legislation along with an array of
social, cultural, and economic measures to fulfil the guarantee of
equality.44 India is a signatory to CRPD and has ratified it on 1 October
2007. Article 1 of the CRPD provides an inclusive definition of persons
with disabilities. It recognises that disability is an evolving concept and
that disability results from the interaction of persons with impairments
with attitudinal and environmental barriers that hinders their full
participation in society45. Article 1 states thus:
“Persons with disabilities include those who have long-term
physical, mental, intellectual or
sensory impairments which in
interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others.”
59. The Committee on the Rights of Persons with Disabilities,
which monitors the implementation of CRPD in General Comment One46
discusses the rights of persons with cognitive or psychosocial disabilities
in the context of Article 12 of the CRPD. Article 12 states that persons
with disabilities have the right to equal recognition before the law. The
Committee notes that persons with cognitive or psychosocial disabilities
are often denied legal capacity and are disproportionately subjected to
42 Article 1, CRPD 2006.
43 Ibid.
44 Jayna Kothari, The UN Convention on Rights of Persons with Disabilities: An Engine
for Law Reform in India, 45(18) Economic and Political Weekly 65-72 (2010).
45 Preamble, CRPD 2006.
46 Committee on Rights of Persons with Disabilities, General Comment 1, available at
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/
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substitute decision-making regimes. The Committee notes that, “[m]ental
capacity is not, as is commonly presented, an objective, scientific and
naturally occurring phenomenon. Mental capacity is contingent on social
and political contexts, as are the disciplines, professions and practices
which play a dominant role in assessing mental capacity.” While the
present case does not deal with the legal capacity of persons with mental
health disorders, it is imperative to note that the CRPD recognises mental
health conditions as psychosocial disabilities47. Staying true to the social
model of disability, the Committee acknowledges that assessments of
mental capacity are informed by social and environmental factors. The
recognition of the legal capacity of persons with psychosocial disabilities
confers on them legal personhood, where they can be a bearer of rights
and exercise those rights.
60. Article 2 of the CRPD defines discrimination on the basis of
disability in the following terms:
“Discrimination on the basis of disability” means any distinction,
exclusion or restriction on the basis of disability which has the
purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise, on an equal basis with others, of all human
rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field. It includes all forms of
discrimination, including denial of reasonable
accommodation”
61. While the CRPD recognises the denial of reasonable
accommodation as discrimination based on disability, it also specifically
imposes a positive duty on States under Article 5 (3) to take all appropriate
steps to ensure the provision of reasonable accommodation.
62. Article 27 of the CPRD in the context of work and employment,
inter alia, imposes the following obligations on State Parties to:
(i)
Recognise the right to work and employment of persons
with disabilities;
(ii)
Prohibit discrimination in matters of employment; and
(iii)
Provide reasonable accommodation at the workplace.
47 See also, Brendan D. Kelly, Mental Capacity, Human Rights, and the UN’s Convention
of the Rights of Persons with Disabilities, 49(2) Journal of the American Academy of
Psychiatry and the Law Online 152-156 (2021), available at http://jaapl.org/content/
jaapl/49/2/152.full.pdf
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The relevant provisions of Article 27 are extracted below:
“(1) States Parties recognise the right of persons with disabilities
to work, on an equal basis with others; this includes the right to
the opportunity to gain a living by work freely chosen or accepted
in a labour market and work environment that is open, inclusive
and accessible to persons with disabilities. States Parties shall
safeguard and promote the realization of the right to work,
including for those who acquire a disability during the course
of employment, by taking appropriate steps, including
through legislation, to, inter alia:
(a) Prohibit discrimination on the basis of disability with regard to
all matters concerning all forms of employment, including
conditions of recruitment, hiring and employment, continuance of
employment, career advancement and safe and healthy working
conditions;
(b) Protect the rights of persons with disabilities, on an equal basis
with others, to just and favourable conditions of work, including
equal opportunities and equal remuneration for work of equal value,
safe and healthy working conditions, including protection from
harassment, and the redress of grievances...
…
(i) Ensure that reasonable accommodation is provided to
persons with disabilities in the workplace
…
(k) Promote vocational and professional rehabilitation, job
retention and return-to-work programmes for persons with
disabilities.”
(emphasis added)
63. The Committee on the Rights of Persons
with Disabilities in
General Comment Six48 provides that to achieve de facto equality in the
workplace and to fulfil the duty of providing reasonable accommodation
under Article 5 (3), the States parties, inter alia, should:
48 Committee on the Rights of Persons with Disabilities, General Comment 6, available
at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?
symbolno=CRPD/C/GC/6&Lang=en
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(i)
Promote the right to supported employment, which includes
work assistance;
(ii)
Recognise denial of reasonable accommodation as
discrimination and also prohibit multiple and intersectional
discrimination and harassment;
(iii)
Allow proper transition into and out of employment in a
non-discriminatory manner; and
(iv)
Provide equal and effective access to benefits and
entitlements, such as retirement and unemployment benefits.
These entitlements must not be infringed through exclusion
from employment, aggravating the situation of exclusion.
64. The International Labour Organization49 has created the Code
of Practice in Managing Disability in Workplace 200250 to guide
employers to adopt a positive strategy in managing disability-related issues
in the workplace.51 It is a normative document and is intended to be read
in the context of local conditions and applied according to national law
and practice.52 Section 1.4 of the ILO Code defines a ‘disabled person’
as a person whose prospects to secure, return to, retain, and advance in
suitable employment are substantially reduced due to a duly recognised
physical, sensory, intellectual or mental impairment. Section 6 of the
ILO Code deals with job retention of employees with disabilities. Under
this section, sub-section 6.1 provides the policy on acquired disabilities.
The sub-section reads thus:
“6.1.1. Where existing employees acquire a disability while
in employment,
employers can continue to benefit from their
accumulated expertise and experience by taking steps to
enable them to retain their employment. In developing a
strategy for managing disability in the workplace, employers
should include measures for job retention including:
(a) early intervention and referral to appropriate services;
(b) measures for a gradual resumption of work;
49 “ILO”
50 “ILO Code”
51 International Labour Organization, Managing Disability in the Workplace: ILO Code
of Practice, available at https://www.ilo.org/global/topics/safety-and-health-at-work/
normative-instruments/code-of-practice/WCMS_107777/lang—en/index.htm
52 Ibid.
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(c) opportunities for workers with disabilities to test work
or obtain experience in an alternative job if they are unable
to resume their previous jobs;
(d) the use of support and technical advice to identify any
opportunities and any adjustments which might be required.
6.1.2. In seeking to facilitate job retention or return to work by a
disabled employee, employers should be aware of the range of
possible options. In some cases, the employee may be able to
return to the same job as before, with no changes. In other cases,
some adjustments may be required to the job itself, to the
workstation or the working environment. In yet other cases, it
may be necessary for the person to move to a different job in the
workplace. The disability management strategy should include
measures to promote job retention in each of these forms. These
may include training or retraining for the person concerned, the
provision of information to supervisors and co-workers, the use
of devices and appliances, the right to access to other supports as
appropriate, as well as modifications or alternative options in the
procedures needed to perform the job so that any existing condition
is not exacerbated.
6.1.3. In developing measures for the redeployment of workers
with disabilities, employers should take into account the
occupational preferences of those workers and consult with worker
representatives, if necessary.
6.1.4. When a worker acquires a disability, the employer
should
ensure that accommodation measures are fully
considered in order to utilize the residual potential and skills
of that worker, before other steps are taken.
6.1.5. The competent authorities should provide guidance, services
and incentives to employers, groups of employers and employers’
organizations, in order to maximize opportunities for people with
disabilities to retain their employment, and to resume work speedily
following an accident, injury, disease, changed capacity or disabling
condition. These could include measures which allow for
individual counselling, individual rehabilitation plans or job
retention programmes, aiming to promote opportunities for
these workers in their current or another occupation in
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which they can make use of their talents and experience,
as far as possible without loss of earnings. Such measures
should be developed in consultation with employers’ organizations
and workers’ organizations, relevant professionals and
organizations of persons with disabilities.”
(emphasis supplied)
65. The discussion above indicates there is an international
consensus that persons with mental health disorders have a right against
workplace discrimination and are entitled to reasonable accommodation.
Both the CRPD and the ILO Code promote policies of job retention and
rehabilitation for persons with mental disabilities. While CRPD has been
instrumental in shaping mental health legislation in many countries,
specifically in terms of access to treatment and protecting patient
autonomy53, it is imperative that the discourse on persons with mental
health disorders is not limited to biomedical and health issues. The
discourse needs to expand to fundamental issues of housing, education,
support, and employment. The present case presents one such opportunity.
C.4. Discipline and Punish: The Validity of the Disciplinary
Proceedings
66. A much more formative question that remains is whether
disciplinary proceedings against the appellant constitute workplace
discrimination. This question has important repercussions for persons
with mental disabilities who find themselves falling foul of the standards
of workplace conduct on
account of their disability. In such instances,
disciplinary proceedings may take the form of discrimination because a
person with a mental disability may have an impaired ability to comply
with workplace standards. Often the process of the disciplinary
proceedings is the punishment. Since in section C.1.3 of the judgment,
we have established that provisions of the RPwD Act would be applicable
to the case before us, we will examine the validity of the proceedings
under the RPwD Act.
67. The jurisprudence in Indian law relating to mental disability
and employment discrimination has revolved around Section 47 of the
PwD Act. This Court while interpreting Section 47 has held that the
53 Brendan D. Kelly, Mental Health, Mental Illness, and Human Rights in India and
Elsewhere: What are we aiming for?, 58 (Suppl 2) Indian Journal of Psychiatry S168-
S174 (2016), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282611/.
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provision is applicable when the mental disability is acquired during
service. While applying Section 47, the Court did not enter into an analysis
of whether the mental disability was a factor or had a direct causal
connection with the alleged misconduct that led to the dismissal.54 Thus,
a different standard applies to cases governed by Section 47. It is
important to clarify that the analysis that we undertake below in examining
whether disciplinary proceedings can constitute discrimination against
persons with disabilities will not influence the jurisprudence on Section
47 of the PwD Act.
68. Here we are assessing the preliminary question of whether
disciplinary proceedings can be instituted against the atypical conduct of
an employee who has a mental disability. Section 47 comes into play
only at the stage of impositions of sanctions, where an employee cannot
be dispensed with or reduced in rank.
69. Since the jurisprudence on this issue is yet to evolve in India,
we have analyzed the legal policies and practices adopted by other
jurisdictions in relation to the rights of persons with mental disabilities
against employment discrimination. We have also specifically examined
how courts in other jurisdictions have adjudicated misconduct charges
when the alleged conduct is found to be connected to the mental disability
of the employee.
C.4.1 Foreign Jurisdictions
I United States
70. The Americans with Disabilities Act55 was enacted in 1990 to
lay down a
“comprehensive national mandate for the elimination of
discrimination against individuals with disabilities”.56 ADA covers such
individuals who have a physical or mental impairment that substantially
limits one or more of the major life activities.57 Title I of the ADA prohibits
employment discrimination because of the disability of an individual in
respect of job application procedures, hiring, advancement, discharge of
employees, employee compensation, training, or other terms, conditions,
and privileges of employment.58 The Rehabilitation Act 1973, which
54 Geetaben Ratilal Patel v. District Primary Education Officer (2013) 7 SCC 182.
55 “ADA”
56 42 U.S.C. § 12101(b)(1).
57 42 U.S. C. § 12102 (1).
58 42 U.S. C. § 12112.
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applies to employers receiving federal funds was a precursor to the
ADA and presently applies to federal agencies in relation to disability-
related claims. The standards of ADA apply for assessing violations
under the Rehabilitation Act 1973.59
71. ADA encapsulates denial of reasonable accommodation as
discrimination unless the employer can demonstrate that the
accommodation casts an undue hardship on the business operations.60
Reasonable accommodation measures under the ADA include making
existing facilities accessible and usable by persons with disabilities,
restructuring jobs, modifying work schedules, and re-assignment to vacant
positions.61 An employer is not required to accommodate an employee
with a disability if they pose a direct threat to the safety of others that
cannot be mitigated by reasonable accommodation.62 In Borgialli v.
Thunder Basin Coal Co.63, a coal mine blaster was diagnosed with
multiple mental health disorders including depression, anxiety, and
personality disorders. He was discharged because of the threats he made
about injuring himself and others. The Court of Appeals, Tenth Circuit
held that he posed a direct risk to the safety of others and himself,
especially because he worked with high-power explosives. Further, an
employer does not have the duty to eliminate essential functions or the
fundamental duties of an employment position to reasonably accommodate
an employee with a
disability. However, the employer must take into
consideration if such essential functions can be performed with reasonable
accommodation.64
72. The Equal Employment Opportunity Commission65, which is
empowered to enforce Title I of the ADA, in its enforcement guidance
relating to mental health conditions has observed that while employers
59 Major William E. Brown & Major Michele Parchman, The Impact of the Americans
with Disability Amendments Act of 2008 on the Rehabilitation Act and Management of
Department of the Army Civilian Employees, 1 Army Lawyer 43 (2010).
60 Ibid.
61 42 U.S.C. § 12111.
62 42 U.S.C. § 12113.
63 235 F.3d 1284,. 1290 (10 th Cir.2000).
64 US Equal Employment Opportunity Commission, Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the ADA, available at https:/
/www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-
undue-hardship-under-ada#N_13_; Also, see Regulations To Implement The Equal
Employment Provisions Of The Americans With Disabilities Act.
65  “EEOC”
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do not have to hire persons who cannot perform a particular employment
duty or pose a direct threat to the safety of others and self, the employer
“cannot rely on myths or stereotypes” in relation to mental health
conditions. There must be some objective evidence to the effect that
even with reasonable accommodation a person with a mental disability
cannot perform the required tasks, or they pose a safety risk. The
guidance also provides examples of reasonable accommodation for
persons with a mental disability that include quiet office space, changes
in supervisory methods, and permission to work from home.66 However,
the employer’s duty to reasonably accommodate a person is prospective,
i.e., it is triggered when the employee informs the employer of the disability
and requests an accommodation. For instance, the Court of Appeals for
the Federal Circuit held that an employer was not obligated to
accommodate a plaintiff’s depression and alcoholism (considered as a
disability under ADA) before it knew of it. 67 In many cases, especially
relating to misconduct-related discharges, employees fail to request
accommodation before engaging in the misconduct, which results in
negative outcomes for their discrimination-related claims.68 It has been
argued that giving a “second chance” to the employee can be classified
as a reasonable accommodation where the employee has failed to ask
for reasonable accommodation prospectively and has committed
misconduct.69
73.
Commentators have noted that under the ADA, persons with
mental health disorders have not fared as well as those with physical
disabilities and have not been able to capitalize on the gains of the disability
rights movement.70  A crucial issue that comes up before courts is whether
a person having mental disabilities can be discharged on account of
misconduct. Many mental disabilities manifest themselves in conduct.
66 EEOC, Depression, PTSD, & Other Mental Health Conditions in the Workplace:
Your Legal Rights, available at https://www.eeoc.gov/laws/guidance/depression-ptsd-
other-mental-health-conditions-workplace-your-legal-rights
67 Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices,
95 F.3d 1102, 1107 (Fed. Cir. 1996) cited in Ibid.
68 Bugg-Barber v. Randstad US, L.P., 271 F. Supp. 2d 120, 130 (D.D.C. 2003); Burmistrz
v. City of Chi., 186 F. Supp. 2d 863, 875 (N.D. Ill. 2002).
69 Laura F. Rothstein, The Employer’s Duty to Accommodate Performance and Conduct
Deficiencies of Individuals with Mental Impairments Under Disability Discrimination
Laws, 47 Syracuse Law Review 931, 967, 973 (1997).
70 Jeffrey Swanson et al, Justice Disparities: Does the ADA Enforcement System Treat
People with Psychiatric Disabilities Fairly?, 66(1) Maryland Law Review 94 (2007).
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In the United States, most courts have held that employees with disabilities
who engage in misconduct are not protected by the ADA. In Hamilton
v. Southwestern Bell Telephone Co.71, the US Court of Appeals,
Fifth Circuit held that discharge of an employee with PTSD was not
discrimination based on a disability rather it was the failure of the employee
to “recognise the acceptable limits of behaviour in a workplace
environment.” However, few courts have held that if an employee is
discharged because of conduct causally connected to disability, it
constitutes discrimination and violates ADA unless the person is not
qualified for the job.72 In Teahan v. Metro-North Commuter
Railroad,73 the plaintiff had raised a discrimination claim under the
Rehabilitation Act 1973. The plaintiff had a substance abuse problem
and regularly remained absent from work. His employment was
terminated because of absenteeism. The Court of Appeals, Second Circuit
held that there cannot be any distinction between the “handicap and its
consequences”. Thus, if the plaintiff can prove that his absenteeism
was solely a consequence of substance abuse, his discharge would
constitute discrimination based on a disability. Likewise, in Den Hartog
v. Wasatch Academy,74 the Court of Appeals, Tenth Circuit rejected
the division between disability and disability-related conduct under the
ADA regime. It recognised that mental health disorders present
themselves as atypical behaviour. It held that, “[t]o permit employers
carte blanche to terminate employees with mental disabilities on the basis
of any ‘abnormal’ behaviour would largely nullify the ADA’s protection
of the mentally disabled”. The court further held that the employer should
first assess if the misconduct can be remedied by a reasonable
accommodation measure. If that is not possible, the employer can
terminate the employment only if any express defence applies such as
the “direct threat” defence or if the rules that have been violated are
“job-related” and are a “business necessity”. Otherwise, the court
observed, if the employee can perform essential functions of the job,
certain atypical conduct causally connected with the disability must be
tolerated or accommodated.
71 136 F.3d 1047, 1052 (5th Cir. 1998).
72 Kelly Cahill Timmons, Accommodating Misconduct Under the Americans with
Disabilities Act, 57 Florida Law Review 187, 188-89 (2005).
73 951 F.2d 511 (2d Cir. 1991).
74 129 F.3d 1076, 1086 (10th Cir. 1997).
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74. In Raytheon Co. v. Hernandez75, the US Supreme Court
considered the issue of disability-related misconduct. The plaintiff having
failed a drug test chose to resign in lieu of a discharge. After receiving
treatment for his addictions, he applied to be rehired by Raytheon. The
employer had a policy of not rehiring former employees who have been
previously discharged or who resigned in lieu of discharge. Raytheon
argued that the decision to not rehire the plaintiff was made without any
awareness of his past record. The court held that a neutral no-hire policy
can be a legitimate non-discriminatory ground for Raytheon to not rehire
the plaintiff. Thus, the plaintiff could not, it was held, raise the claim of
disparate treatment based on disability. However, the court remanded
the issue relating to the disparate impact of the neutral no-hire rule on
members of a protected group to the Court of Appeals, Ninth Circuit,
which had conflated the analysis between disparate treatment and
disparate impact. The court held:
“…In so holding, the Court of Appeals erred by conflating the
analytical framework for disparate-impact and disparate-treatment
claims. Had the Court of Appeals correctly applied the disparate-
treatment framework, it would have been obliged to conclude that
a neutral no-rehire policy is, by definition, a legitimate,
nondiscriminatory reason under the ADA. And thus the only
remaining question would be whether respondent could produce
sufficient
evidence from which a jury could conclude that
“petitioner’s stated reason for respondent’s rejection was in fact
pretext.”
Commentators have argued that the court implicitly rejected the
Teahan (supra) approach where employees can prove intentional
discrimination or disparate treatment merely by proving that their conduct
was a consequence of a mental disability, collapsing the difference
between the disability and manifestation of that disability.76 However, if
a claim of disparate treatment fails, a plaintiff can still establish that a
facially neutral employment policy disparately impacted those who have
a disability.77
75 540 U.S. 44 (2003).
76 Kelly Cahill Timmons, Accommodating Misconduct Under the Americans with
Disabilities Act, 57 Florida Law Review 187, 188-89 (2005).
77 O’Brien, Christine Neylon and Darrow, Jonathan J., The Question Remains after
Raytheon Co. v. Hernandez: Whether No Rehire Rules Disparately Impact Alcoholics
and Former Drug Abusers, 7 Journal of Business Law 157 (2004).
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75. Recently on 13 September 2013, a class-action suit was filed
before the US District Court of Connecticut on behalf of thousands of
Air Force veterans who have claimed that Air Force awards less-than-
honourable discharges to service members on account of minor infractions
without recognizing the role mental health or sexual trauma plays in
moulding the conduct that leads to such discharges. The suit is pending.78
II Canada
76. Three legislations govern the disability rights regime in Canada.
The Employment Equity Act of Canada 199579 prohibits discrimination,
inter alia, against persons with disabilities. Section 2 of EEAC reads thus:
“The purpose of this Act is to achieve equality in the workplace
so that no person shall be denied employment opportunities or
benefits for reasons unrelated to ability and, in the fulfilment of
that goal, to correct the conditions of disadvantage in employment
experienced by women, Aboriginal peoples, persons with
disabilities and members of visible minorities by giving effect to
the principle that employment equity means more than treating
persons in the same way but also requires special measures and
the accommodation of differences.”
Section 3 of the EEAC defines ‘persons with disabilities’ in the
following terms:
“persons with disabilities means persons who have a long-term or
recurring physical, mental, sensory, psychiatric or learning
impairment and who
(a)consider themselves
to be disadvantaged in employment by
reason of that impairment, or
(b) believe that a employer or potential employer is likely to
consider them to be disadvantaged in employment by reason of
that impairment,
and includes persons whose functional limitations owing to their
impairment have been accommodated in their current job or
workplace; (personnes handicapées)”
78 Martin Johnson and Jane Doe on behalf of themselves and all other similarly situated
v. Frank Kendall, Secretary of the Air Force, available at https://law.yale.edu/sites/
default/files/area/clinic/vlsc_johnson_v_kendall_complaint_09-13-2021.pdf
79 “EEAC”
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77. The second important piece of federal legislation is the
Canadian Charter of Rights and Freedoms80, ratified as Part-I of the
Constitution Act 1982. The CCRF seeks to balance individual and group
rights and is the first national constitution in the world to recognise the
right to equality of persons with disabilities.81 Section 15 (1) of the CCRF
stipulates:
“Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on
race, nation or ethnic origin, colour, religion, sex, or mental or
physical disability.”
78. The third significant legislation is the Canadian Human Rights
Act 197882, which, inter alia, applies to government employees and
employees of industries and businesses falling under federal jurisdiction
or considered as a part of the federal government. Section 2 of the
CHRA provides thus:
“The purpose of this Act is to extend the laws in Canada to give
effect, within the purview of matters coming within the legislative
authority of Parliament, to the principle that all individuals should
have an opportunity equal with other individuals to make for
themselves the lives that they are able and wish to have and to
have their needs accommodated, consistent with their duties and
obligations as members of society, without being hindered in or
prevented from doing so by discriminatory practices based on
race, national
or ethnic origin, colour, religion, age, sex, sexual
orientation, gender identity or expression, marital status, family
status, genetic characteristics, disability or conviction for an
offence for which a pardon has been granted or in respect of
which a record suspension has been ordered.”
79. In British Columbia (Public Service Employee Relations
Commission) v. BCGSEU83, the Canadian Supreme Court held that
once it is established that prima facie discrimination exists, the burden
80 “CCRF”
81 Bally Thun, Disability Rights Framework in Canada, 12(4) Journal of Individual
Employment Rights 351-371 (2007).
82 “CHRA”
83 [1999] 3 SCR 3.
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shifts on the employer to justify the discrimination, which involves proving
that it provided reasonable accommodation. The court developed a three-
stage test based on proportionality to determine whether an employer
may use the bona fide occupational requirement84 defence after an
employee or a job applicant has shown a prima facie case of
discrimination. The Court laid down the three-prong test in the following
terms:
“(54.) (1) that the employer adopted the standard for a purpose
rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest
and good faith belief that it was necessary to the fulfilment of that
legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment
of that legitimate work-related purpose. To show that the standard
is reasonably necessary, it must be demonstrated that it is
impossible to accommodate individual employees sharing the
characteristics of the claimant without imposing undue hardship
upon the employer.”
80. Alcohol and drug addictions are considered physical and mental
disabilities by most labour boards and human rights tribunals in Canada.85
In Entrop v. Imperial Oil,86 the Ontario Court of Appeal, following the
decision in British Columbia (Public Service Employee Relations
Commission) (supra) held that randomized drug and alcohol testing
can be a bona fide operational requirement
in safety-sensitive workplaces.
In the context of dismissals, the court considered whether a single positive
test would warrant termination from employment. The court observed:
“112. […] dismissal in all cases is inconsistent with Imperial Oil’s
duty to accommodate. To maintain random alcohol testing as a
BFOR, Imperial Oil is required to accommodate individual
differences and capabilities to the point of undue hardship. That
accommodation should include consideration of sanctions
less severe than dismissal and, where appropriate, the
84 “BFOR”; available under Section 13 of the British Columbia Human Rights Code
85 Faisal Bhabha, Stewart v. Elk Valley: The Case of Cocaine Using Coal Miner, All
Papers 323 (2018), available at https://digitalcommons.osgoode.yorku.ca/all_papers/
323
86 (2000) 50 OR (3d) 18.
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necessary support to permit the employee to undergo a
treatment or a rehabilitation program”.
(emphasis supplied)
81. In Stewart v. Elk Valley Coal Corp.87,  S had been working
in a coal mine for over a decade. The mine operators had a zero-tolerance
policy towards the use of illegal drugs. The policy created an exception
where, if the employee made a prior disclosure of any dependence issues,
they could take the benefit of a rehabilitation policy instead of being
dismissed. On such disclosure, the employee could obtain treatment and
return to work. Although S was aware of the policy, he did not disclose
to the employer that he used to consume cocaine on his days off. It is
important to note that the Alberta Human Rights Tribunal had found that
S himself was not aware of the addiction. One day, S was involved in an
accident while operating a vehicle at work. There was minimal damage
and no one was injured. But the employer directed S to undergo a drug
test and he tested positive for cocaine. S admitted to the employer that
he believed he was addicted to cocaine. However, since the disclosure
was not made before the incident, the employer did not accommodate
his possible addiction under the workplace policy. He was terminated
from employment for breaching the company policy, not because of his
drug addiction but on account of his drug use. The majority (six out of
nine) of the Canadian Supreme Court found that there was no requirement
to accommodate since
there was no prima facie discrimination. The
majority observed that addiction was not a factor in the dismissal. S was
dismissed because he failed to comply with the policy. S still maintained
some ability to comply with the terms of the policy despite the addiction.
The majority also held that it cannot be said that the policy adversely
affected a protected group i.e., persons with a disability since the policy
impacted both recreational drug users and drug addicts. The minority
concurring opinion given by two judges observed that there was prima
facie discrimination because even if it was assumed that S had some
control over the use of drugs, it did not eliminate drug addiction as one of
the factors for dismissal. However, they held that the employer could
not have accommodated S any further without encountering undue
hardship. They gave significant weight to the fact that S was employed
in a safety-sensitive workplace. Any other disciplinary action short of
87 [2017] 1 SCR 591.
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dismissal would have undermined the deterrent effect of the zero-
tolerance policy causing undue hardship. They further pointed that the
employer had offered S the possibility for reapplying after six months
provided he underwent rehabilitation, for which they would reimburse
50 percent of the costs in the event he is re-hired. The sole dissenting
opinion argued that persons with addictions are stigmatized and often
stereotyped as “the authors of their own misfortune”. The dissenting
opinion observed that the case fell in the bracket of indirect discrimination
where a neutral policy against drugs adversely impacted those persons
who had a dependency on drugs. While the policy affected all workers
equally, S because of his dependency faced a clear impairment in
complying with the policy. The protected ground needs to be only one of
the factors leading to termination. The minority opinion also observed
that the choice threshold conceptualized by the majority effectively
removes the rights holder from protection and stigmatizes them further
by blaming marginalized groups for their choices. The judge highlighted
that distinctions have never been made between protected grounds and
conduct that is inextricably linked to such grounds. Thus, the majority
erred in creating a distinction between drug addiction and taking drugs.
Finally, the minority opinion observed that the duty to accommodate is
an individualized assessment.
The pre-incident accommodation, where
the employee could have disclosed their addiction was not available to S
since he was not aware of his addiction, denial is a symptom of substance
dependency. The judge opined that the deterrent effect of the zero-
tolerance policy could have been achieved by alternatives short of
dismissal like suspension without pay.
III European Union
82. The European Union88 recognises the duty to accommodate
persons with disabilities in the employment context. Article 5 of the
Employment Equality Directive89 2000 provides thus:
“Reasonable accommodation for disabled persons
In order to guarantee compliance with the principle of equal
treatment in relation to persons with disabilities, reasonable
accommodation shall be provided. This means that employers shall
88 “EU”
89 “EU Directive”
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take appropriate measures, where needed in a particular case, to
enable a person with a disability to have access to, participate in,
or advance in employment, or to undergo training, unless such
measures would impose a disproportionate burden on the employer.
This burden shall not be disproportionate when it is sufficiently
remedied by measures existing within the framework of the
disability policy of the Member State concerned.”
83. The Court of Justice of the EU has moved beyond the medical
model of disability towards a social model evolving its understanding of
disability in accordance with the CRPD.90 In two joint HK Danmark91
cases, the court held thus:
“41. …if a curable or incurable illness entails a limitation which
results in particular from physical, mental or psychological
impairments which in interaction with various barriers may hinder
the full and effective participation of the person concerned in
professional life on an equal basis with other workers, and the
limitation is a long-term one, such an illness can be covered by the
concept of ‘disability’ within the meaning of Directive 2000/78.”
Article 2 of the EU Directive recognises both direct and indirect
discrimination. Article 4 of the EU Directive provides an exception to
discriminatory conduct where such conduct “constitutes a genuine and
determining occupational requirement, provided that the objective is
legitimate, and the requirement is proportionate.” In Tartu Vangla92, a
prison
officer was dismissed because his hearing acuity, without corrective
aids, did not meet the minimum standards of sound perception under
Estonian regulations. The Court of Justice held that while the regulations
pursue a legitimate aim of securing the safety of persons and public
order in prison, the requirement that the prison officer must meet the
minimum standards of sound perception without hearing aid, or the
employment would be terminated is not proportionate for attaining the
objective of the regulations. The court held that the absolute nature of
90 Ferri, Delia, The Unorthodox Relationship between the EU Charter of Fundamental
Rights, the UN Convention on the Rights of Persons with Disabilities and Secondary
Rights in the Court of Justice Case Law on Disability Discrimination, 16(2) European
Constitutional Law Review 275–305 (2020).
91 HK Danmark v. Dansk Almennyttigt Boligselskab DAB and HK Danmark v. Pro
Display A/S in Konkurs, 11 April 2013, joined cases C-335/11 and C—337/11.
92 Case C-795/19
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the regulation did not reasonably accommodate the prison officer, which
amounted to disability-based discrimination. The court observed thus:
“44  However, it must be remembered that legislation is appropriate
for ensuring attainment of the objective pursued only if it genuinely
reflects a concern to attain it in a consistent and systematic manner
[internal citations omitted].
45  It is apparent from the information contained in the order for
reference that compliance with the minimum standards of sound
perception prescribed by Regulation No 12 is assessed without
there being, for the prison officer concerned, any possibility of
using a hearing aid on that occasion, whereas, when assessing
compliance with the standards laid down in that regulation as
regards visual acuity, the officer may use corrective devices such
as contact lenses or spectacles. However, the wearing, loss or
deterioration of contact lenses or spectacles may also hinder the
performance of a prison officer’s duties and create risks for him
or her comparable to those resulting from the use, loss or
deterioration of a hearing aid, particularly in the situations of
physical confrontation which that officer may encounter.
46  As regards, next, whether that requirement is necessary in
order to attain the objectives pursued by Regulation No 12, namely
preserving the safety of persons and public order, it should be
recalled that non-compliance with the
minimum standards of sound
perception prescribed by that regulation constitutes an absolute
medical impediment to the exercise of the duties of a prison officer.
Those standards apply to all prison officers, without the possibility
of derogation, regardless of the establishment to which those
officers are assigned or the position they hold. Moreover, that
regulation does not allow for an individual assessment of a prison
officer’s ability to perform the essential functions of that
occupation notwithstanding any hearing impairment on his or her
part.
47  However, as is apparent from paragraphs 15 and 39 of this
judgment, the tasks of those officers include the supervising of
persons placed under electronic surveillance by means of a
surveillance system, as well as monitoring surveillance and
signalling equipment, without involving frequent contacts with the
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prisoners. Furthermore, it is apparent from the order for reference
that Regulation No 12 does not take into account the fact that a
hearing impairment may be corrected by means of hearing aids
which can be miniaturised, sit inside the ear or be placed under
headgear.”
While the above decision deals with a physical disability, it lays
down important principles regarding how the dismissal of an employee
from service is a measure of last resort. Further, it is not sufficient to
show that the employer’s discriminatory conduct was in pursuance of a
legitimate workplace objective, the employer should be able to establish
that the discriminatory measure is proportionate to the objective that is
sought to be achieved.
IV South Africa
84. South Africa does not have specific disability-related
legislation.93 The Employment Equity Act 199894 seeks to achieve equity
at the workplace by prohibiting unfair discrimination including on the
ground of disability. Section 6(1) of the EEA reads thus:
“No person may unfairly discriminate, directly or indirectly against
an employee, in any employment policy or practice, on one or
more grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief,
political opinion, culture, language or birth.”
Section 1 of the EEA describes persons with disabilities as “people
who have a long-term or
recurring physical or mental impairment which
substantially limits their prospects of entry into, or advancement in,
employment.” Employment Equity Act No 55 of 2018: Code of Good
Practice on Employment of Persons with Disabilities 201595 provides
guidance on how to interpret and comply with the mandate of EEA.
Clause 5.1 of the Code defines discrimination on the basis of disability
as:
93 Estie Gresse, Melvin L.M Mbao, An Analysis of the Duty to Reasonably Accommodate
Disabled Employees: A Comment of Jansen v. Legal Aid South Africa, 24(1) Law,
Democracy and Development 109 (2020).
94 “EEA”
95 “Code”
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“any distinction, exclusion or restriction on the basis of disability
which has the purpose or effect of impairing or nullifying the
recognition, enjoyment or exercise, on an equal basis with others,
of all human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field. It includes all
forms of discrimination, including denial of reasonable
accommodation.”
(emphasis supplied)
In addition, the Technical Assistance Guidelines on the
Employment of Persons with Disabilities 2017 adds further clarity to the
implementation of the EEA and the Code.
85. The Labour Relations Act 199596 governing the right to fair
labour practices protects employees from unfair dismissal.97 Section 188
of the LRA provides that misconduct can be a ground for dismissal
unless the employer fails to prove that the reason for dismissal was the
employee’s conduct or capacity. Schedule 8 of the LRA provides
guidelines to be followed to dismiss employees for misconduct in a fair
manner. Incapacity is also listed as a ground for dismissal under Section
188 (1) (a) of the LRA. Incapacity means that an employee is not able
to undertake essential functions of the job due to an illness or injury.98
Item 10 of the Code of Good Practice: Dismissal of the LRA provides
that the employer should make an enquiry into all possible alternatives
short of dismissal if an employee would remain absent due to the illness
or
injury.99 The duty to accommodate the incapacity of the employer is
higher when that incapacity develops during work and requires either
modifications of the work environment or alternative employment.100 In
Smith v. Kit Kat Group (Pty) Ltd.101, a distinction was made between
96  “LRA”
97 Section 185 (a) of the LRA
98 Standard Bank of SA v. CCMA, 3 (2008) 29 ILJ 1239 (LC).
99 Item 10 (1) of the Code
100 Item 10 (4) of the Code
101 (2017) 38 ILJ 483 (LC). The Court observed, “What the respondent needed to do
was to have conducted a proper incapacity investigation into what consequences this
speech impediment would have on the applicant’s ability to discharge his duties. The
respondent needed to properly and objectively assess to what extent the applicant’s
ability to interact with fellow employees or suppliers was impacted upon (the applicant
had little dealings with customers). Further, and if there was an impact, it needed to be
explored how the applicant could possibly be accommodated. But what the respondent
did was to simply assume that disability automatically equates to incapacity, which is
not so.”
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disability and incapacity. An employee is termed as incapacitated only if
the employer cannot accommodate them or they refuse the reasonable
accommodation. The Labour Court clarified that the employer must first
engage in an incapacitating enquiry to assess to what extent the disability
impacts the employment functions. If there is an impact, the employer
must consider how the employee could be reasonably accommodated
unless the accommodation constitutes an unjustifiable hardship for the
employer. Commentators have noted that courts often use the terms
disability and incapacity interchangeably because the measures that are
to be adopted for accommodating an employee with a disability are
effectively not different from the measures that may be undertaken to
find alternatives before dismissing an employee for incapacity. Both can
be considered parallel processes.102
86. In Pharmaco Distribution (Pty) Ltd. v. EWN103, the senior
management in the employment agency was aware that the employee
had bipolar disorder, for which she was taking medications. The
employment contract provided that the employee can be subjected to
medical examinations, including psychological evaluations. The employer
directed the employee to undergo a medical examination, which she
refused. She was dismissed from service on a charge of misconduct for
not complying with the employer’s instruction. The Labour Court of
Appeal, affirming the decision of the Labour Court, observed that the
employer would not have subjected her to psychiatric assessment but
for her bipolar disorder, and she would not have been consequently
dismissed. Thus, the employer’s conduct constituted unfair discrimination
based on disability under Section 6 of the EEA and the dismissal was
automatically unfair under the LRA. It is also significant that the court
found that although the employee was on medication and her condition
was under control, she still had a disability. 104
102 Bassuday K & Rycroft A, ‘Incapacity or disability? The Implications for Jurisdiction
Ernstzen v Reliance Group Trading (Pty) Ltd (C727/13) [2015] ZALCCT 42, 36(4)
Industrial Law Journal 2516-2521 (2015).
103 (2017) 38 ILJ 2496 (LAC).
104 Matilda Mbali Ngcobo, Court’s Treatment of Depression in the Workplace: Incapacity,
Poor Performance, Misconduct and Disability, available at https://researchspace.ukzn.
ac.za/bitstream/handle/10413/18678/Ngcobo_Matilda_Mbali_2019.pdf?
sequence=1&isAllowed=y.
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87. In New Way Motor & Diesel Engineering (Pty) Ltd v.
Marsland,105 the employee suffered a nervous breakdown after his wife
deserted him. He was hospitalized. When he returned to work, he was
ostracized and verbally abused by the appellant and management. A
disciplinary hearing was instituted against him for poor work performance
amongst other charges. Thereafter, the employee terminated his contract
when his work was outsourced. The Labour Court held that the employee
has been constructively dismissed and the dismissal constitutes unfair
discrimination against the employee on grounds of mental health. The
court observed that mental health played a significant role in the dismissal.
The Labour Court of Appeal also upheld the dismissal as automatically
unfair in terms of the amended LRA. The Court of Appeal further
observed that the conduct of the appellant had violated the human dignity
of the employee. Commentators have observed that this lays down the
position that dismissal of employees having depression can only be an
act of last resort and alternatives should be considered before such
dismissal.106
88. In Legal Aid South Africa v. Ockert Jansen107, the Labour
Court of Appeal of South Africa dealt with an employee who was
diagnosed with depression and high anxiety during the course of service.
Disciplinary proceedings had been instituted against the employee as he
had been absent from work without notice and
that he was insolent and
defiant to the management of the company. He was eventually dismissed
from service. He challenged the proceedings in the Labour Court and
received an order in his favour. However, the Labour Court of Appeal
ruled against him. In doing so it held thus:
“[40] The stresses and pressures of modern-day life being what
they are, depression is common in the workplace. Employers from
time to time will need to manage the impact of depression on an
individual employee’s performance. The approach to be followed
will depend on the circumstances.
[41] In the first instance, depression must be looked at as a form
of ill health. As such, an incapacitating depression may be a
105 (2009) 30 ILJ 2875 (LAC).
106 Rangata, The “Invisible” Illness Challenge, Employment Law, (2015), available at
https://maponya.co.za/wp-content/uploads/2018/03/The-invisible-illness-challenge-
Without-Prejudice.pdf
107 (2020) 41 ILJ 2580 (LAC).
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legitimate reason for terminating the employment relationship,
provided it is done fairly in accordance with a process akin to that
envisaged in Items 10 and 11 of the Code of Good Practice:
Dismissal. If an employee is temporarily unable to work for
a sustained period due to depression, the employer must
investigate and consider alternatives short of dismissal
before resorting to dismissal. If the depression is likely to
impair performance permanently, the employer must
attempt first to reasonably accommodate the employee’s
disability. Dismissal of a depressed employee for incapacity
without due regard and application of these principles will
be substantively and/or procedurally unfair.
[42] Depression may also play a role in an employee’s misconduct.
It is not beyond possibility that depression might, in certain
circumstance negate an employee’s capacity for wrongdoing. An
employee may not be liable for misconduct on account of
severe depression impacting on his state of mind (cognitive
ability) and his will (conative ability) to the extent that he is
unable to appreciate the wrongfulness of his conduct and/
or is unable to conduct himself in accordance with an
appreciation of wrongfulness. Should the evidence support
such a conclusion, dismissal for misconduct would be
inappropriate and substantively unfair, and the employer
would need to approach the difficulty from an incapacity or
operational requirements perspective. Alternatively, where
the