Geetaben Ratilal Patel v. District Primary Education Officer (SC) BS461305
SUPREME COURT OF INDIA

Before:- Sudhansu Jyoti Mukhopadhaya and G.S. Singhvi, JJ.

Civil Appeal No. 9324 of 2012 (Arising out of SLP (C) No. 7647 of 2011). D/d. 2.7.2013.

Geetaben Ratilal Patel - Appellant

Versus

District Primary Education Officer - Respondent

For the Appellant :- Ms. Jaspreet Gogia, Advocate.

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Sections 47 and 62 - A person with disability - Dismissal - Jurisdiction - Of Commissioner under section 62 of the Act, 1995 to interfere - Held that the provisions of Sections 47 and 62 of the Act, 1995 when read together, empower the Commissioner, to look into the complaint with respect to the matters relating to deprivation of rights of persons with disabilities and non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions issued by the appropriate Governments or local authorities - The order of dismissal passed during the mental disability of the appellant in violation of Section 47(1) of the Act - The Commissioner having declared the order of dismissal as void, it was not open to the High Court to interfere with such order and to restore the illegal order of dismissal.

[Paras 2, 16 and 17]

JUDGMENT

Sudhansu Jyoti Mukhopadhaya, J. - This appeal is directed against the order dated 4th November, 2009 passed by the Division Bench of Gujarat High Court in L.P.A.No. 1988 of 2009 whereby the Division Bench dismissed the said Letters Patent Appeal preferred by the appellant and affirmed the order dated 10th December, 2008 passed by learned Single Judge in Writ Petition-Special Civil Application No. 27730/2007. In the said writ petition the order passed by the Commissioner under Section 62 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Act") in case No. 253/2007 was set aside.

2. The main question that arises for our consideration is whether the Commissioner under Section 62 of the Act can look into the legality of the order of dismissal from service of a disabled person, if it comes to his notice that the said person with disabilities has been deprived of his rights.

3. The factual matrix of the case is as follows:

4. In the meantime, on 31st December, 1999, a notice was issued to the appellant regarding her time to time absence and she was thereby informed to explain in writing the grounds for her absence within seven days. But neither written nor oral explanation was received by the authorities. Thereafter, she directly resumed her duties in the school on 25th November, 2000. The Principal of Primary School, Manad had informed the same to Taluka Development Officer, Bharuch, who in turn intimated the same to the District Panchayat Committee, Bharuch. After resumption of duty on 25th November, 2000, the appellant went on leave from time to time without pay. In this respect, by memorandum letter dated 28th July, 2002 she was served with a charge-sheet and informed to submit her explanation in writing within 7 days. Since no explanation was submitted by the appellant, she had been informed in writing vide letter dated 4th March, 2003 to submit the medical certificate of a Civil Surgeon with respect to her illness within 7 days. But neither any medical certificate nor any explanation in writing or in oral, was submitted. By letter dated 30th April, 2003 of Taluka Development Officer, Bharuch, the matter was referred to the higher authority. Thereafter, the final notice was issued by letter dated 9th July, 2003 directing the appellant to explain in writing within 7 days for her continuous absence, irregularity and carelessness towards her duty. The appellant failed to submit her reply or explanation to the said notice within the stipulated period. Therefore, by giving another opportunity of defence, a reminder letter was issued on 25th August, 2003 followed by another letter of similar nature dated 28th August, 2003. Having received no reply again, vide order dated 15th April, 2004 she was dismissed from service by the respondent under Section 24 of the Primary Education Act read with Gujarat Panchayat Services (Discipline and Appeal) Rules, 1997 on the ground of carelessness towards duty, absence from duty, irregularity, breach of orders of the higher authorities and having badly affected the future of the children.

5. For about three years, no action was taken by appellant. In the year 2007 she filed an application before the Commissioner under Section 62 of the Act. The said application was registered as Case No. 253/2007. In the said application, the appellant took plea that the order of dismissal passed by the authorities while she was suffering from mental illness was in violation of Section 47(1) of the Act. The appellant requested for her reinstatement with full back-wages.

6. The complaint on behalf of the appellant was filed and verified by her father. Therefore, the Commissioner while issuing notice to the respondent authority also issued notice to the appellant on 30th June, 2007 calling upon both the parties to be present on 24th July, 2007 at the time of hearing.

7. At the time of hearing the appellant herself remained present alongwith her father and on behalf of the respondent Shri Maganbhai B. Vasava, Head Clerk and Shri Dilavarshinh A. Raj, Junior Clerk had remained present. The appellant contended that though she was physically healthy at the time of joining the services because of mental illness that developed afterwards she was treated by doctors time to time, who advised her to take rest. She specifically pleaded that since she was divorced by her husband in the year 1998, she started suffering from mental depression which resulted in 40 to 70 per cent mental disability. A certificate issued by the Medical Board of Government Hospital was also produced before the Commissioner.

8. On behalf of respondent, it was contended that the appellant unauthorisedly remained absent from service from time to time and in spite of giving opportunity to her, she never replied and because of her carelessness and negligence towards duty, the students suffered. It was further submitted that a charge sheet was also issued to her in this regard but having received no reply from her, she was dismissed from service.

9. The Commissioner after hearing the parties and on perusal of the evidence held that as the appellant was suffering from 40 to 70 per cent mental disability at the time of dismissal, the said order of dismissal was void. It was also held that if the appellant is not in a position to work in the large educational interest of the students then an appropriate post should be created for her and her appointment to that post be made as per Section 47 of the Act. It was also directed to count the intervening period as continuous period in service without any break and also to select the place of service of the appellant in such a manner that she can live with her parents as she requires constant assistance to become mentally healthy.

10. The respondent challenged the said order before the learned Single Judge of the High Court in Special Civil Application No. 27730/2007. In the said case, the learned Single Judge passed an interim order on 11th January, 2008 with following observation:-

11. The case was subsequently taken up by another learned Single Judge on 10th December, 2008 who finally disposed of the matter. This time the learned Single Judge neither perused the report of the Government doctor nor noticed the question whether the interim order passed by the High Court on 11.1.2008 was complied by assigning duty to the appellant at the nearby place where she can comfortably and conveniently in safe atmosphere discharge her duties. Learned Single Judge also failed to decide the question whether the Commissioner had jurisdiction to interfere with the order of dismissal. On 10th December, 2008, learned Single Judge dismissed the writ petition on the following grounds and observation:-

12. On an appeal, the Division Bench by its impugned order dated 4th November, 2009 affirmed the order passed by the learned Single Judge and the same is under challenge before this Court now. The Division Bench also committed the same error as the Single Judge, by not deciding the question of jurisdiction of the Commissioner and the question whether the appellant was entitled for benefits under Section 47(1) of the Act.

13. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act was enacted in 1995 pursuant to meet the following object and reasons:

14. To decide the present issue, it is also relevant to notice Section 47 of the Act which deals with non-discrimination in Government employment and reads as follows:

15. The appointment, function and duties of the Chief Commissioner and Commissioners for Persons with Disabilities have been laid down under Chapter XII of the Act.

Under Section 58(c) of the Act the Chief Commissioner shall take steps to safeguard the rights and facilities made available to persons with disabilities.

The Commissioner is empowered under Section 62 of the Act to look into the complaints in respect to matters relating to deprivation of rights of persons with disabilities, which reads as follows:-

16. The provisions of Sections 47 and 62 of the Act, when read together, empower the Commissioner, to look into the complaint with respect to the matters relating to deprivation of rights of persons with disabilities and non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions issued by the appropriate Governments or local authorities and to take up the matter with the appropriate authorities for the welfare and protection of rights of persons with disabilities including matter relating to dispensation with service or reduction in rank. The power of the Commissioner "to look into the complaints with respect to the matters relating to deprivation of rights" as provided under Section 62 of the Act is not an empty formality and the Commissioner is required to apply his mind on the question raised by the complainant to find out the truth behind the complaint. If so necessary, the Commissioner may suo motu inquire into the matter and/or after giving notice, hearing the concerned parties and going through the records may decide the complaint. If it comes to the notice of the Commissioner that a person with disability has been deprived of his rights or that the authorities have flouted any law, rule, guideline, instruction, etc. issued by the appropriate Government or local authorities, the Commissioner is required to take up the matter with the appropriate authority to ensure restoration of rights of such disabled person and/or to implement the law, rule, guideline, instruction if not followed. A complaint may be made by any disabled person himself or any person on behalf of disabled persons or by any person in the interest of disabled persons. Thus the issue as involved is decided affirmatively in favour of the appellant and against the respondent.

17. The appellant was appointed as Primary Teacher on 30th July, 1990 and continued for nine years without any complaint till she proceeded on medical leave on 21st June, 1999. She thereafter, remained absent from time to time for about 1360 days from June, 1999 till the date of dismissal. The appellant has taken a specific plea that she was divorced by her husband in the year 1998 and since then she suffered mental depression. The Government Medical Board also held the appellant mentally disabled as she was suffering from 40 to 70 per cent mental disability. The order of dismissal was passed during her mental disability in violation of Section 47(1) of the Act. In this background, the Commissioner having declared the order of dismissal as void, it was not open to the High Court to interfere with such order and to restore the illegal order of dismissal.

18. Whether under Section 62 of the Act, the Commissioner was competent to declare the order of dismissal as void, was one of the question framed by the learned Single Judge by order dated 11.1.2008. But at the time of hearing, the learned Single Judge failed to notice and decide the question so raised. The Division Bench also failed to notice the aforesaid fact and remained silent on the issue.

19. From the documents on record, we find that show cause notices were issued to the appellant and charges were framed but there is nothing on the record to suggest that any departmental proceeding was initiated. Neither any inquiry officer was appointed, nor any notice was issued by any inquiry officer to the appellant to remain present in the departmental proceeding. No evidence was relied upon by the respondent to bring home the charges. Aforesaid facts also show that the order of dismissal was passed in violation of rules of natural justice.

20. Now the question remains about the back wages, if any, to which the appellant is entitled. The appellant remained absent from duty from time to time for about 1360 days when she was in service. Therefore, she cannot claim any wages for the said period. The order of dismissal was passed on 15.4.2004, but she moved before the Commissioner after a span of three years i.e. in the year 2007. There being delay on her part, in moving before the Commissioner, she cannot claim any salary for such intervening period.

21. Learned Single Judge by interim order dated 11th January, 2008 directed the respondent to reinstate the appellant and to pay her regular salary w.e.f 1.2.2008 on the following terms:

22. Inspite of the same, the respondent authority have neither reinstated the appellant nor paid salary w.e.f. 1.2.2008. So, they cannot take advantage of their own wrong and, thereby, cannot deny the benefit of wages to which the appellant was entitled pursuant to the order passed by the High Court on 11th January, 2008.

23. There is nothing on the record to suggest that the respondent authority got the appellant examined by a Government Doctor to determine the duty to be assigned to her. In view of her reinstatement, now the respondent authority may get opinion of the doctor for assigning her duty. In case the appellant is not in a position to perform the normal duty because of her mental condition, the competent authority will apply Proviso to Section 47(1) of the said Act.

24. Having regard to the fact that we have upheld the order passed by the Commissioner, we direct the authorities to reinstate the appellant in service immediately and to pay her regular salary every month. The appellant shall be entitled to arrears of salary w.e.f. 1.2.2008 which the respondent shall pay within three months, else the appellant shall become entitled to interest at the rate of 6% per annum with effect from 1.2.2008 till the actual payment.

25. The appeal is allowed in the manner indicated above and the orders passed by the learned Single Judge and the Division Bench of the High Court are set aside. There shall be no order as to costs.

Appeal allowed.