Disciplinary proceedings against person with mental disability is a facet of indirect discrimination; SC sets aside action against CRPF personnel

Supreme Court: In a case where the CRPF had initiated disciplinary proceeding against a person with a medical history of obsessive compulsive disorder  and depression and has been undergoing treatment for the same since 2009, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination as such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings.

Relevant Provisions under the Rights of Persons with Disabilities Act 2016

  • Section 3 of the RPwD Act provides a general guarantee against non-discrimination and equality to persons with a disability.
  • Section 20 specifically provides that no government establishment shall discriminate against any person who has acquired a disability in any matter relating to employment.
  • Section 2(h) prohibits discrimination on the basis of disability. It is pertinent to note that the provision does not use the phrase ‘only’ on the basis of disability.

The Court specifically highlighted that Sub-Section (4) of Section 20 advances the guarantee of reasonable accommodation to persons with mental disabilities. The Government establishment has a positive obligation to shift an employee who acquired a disability during service to a suitable post with the same pay scale and service benefits. The provision further states 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 becomes available or when they attain the age of superannuation, whichever is earlier.

Further, the proviso to sub-Section (1) of Section 20 of the RPwD Act provides a justification for violating the right against discrimination in employment. It provides that the appropriate government, may, having regard to the type of work carried on in any establishment exempt such an establishment from the provisions of Section 20. The key words here to note are “having regard to the type of work”. This indicates that the government’s right to exempt an establishment from the provisions of Section 20 which deals with employment discrimination is not absolute. In an appropriate case, a standard for reviewing the justification given by the government may have to be developed.

The Court, however, did not indicate any final thoughts on how the proviso to Section 20 (1) is to be interpreted.

Pondering over the possible trappings which a standard of judicial review may adopt, the Court said that such an enquiry is rooted in, “the idea that something protected as a matter of right may not be overridden by ordinary considerations of policy…Reasons justifying an infringement of rights have to be of a special strength”.

“The jurisprudence of Sections 3 and 20 of the RPwD Act would have to evolve. Our journey has begun.”

Whether disciplinary proceedings can be instituted against the atypical conduct of an employee who has a mental disability: Key highlights of the 97-pages long verdict

  • A person with a disability is entitled to protection under the Rights of Persons with Disabilities Act 2016 (RPwD Act) as long as the disability was one of the factors for the discriminatory act.
  • The mental disability of a person need not be the sole cause of the misconduct that led to the initiation of the disciplinary proceeding. Disability needs to be one of the factors that led to the discriminatory act. Thus, the employee is only required to prove that disability was one of the factors that led to the institution of disciplinary proceedings against him on the charge of misconduct. A related enquiry then is to examine whether the conduct of the employee with a mental disability must be solely a consequence of their disability or it is sufficient to show that the disability was one of the factors for the conduct. An interpretation that the conduct should solely be a result of an employee’s mental disability would place many persons with mental disabilities outside the scope of human rights protection.
  • Having regard to the complex nature of mental health disorders, any residual control that persons with mental disabilities have over their conduct merely diminishes the extent to which the disability contributed to the conduct, it does not eliminate it as a facto.
  • 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. Many people with mental health disorders are willing and able to work. However, socio-structural barriers impede their participation in the workforce. People diagnosed with mental health disorders are less likely to be employed or are relegated to low-paying jobs that are not commensurate with their qualifications and interests. Exclusion from the workforce not only creates conditions of material deprivation, but it also impacts self-confidence, and results in isolation and marginalization which exacerbates mental distress. To escape stigma and discrimination, persons with mental health issues painstakingly attempt to hide their illnesses from co-workers and managers. Thus, they may fall foul of the requirement to request a reasonable accommodation. Hence, the duty of providing reasonable accommodation to persons with disabilities is sacrosanct.
  • All possible alternatives must be considered before ordering dismissal from service. Thus, what is required is a nuanced and individualized approach to mental disabilities related discrimination claims, which requires understanding the nature of the disadvantage that such persons suffer.
  • Saying that persons with mental health disorders are never in control of their actions, may perpetuate another stereotype that such persons are “dangerous”, who are more prone to commit violent or reckless acts.
  • Since disability is a social construct dependent on the interplay between mental impairment with barriers such as social, economic and historical among other factors, the one – size fits all approach can never be used to identify the disability of a person. Disability is not universal but is an individualistic conception based on the impairment that a person has along with the barriers that they face. Since the barriers that every person faces are personal to their surroundings – interpersonal and structural, general observations on ‘how a person ought to have behaved’ cannot be made.

Ruling on facts

The appellant has been undergoing treatment for mental health disorders for a long time, since 2009. He has been diagnosed with 40 to 70 percent of permanent disability by a government hospital. The Court, hence, noticed that,

“While all CRPF personnel may be subject to disciplinary proceedings on charges of misconduct, the appellant is more vulnerable to engage in behavior that can be classified as misconduct because of his mental disability. He is at a disproportionate disadvantage of being subjected to such proceedings in comparison to his able-bodied counterparts.”

Hence, in light of Section 20(4) and the general guarantee of reasonable accommodation that accrues to persons with disabilities, the appellant is entitled to be reassigned to a suitable post having the same pay scale and benefits. The CRPF may choose to assign him a post taking into consideration his current mental health condition. The suitability of the post is to examined based on an individualised assessment of the reasonable accommodation that the appellant needs. The authorities can ensure that the post to which the appellant is accommodated does not entail handling or control over firearms or equipment which can pose a danger to himself or to others in or around the workplace.

[Ravindra Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293, decided on 17.12.2021]


Counsels

For Appellant: Advocate Rajiv Raheja, learned counsel appearing on behalf of the appellant

For UOI: Additional Solicitor General Madhavi Divan


*Judgment by: Justice Dr. DY Chandrachud

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