1. Petitioner was working as Constable in Central Industrial Security Force (CISF). By order dated 06.05.2015, he was placed under suspension on the allegation of assaulting Inspector/Exe. Brijender Singh, Coy. Commander. On 08.05.2015, charge memo was drawn and communicated to the petitioner. Charge memo contained four charges. The disciplinary proceedings initiated in the said manner culminated by order dated 07.11.2015, where under punishment of compulsory retirement from service with full pensionary benefits was imposed on the petitioner, and the same was confirmed by the Appellate Authority vide his order dated 02.11.2016. In this writ petition, petitioner challenges the order of compulsory retirement, as affirmed by the appellate authority.
2. Heard Mr. Sampath, party-in-person and the learned Assistant Solicitor General for Central Government.
3. Extensive submissions are made by the petitioner and learned standing counsel. However, having regard to the order, the Court proposes to pass in this writ petition, the Court only records the submissions on the aspect of health condition of the petitioner, particularly on ‘Bipolar Mood Disorder’ and whether the same has any impact on the disciplinary action initiated and concluded against the petitioner.
4.1. According to the petitioner, during the relevant period, he was suffering from mental illness and was undergoing treatment in the Government Hospital in Karimnagar and in the Government Mental Hospital at Eerragadda at Hyderabad. During the course of enquiry, petitioner also informed the Enquiry Officer about his health condition and placed before him the relevant medical record in support of his contention. This specific assertion of the petitioner was not considered by the Enquiry Officer and illegally holds the charges as proved without subjecting the petitioner to medical examination and without providing proper opportunity to defend the charges leveled against him.
4.2. Petitioner further submitted that in response to the show-cause notice against findings of the Enquiry Officer, he has specifically pointed out to the Disciplinary authority about his mental condition, but disciplinary authority also failed to appreciate his contention and erroneously passed the orders of compulsory retirement.
4.3. Petitioner further submitted that in the appeal preferred against the order of compulsory retirement, he has raised specific contention about his health condition and denial of reasonable opportunity, but the same was also not appreciated by the appellate authority and mechanically rejected his appeal. Petitioner therefore submitted that as his health was not good and he was suffering with some mental illness, the respondents erred in conducting disciplinary proceedings, holding the charges as proved and imposing punishment of compulsory retirement and, therefore, the entire proceedings are vitiated.
4.4. In support of his contention that his health condition was within the knowledge of the respondent authorities, petitioner placed reliance on his representation submitted to the Director General requesting to transfer him to Hyderabad on the ground that he is suffering with some mental disorder and he requires treatment. Accepting his request, the Director General transferred the petitioner to Hyderabad vide his proceedings dated 03.07.2015. He would submit that this order of transfer recognizes the claim of petitioner that he was suffering from some mental disorder and he requires treatment. He therefore submitted that the respondent authorities, particularly Disciplinary Authority, the Enquiry Officer and the Appellate Authority are all aware of his mental condition, and the same was not taken note of while considering his defense, and while passing orders imposing punishment by the appellate authority.
4.5. According to the petitioner, as per the Central Civil Services (Medical Examination) Rules, 1957, which are applicable to the Constables in Central Industrial Security Force, whenever an employee is found to be suffering from mental disability, he must be referred for medical examination and should take further steps based on the report of the medical examination. Till the medical examination is conducted and report is submitted, an employee should be asked to proceed on leave. In the instant case, though the respondents were aware that petitioner was suffering from mental disorder, they are not referring him to medical examination to ascertain his mental condition. He would submit that a person suffering from mental disability, cannot be expected to defend himself properly and, therefore, on this ground the entire disciplinary proceedings are vitiated.
4.6. Petitioner also placed reliance on Section 47 of ‘The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the Disabilities Act) and would submit that a person suffering with disability cannot be visited with punishment and, therefore, the entire action is violative of the provisions of the Disabilities Act. He also placed reliance on the Office Memorandum dated 25.02.2015 issued by the Government of India, which envisages that disabled Government servant, who is not fit to discharge his duties should be adjusted as per the 2nd proviso to Section 47 of the Act, whereas this office memorandum was also violated.
5. Learned standing counsel submitted that through out the service, conduct of the petitioner was not good. Disciplinary action was taken against him on several occasions and several punishments were imposed. Petitioner was in the habit of quarreling with higher officials and co-employees while on duty. Having regard to the history of conduct of the petitioner and since charges are established against him, though the nature of allegations proved against the petitioner are grave, warranting more severe punishment a lenient view was taken and petitioner was retired compulsorily, which would enable him to get pension. According to the learned standing counsel, all the procedural formalities required to conduct disciplinary proceedings were strictly observed, due opportunity was afforded to the petitioner, but he failed to avail the opportunity. All the submissions made by the petitioner were thoroughly considered by the Enquiry Officer, all the objections raised before the disciplinary authority against report of enquiry were considered objectively and punishment was imposed on due consideration of the material on record. He therefore submitted that there was no illegality in the action taken against the petitioner and due to his persistent misbehaviour, petitioner cannot serve Central Industrial Security Force.
6. Prima facie, on a bare perusal of charge memo, it is apparent that charges leveled against the petitioner are grave and once charges are proved, it can result in major punishment of dismissal/removal from service. Thus, punishment of compulsory retirement imposed on petitioner is comparatively a less severe punishment, as it enables employee to get pension.
7. Matter does not rest there, in view of peculiar facts of this case. Before imposing a major punishment observing strict procedural formalities is a necessary concomitant. A person can be said to have been afforded due opportunity if notices were served on delinquent employee, all the documents relied upon by the prosecution are supplied to him; was allowed to participate in the enquiry; permission to cross-examination of prosecution witnesses was afforded and was permitted to make submissions; Enquiry Officer analyzes material on record and submissions and arrives at appropriate conclusion on the nature of charges leveled against an employee; examination of findings of Enquiry Officer by the disciplinary authority; calling for explanation; consideration of objections of delinquent employee; passing final order on consideration of objections; assigning reasons in support of the decision. All these steps are stated to have been complied only if an employee is capable to face the proceedings and has the capacity to defend himself properly. Thus, the stand of the petitioner that his mental condition was not stable, that he was suffering with some kind of mental disorder is an issue, which goes to the root of the matter and if established, the entire gamut of the disciplinary action would fall to the ground.
8. For this purpose, the following chronology of events/ submissions of petitioner/notings of the authorities, as the case may be, require consideration.
a) Petitioner submitted his representation to the Director General on 15.06.2015 requesting to transfer him to Hyderabad on the ground that he was suffering from mental disorder and that he was not able to get proper treatment in the place of posting. The said request of the petitioner was accepted by order dated 03.07.2015 and he was transferred to Hyderabad. After his transfer, he also made request to the Group Commandant to allot him a quarter having regard to his medical condition. On 19.08.2015, the Group Commandant directed allotment of quarter. Accordingly, on 22.08.2015 Office Order was issued allotting quarter No.3 in Type-II at New Mint Township, Cherlapally, Hyderabad.
b) From the report of the Enquiry Officer, it is seen that the Enquiry Officer briefly records the defense statement of petitioner. He notices that petitioner asserted that he was undergoing treatment for mental disorder and, therefore, he was unable to recollect what happened during the relevant period. Enquiry Officer also notes that “when he was under treatment, as such, he could not recollect what happened during the period”. Enquiry Officer also records that he produced Government Hospital OP sheet, medical certificate issued by the Neuro Psychiatrist and fitness certificate issued later. He also records that petitioner stated that since 2012, he was suffering from mental illness and that he was admitted in Erragadda Government Mental Hospital at Hyderabad on 07.09.2012 and discharged on 02.11.2012.
c) After recording the defense statement of petitioner, the Enquiry officer proceeds to discuss the evidence and in paragraphs 3 to 9 under the heading Note, the Enquiry Officer proceeds to record about the mental condition of the petitioner. He holds that petitioner did not inform about his medical rest; observes that certain medical documents were not signed by him; observed that petitioner has not shown non-cooperation and behaved rigidly; asked irrelevant questions; refused to understand and rigidly behaved; showed his temperament of carelessness. In paragraph-8 he proceeds to record that on considering the medical condition of the charged officer, the E.O decided to incorporate the same for giving employee an opportunity. It is relevant to note contents of paragraphs-5, 6 and 9 of the NOTE. They read as under:
“5. It appears, from the medical document of the year 1997 that he has been suffering with “Bipolar mood disorder” and has been taking continuous treatment for the same.
6. It also grievance as to why 12 punishments of similar ground.
9. above points show unstable mind and mental condition, which is changing all the time.
It is pertinent to inform that his previous D.E. with respect to some charges were not able to carry out due to same reasons.”
However, he proceeds to hold the charges as proved.
d) In his explanation to the show-cause notice dated 19.10.2015 on the report of the Enquiry Officer, in addition to raising objections on various aspects of the enquiry conducted by the enquiry officer and charges leveled against him, he has also pointed out that he was suffering with ill-health, he was undergoing treatment in Government Hospital, Karimnagar and in the Government Mental Hospital at Erragadda, Hyderabad; and he had submitted medical reports to the enquiry officer, but the said issue was not considered and he was not referred for medical examination.
e) In paragraph-6 of his order, the disciplinary authority in paragraph-6 of his order records reasons on the merits of the charges leveled against the petitioner. In paragraph-8, he records the reasons why petitioner deserves major punishment. He observes that on the nature of charges proved against him and because of the past misconduct, major punishment has to be imposed, but as petitioner was suffering memory disorder, he chose to impose punishment of compulsory retirement. It is appropriate to note the relevant portion of the order. It reads as under:
“.. However, during the departmental enquiry, the C.O. has produced some medical papers in connection with his alleged mental illness and has disclosed his problem of ‘memory disorder’. His continuation in the Force which has direct access to weapons and is called upon to perform sensitive internal security duties and provide security to critical establishments could prove extremely hazardous to his safety, safety and morale of his other colleagues, safety and order of the general public and to the security of the establishment where he is posted itself. Therefore, considering his long service in the Force, his alleged mental illness (Bipolar mood disorder), family background and also to make a provision for his future livelihood, I take a lenient view of the offence committed by him.”
f) Pursuant to the directions issued by this Court on 10.08.2016 in W.P.no.22643 of 2016, petitioner preferred appeal on 22.09.2016. Said appeal runs into 13 pages. In the said appeal, he raised several grounds, more importantly on conducting enquiry and passing orders by the disciplinary authority when petitioner was suffering from mental illness and highlights the procedure required to be followed whenever an employee complains of mental illness. On 14.10.2016, petitioner preferred another appeal. In paragraph-3 of the appeal, he specifically raised the plea that the disciplinary authority did not consider the mental condition aspect agitated by him in his explanation to show-cause notice on the report of the enquiry officer.
g) The appellate authority passed orders on 02.11.2016 rejecting the appeal. In paragraph-8 he records the reasons and observes that under the given circumstances, the decision of the disciplinary authority was fully justified. In the entire order, there is no discussion about petitioner’s specific allegation on not considering the mental condition by the Enquiry Officer and the disciplinary authority.
h) In paragraph-6 of the affidavit filed in support of the writ petition, petitioner has raised specific plea of his mental illness. He has alleged that he was subjected to extreme hardship and was ill treated and was not referred to mental hospital. He relied upon the provision of Mental Health Act, 1987 and contended that once an employee makes representation for treatment for his mental illness, he has to be referred to Psychiatrist under the Act. He relied on provision in Sections 24 and 25 of the Act, 1987 to contend that it prescribes procedure in respect of mentally ill person in criminal cases and same would equally apply to the disciplinary cases. He further contended that under Rule 91-B of the Central Security Force Rules, 2001, a mentally ill person has to be referred to Medical Board and contended that this procedure is not followed and, therefore, the entire proceedings are vitiated on this ground. Paragraph-18 of the counter affidavit deals with contentions urged in paragraph-6 of the affidavit filed in support of the writ petition. The reply is vague and is blissfully silent on the specific assertions of the petitioner.
9. Thus, the material on record would demonstrate that petitioner has been complaining that he was suffering with some mental disorder and was undergoing treatment for said illness. The factum of petitioner suffering from mental disorder was acknowledged by the Director General, and acceded to his request for transfer; by the Enquiry Officer during the course of enquiry; by the Disciplinary Authority in his order imposing punishment of compulsory retirement; and there is no denial in the counter affidavit, in response to specific assertions of petitioner. Having noticed the various attributes demonstrated by the petitioner during the course of enquiry, the Enquiry Officer ought to have brought to the notice of disciplinary authority for assessing the health condition of the petitioner by the Medical Board. Strangely, all authorities looked other way on the health condition of the petitioner.
10. If what is contended by the petitioner is true, a person suffering with some mental disorder cannot be said to be stable and competent to participate in domestic enquiry, which is structured on the lines of criminal trial and effectively defend himself. If the attributes mentioned by petitioner at various stages and assessed by the Enquiry Officer are true, the Disabilities Act, the Mental Health Act and Rule 91-B of the CISF Rules are attracted.
11. The Disabilities Act aims to achieve following objectives:
“i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
ii) to create barrier free environment for persons with disabilities;
iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-vis non-disabled persons;
iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
vi) to make special provision of the integration of persons with disabilities into the social mainstream.”
12. Section 2(i) of the Disabilities Act, defines ‘disability’ ((i) “disability” means— (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness). According to this definition, disability means mental retardation, and mental illness. According to Section 2(q), ‘mental illness’ (q) “mental illness” means any mental disorder other than mental retardation) means any mental disorder other than mental retardation. According to Section 2(r), ‘mental retardation’ ((r) “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub normality of intelligence; 4. S.47. Non-discrimination in Government employment.— (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 he 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) means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence. Thus, a person is stated to be suffering from disability, if he has sub-normality of intelligence/mental disorder. From the notings/ decisions of Enquiry Officer/ competent authorities, it is apparent that all acknowledge the claim of the petitioner that he was suffering from mental illness.
13. Chapter-VIII of the Disabilities Act deals with ‘Nondiscrimination’ in various aspects, such as transportation, construction of building, employment etc. Section 47 of the Disabilities Act4, deals with employment. It prohibits dispensing from service a person suffering from disability. It further requires to provide alternative job or to keep him on supernumerary post until he attains age of retirement. The provisions of the Disabilities Act are mandatory and binding on respondents.
14. In the case on hand, when Enquiry Officer and Disciplinary Authority noticed that petitioner was suffering from mental illness, petitioner ought to have been referred to medical examination in the first instance to ascertain his health status. If petitioner is diagnosed with disability claimed by him, he can not be subjected to disciplinary action. Without assessing the mental health condition of petitioner and his suitability to defend himself properly and to participate in the disciplinary proceedings, the respondents gravely erred in continuing disciplinary proceedings and imposing the punishment. Thus, the whole exercise undertaken by respondents is ex-facie illegal. This very issue was considered by the Hon’ble Supreme Court in Anil Kumar Mahajan v. Union of India (2013) 7 SCC 243).
15. Sri Anil Kumar Mahajan was IAS officer and disciplinary proceedings were initiated against him levelling various charges. In charge No.4, it was alleged that description of duties written by him as per the confidential reports 1985-86 shows that he became victim of imbalance due to mental illness; in charge no.5 also it was alleged that he is undisciplined, irresponsible, unstable and mentally sick. The disciplinary proceedings resulted in passing order of compulsory retirement. On challenge before the Central Administrative Tribunal, the Tribunal held that as a positive finding was recorded by Enquiry Officer that the appellant was totally insane; that disciplinary authority agreed to the same; and that there were reasons to hold the appellant as insane, it found no merit and dismissed the Original Application. The petitioner preferred writ petition in Delhi High Court challenging the decision of the Tribunal. However, on a request made by the counsel for the writ petitioner, the writ petition was dismissed as withdrawn. Aggrieved thereby, Civil Appeal No. 4944 of 2013 was preferred.
16.1. The Hon’ble Supreme Court found fault with the High Court order permitting the lawyer of the appellant to withdraw the writ petition without asserting the health condition of the petitioner.
16.2. The Hon’ble Supreme Court having noticed that specific allegations made in the charge memo that appellant was mentally sick and finding was given that appellant was insane, it was not open to the authorities to dispense with services of the appellant or to compulsory retire him from service (paragraph 21). The Hon’ble Supreme Court held as under:
“20. …………... Therefore, even if it is presumed that the appellant became insane, as held by the enquiry officer, mental illness being one of the disabilities under Section 2(i) of the 1995 Act, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.”
17. With the objective to provide mental health care and service for persons with mental illness and to protect, promote and fulfil their rights, The Mental Health Care Act, 2017 was promulgated. Section 3(5) of the Act defines ‘mental illness’ (S.3. Mental illness (5) – The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court). It means substantial disorder of thinking, mood, perception, orientation or memory. All these attributes are noted by the Enquiry Officer. This Act prescribes procedure for assessment, treatment and care to be taken after the treatment. The impugned action is in violation of the said enactment. The Disabilities Act and the Mental Health Care Act are special enactments dealing with persons suffering from disability, i.e., mental illness in this case.
18. Rule 91-B of the Central Industrial Security Force Rules, 2001 (91-B Retirement of enrolled member of the Force on the grounds of Medical unfitness:- (1) Where a Commandant is satisfied that any enrolled member of the Force is unable to perform his duties by reason of medical unfitness, he may direct that the said enrolled member to be brought before a Medical Board. 2) The Medical Board shall be constituted in such manner as may be determined by the Director General. 3) Where the said enrolled member is found by the Medical Board to be unfit for further service in the Force, the Inspector General, the Deputy Inspector General or as the case may be, the Commandant, may, if he agrees with the findings of the Medical Board order the retirement of enrolled member. Provided that before the said enrolled member is so retired the findings of the Medical Board and the decision to retire him shall be communicated to him. (4) The enrolled member may, within a period of fifteen days from the date of receipt of such communication, make a representation to the officer next sup
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erior in rank to the one who ordered the retirement. (5) The said superior officer shall have the case referred to a Review Medical Board which shall be constituted in such manner as may be determined by the Director General. (6) The superior officer may, having regard to the findings of the Review Medical Board, pass such order as he may deem fit. (7) Where a representation has been made to a superior officer under sub-rule (4), an order passed under sub-rule (3) shall, not take effect till it is confirmed by such superior officer.) deals with retirement of enrolled member of the force on the ground of ‘Medical Unfitness’. It vests power in the Commandant that if any member of the force is unable to perform his duties by reason of medical unfitness, he should direct said member to be brought before a Medical Board. If the Medical Board declares the member of the force as unfit for further service, the Inspector General, the Deputy Inspector General, the Commandant, as the case may be, may retire the enrolled member from service. However, the Rule requires communication of the findings of the Medical board and the decision to the member of the force before resorting to retire him from service and that member is entitled to file objections against the findings of the Medical board and decision of the competent authority to the next higher authority and in such a case, the superior officer is competent to refer the case to the Review Medical Board for its decision. 19. Thus, elaborate procedure is envisaged whenever the competent authority finds that the member of the Force is unable to discharge his duties because of his unfitness. The Disciplinary Authority mixed up both aspects. While continuing the disciplinary proceedings culminating in imposing punishment of compulsory retirement, he takes notice on the health status claim of the petitioner to retire him compulsorily by way of punishment. Thus, the order of compulsory retirement is in violation of statutory mandate. For the reasons best known, at all levels, this aspect was ignored. 20. Having regard to the peculiar facts of the case, it is apparent that there was no application of mind to the issue and ignorance of the statutory environment, culminating in the orders impugned in this writ petition. 21. Looking from any angle, the orders impugned in this writ petition are not sustainable and are accordingly set aside. The Writ Petition is allowed. Petitioner is entitled to reinstatement. Matter is remitted to the disciplinary authority. He shall refer the petitioner to duly constituted Medical Board and based on the assessment of the Medical Board, take all further steps as required by law. It is made clear that there is no expression of opinion on merits of the allegations levelled against the petitioner. Pending miscellaneous petitions shall stand closed.