Sivram Shripat Gambhir Vs. State of Gujarat and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1145145
CourtMumbai High Court
Decided OnSep-11-2013
Case NumberSpecial Civil Application No. 2755 of 2012
JudgeC.L. SONI
AppellantSivram Shripat Gambhir
RespondentState of Gujarat and Others
Excerpt:
oral judgment 1. here is a case where absence of the petitioner on account of his insanity/mental retardation/mental illness made him to suffer an order of compulsory retirement on the charge of unauthorised absence from duty. 2. the petitioner who put in about 31 years of service came to be served with a chargesheet dated 06.09.2002, alleging absenteeism from duty after 11.01.2000 and departmental inquiry was initiated against him. however, the petitioner did not attend the departmental inquiry and the departmental inquiry was concluded in his absence. based on the inquiry report, the petitioner was served with second show cause notice, to which, the petitioner did not respond and ultimately the disciplinary authority the respondent no.4, passed order dated 13.01.2004 under rule 3 of the bombay police (discipline and appeal) rules, 1956, of compulsory retirement against the petitioner. in the said order, the period from 11.01.2000 till the date of the order, is considered as leave without pay. 3. the petitioner in his petition has averred about his mental condition and his inability to attend the inquiry proceedings. he has also averred that considering his long and unblemished service, he should be made entitled to pension and other retirement benefits as the order of compulsory retirement does not entail any consequences. 4. i have heard learned advocates for the parties. learned advocate shri s.n.sinha appearing for the petitioner submitted that inquiry initiated against the insane person is no inquiry in the eye of law and the punishing order based on such inquiry is bad in law. 5. mr.sinha submitted that the petitioner who was appointed as constable in state reserve police force on 06.03.1968, reached to the position of assistant sub inspector on 04.03.1987 on account of his sincere and honest service. learned advocate mr.sinha submitted that the petitioner had made his mark as a sportsman and excelled in the game of volleyball upto the state level and he was best shot in rifle shooting competition in the srp. however, to his misfortune, he started suffering mental imbalance and proceeded on casual leave on 09.01.2000 and thereafter was not in a position to resume duties. learned advocate mr.sinha submitted that none resumption of duty by the petitioner was taken as unauthorised absence of the petitioner and the petitioner was departmentally proceeded. learned advocate mr.sinha submitted that the proceedings of the inquiry report produced at annexure:b records about the mental illness of the petitioner. 6. learned advocate mr.sinha submitted that if the mental condition of the petitioner was found not stable, the inquiry ought not to have proceeded further and no order of the punishment of compulsory retirement could have been issued against the petitioner. learned advocate mr.sinha submitted that the mental condition of the petitioner, in fact, called for sympathetic consideration of the matter at the hands of the respondents by treating his entire service till he stopped attending the duty as qualifying service for the purpose of giving him pension and other retirement benefits. learned advocate mr.sinha has also drawn the attention of the court to bombay state reserve police rules, 1956, (the rules for short) providing for duty and responsibilities of the commandant to look after the health and well being of the subordinate staff and submitted that instead of proceeding with the inquiry, the petitioner could have been provided with medical help. learned advocate mr.sinha thus, urged to allow the petition and to direct the respondents to grant benefit of pension and other retiral benefits with interest by treating entire service of the petitioner as qualifying service, irrespective of order of compulsory retirement. 7. as against the above arguments, learned agp shri niraj ashar submitted that since, the petitioner did not remain present during the inquiry, the inquiry officer was not left with any option but to conclude inquiry and based on the inquiry report the order of compulsory retirement was passed. learned agp shri ashar submitted that the petitioner was served with notice after he started remaining absent, however, he did not provide any medical certificate and therefore, the charge for unauthorised absence from duty was proved against the petitioner. learned agp mr.ashar submitted that the disciplinary authority took a liberal view of the matter and instead of removing the petitioner from service, an order of compulsory retirement was passed against the petitioner. learned agp shri ashar submitted that on account of such order, the petitioner could not be made entitled to pension benefits. he thus, urged to dismiss the petition. 8. having heard learned advocates for the parties and having perused the record of the case, especially the inquiry report dated 26.02.2003 at annexure:b, page 27, with annexure:a, it appears that though the case of the petitioner called for sympathetic and humanitarian approach looking to his mental condition, his absence from duty was treated as unauthorized absence. 9. the inquiry report at annexure:b clearly reveals that the mental condition of the petitioner was not good. it is stated in the report that the mental condition of the petitioner was not good, that he did not attend the inquiry proceedings, that during the inquiry proceedings the wife of the petitioner remained present and pointed out that his husband had been suffering from mental illness for last 2 years and he has become insane, that he was confined in the house, that on such representation made by the wife of the petitioner, the presenting officer went to the house of the petitioner and confirmed that the petitioner was confined in the house on account of his imbalanced mind, that he was provided household treatment, that the petitioner was in habit of tearing out his cloths and wearing no cloths, that he torn all government documents and then gulped it, that he was not in a position to understand anything and giving shouts. it is further found recorded in the proceedings that for mental illness of the petitioner, no medical certificate was produced. when inquiry officer was reported by the presenting officer about insanity of the petitioner and about his unnatural behavior, it was expected of inquiry officer to bring to the notice of the concerned authority the mental illness of the petitioner so as to first get him treatment, instead of proceeding with the inquiry. but, he concluded the inquiry and rendered the inquiry report with finding that the charge of absenteeism was proved against the petitioner. in view of above facts emerging from the proceedings of the inquiry, the inquiry conducted in absence of the petitioner was in gross violation of the principles of natural justice. 10. it is not disputed that the petitioner was a state level volleyball player. he has also scored 87 marks in rifle firing and 74 marks in stan, but his mental condition was deteriorated. if such a person stopped attending duty, it was required of the commandant i.e. the respondent no.4 to get to the truth as regards non attendance of the duty by the petitioner, especially when sub rule 8 and 9 of rule 6 and rules 8, 11 and 12 of the rules make provision for looking after the health of the subordinate staff in such disciplined force. unfortunately, though the wife of the petitioner brought to the notice of the inquiry officer about mental illness of the petitioner and though the inquiry officer got the same confirmed through the presenting officer, no responsible officer took step for providing proper medical treatment to the petitioner. when the insanity was reported during the inquiry proceedings, even if medical certificate about the mental condition of the petitioner was not produced the inquiry officer should have stopped proceeding with the inquiry and no further order ought to have been passed based on such inquiry, wherein, the petitioner could not participate. 11. besides above, at least when the disciplinary authority received the inquiry report and came to know about the insanity of the petitioner, it was expected of the disciplinary authority not to impose punishment but to confer upon the petitioner the benefits of pension and other retiral benefits, considering his qualifying service of more than 30 years. 12. mental illness or the mental retardation is considered to be a disability as per section 2 of the persons with disabilities (equal proceedings protection of rights and full participation) act, 1995 (for short the act). as per the provisions of section 47 of the act, the service of an employee suffering with such disability cannot be dispensed with. in case of anil kumar mahajan vs. union of india reported in (2013) 7 scc 243 hon'ble supreme court has observed in para no.17, 18 and 20 as under: œ17. the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995 (hereinafter referred to as the 'act, 1995') was enacted in the year 1995 with the following statement of objects and reasons: (i) to spell out the responsibility of the state towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis nondisabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream.? 18. section 2(i) defines œdisability?: 2(i) "disability" means -blindness;low vision;leprosycured;hearing impairment;loco motor disability;mental retardation;mental illness;?20. the appellant was appointed in the service of respondents as an ias officer and joined in the year 1977. he served for 30 years till the order of his compulsory retirement was issued on 15th october, 2007. it is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an ias officer in 1977. therefore, even it is presumed that the appellant became insane, as held by the inquiry officer, mentally illness being one of the disabilities under section 2(i) of the act, 1995, under section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. if the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.? 13. in light of the above and in view of the facts about insanity of the petitioner, emerging from the report of the inquiry at annexure:b, the petitioner could be made entitled to regular pension and other retiral benefits for the qualifying service rendered by him till the date he started remaining absent from duty i.e. 10.01.2000, irrespective of the order of compulsory retirement passed against him. 14. for the reasons stated above, the petition is partly allowed. the petitioner is held entitled to pension and other retiral benefits for qualifying service put in by him till 09.01.2000, irrespective of the order of compulsory retirement dated 13.01.2004 passed against him at annexure : b. the petitioner shall be entitled to such benefit with interest at the rate of 8% per annum from the date of filing of the petition till the petitioner is paid such benefits. the respondents are directed to workout and pay the benefits of pension and other retiral benefits by considering his service rendered upto 09.01.2000 as qualifying service for the purpose of pension and retiral benefits within a period of 3 months from the date of receipt of this order. rule made absolute to the extent stated above.
Judgment:

Oral Judgment

1. Here is a case where absence of the petitioner on account of his insanity/mental retardation/mental illness made him to suffer an order of compulsory retirement on the charge of unauthorised absence from duty.

2. The petitioner who put in about 31 years of service came to be served with a chargesheet dated 06.09.2002, alleging absenteeism from duty after 11.01.2000 and departmental inquiry was initiated against him. However, the petitioner did not attend the departmental inquiry and the departmental inquiry was concluded in his absence. Based on the inquiry report, the petitioner was served with second show cause notice, to which, the petitioner did not respond and ultimately the disciplinary authority the respondent No.4, passed order dated 13.01.2004 under Rule 3 of the Bombay Police (Discipline and Appeal) Rules, 1956, of compulsory retirement against the petitioner. In the said order, the period from 11.01.2000 till the date of the order, is considered as leave without pay.

3. The petitioner in his petition has averred about his mental condition and his inability to attend the inquiry proceedings. He has also averred that considering his long and unblemished service, he should be made entitled to pension and other retirement benefits as the order of compulsory retirement does not entail any consequences.

4. I have heard learned advocates for the parties. Learned advocate Shri S.N.Sinha appearing for the petitioner submitted that inquiry initiated against the insane person is no inquiry in the eye of law and the punishing order based on such inquiry is bad in law.

5. Mr.Sinha submitted that the petitioner who was appointed as constable in State Reserve Police Force on 06.03.1968, reached to the position of Assistant Sub Inspector on 04.03.1987 on account of his sincere and honest service. Learned advocate Mr.Sinha submitted that the petitioner had made his mark as a sportsman and excelled in the game of Volleyball upto the state level and he was best shot in rifle shooting competition in the SRP. However, to his misfortune, he started suffering mental imbalance and proceeded on Casual Leave on 09.01.2000 and thereafter was not in a position to resume duties. Learned advocate Mr.Sinha submitted that none resumption of duty by the petitioner was taken as unauthorised absence of the petitioner and the petitioner was departmentally proceeded. Learned advocate Mr.Sinha submitted that the proceedings of the inquiry report produced at Annexure:B records about the mental illness of the petitioner.

6. Learned advocate Mr.Sinha submitted that if the mental condition of the petitioner was found not stable, the inquiry ought not to have proceeded further and no order of the punishment of compulsory retirement could have been issued against the petitioner. Learned advocate Mr.Sinha submitted that the mental condition of the petitioner, in fact, called for sympathetic consideration of the matter at the hands of the respondents by treating his entire service till he stopped attending the duty as qualifying service for the purpose of giving him pension and other retirement benefits. Learned advocate Mr.Sinha has also drawn the attention of the Court to Bombay State Reserve Police Rules, 1956, (the Rules for short) providing for duty and responsibilities of the commandant to look after the health and well being of the subordinate staff and submitted that instead of proceeding with the inquiry, the petitioner could have been provided with medical help. Learned advocate Mr.Sinha thus, urged to allow the petition and to direct the respondents to grant benefit of pension and other retiral benefits with interest by treating entire service of the petitioner as qualifying service, irrespective of order of compulsory retirement.

7. As against the above arguments, learned AGP Shri Niraj Ashar submitted that since, the petitioner did not remain present during the inquiry, the Inquiry Officer was not left with any option but to conclude inquiry and based on the inquiry report the order of compulsory retirement was passed. Learned AGP Shri Ashar submitted that the petitioner was served with notice after he started remaining absent, however, he did not provide any medical certificate and therefore, the charge for unauthorised absence from duty was proved against the petitioner. Learned AGP Mr.Ashar submitted that the disciplinary authority took a liberal view of the matter and instead of removing the petitioner from service, an order of compulsory retirement was passed against the petitioner. Learned AGP Shri Ashar submitted that on account of such order, the petitioner could not be made entitled to pension benefits. He thus, urged to dismiss the petition.

8. Having heard learned advocates for the parties and having perused the record of the case, especially the inquiry report dated 26.02.2003 at Annexure:B, page 27, with Annexure:A, it appears that though the case of the petitioner called for sympathetic and humanitarian approach looking to his mental condition, his absence from duty was treated as unauthorized absence.

9. The inquiry report at Annexure:B clearly reveals that the mental condition of the petitioner was not good. It is stated in the report that the mental condition of the petitioner was not good, that he did not attend the inquiry proceedings, that during the inquiry proceedings the wife of the petitioner remained present and pointed out that his husband had been suffering from mental illness for last 2 years and he has become insane, that he was confined in the house, that on such representation made by the wife of the petitioner, the presenting officer went to the house of the petitioner and confirmed that the petitioner was confined in the house on account of his imbalanced mind, that he was provided household treatment, that the petitioner was in habit of tearing out his cloths and wearing no cloths, that he torn all government documents and then gulped it, that he was not in a position to understand anything and giving shouts. It is further found recorded in the proceedings that for mental illness of the petitioner, no medical certificate was produced. When inquiry officer was reported by the presenting officer about insanity of the petitioner and about his unnatural behavior, it was expected of inquiry officer to bring to the notice of the concerned authority the mental illness of the petitioner so as to first get him treatment, instead of proceeding with the inquiry. But, he concluded the inquiry and rendered the inquiry report with finding that the charge of absenteeism was proved against the petitioner. In view of above facts emerging from the proceedings of the inquiry, the inquiry conducted in absence of the petitioner was in gross violation of the principles of natural justice.

10. It is not disputed that the petitioner was a state level volleyball player. He has also scored 87 marks in Rifle firing and 74 marks in stan, but his mental condition was deteriorated. If such a person stopped attending duty, it was required of the commandant i.e. the respondent No.4 to get to the truth as regards non attendance of the duty by the petitioner, especially when Sub Rule 8 and 9 of Rule 6 and Rules 8, 11 and 12 of the Rules make provision for looking after the health of the subordinate staff in such disciplined force. Unfortunately, though the wife of the petitioner brought to the notice of the inquiry officer about mental illness of the petitioner and though the inquiry officer got the same confirmed through the presenting officer, no responsible officer took step for providing proper medical treatment to the petitioner. When the insanity was reported during the inquiry proceedings, even if medical certificate about the mental condition of the petitioner was not produced the inquiry officer should have stopped proceeding with the inquiry and no further order ought to have been passed based on such inquiry, wherein, the petitioner could not participate.

11. Besides above, at least when the disciplinary authority received the inquiry report and came to know about the insanity of the petitioner, it was expected of the disciplinary authority not to impose punishment but to confer upon the petitioner the benefits of pension and other retiral benefits, considering his qualifying service of more than 30 years.

12. Mental illness or the mental retardation is considered to be a disability as per Section 2 of The persons with Disabilities (Equal Proceedings Protection of Rights and Full Participation) Act, 1995 (for short the Act). As per the provisions of Section 47 of the Act, the service of an employee suffering with such disability cannot be dispensed with. In case of Anil Kumar Mahajan Vs. Union of India reported in (2013) 7 SCC 243 Hon'ble Supreme Court has observed in para No.17, 18 and 20 as under:

œ17. The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Act, 1995') was enacted in the year 1995 with the following statement of objects and reasons:

(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis nondisabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and

(vi) to make special provision of the integration of persons with disabilities into the social mainstream.?

18. Section 2(i) defines œdisability?:

2(i) "disability" means -

  1. blindness;
  2. low vision;
  3. leprosycured;
  4. hearing impairment;
  5. loco motor disability;
  6. mental retardation;
  7. mental illness;?
20. The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15th October, 2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even it is presumed that the appellant became insane, as held by the Inquiry Officer, mentally illness being one of the disabilities under Section 2(i) of the Act, 1995, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.?

13. In light of the above and in view of the facts about insanity of the petitioner, emerging from the report of the inquiry at Annexure:B, the petitioner could be made entitled to regular pension and other retiral benefits for the qualifying service rendered by him till the date he started remaining absent from duty i.e. 10.01.2000, irrespective of the order of compulsory retirement passed against him.

14. For the reasons stated above, the petition is partly allowed. The petitioner is held entitled to pension and other retiral benefits for qualifying service put in by him till 09.01.2000, irrespective of the order of compulsory retirement dated 13.01.2004 passed against him at Annexure : B. The petitioner shall be entitled to such benefit with interest at the rate of 8% per annum from the date of filing of the petition till the petitioner is paid such benefits. The respondents are directed to workout and pay the benefits of pension and other retiral benefits by considering his service rendered upto 09.01.2000 as qualifying service for the purpose of pension and retiral benefits within a period of 3 months from the date of receipt of this order. Rule made absolute to the extent stated above.