# RAVINDER KUMAR DHARIWAL & ANR v. THE UNION OF INDIA & ORS

- **Citation:** [2021] 13 S.C.R. 823
- **Court:** Supreme Court of India
- **Decided:** 2021-12-17
- **Case number:** Civil Appeal No. 6924 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, Surya Kant, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ravinder-kumar-dhariwal-anr-v-the-union-of-india-ors-35297
- **Pages:** 100

## Headnote

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enquiry - During pendency, the PwD Act repealed and RPwD Act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
A
B
C
D
E
F
G
H
824
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,

## Text

_Characters 0–38,670 of 231,066. This is a partial read: ask again with offset=38670 for what follows._

A
B
C
D
E
F
G
H
823
[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
A
B
C
D
E
F
G
H
824
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-discrimination against disabled persons, it must still have to be
read in the statute - United Nations Convention on the Rights of
A
B
C
D
E
F
G
H
825
Persons with Disabilities - Art. 5 - Rights of Persons with
Disabilities Act 2016 - Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act 1951.
Mental Health: Rights of persons with mental disability visà-vis employment discrimination - Foreign jurisprudence -
Comparative study of position in India, United States, Canada,
European Union and South Africa - Discussed.
Allowing the appeal, the Court
HELD: 1.1 (i) The validity of the disciplinary proceedings
would be determined against the provisions of the Rights of
Persons with Disabilities Act 2016 (RPwD Act) instead of the
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act 1995 (PwD Act) for the following
reasons:
(a) The respondent holds a privilege under the 2002
notification to not comply with the principles of non-discrimination
and reasonable accommodation provided under Section 47 of the
PwD Act. However, for a privilege to accrue in terms of Section 6
of the GCA Act 1897, mere expectation or hope is not sufficient.
Rather, the privilege-holder must have done an act to avail of the
right. The privilege provided by the 2002 notification would
accrue only when one of the punishments provided under Section
47 has been imposed. However, in the instant case, the
disciplinary proceedings were challenged even before the
punishment stage could be reached. Therefore, the privilege
available to the respondent under the 2002 notification did not
accrue in terms of Section 6 of the General Clauses Act 1897
(GCA Act);
(b) Section 47 of the PwD Act is not the sole source of the
right of equality and non-discrimination held by persons with
disability. The principle of non-discrimination guides the entire
statute whose meaning and content find illumination in Article 5
of the United Nations Convention on the Rights of Persons with
Disabilities. An interpretation that furthers international law or
gives effect to international law must be preferred. Therefore,
even though the PwD Act does not have an express provision
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
826
SUPREME COURT REPORTS
[2021] 13 S.C.R.
laying down the principle of equality vis-à-vis disabled persons,
it will have to be read into the statute; and
(c) The 2002 notification is not saved by Section 102 of the
RPwD Act since Section 20 of the RPwD Act is not corresponding
to Section 47 of the PwD Act;
(ii) The disciplinary proceedings are discriminatory and
violative of the provisions of the RPwD since a 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;
and the mental disability of a person need not be the sole cause
of the misconduct that led to the initiation of the disciplinary
proceeding. Any residual control that persons with mental
disabilities have over their conduct merely diminishes the extent
to which the disability contributed to the conduct. The mental
disability impairs the ability of persons to comply with workplace
standards in comparison to their able-bodied counterparts. Such
persons suffer a disproportionate disadvantage due to the
impairment and are more likely to be subjected to disciplinary
proceedings. Thus, the initiation of disciplinary proceedings
against persons with mental disabilities is a facet of indirect
discrimination. [Para 106][921-B-G; 922-A-E]
1.2 The disciplinary proceedings against the appellant
relating to the first enquiry are set aside. The appellant is also
entitled to the protection of Section 20(4) of the RPwD Act in the
event he is found unsuitable for his current employment duty.
While re-assigning the appellant to an alternate post, should it
become necessary, his pay, emoluments and conditions of service
must be protected. The authorities would be at liberty to ensure
that the assignment to an alternate post does not involve the use
of or control over fire-arms or equipment which may pose a danger
to the appellant or others in or around the work-place.
[Para 107][922-E-G]
2.1 Section 6 of the GCA provides that where a central
enactment repeals another enactment, the repeal shall not affect
any legal proceeding or investigation with respect to an accrued
right, unless a different intention appears from the repealing
statute. The general rule of interpretation is that a newly enacted
A
B
C
D
E
F
G
H
827
statute has prospective application. Section 6 of the GCA provides
an exception to this rule, where a pending legal proceeding or
investigation would be guided by the old enactment, if any 'right,
privilege, obligation or liability' has accrued to the parties under
the repealed law. [Para 17]860-G-H; 861-A]
2.2 Section 47 of the PwD Act states that no employee
working in a Government establishment, who acquires a disability
during the course of service shall be (i) terminated from
employment; (ii) reduced in rank; or (iii) denied promotion.
Section 47 protects disabled employees from punitive actions on
the ground of disability. Since the 2002 notification exempts the
CRPF from the application of Section 47, it is to be examined if
any right or privilege has accrued to the CRPF under the 2002
notification. It is to be considered whether an exemption from a
protective provision such as Section 47 results in the accrual of a
right or privilege in favour of the CRPF to continue pending
proceedings under the PwD Act in terms of Section 6 of the GCA
Act 1897. [Para 18][861-F-H]
2.3 For Section 6 of the GCA to be applicable, two conditions
need to be fulfilled. Firstly, the respondent must possess a 'right,
privilege, obligation, or liability'; and secondly, the 'right,
privilege, obligation, or liability' must have accrued before the
repeal of the old enactment or provision. Section 47 of the PwD
Act is a protective provision available to employees who are
disabled in the course of their employment. The provision places
an obligation on the employer to not impose punitive punishments
such as termination of employment, reduction in rank, and denial
of promotion. Therefore, the employee has a right to not be
punitively punished for their disability (and a right to be reasonably
accommodated), while the employer has a duty not to impose
such punitive punishments (and a duty to reasonably
accommodate). However, when the 2002 notification was notified
exempting the CRPF from the application of the provision, the
employee lost the right to claim that they should not be punitively
punished. By corollary, it would mean that the CRPF has been
exempted from its duty under Section 47, and thus holds a
privilege to impose punitive punishments against persons with
disabilities. [Para 20][863-B, C-F]
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
828
SUPREME COURT REPORTS
[2021] 13 S.C.R.
W.N Hohfeld, Fundamental Legal Conceptions as
applied in Judicial Reasoning and other legal essays,
(W.W. Cook ed., Yale University Press, 1919 -
referred to.
2.4 For the application of Section 6 of the GCA Act 1897,
the privilege should have accrued to the respondent under the
2002 notification before the repeal of the PwD Act. It is settled
law that Section 6 of the GCA Act 1897 only protects accrual of
rights and privileges and not the mere hope or the expectation
of accrual. [Para 21][863-F-G]
Hamilton Gell v. White (1922) 2 KB 422; Director of
Public Works v. Ho Po Sang 2 (1961) 2 All ER 721;
Abbot v. Minister for Lands (1895) AC 425 - referred
to.
M.S Shivanda v. KSRTC (1980) 1 SCC 149 : [1980] 1
SCR 684; Bansidhar & Ors. v. State of Rajasthan &
Ors. (1989) 2 SCC 557 : [1989] 2 SCR 152; Lalji Raja
Sons v. Firm Hansraj Nathuram [1971] 3 SCR 815;
Thyssen Stahlunion Gmbh v. Steel Authority of India
Ltd. (1999) 9 SCC 334 : [1999] 3 Suppl. SCR 461 -
referred to.
2.5 The principles for the application of Section 6 of the
GCA Act 1897 are that the party must possess a right and the
right ought to have accrued; that only specific rights and not
abstract or inchoate rights are saved under Section 6 of the GCA
Act 1897; that an abstract right becomes a specific right, only
when the party does an act to avail himself of the right; and that
the action necessary to avail an abstract right is dependent on
the nature of the right and the text of the statute. [Para 23]
[866-C-E]
2.6 The privilege that the respondent possesses under the
2002 notification would be an abstract or inchoate privilege unless
the privilege has been acted upon by the respondent. It cannot
be argued that the privilege to demote or terminate the employee
is accrued on the initiation of the disciplinary proceedings. The
privilege that the CRPF holds under the 2002 notification is a
A
B
C
D
E
F
G
H
829
non-conditional abstract privilege that it always possesses. In
the context of Section 6 of the GCA, these abstract privileges
are accrued or acquired only when the privilege- holder does an
act as required under the statute or otherwise to avail of the
privilege. [Para 24][866-E-G; 867-A]
Hamilton Gell v. White (1922) 2 KB 422 - referred to.
3.1 The privilege is only accrued when the privilege- holder
does an act required under the statute to avail of the privilege.
To answer whether the privilege has accrued to the appellant,
the nature of the privilege granted by the 2002 notification would
first have to be determined since the accrual of a privilege would
depend on the nature and content of the privilege itself.
[Para 25][867-B-C]
3.2 The marginal note to Section 47 of the PwD Act reads
as 'Non- discrimination in Government Employment'. A pertinent
question that arises for consideration is whether the 2002
notification exempts the employer from its duty of nondiscrimination on the ground of disability, or whether it only
exempts the specific forms of discrimination expressly mentioned
in Section 47 of the PwD Act. [Para 26][867-C-D]
3.3 The facets of non-discrimination that guide the PwD
Act are threefold: (i) right to formal equality, where no person
shall be discriminated based on her disability; affirmative action
in pursuance of substantive equality under Section 33; and
reasonable accommodation of persons with disabilities such as
provided under Section 47. There may be no specific provision
in the PwD Act-unlike the RPwD Act-which provides persons
with disability the right of non-discrimination. However, since
the principle of substantive equality (of providing equal outcomes
through affirmative action and reasonable accommodation) is
premised on the principle of non-discrimination, there is no reason
to hold that the principle of non- discrimination, of treating every
person equally irrespective of her disability does not guide the
entire statute. [Para 28][869-G; 870-A-C]
3.4 By no stretch of imagination, can it be said that the
principle of non-discrimination is limited to Section 47 of the PwD
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
830
SUPREME COURT REPORTS
[2021] 13 S.C.R.
Act. Section 47 only provides the right of non- discrimination
with regard to specific forms of discrimination during the course
of employment. The general right against discrimination runs
through the entire statute. The limited nature of Section 47
becomes apparent when it is compared with Section 20 of the
RPwD Act. Section 47 of the PwD Act, unlike Section 20 of the
RPwD Act, does not contain a provision in the nature of subSection (1) of Section 20 which provides that a government
establishment cannot discriminate against a person with a disability
in "any matter" relating to employment. While the contours of
"any matter" used in Section 20 of the RPwD Act are not
interpreted in the instant case, it would suffice to say that Section
20 of the RPwD Act casts a net of protection wider than Section
47 of the PwD Act. [Paras 29, 30][870-D-F; 871-D-E]
3.5 It is settled law that if two interpretations are possible,
then the interpretation which is in consonance with international
law or gives effect to international law must be used. Since Article
5 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 Article 5 must be undertaken.
Therefore, even though the PwD Act does not have an express
provision laying down the general principle of non-discrimination
against disabled persons, it must still have to be read in the
statute. Therefore, Section 47 only provides persons with
disability with the right against specific forms of discrimination
and not the general right of non- discrimination which runs through
the entire statute but which cannot be located in a specific
provision. Accordingly, the 2002 notification will also only exempt
the CRPF from the duty against those specific forms of
discrimination mentioned in Section 47. Correspondingly, the
2002 notification only grants the employer the privilege of
discriminatory conduct in employment with respect to those acts
specified under Section 47 of the PwD Act. Thus, under the 2002
notification, the CRPF has the privilege to terminate, demote, or
deny promotion to employees with disabilities. It also has the
privilege to not abide by the principle of reasonable
accommodation in re-assigning the post of an employee with a
disability. However, it does not have the privilege to discriminate
A
B
C
D
E
F
G
H
831
against a disabled employee in any other matter relating to
employment. The privilege under the 2002 notification will accrue
only when the disciplinary proceedings reach the stage of
punishment and the respondent imposes one of the punishments
mentioned in Section 47. The privilege can only accrue on the
happening of one or more events that are necessary for the
accrual. The accrual of the privilege cannot be based on an
assumption, hope or expectation of exercising the privilege. When
the disciplinary proceedings reach the punishment stage, the
appellant could have still been imposed other punishments
prescribed under the Service Rules which are not included within
the purview of Section 47 of the PwD Act. Therefore, no privilege
is accrued to the respondent under Section 47 of the PwD Act.
[Paras 32-34][872-D-G; 873-A-D]
Vikas Kumar v. Union Public Service Commission
(2021) 5 SCC 370; Rajive Raturi v. Union of India
(2018) 2 SCC 413 : [2017] 12 SCR 827; Disabled
Rights Group v. Union of India (2018) 2 SCC 397; Jeeja
Ghosh v. Union of India (2016) 7 SCC 761 : [2016] 4
SCR 638; Apparel Export Promotion Council v. A.K.
Chopra (1999) 1 SCC 759 : [1999] 1 SCR 117; Githa
Hariharan v. Reserve Bank of India (1999) 2 SCC 228
: [1999] 1 SCR 669; Justice Khanna in ADM Jabalpur
v. Shivakant Shukla (1976) 2 SCC 521 : [1976] 0 Suppl.
SCR 172 - referred to.
Commission for Social Development, Interim Report
of the Secretary General: Implementation of the World
Programme of Action concerning Disabled Persons
(1999), available at https://www.un.org/esa/socdev/enable/
disecne5.htm#VI - referred to.
4.1 Section 102(2) of the RPwD Act states that anything
done, or any action taken under the PwD Act shall be deemed to
have been done or taken under the 'corresponding provisions'
of the RPwD Act. The 2002 notification was issued under Section
47 of the PwD Act. The 2002 notification would be saved under
Section 102 (2) only if there is a provision in the RPwD Act that
is 'corresponding' to Section 47 of PwD Act. [Para 35][873-D-E]
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
832
SUPREME COURT REPORTS
[2021] 13 S.C.R.
4.2 Section 20 of the RPwD Act covers a wider ambit when
compared to Section 47 of the PwD Act. Section 20(1) provides
for non-discrimination based on disability, which is a provision in
pursuance of the equality mandate in Article 5 of United Nations
Convention on the Rights of Persons with Disabilities. Section
20(2) states that reasonable accommodation and a conducive
environment free from barriers must be provided to persons with
disabilities. However, the provisions of Section 47 of the PwD
Act only provide a right to the employee to not be demoted,
terminated, or denied promotion because of disability, and
reasonable accommodation by adjusting posts. The principle of
reasonable accommodation provided under Section 20(2) is not
restricted to the accommodations mentioned in Section 47. Under
Section 20(2), the employer has a duty - in view of the principle
of reasonable accommodation- to post a person suffering from
disability at a place closer to home. This form of reasonable
accommodation is not provided under Section 47, though it may
flow through the PwD Act. Therefore, Section 20 of the RPwD
Act is not corresponding to Section 47 of the PwD Act. If any
other interpretation is placed, then the 2002 notification would
be deemed to exempt other rights that are available to disabled
persons under Section 20 of the RPwD Act, which were not
otherwise exempted under the PwD Act. Since there is no
corresponding provision, the exemption notification issued under
Section 47 of the PwD Act would lose the force of law. Therefore,
in view of the discussion on both Section 6 of the GCA Act 1897
and Section 102 of the RPwD Act, the provisions of the PwD Act
and the 2002 notification are not applicable to the instant
proceedings. [Para 38][875-A-E]
4.3 Since, the writ petition was filed before the Single Judge
of the High Court in 2015, before the enactment of the RPwD
Act, the validity of the disciplinary proceedings could have only
been decided on the anvil of the provisions of the PwD Act.
However, the Single Judge ought not to have entered into the
issue of the applicability of Section 47 of the PwD Act when the
disciplinary proceedings were challenged at the initial stage since
Section 47 applies only at the punishment stage. The only question
A
B
C
D
E
F
G
H
833
before the High Court was whether it was justified for CRPF to
have initiated disciplinary proceedings against the appellant for
the alleged misconduct which was connected to his mental
disability and whether the initiation of such proceedings was
discriminatory. At the relevant point of time, when the intra-court
appeal was filed against the judgement of the Single Judge, the
RPwD Act had come into force. However, since no privilege had
accrued to the respondent under the PwD Act, and the 2002
notification was not saved under Section 102 of the RPwD Act,
the Division Bench should have decided the intra-court appeal
on the provisions of the RPwD Act. This would entail that the
appellant became entitled to the rights under Section 20 of the
RPwD Act at the time when the intra-court appeal was being heard.
When the appellant was before the Division Bench of the High
Court, he was already diagnosed with a permanent disability of
40 to 70 percent by the government hospital. Further, the
Composite Hospital by a report dated 18 July 2016, declared the
appellant unfit for duty and placed him under the S5(P) category
due to his partial and limited response to all modalities of
treatment since 2009. The Division Bench also noted that the
documents issued by the CRPF's hospital indicate that the
appellant has had a mental disability for a long time. In such
circumstances, it was not appropriate for the High Court to
restore the disciplinary proceeding on the ground that a factual
determination of the disability of the appellant is to be established
through such a proceedings. [Paras 39, 40][875-F-H; 876-A-D]
Pankajakshi (dead) through LRs' v. Chandrika (2016)
6 SCC 157 : [2016] 3 SCR 1018; Kalpana Kothari v.
Sudha Yadhav (2002) 1 SCC 203 : [2001] 4 Suppl.
SCR 598 - referred to.
5.1 Section 3 of the RPwD Act states that persons with
disabilities must not be discriminated against on the ground of
disability, and the appropriate government shall ensure that
persons with disability enjoy the right to live with dignity. Section
2(h) of the RPwD Act defines discrimination. Section 20 of the
RPwD Act states that no government establishment shall
discriminate against any person with a disability in matters relating
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
834
SUPREME COURT REPORTS
[2021] 13 S.C.R.
to employment. The disabled employee also has a right to
reasonable accommodation and to access a workplace without
barriers. It further provides that no disabled employee shall be
terminated, reduced in rank, or denied promotion because of the
disability. On the repeal of the PwD Act by the RPwD Act, the
2002 Notification also lost its force of law. Between 27 December
2016, when the RPwD Act had come into force and 18 August
2021, when the 2021 notification was issued, there was no
exemption notification in force. The Special Leave Petition was
instituted on 5 October 2020. It has been held that when a lis
commences, all rights and obligations of the parties get
crystallised on that date. Therefore, the rights of the parties would
freeze as on the date of filing the Special Leave Petition. In the
Special Leave Petition filed before this Court, it was submitted
that the initiation of disciplinary proceedings is discriminatory
and violative of the provisions of the RPwD Act. Therefore, the
right to non-discrimination in matters of employment provided
under Section 20, accrued to the appellant on the filing of the
Special Leave Petition since the 2021 notification had not been
notified at the relevant time. Thus, the 2021 notification would
have no application to the facts of the instant case. [Para 41]
[876-E-F, G-H; 877-A-D]
Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.
(2001) 8 SCC 397 : [2001] 2 Suppl. SCR 195 - referred
to.
5.2 On a combined reading of the definitions provided in
Section 2(s) and 2 (c) of the Act, it is evident that the RPwD -
similar to the 2017 Act - defines disability as a social construct
and not solely as a medical construct. The Act does not define a
mental impairment to solely constitute a disability. Rather, it
defines disability based on the interaction of the impairment with
the barriers which in effect hamper the effective participation of
an individual. [Para 49][881-H; 882-A-B]
6. When the interaction with the barriers causes a person
to feel 'disabled', it is extremely important to not stigmatize or
discriminate against persons having mental health issues or any
other form of disability. Such discrimination would only further
entrench the feeling of being 'disabled'. [Para 54][885-F]
A
B
C
D
E
F
G
H
835
Common Cause v. Union of India (2018) 5 SCC 1 :
[2018] 6 SCR 1; Navtej Singh Johar v. Union of India
(2019) 3 SCC 39; Accused X v. State of Maharashtra
(2019) 7 SCC 1 : [2019] 6 SCR 1; Mahendra KC v.
The State of Karnataka 2021 SCC OnLine SC 1021 -
referred to.
7.1 The jurisprudence in Indian law relating to mental
disability and employment discrimination has revolved around
Section 47 of the PwD Act. This Court while interpreting Section
47 has held that the provision is applicable when the mental
disability is acquired during service. While applying Section 47,
the Court did not enter into an analysis of whether the mental
disability was a factor or had a direct causal connection with the
alleged misconduct that led to the dismissal. Thus, a different
standard applies to cases governed by Section 47. It is important
to clarify that the analysis undertaken in examining whether
disciplinary proceedings can constitute discrimination against
persons with disabilities would not influence the jurisprudence
on Section 47 of the PwD Act. Section 47 comes into play only at
the stage of impositions of sanctions, where an employee cannot
be dispensed with or reduced in rank. Since the jurisprudence
on this issue is yet to evolve in India, the legal policies and
practices adopted by other jurisdictions in relation to the rights
of persons with mental disabilities against employment
discrimination are analysed. It has also been specifically examined
how courts in other jurisdictions have adjudicated misconduct
charges when the alleged conduct is found to be connected to
the mental disability of the employee. [Paras 67-69][892-G-H;
893-A-B, C-E]
7.2 On basis of the foreign jurisdictions on Disabilities Act
in United States, Canada, European Union, South Africa it is
concluded that:
(i) Mental health disorders are recognised as a disability
as long as they fulfil the defining criteria;
(ii) The duty of providing reasonable accommodation to
persons with disabilities is sacrosanct. All possible alternatives
must be considered before ordering dismissal from service.
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
836
SUPREME COURT REPORTS
[2021] 13 S.C.R.
However, there are accepted defences to this principle. The wellrecognised exception to this rule is that the duty to accommodate
must not cause undue hardship or impose a disproportionate
burden on the employer - the interpretation of these concepts
may vary in each jurisdiction. In the US, the duty to accommodate
is also to be balanced with ensuring the safety of the workplace
(the direct risk defence) provided that the threat to safety is based
on an objective assessment and not stereotypes. In Canada, the
minority concurring opinion in Stewart's case observed that
accommodating a person with substance dependency would cause
undue hardship to the employer in a safety-sensitive workplace.
The Court of Justice of EU also recognised workplace safety as
a legitimate occupational requirement for imposing certain
occupational standards. However, it ruled that the standard should
be proportionate to the objective of workplace safety that is sought
to be achieved. It would be useful to refer to the minority opinion
in Stewart's case which emphasizes that the duty to accommodate
is individualized. The employer must be sensitive to how the
individual's capabilities can be accommodated. The Committee
on the Rights of Persons with Disabilities in General Comment
Six expressly notes that the duty to accommodate is an
"individualised reactive duty" and "requires the duty bearer to
enter into dialogue with the individual with a disability". Thus, a
blanket approach to disability-related conduct will not suffice to
show that the employer has discharged its individualized duty to
accommodate. It must show that it took the employee's individual
differences and capabilities into account;
(iii) Mental health disorders pose a unique challenge in
disability rights adjudication. Very often, persons are not aware
of or are in denial of their mental disability. Even if they hold the
awareness, to avoid stigma and discrimination, they tend to not
disclose their mental illness before an incident of purported
misconduct. Thus, they may fall foul of the requirement to request
a reasonable accommodation. In the US, the requirement to
provide reasonable accommodation is prospective. In Canada,
the majority in Stewart's case observed that despite the substance
dependency, the employee had the ability to make a prior
A
B
C
D
E
F
G
H
837
disclosure of the dependency to the employer and could have
availed of the reasonable accommodation. However, the minority
opinion, emphatically observed that self-reporting cannot be
construed as accommodation for persons who are in denial of
their disability. The Committee on the Rights of Persons with
Disabilities in General Comment Six notes that the duty to
accommodate also arises in cases where the duty bearer "should
have realized that the person in question had a disability that
might require accommodations to address barriers to exercising
rights"; and
(iv) As regards, the examination of misconduct charges
against persons with mental health disorders, there are two
strands of argument. One argument is that mental disability often
manifests as atypical behaviour that may fall within the ambit of
misconduct. If such conduct is causally connected to the disability,
then dismissal on grounds of misconduct is discrimination based
on disability. This argument has been accepted by a few courts in
the US. In the minority opinion in Stewart's case, it was observed
that making a distinction between the disability and the disabilityrelated conduct is akin to making a distinction between a
protected ground and conduct that is intertwined with the
protected ground. On the other hand, it is argued that while
mental health disorders may diminish the control a person has
over their actions, it does not necessitate that the persons have
completely lost their ability to comply with acceptable standards
of workplace conduct. In the US, most courts have held that
misconduct is not protected under ADA. In Stewart's case, the
majority opinion of the Canadian Supreme Court held that the
employee with substance dependency retained some control to
comply with the policy of making prior disclosure of dependency.
Thus, non-compliance with standards of workplace conduct can
rightfully lead to dismissals and would not constitute
discrimination. South Africa adopts a middle ground in this debate.
In Legal Aid South Africa's case, the court observes that a twopronged enquiry is required. It must first be considered based
on the evidence whether the mental health disorder is so
incapacitating that the person is not able to appreciate the
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
838
SUPREME COURT REPORTS
[2021] 13 S.C.R.
wrongfulness of the conduct or is unable to conduct themselves
in accordance with the required standard. Alternatively, if the
evidence suggests that the person can appreciate the
wrongfulness of their conduct and act accordingly, then their
culpability stands diminished because of the mental health
disorder, and sanctions should be imposed accordingly.
[Para 89][910-B-H; 911-A-H; 912-A-E]
Geetaben Ratilal Patel v. District Primary Education
Officer (2013) 7 SCC 182 : [2013] 17 SCR 900 -
referred.
Borgialli v. Thunder Basin Coal Co. 235 F.3d 1284,
1290 (10 th Cir.2000); Office of the Senate Sergeant
at Arms v. Office of Senate Fair Employment Practices,
95 F.3d 1102, 1107 (Fed. Cir. 1996); Bugg-Barber v.
Randstad US, L.P. 271 F. Supp. 2d 120, 130 (D.D.C.
2003); Burmistrz v. City of Chi. 186 F. Supp. 2d 863,
875 (N.D. Ill. 2002); Hamilton v. Southwestern Bell
Telephone Co. 136 F.3d 1047, 1052 (5th Cir. 1998);
Teahan v. Metro-North Commuter Railroad 951 F.2d
511 (2d Cir. 1991); Den Hartog v. Wasatch Academy
129 F.3d 1076, 1086 (10th Cir. 1997); Raytheon Co.
v. Hernandez 540 U.S. 44 (2003); Martin Johnson and
Jane Doe on behalf of themselves and all other similarly
situated v. Frank Kendall, Secretary of the Air Force;
Entrop v. Imperial Oil (2000) 50 OR (3d) 18; British
Columbia (Public Service Employee Relations
Commission) v. BCGSEU [1999] 3 SCR 3; HK Danmark
v. Dansk Almennyttigt Boligselskab DAB and HK
Danmark v. Pro Display A/S in Konkurs 11 April 2013,
joined cases C-335/11 and C-337/11; Standard Bank
of SA v. CCMA 3 (2008) 29 ILJ 1239 (LC); Smith v.
Kit Kat Group(Pty) Ltd. (2017) 38 ILJ 483(LC);
Pharmaco Distribution (Pty) Ltd. v. EWN (2017) 38 ILJ
2496 (LAC); New Way Motor & Diesel Engineering
(Pty) Ltd v. Marsland (2009) 30 ILJ 2875 (LAC); Legal
Aid South Africa v. Ockert Jansen (2020) 41 ILJ 2580
(LAC) - referred to.
A
B
C
D
E
F
G
H
839
G Gururaj, M Varghese et. al., National Mental Health
Survey of India, 2015-16: Prevalence, patterns and
outcomes, (2016) NIMHANS Publication No 129,
available at http://indianmhs.nimhans.ac.in/Docs/
Report2.pdf; Richard M Duffy, Bredan D Kelly,
Concordance of the Indian Mental Healthcare Act 2017
with the World Health Organization's Checklist on
Mental Health Legislation, 11(1) International Journal
of Mental Health Systems 48 (2017), available at
https://ijmhs.biomedcentral.com/articles/10.1186/
s13033-017-0155-1; Committee on Rights of Persons
with Disabilities, General Comment 1, available at
https://documents-dds-ny.un.org/doc/UNDOC/GEN/
G14/031/20/PDF/G1403120.pdf?OpenElement; H
Kranz, Calling in Depressed: A Look at the Limitations
of Mental Illness in the Workplace, SayNoToStigma
(2012), available at http://saynotostigma.com/2012/06/
calling-in-depressed-a-look-at-the-limitations-ofmental-illness-in-the-workplace; Heather Stuart,
Mental illness and employment discrimination, 19(5)
Current Opinion in Psychiatry 522-526 (2006);
Arunima Kapoor, Depressed People Need Not Apply:
Mental Health Stigma Decreases Perceptions of
Employability of Applicants with Depression, 7 Yale
Review of Undergraduate Research in Psychology 8494 (2017), available at https://cpb-us-w2.wpmucdn
.com/campuspress.yale.edu/dist/a/1215/files/2017/06/
Arunima-1amuxqj.pdf; Jayna Kothari, The UN
Convention on Rights of Persons with Disabilities: An
Engine for Law Reform in India, 45(18) Economic and
Political Weekly 65-72 (2010); Committee on Rights
of Persons with Disabilities, General Comment 1,
available at https://documents-dds-ny.un.org/doc/
UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?
OpenElement; Brendan D. Kelly, Mental Capacity,
Human Rights, and the UN's Convention of the Rights
of Persons with Disabilities, 49(2) Journal of the
American Academy of Psychiatry and the Law Online
RAVINDER KUMAR DHARIWAL v. THE UNION OF INDIA
A
B
C
D
E
F
G
H
840
SUPREME COURT REPORTS
[2021] 13 S.C.R.
152-156 (2021), available at http://jaapl.org/content/
jaapl/49/2/152.full.pdf; Committee on the Rights of
Persons with Disabilities, General Comment 6,
available at https://tbinternet.ohchr.org/layouts/15/
treatybodyexternal/Download.aspx?symbolno=
CRPD/C/GC/6&Lang=en; International Labour
Organization, Managing Disability in the Workplace:
ILO Code of Practice, available at https://www.ilo.org/
global/topics/safety-and-health-at-work/normativeinstruments/code-of-practice/WCMS_107777/langen/index.htm; Brendan D. Kelly, Mental Health,
Mental Illness, and Human Rights in India and
Elsewhere: What are we aiming for?, 58 (Suppl 2)
Indian Journal of Psychiatry S168-S174 (2016),
available at https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC5282611/; Major William E.