JUDGMENT : 1. This writ petition has been preferred by the petitioner praying that the dismissal order dt. 06.05.1997 be set aside and be declared illegal and the petitioner be reinstated. He has also prayed for quashing enquiry report of the Enquiry Officer and the findings arrived at on the said basis by the disciplinary authority. 2. The short conspectus of the case is that the petitioner was enrolled as a Constable in R.A.C. on 23.12.1971. It is stated by him that in 1991, he suffered mental sickness called ‘Schizophrenia’ and ‘Delirium’ on account of which he used to unknowingly leave his place of posting and went astray. This resulted in unauthorized absence from duties. He underwent continuous treatment at various Government hospitals at Nagaur and Jaipur between 1991-93. But the ailment could not be cured fully and he would unknowingly overstay the leave or absent himself from duty. 3. It is stated that a memorandum dt.30.08.1994 was issued to him under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeals) Rules, 1958 initiating major penalty proceedings on the ground of alleged misconduct of overstaying of leave as well as deliberate absence from duty for various intervals during the period of 1991 to 1994. The petitioner being under mental Delirium/disease could not submit his reply and the enquiry was conducted ex-parte. The petitioner was not able to know about the departmental enquiry proceedings and while the Enquiry Officer gave a finding that he was suffering from mental sickness, held charges No.1 to 10 as party proved and remaining charges were fully proved. The Enquiry Officer further recommended that the petitioner deserves to be removed from service and of course it is an admitted position that the copy of the enquiry report has been served upon petitioner, however in his ‘Delirium’, the petitioner did not file any reply and the disciplinary authority imposed the penalty from dismissal of the service vide order dt.31.12.1996, treating the period of absence as extraordinary leave. 4. The petitioner preferred an appeal to the appellate authority who accepted the objections of the petitioner and found that the petitioner had not been provided adequate opportunity to defend his case and quashed the order of punishment and at the same time remanded the proceedings back to disciplinary authority to reconsider the case and to pass speaking order afresh after giving valid reasons. 5. 5. It is the case of the petitioner that the disciplinary authority did not provide any further opportunity to the petitioner nor the petitioner was reinstated in service and the disciplinary authority proceeded to pass punishment order afresh in similar terms as earlier passed vide order dt.06.05.1997. The appeal preferred by the petitioner was however, disallowed and the dismissal order was maintained. Aggrieved of the removal order dt.06.05.1997 as well as appellate order dt.10.06.1998, the petitioner has preferred this writ petition inter alia stating that as the petitioner was admittedly suffering from mental sickness, the departmental proceedings could not have been undertaken against him. 6. Learned counsel for the petitioner further submitted that in view of the sufferance of the petitioner, the charge of not attending duties could not have been alleged on him. The fact was fully known to the respondents that petitioner has undergone his treatment for mental illness while he was in the police line. It was further submitted that the order of punishment could not have been passed against a mentally disable person and such an action was against human rights. He has also relied upon judgment passed by coordinate Bench of this Court in Jagdish Prasad Vs. State of Rajasthan & Others 2009(7) SLR 793 wherein identical case relating to constable who was suffering from mental illness, this Court has held as under:- “The Disciplinary Authority in his case was the Superintendent of Police (Headquarter, Jaipur) who also controls the Police Lines, Jaipur. The Enquiry Officer was Additional Superintendent of Police (Crime Branch), Jaipur. The Events of this nature, which pertain to the petitioner showing his mental ailment to the extent that he had to be twice hospitalized in the mental hospital at the instance of Senior Medical Officer of Government Hospital within the Reserve Police Line itself, ought not to have completely gone unnoticed by the disciplinary authority and the enquiry officer. It is surprising that so many other documents including the entry report of the petitioner joining duties on 13022001 vide Entry No. 176 of the Rojnamcha were produced before the enquiry officer by the Department and this significant aspect of the matter was withheld from the enquiry. It is surprising that so many other documents including the entry report of the petitioner joining duties on 13022001 vide Entry No. 176 of the Rojnamcha were produced before the enquiry officer by the Department and this significant aspect of the matter was withheld from the enquiry. When enquiry against the petitioner was being held ex parte because of such mental state of the petitioner, the department was duty obliged to bring before the enquiry officer all such facts which would have material bearing on the matter. The enquiry proceedings against the petitioner, who had been undergoing such mental health thus ex facie appears to be not only contrary to the principles of natural justice but also violative of Articles 14 and 16 of the Constitution of India. In the first place, absence of a person with such an ailment cannot be described as wilful absence because he is in no position to either decipher his wishes or discern his willingness. Secondly, the so called service of notice on a person who has no control over his mental senses and is not able to decide what is in his best interest or otherwise and what was the implication of his non appearance, cannot be called as due service of notice. The enquiry proceedings against the petitioner, in my considered view, were held in utter and complete disregard of principles of natural justice. Disciplinary proceeding conducted against the petitioner was, therefore, a mere eye-wash. The appellate authority, in spite of the fact that the petitioner raised all these arguments before him about his mental health and onwards and about being referred to Government Hospital at the instance of Senior Medical Officer of Reserve Police Lines, simply dismissed the appeal as being time barred. The facts that were stated before him could as a whole be considered sufficient cause for condoning delay and considering that appeal on merits. 9. In view of what has been discussed above, the order of removal of the petitioner cannot be sustained, although the decision of the disciplinary authority in the self-same order to the extent of regularizing his absence period i.e. from 5th April, 2000 to 13the February, 2001 i.e. for total number of 314 days, need not to be interfered with. 10. In view of what has been discussed above, the order of removal of the petitioner cannot be sustained, although the decision of the disciplinary authority in the self-same order to the extent of regularizing his absence period i.e. from 5th April, 2000 to 13the February, 2001 i.e. for total number of 314 days, need not to be interfered with. 10. The writ petition is accordingly allowed and the order of removal dated 20.12.2001 is hereby quashed and set aside only to the extent of removal of the petitioner. Consequently, the order of appellate Authority dated 14.03.2005 is also quashed and set aside. The petitioner is held entitled to reinstatement in service with all consequential benefits.” 7. It was further submitted that in another case 2012 (2) Supreme 254 Krushnakant B. Parmar Vs. Union of India & Anr., it was held by the Hon’ble Supreme Court:- “16. The question whether ‘unauthorized absence from duty’ amounts to failure of devotion to duty or behaviour unbecoming of a Government servant can-not be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such ab-sence can not be held to be wilful. 18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different an eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.” 8. Per contra, learned counsel for the respondents submitted that there has been a continuous absence from duty of 293 days of the petitioner from 1979 till 1990. It is further stated that petitioner had also submitted such certificate regarding mental disease only on 01.10.1995 and prior to that the petitioner did not inform about his mental disease. While it is admitted by the respondents that the petitioner was suffering from mental ailment of ‘Schizophrenia’ and ‘Delirium’. It is further stated that petitioner had also submitted such certificate regarding mental disease only on 01.10.1995 and prior to that the petitioner did not inform about his mental disease. While it is admitted by the respondents that the petitioner was suffering from mental ailment of ‘Schizophrenia’ and ‘Delirium’. It is submitted that the petitioner ought to have been appeared before the Enquiry Officer and he could not have remained absent from duty without information. It is also submitted that even a review petition has been rejected and this Court may not now interfere with the departmental proceedings. 9. Having given thoughtful consideration to the submissions of both the counsel, a look at the departmental enquiry proceedings and the enquiry report shows that the Enquiry Officer has observed that several times the petitioner was found absent and has left his place of posting and on information received from general public the petitioner was bought back by other Constables from different places. Statement has also been recorded that the petitioner was found drunk and in ebriated condition. The medical bills of the petitioner and certificates have also been noted by the Enquiry Officer and a finding has also been given that the petitioner was in a habit of remaining absent from duty. In such situation, the Enquiry Officer has proceeded to have recommended for removal from service. The disciplinary authority passed the order dt.31.12.1996 accepting the enquiry report and held that the petitioner was not in a fit condition to continue in service. It is seen that the disciplinary authority quoted the entire enquiry report and proceeded to pass the order of dismissal without adverting to the illness. The concerned disciplinary authority who was the commandant of 4th Battalion, where the petitioner was posted, would be having full knowledge of the condition of the petitioner, has failed to take note of the treatment which the petitioner has undergone of sehizofrania. The same has been confirmed by the appellate authority certificate dt.28.09.1995, showing that the petitioner is suffering from serious mental illness, which has also been placed on record. The Mental Health Act, 1987 and the State Mental Rules, 1990 provide for the manner which a mentally sick person has to be protected. A look at the Act of 1987 shows that the various provisions required protection to be provided to person who is mentally ill. 10. The Mental Health Act, 1987 and the State Mental Rules, 1990 provide for the manner which a mentally sick person has to be protected. A look at the Act of 1987 shows that the various provisions required protection to be provided to person who is mentally ill. 10. That apart, under the erstwhile Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, it was provided under Section 47 that a person suffering from any kind of disability during the course of employment would be entitled for protection and would not be removed from his post on account of such disability. In the case of Union of India Vs. Devendra Kumar Pant and others: (2009) 14 SCC 546 , the Supreme Court even discussed provisions of Section 47 of the Act of 1995 and held that a person may not be even denied promotion merely on the ground that he suffers from disability. 11. In the case of Sudarshan Rajpoot Vs. Uttar Pradesh State Road Transport Corporation: (2015) 2 SCC 317 , while discussing Section 47 of the Act of 1995, it has been held by the Supreme Court in Para 34 of its judgment as under:- “34.Therefore, the respondent Corporation is statutorily obliged under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to provide alternate equivalent job to the appellant workman in place of the post of driver. Therefore, we direct accordingly.” 12. This Court in the case of Jagdish Prasad Vs. State of Rajasthan & Others (supra) has taken this aspect into consideration although in somewhat different terms. 13. In the case of Krushnakant B. Parmar Vs. Union of India & Anr. (supra), the Apex Court has also considered the same aspect. 14. The Parliament has now introduced a new Act namely; ‘The Rights of Persons with Disabilities Act, 2016’, which has been notified on 28/12/2106, superseding the earlier Act of 1995. Sections 3 & 6 of this Act of 2016 provide as under:- “3.(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. (2) The appropriate Government shall taken steps to utilise the capacity of persons with disabilities by providing appropriate environment. Sections 3 & 6 of this Act of 2016 provide as under:- “3.(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. (2) The appropriate Government shall taken steps to utilise the capacity of persons with disabilities by providing appropriate environment. (3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. (4) No person shall be deprived of his or her personal liberty only on the ground of disability. (5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities.” “6(1) The appropriate Government shall take measures to protect persons with disabilities from being subjected to torture, cruel, inhuman, or degrading treatment. (2) No person with disability shall be a subject of any research without.- (i) his or her free and informed consent obtained through accessible modes, means and formats of communication; and (ii) prior permission of a Committee for Research on Disability constituted in the prescribed manner for the purpose by the appropriate Government in which not less than half of the members shall themselves be either persons with disabilities or Members of the registered organization as defined under clause (z) of section 2.” 15. As per the new Act of 2016 and taking into consideration the aforesaid judgments, the erstwhile Section 47 of the Act of 1995 has been now reformulated as under:- “20.(1) No Government establishment shall discriminate against any person with disability in any manner 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. (3) No promotion shall be denied to a person merely on the ground of disability. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (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.” 16. Thus, as per Section 20(4) of the Act of 2016 and the proviso thereto, a person, acquiring disability during his service, cannot be dispensed with from his job. 17. Admittedly, the respondents were having full knowledge of the petitioner suffering from mental illness of ‘Schizophrenia’ and ‘Delirium’ and in these circumstances, the order of dismissal could not have been passed and the same deserves to be quashed & set aside. However, looking to the mental status of the petitioner, it would not be in the fitness of the things to hold him entitled to be reinstated and in-stead of reinstatement and joining back in service, he would be entitled for being treated as having retired from service with proportionate pension. 18. Having noticed the aforesaid law, this Court finds itself unable to sustain the order dt.06/05/1997 by which the petitioner has been dismissed from service. 19. Consequently, the writ petition stands partly allowed. The order of dismissal impugned herein dt. 06.05.1997 is quashed & set aside and the respondents are directed to treat the petitioner as having retired from service with proportionate pension from the date of passing of this order. The arrears due to the petitioner including pension and retiral benefits be calculated/computed accordingly and released to him within a period of three months from the date certified copy of this order is submitted in the office of the respondents. No order as to costs.