RAVINDER KUMAR DHARIWAL & ANR. versus THE UNION OF INDIA & ORS.

Citation: [2021] 13 S.C.R. 823 · Decided: 17-12-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Cited by 9 judgment(s) · cites 17 · see the full citation network in Lexace

Judgment (excerpt)

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[2021] 13 S.C.R. 823
823
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enquiry – During pendency, the PwD Act repealed and RPwD Act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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SUPREME COURT REPORTS
[2021] 13 S.C.R.
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-discriminati

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