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'Feel Very Strongly About It' : Supreme Court Takes Objection To Centre Saying That A Judgment Recorded Submissions Which Weren't Made

Mehal Jain

7 March 2022 8:55 AM GMT

    • Feel Very Strongly About It : Supreme Court Takes Objection To Centre Saying That A Judgment Recorded Submissions Which Werent Made

    The Supreme Court on Monday took strong objection to an application for clarification filed by the Centre's police agencies (respondents in a matter where judgment was delivered in December, 2021), urging that some of the submissions which were recorded in the judgment and on the basis of which the Court had proceeded were never advanced by them.In the said judgment, the bench of Justices D....

    The Supreme Court on Monday took strong objection to an application for clarification filed by the Centre's police agencies (respondents in a matter where judgment was delivered in December, 2021), urging that some of the submissions which were recorded in the judgment and on the basis of which the Court had proceeded were never advanced by them.

    In the said judgment, the bench of Justices D. Y. Chandrachud, Surya Kant and Vikram Nath had observed that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination. The Apex Court was adjudicating upon a case wherein disciplinary proceedings had been initiated against an officer of the Central Reserve Police Force who had been diagnosed with 40 to 70 percent mental disability.
    At the outset, on Monday, Justice Chandrachud put to Additional Solicitor General Madhavi Diwan, who had appeared in the original proceedings for the Centre and its agencies, "What happens when a law officer says 'I have filed a 100 page affidavit, please read the affidavit so that you are not burdened with reading the record'? I have the record in front of me! Now your officer has filed an MA before us that these submissions were never made? After once you had drawn our attention to your counter affidavit? Every one of the submissions was contained in the counter! Have we thought of them from our own imagination? Every one of the submissions which we have recorded is traceable back to the counter affidavit you had filed. I am going to put down para by para so that I don't have another MA"
    "It was submitted before us that the Union cannot risk placing a man of unstable mind...that retaining him would severely affect the mentality of paramilitary forces...that he has excesive OCD and suicidal tendencies...it was your submission that you cannot give him a weapon", pointed out the judge.
    Continuing, Justice Chandrachud stated, "Most of my judgments come within 2 weeks, so there is no question of some long lapse. We hold up the brief when we dictate. We make a précis. We take responsibility for the judgments we dictate. And after we burn the midnight oil, and deliver judgments, there is an MA saying we never made these submissions? An officer of DIG rank saying 'some of the submissions' recorded were not made? I feel very strongly about this"
    Justice Chandrachud added, "We must keep a transcription of the proceedings in court. That will obviate all this"
    The bench, also comprising Justice Surya Kant, proceeded to dictate- "The judgment of this court dated December 17, 2021 adverts to the submissions which were made before this court by Ms. Madhawi Diwan, ASG, appearing on behalf of the Union of India and other agencies. Each of the submissions which have been inferred in the paragraphs have been specifically cross-referenced on the basis of the counter affidavit which was filed by the Union of India. To set the record state, it would be necessary to refer to the submissions as recorded within the judgment and the paragraphs of the counter-affidavit on the basis of which the submissions are recorded. It needs to be clarified that during the course of the hearing, the ASG has drawn the attention of the court to the fact that the counter-affidavit has been filed by the Union of India setting out the detailed facts in the history of the case. The submissions which have been recorded are based on the counter-affidavit which was filed by the Union of India."
    Post-order mentioning
    During afternoon, ASG Divan made a mentioning of the matter and submitted that the said submissions were recorded from the counter-affidavit and were not made by her in the court. The bench agreed to clarify it accordingly and pass an order to that effect.
    In the order passed, the bench said :

    "In paragraph 14 of the judgment of this Court dated 17 December 2021, the words, namely, "Ms Madhavi Divan, the learned Additional Solicitor General appearing on behalf of the respondents, has urged that" shall stand deleted and be substituted by the words "A counter affidavit has been filed on behalf of the respondents stating that". At the end of paragraph 14, the following sentence shall stand inserted:

    "Ms Madhavi Divan, learned Additional Solicitor General has appeared on behalf of the respondents and has placed relevant perspectives before the Court having regard to the mental condition of the petitioner."

    (The dictated order was not passed)

    Background
    While setting aside the disciplinary proceedings, the Supreme Court had observed,

    "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"

    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."

    Pertinently, the Bench further observed that Section 47 of the Rights of Persons with Disabilities Act, 2016 (RPwD Act) is not the sole source of the right of equality and non-discrimination held by persons with disability but that the principle of non-discrimination is fundamental to the entire legislation.

    "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...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 laying down the principle of equality vis-à-vis disabled persons, it will have to be read into the statute", it was opined further.

    It was further underscored that 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. The Court further ruled that the appellant is also entitled to the protection of Section 20(4) of the RPwD Act in the event that 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 will 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", the Bench directed further.

    In the instant case, a Division Bench of the Gauhati High Court had allowed an appeal against the judgment of a Single Judge of the High Court challenging the disciplinary proceedings initiated against the appellant. The Single Judge had directed the State to consider the case of the petitioner in view of Section 47 of the Act. Allowing the appeal against the order of the Single Judge, the Division Bench had set aside the enquiry report and restored the proceedings to the stage of evidence.

    The appellant had joined the Central Reserve Police Force in November 2001. While serving in Ajmer, on April 18, 2010, the Deputy Inspector General of Police had lodged a complaint against him in the Alwar Gate police station alleging that the appellant had stated that he was obsessed with either killing or being killed and made a threat that he could shoot.

    Subsequently, an enquiry had been initiated against him and six charges were framed against him which were that he remained absent from morning marker, used unparliamentary language, appeared in television channels and other print media without the prior approval of the Department, did not give parade report, tried to intentionally cause an accident, and assaulted a Deputy Commandant. An enquiry report was submitted on October 3, 2013. Pursuant to the enquiry report, notice was issued to the appellant on 7 August 2015. Thereafter two more enquires had been initiated against the appellant on various other charges.

    Furthermore, the appellant began suffering from facing obsessive-compulsive disorder and secondary major depression in 2009. He was subsequently referred to Dr Ram Manohar Lohia Hospital, Delhi where he was categorized as permanently disabled, having 40 to 70 per cent disability. 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.

    Setting aside the disciplinary proceedings against the appellant, the Supreme Court observed :

    "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 will 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".

    Case Title: RAVINDER KUMAR DHARIWAL AND ANR. v. THE UNION OF INDIA AND ORS.
    Tags
    Supreme CourtMental Disabilitydisciplinary proceedingsRights Of Persons With Disabilities Act 2016#Justice DY Chandrachud#Justice Surya KantASG Madhavi Diwan
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