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2018 DIGILAW 1616 (GAU)

Union of India v. Ravinder Kumar Dhariwal

2018-11-15

A.K.GOSWAMI, A.S.BOPANNA

body2018
JUDGMENT & ORDER : A.S. BOPANNA, J. 1. The appellants, Union of India and other officers, who were the respondents in WP(C) 4598/2015, are before this Court assailing the order dated 19.8.2016 passed by the learned Single Judge. Learned Single Judge, having accepted the contention put forth by the petitioner, has taken into consideration the provisions contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995 (for short, Act of 1995) and has directed the respondents to take a decision in terms of the provisions under Section 47 of the Act of 1995. The effect of the decision of the learned Single Judge is to nullify the effect of enquiry and to grant benefit in that regard. The appellants, therefore, being aggrieved by the order are before this Court in this appeal. 2. Heard Mr. SC Keyal, learned Assistant Solicitor General of India appearing for the appellants as well as Mr. PK Tiwari, learned senior counsel assisted by Mr. AR Gogoi, learned counsel for the respondents and perused the appeal papers. 3. The appellants herein had initiated the proceedings by issuing charge-sheet dated 8.7.2010 against the respondent No.1 herein alleging misconduct and, in that regard, had proceeded to enquire into the matter. Ultimately, on submission of the enquiry report, the disciplinary authority had issued the notice dated 7.8.2015 enclosing the report. It is, at this stage, the respondent herein had approached this Court assailing the action of the appellants herein contending that the charges as levelled against the respondent No.1 herein cannot constitute misconduct. In that regard, it was contended that the respondent No.1 was suffering from a mental disorder known as “Obsessive & Compulsive Disorder” (OCD) in medical terms. In that light, it was contended that if the charges as levelled against the petitioner are taken note of, the same, even if had occurred, was due to such mental condition of the respondent No.1 and therefore, it was contended that the same not being a misconduct, initiation of the enquiry and subsequent action was not justified. The learned Single Judge, while accepting the said contention, was of the opinion that if Section 47 of the Act of 1995 is kept in mind, in view of such disability, a decision in that regard was required to be taken by the appellants herein. 4. The learned Single Judge, while accepting the said contention, was of the opinion that if Section 47 of the Act of 1995 is kept in mind, in view of such disability, a decision in that regard was required to be taken by the appellants herein. 4. Learned counsel for the appellants, while assailing such conclusion reached by the learned Single Judge, would contend that the contention of such mental disorder of the respondent No.1 herein had been made for the first time in the writ petition. It is his contention that neither in the reply to the charge-sheet, nor in the reply to the enquiry report that had been submitted, such contention had been taken and in that light, the learned counsel would contend that the learned Single Judge ought not to have accepted the same and relief ought not to have been granted. 5. During consideration of the appeal, learned counsel for the appellants has also sought to rely on the original records that had been secured by him relating to the enquiry, to contend that the respondent No.1, in fact, had tendered his statement before the enquiry officer and even at that stage, he had not referred to his illness which is indicated presently and therefore, the only action that was required to be taken was to conclude the enquiry proceeding by passing the final order and as such, the order of the learned Single Judge ought to be interfered with at this stage. Hence, it is contended that the order passed by the learned Single Judge is liable to be set aside and the appellants should be directed to proceed with the enquiry from the stage where the enquiry had stopped and from the stage where action of the appellants had been interfered by this Court through the order of the learned Single Judge. 6. Learned senior counsel for the respondents, however, seeks to support the order passed by the learned Single Judge. It is contended that the mental condition that the respondent No.1 had suffered was of the nature that a person would believe himself to be alright in all respects but his actions would not be acceptable to other persons. 6. Learned senior counsel for the respondents, however, seeks to support the order passed by the learned Single Judge. It is contended that the mental condition that the respondent No.1 had suffered was of the nature that a person would believe himself to be alright in all respects but his actions would not be acceptable to other persons. In that light, it is contended that the very fact that the petitioner No.2 before the learned Single Judge, namely, wife of the respondent No.1, though had made an attempt to bring all these aspects in the enquiry proceeding, the authority did not permit her to do so. It is in that light, prejudice had been caused to the respondents in putting forth all these materials in the enquiry proceedings. Learned senior counsel would also refer to the documents of the medical establishment of the Composite Hospital where reference is made to the mental condition, more particularly, the depression for which medication was being received by the respondent No.1. It is contended that though at the point when the writ petition was filed, the respondents had sought for a medical examination, presently, the respondent No.1 has recovered to discharge his function in a responsible position and in that view, an opportunity may be provided to the respondent No.1 to place all the materials before the enquiry officer. 7. In the light of rival contentions, having noticed that the enquiry proceedings had been initiated by issuing memorandum and the articles of charges being framed against the respondent No.1 herein, we also notice from the original record that has been brought before us, that the evidence, no doubt, had been recorded and the statements of the respondents had also been recorded. If that be the position, the issue that would arise for consideration is as to whether the order passed by the learned Single Judge requires to be accepted or if we are of the opinion that consideration made by the learned Single Judge is not justified, whether the procedure that is required to be adopted in the matter of a present nature, has been followed. 8. 8. In that regard, a perusal of the order passed by the learned Single Judge would indicate that the contention of the respondents that the respondent No.1 herein had suffered from OCD appears to have been accepted and it is in that view, learned Single Judge, having taken into consideration the contention that the respondent No.1 herein was suffering from mental illness and more than 40% disabilities, has ultimately ordered that Section 47 of the Act of 1995 be kept in view and a decision be taken accordingly. On that score, firstly, we find that in a matter of present nature, where such mental contention is pleaded by the respondent, the question whether to accept or reject such contention cannot be answered in a writ proceeding where evidence on that aspect was not available on record. Therefore, in that circumstance, application of the provisions of the Act of 1995 on that score is faulty. Even otherwise, the contention put forth by the learned counsel for the appellants is also that an exemption notification had been issued exempting from applying the provision of the said Act to the employees under the appellants herein. This is also an aspect which, according to us, is premature at this stage since we have already indicated that the acceptance of the mental condition in a writ proceeding of the present nature, in the absence of evidence and the finding of fact recorded in that aspect, is not permissible. Therefore, to that extent, at this stage, we clarify that applicability or otherwise of the provisions as contained in the Act of 1995 is a matter to be ultimately considered on the evidence being recorded and a finding recorded with regard to mental condition of the respondent No.1 herein. Hence, to that extent, all contentions in that regard are left open. 9. Having arrived at the above conclusion, a question arises with regard to the manner in which the enquiry is to proceed and the procedure that is required to be adopted from this stage. No doubt, as already noticed from the records made available, the evidence had been tendered by the appellants in support of the charge levelled against the respondent No.1 and the statement of the respondents was also recorded. In reply to the notice issued along with the enquiry report, the respondent No.1, no doubt, had made his representation on 7.1.2014. No doubt, as already noticed from the records made available, the evidence had been tendered by the appellants in support of the charge levelled against the respondent No.1 and the statement of the respondents was also recorded. In reply to the notice issued along with the enquiry report, the respondent No.1, no doubt, had made his representation on 7.1.2014. The learned counsel for the appellants would point out that in the representation dated 7.1.2014, the respondent No.1 has not referred to he having suffered from OCD as has been put forth in the writ proceedings. We notice that the very nature of the reply would indicate that the respondent No.1 had continued to make certain allegations which did not appear to be normal and had also made certain allegations against the DIGP about giving mental/psychiatric treatment to certain persons. Though at this stage, we may not accept the contents of the said reply to be an actual mental condition of the respondent No.1, we cannot ignore the documents which were produced by the respondents herein along with the writ petition. For easy reference, it would be appropriate to extract the documents which were produced as Annexure-16 series along with the writ petition. “TO : IG/DIRECTOR (MED) DTE INFO : NEZ HQR GTY POLCENT NES/(PERS) DTE/CH NEW DELHI DIG GC GTY/RANGE GTY/(CR & VIGILENCE) DTE FM : IG (MED) CH GTY NO : M.III.CH GTY/2015-CH GTY DTD /07/2015 U/C (-) REG. TREATMENT/REFERRAL OF SH. R.K. DHARIWAL, D/C OF GC CRPF GTY (.) SH. R.K. DHARIWAL, AGE-40 YRS, IRLA NO.-5473 OF GC CRPF GTY IS A FOLLOW UP CASE OF OCD WITH MAJOR DEPRESSION ON REGULAR MEDICATION (.) NO SIGNIFICANT IMPROVEMENT WITH TREATMENT BY PSYCHIATRIST OF CH CRPF GTY AND GTY MEDICAL COLLEGE HOSPITAL NOTICED (.) REQUIRES TREATMENT AT HIGHER MEDICAL CENTERS AT NEW DELHI (.) REQST ACCORD APPROVAL TO SEND THE PATIENT TO CH CRPF NEW DELHI FOR FURTHER NEEDFUL TREATMENT (.) GC GTY ONLY (.) REQST ARRANGE TO SEND THE OFFICER TO CH CRPF NEW DELHI A/W ONE ATTENDANT FOR FURTHER TREATMENT ON HEARING FM MED. DTE CRPF///// M/IMDT.// POLCENT (MEDICAL) CH GTY” “OFFICE OF THE PIG (MEDICAL/MEDICAL OSUPDT. COMPOSITE HOSPITAL, CRPF GUWAHATI-23 (ASSAM) Office Phone No.0361-285045 Fax No.0361-2895368 Emergency/OPD No. 0361-2895050 To, The I.G. (MEF) CEI CRPF IDLI Delhi Subject : REFERRAL OF PATIENT TO GOVT. HOSPITAL. F. No. IRCA.5473 Rank DC/GD, Name Ravinder Kr. DTE CRPF///// M/IMDT.// POLCENT (MEDICAL) CH GTY” “OFFICE OF THE PIG (MEDICAL/MEDICAL OSUPDT. COMPOSITE HOSPITAL, CRPF GUWAHATI-23 (ASSAM) Office Phone No.0361-285045 Fax No.0361-2895368 Emergency/OPD No. 0361-2895050 To, The I.G. (MEF) CEI CRPF IDLI Delhi Subject : REFERRAL OF PATIENT TO GOVT. HOSPITAL. F. No. IRCA.5473 Rank DC/GD, Name Ravinder Kr. Dhariwal, F/O. M/O. S/O. D/O. H/O.W/O. Self Age 40 years Sex- M GC/unit GC City is being referred to your Hospital for needful please. Brief history and positive findings:- It is an old case of OCD is Major depression on regular medication and still symptomatic at present. Treatment Given : (1) T. Flussuion CR 100 my IBD (2) T. Sutalo-plus 11 + B (3) T. Aviphron 25 1 cup Purpose of referral:- It is being referred to CH. CRPF, Delhi for his better management at higher centre in New Delhi Approval taken as per MEDICAL DTE office order No. M-IIH/2015-DA-C (REFL) dated 29/07/2015. Sd/- Illegible 31/7/2015 IG (MEDICAL HOSPITAL, CRPF, GUWAHATI-23 (ASSAM) Sd/- Illegible 31/7/2015 Dr. I, Narzari MBBS, DPM CMO (OGI Psychiatrist)” 10. The extracted portion of the documents would indicate that though the said documents are of the year 2015, it emerges from the very medical establishment of the appellants herein and reference with regard to the case of the respondent No.1 herein, that it was an old case of OCD and that the respondent No.1 suffers from major depression even on regular medication. Reference we have made to the said documents only to indicate that at this stage we cannot ignore the contention put forth by the respondents. In that circumstance, when an enquiry has been initiated and the misconduct as alleged in the article of charges related to the nature of behaviour which the respondents contend, even if it had happened, that was due to his mental condition, it is a defence that is available to be put forth by the respondents. Therefore, the said documents with any other document relating to the behaviour of the respondent No.1 during the relevant period would also be material in arriving at the ultimate conclusion. Therefore, the said documents with any other document relating to the behaviour of the respondent No.1 during the relevant period would also be material in arriving at the ultimate conclusion. Therefore, though we do not approve of the conclusion reached by the learned Single Judge, in modification of the said order in so far as the challenge made by the respondents to the enquiry report, we are of the opinion that an interference is necessary to that extent so as to provide an opportunity to put forth all materials before the enquiry officer and enabling the appellants as well to conclude the enquiry proceeding in an objective manner and take a decision in accordance with law. 11. In that view of the matter, the enquiry report dated 3.10.2013 and subsequent notice issued pursuant to the notice dated 7.8.2015, which was impugned before the learned Single Judge, are set aside. 12. The enquiry proceedings are restored to the stage of recording of evidence enabling the respondents to file his additional objection/statement to memorandum of article of charge before the enquiry officer and produce all documents for support of the case of the respondents. 13. The enquiry proceeding shall continue from the said stage and all the contentions of the parties are left open. 14. In terms of the above directions, the instant appeal is allowed in part. 15. So far as the evidence tendered on behalf of the appellants, it is left to their discretion as to whether additional evidence is to be tendered or rely on the evidence already recorded in the proceeding.