NDLI: Ravinder Kumar Dhariwal & Anr. Vs. The Union of India & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Rights of Persons with Disabilities Act 2016
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Rights of Persons with Disabilities Act, 2016 (49 of 2016)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
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Writ petition challenging the inquiry report and the notice issued in the first enquiry – During pendency, the PwD Act repealed and RPwD Act of 2016 was enacted – When the disciplinary proceedings were initiated, the PwD Act was in force and the 2002 notification issued thereunder,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 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 Convention – 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 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 vis- à-vis employment discrimination – Foreign jurisprudence – Comparative study of position in India, United States, Canada, European Union and South Africa – Discussed.
Judge	Hon'ble Dr. Justice D.Y. Chandrachud
Neutral Citation	2021 INSC 916
Petitioner	Ravinder Kumar Dhariwal & Anr.
Respondent	The Union Of India & Ors.
SCR	[2021] 13 S.C.R. 823
Judgement Date	2021-12-17
Case Number	6924

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