P. R. Aji v Life Insurance Corporation of India & Ors

1 WPC 6443/23 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ``` WP(C) NO.6443OF 2023 ``` ## **`PETITIONER/S:`** - **`P. R. AJI, AGED 53 YEARS, W/O V. GOPENDRAKUMAR, ASSISTANT, L&HPF DEPARTMENT, LIC OF INDIA, DIVISIONAL OFFICE, JEEVAN PRAKASH, PB NO.1001, PATTOM P.O., THIRUVANANTHAPURAM - 695004, REISIDING AT GOKULAM TC NO.14/1336, NEAR HOUSING BOARD, PAROTTUKONAM, NALANCHIRA, P.O., 695015., PIN - 695015 BY ADV S.M.PRASANTH`** ## **`RESPONDENT/S:`** - **`1 THE LIFE INSURANCE CORPORATION OF INDIA CENTRAL OFFICE, YOGASHEMA, JEEVAN BHEEMA MARG., P. B. NO. 19953, MUMBAI , REPRESENTED BY ITS MANAGING DIRECTOR., PIN - 400021`** - **`2 THE ZONAL MANAGER, (DISCIPLINARY AUTHORITY) LIFE INSURANCE CORPORATION OF INDIA, SOUTHERN ZONAL OFFICE, P. B. NO. 2450, LIC BUILDING, 153 ANNA SALAI, CHENNAI - 600 002., PIN - 600002`** - **`3 THE SENIOR DIVISIONAL MANAGER LIC OF INDIA, DIVISIONAL OFFICE, JEEVAN PRAKASH, PB NO.1001, PATTOM P. O., THIRUVANANTHAPURAM, PIN - 695004`** ``` BY ADV S.EASWARAN, SC ``` ## **`OTHER PRESENT:`** ``` SMT RAJESWARY SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.2.2024, THE COURT ON 25.3.2024 DELIVERED THE FOLLOWING: ``` 2 WPC 6443/23 ## **JUDGMENT** (Dated this the 25[th] day of March 2024) The petitioner has approached this Court for a declaration that the disciplinary proceedings initiated against the petitioner and to impose compulsory retirement are in violation of the protection and benefits guaranteed under the Rights of Persons with Disabilities Act, 2016 (herein referred to as ‘RPwD Act’) and also the fundamental rights guaranteed under Article 14, 16, 19 and 21 of the Indian constitution. A further direction is also sought to reinstate the petitioner forthwith in service and to provide her the protection available under Section 20 of the act. While the petitioner was working as Assistant in Divisional Office under the 3[rd] respondent she was issued with suspension dated 29/12/2021. Though a charge sheet was issued to her she submitted a representation on 31/05/2022 to the 3[rd] respondent to drop the disciplinary proceedings against her in view of her mental illness. In response she was directed to appear before the Government medical board to obtain medical report regarding the mental condition of the petitioner. The enquiry officer 3 WPC 6443/23 appointed issued a letter on 01/07/2022 and she has filed a representation on 08/07/2022 to drop the proceedings in view of Section 20(4) of the RPwD Act. The enquiry officer conducted an enquiry and submitted a report to the disciplinary authority. The enquiry officer found all the charges levelled against the petitioner are proved. Against the enquiry report the petitioner submitted another representation on 08/08/2022 to exonerate her from all the charges in view of the specific provisions in the RPwD Act and the Mental Healthcare Act of 2017. A show cause notice was issued to the petitioner on 31/01/2023 proposing a penalty of compulsory retirement and show cause why it should not be imposed. A reply was submitted on 07/02/2023 against show cause notice. The petitioner has produced Ext.P11, a minutes of the meeting held on 02/02/2019 at 10.10 am in the presence of Sr. Divisional Manager to prove that the 1[st] respondent was aware of the mental illness of the petitioner as on 02/02/2019 itself. The remedy available to the respondent is not to make the petitioner compulsory retire from the institution but should have complied with Section 20 of the RPwD Act and retain her service until retirement. 4 WPC 6443/23 2. A counter affidavit is filed on behalf of the respondents 1 to 3. The contention raised is that there are two disciplinary proceedings pending against the petitioner. The first charge sheet was dated 12/08/2021 and second one was dated 08/02/2022. The reason was the petitioner was causing disturbance to the work environment by failing to maintain office decorum and discipline and disrupted the normal functioning of the administrative machinery in the office. Exts. R3(a) and R3(b) were the charge sheet issued to the petitioner. The penalty was proposed taking the gravity of the misconduct and taking into consideration the documentary evidence produced during the enquiry proceedings and findings of the enquiry officer. It is specifically stated in the counter affidavit that the petitioner never informed about her illness at any point of time during the enquiry and she was provided with reasonable opportunity to defend herself. The petitioner is under suspension from 29/12/2021 on the basis of the complaints received from the immediate superior officers on 23/12/2021 and 27/12/2021 as she was obstructing the employees from discharging their official duties. In the said circumstances charge sheet dated 08/02/2022 was 5 WPC 6443/23 issued to the petitioner. Charge sheet sent to the residential address with registered acknowledgement due returned with the postal endorsement ‘refused’. In the enquiry conducted, all the five charges were proved beyond doubt. Show cause notice dated 30/01/2023 was issued to the petitioner proposing a penalty of compulsory retirement under Rule 39(1)(h) of Life Insurance Corporation of India (Staff) Rules, 1960 as amended up to 19/10/2020. The disciplinary proceedings are under progress on the basis of complaint dated 19/03/2021 lodged by the entire team of employees working in L & HPF Department of the Divisional Office, Thiruvananthapuram. Charge sheet was issued and she refused to accept the charge sheet. The petitioner did not appear before the enquiry committee in any of the sittings and therefore a show cause notice dated 20/05/2022 was issued to the petitioner proposing punishment of compulsory retirement under rule 39(1)(h) of Life Insurance Corporation of India (Staff) Rules, 1960. In her reply dated 31/05/2022 to the show cause notice she has stated that she was under medical treatment for mental distress. The office has not received any medical certificates or any information that the 6 WPC 6443/23 petitioner was suffering from psychiatric illness till 21/04/2022. Only on 21/04/2022, she submitted a letter enclosing a medical certificate dated 20/04/2022 of Pulse Hospital, Mannanthala, Thiruvananthapuram, certifying that she is suffering from psychiatric illness and has been on medication from December 2021. During the second enquiry proceedings, the petitioner submitted a fitness certificate dated 28/05/2022 issued from very same Hospital within 5 days from the date of completion of secondary enquiry. The petitioner attended the enquiry proceedings and never informed about her illness at any point of time during the enquiry. The request for voluntary retirement was not accepted since it was conditional. All the procedural formalities required to conduct disciplinary proceedings were strictly followed and the charges levelled against the petitioner were proved. Though the charges were proved the proposed punishment for compulsory retirement is comparatively a lesser punishment enabling the petitioner to get pension. On these grounds prayed for dismissal of the writ petition. Section 2(s) of the RPwD Act reads as follows: 7 WPC 6443/23 “ **Person with disability** ” means a person with long term physical, mental, intellectual or sensory impairment which, in inter-action with barriers, hinders his full and effective participation in society equally with others. 3. Section 20 of the said Act deals with non discrimination in employment, which reads as follows: ## “20. .- **Non-discrimination in employment** (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits: 8 WPC 6443/23 Provided further 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 is available or he attains the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities.” 4. The petitioner relies on the second proviso to Section 20(4) of the Act and submits that any employee acquiring disability is non suitable for the post shall be shifted to some other posts with the same pay scale and service benefits and if it is not possible to adjust the employees against any post he/she may be kept supernumerary post until a suitable post is available or still he attains the age of superannuation which ever is earlier. According to the petitioner, since she comes under the definition of person with disabilities, she is entitled to the protection of under section 20 of the Act. The counsel for the petitioner relies on a judgment of the Apex Court in **Ravinder Kumar Dhariwal v. Union of India [(2023) 2 SCC 209]** in Civil Appeal No 6924/2021. The Apex Court held after analysing the entire Act as follows: 9 WPC 6443/23 **“125.** On the basis of our discussion of the abovementioned jurisdictions, the following conclusions emerge: **125.1.** Mental health disorders are recognised as a disability as long as they fulfil the defining criteria. **125.2.** The duty of providing reasonable accommodation to persons with disabilities is sacrosanct. All possible alternatives must be considered before ordering dismissal from service. However, there are accepted defences to this principle. The well-recognised 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_ [ _Stewart_ v. _Elk Valley Coal Corpn._ , 2017 SCC OnLine Can SC 72 : (2017) 1 SCR 591] 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. In this context, it will be useful to refer to the minority opinion in _Stewart_ [ _Stewart_ v. _Elk Valley Coal Corpn._ , 2017 SCC OnLine Can SC 72 : (2017) 1 SCR 591] which emphasises that the duty to accommodate is individualised. The employer must be sensitive to how the individual's capabilities can be 10 WPC 6443/23 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 individualised duty to accommodate. It must show that it took the employee's individual differences and capabilities into account. **125.3.** 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, for instance, the requirement to provide reasonable accommodation is prospective. In Canada, the majority in _Stewart_ [ _Stewart_ v. _Elk Valley Coal Corpn._ , 2017 SCC OnLine Can SC 72 : (2017) 1 SCR 591] observed that despite the substance dependency, the employee had the ability to make a prior disclosure of the dependency to the employer and could have availed of the reasonable accommodation. However, the minority opinion, emphatically observed that cannot be construed as self-reporting 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”. 11 WPC 6443/23 **125.4.** An issue that remains contentious is 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_ [ _Stewart_ v. _Elk Valley Coal Corpn._ , 2017 SCC OnLine Can SC 72 : (2017) 1 SCR 591] , it was observed that making a distinction between the disability and the disability-related 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_ [ _Stewart_ v. _Elk Valley Coal Corpn._ , 2017 SCC OnLine Can SC 72 : (2017) 1 SCR 591] , 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, noncompliance 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_ [ _Legal Aid South Africa_ v. _Ockert Jansen_ , (2020) 41 ILJ 2580 (LAC)] , the Court observes that a two-pronged enquiry is required. It must first be considered based on the evidence whether 12 WPC 6443/23 the mental health disorder is so incapacitating that the person is not able to appreciate the 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.” “141. 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 be 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.” 5. The counsel also relied on the judgment of the Apex Court in **Vikash Kumar v. Union Public Service Commission** **[(2021) 5 SCC 370],** in which a three bench judge of the Apex Court had an occasion to consider the Rights of Persons with Disabilities Act and held as follows: 13 WPC 6443/23 “63. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence - whether as students, members of the workplace, participants in governance or on a personal plane, in realising the fulfilling privacies of family life. The accommodation, which the law mandates is “reasonable” because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments Which are encountered as its consequence. 64. For instance, for a visually impaired person, the reasonable accommodation she requires might consist of screen magnification software or a screen reader (which can speak out the content on a computer screen in a mechanical voice). It might also consist of content being made available in Braille and a sighted assistant. In the same way, for someone with a hearing impairment, reasonable accommodation could consist of speech-to-text converters, access to sign language interpreters, sound amplification systems, rooms in which echo is eliminated and lip-reading is possible. Similarly, for a person with dyslexia, reasonable accommodation could consist of access to computer 14 WPC 6443/23 programmes suited to meet their needs and compensatory time. 65. Failure to meet the individual needs of every disabled person will breach the norm of reasonable accommodation. Flexibility in answering individual needs and requirements is essential to reasonable accommodation. The principle contains an aspiration to meet the needs of the class of persons facing a particular disability. Going beyond the needs of the class, the specific requirement of individuals who belong to the class must also be accommodated. The principle of reasonable accommodation must also account for the fact that disability based discrimination is intersectional in nature. The intersectional features arise in particular contexts due to the presence of multiple disabilities and multiple consequences arising from disability. Disability therefore cannot be truly understood by regarding it as unidimensional. Reasonable accommodation requires the policy-makers to comprehend disability in all its dimensions and to design measures which are proportionate to needs, inclusive in their reach and respecting of differences and aspirations. Reasonable accommodation cannot be construed in a way that denies to each disabled person the customisation she seeks. Even if she is in a class of her own, her needs must be met. While assessing the person reasonableness of an accommodation, regard must also be had to the benefit that the accommodation can have, not just for the disabled person concerned, but also for other disabled people similarly placed in future.” 15 WPC 6443/23 6. As per Section 2(y) of the RPwD Act ‘ **reasonable accommodation’** means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others. Therefore, going by the definition of Reasonable Accommodation, the employer should make necessary modification/adjustment to give the person a part to the person with disability in tune with the intention of the legislation in RPwD Act. 7. The counsel for the 1[st] respondent was directed to file a memo with a statement showing the calculation of terminal benefits if the employee voluntarily retires as on 20/2/2024. On 29/02/2024, the counsel has placed before this Court a statement wherein total amount due, if the petitioner accepted VRS was quantified as Rs.71,06,536/-. The council for the petitioner sought time to get instructions whether the petitioner is acceptable to take VRS and accept the amount stated in the statement filed along with memo. 16 WPC 6443/23 8. After obtaining instructions from the petitioner the counsel for the petitioner submits that the petitioner is not ready to accept the amounts stated in the tabular column as she is fully protected under provisos 1 and 2 of Sub Clause 4 of Section 20 of the RPwD Act that she has a legal right to continue in employment in a supernumerary post, if there is no post available or till superannuation and it is the duty of the respondent to provide their accommodation. 9. The learned counsel for the respondent submitted that a person who is mentally ill cannot be a accommodated in any of the posts in any of the offices that she has been creating all sorts of troubles to the co-employees and it is without taking a hard steps that an order of compulsory retirement was ordered that too taking into consideration the request of the employee. When the employer had granted voluntary retirement the petitioner has now taken an U turn and seeks protection under 20 of the Act. It is only on her application for VRS that the respondent had taken a decision to allow her to voluntary retirement. A perusal of Ext.P11 minutes of the meeting held on 02/02/2019 would show that the 1[st] respondent 17 WPC 6443/23 was aware that the petitioner was not having a good mental health and she was under medication. It is seen that in the meeting the Senior Division Manager had suggested the petitioner to take medication which will give her immoral stability so that the people around will be comfortable. Thus it is a fact that the respondents were aware before the disciplinary proceedings were initiated against the petitioner that the petitioner was not in good mental health. It is keeping in mind that the disciplinary proceedings were taken forward and a Perusal of Ext.P7 enquiry proceedings would definitely prove that she was not having a good mental health. Many of the answers to the questions asked by the enquiry officer would prove the same. So the petitioner is a person with disability as defined under section 2(s) of the RPwD Act. 10. In such a situation, the petitioner is definitely entitled to the protection of non discrimination and proviso to Sub clause 4 of Section 20 of the Act. As held by the Apex Court in **Ravinder Kumar** (supra). The petitioner is entitled to be accommodated in a supernumerary post having the same pay scale and benefits and if it is not possible to adjust the petitioner against any post she should be 18 WPC 6443/23 accommodated in any supernumerary post until a suitable post is available or till superannuation which ever is earlier. This protection is granted by the RPwD Act is definitely a way giving right to the persons with disabilities and against discrimination in employment. When such protection is given by the Act, the petitioner cannot be compelled to take up Voluntary Retirement Scheme and to accept the amount tendered by the employee. It is for the person to accept the offer of VRS, but the petitioner declined it. Therefore, I have no hesitation to hold that the petitioner is entitled the protection guaranteed under section 20 of the RpwD Act as well as the protection under the Constitution of India. It is also come to notice that the show cause issued as per Ext. P9 took note of the medical certificate issued by the medical board on 24/08/2022 that the petitioner is suffering from psychiatric illness and needs optimal course medication with regular follow up and the person can perform the duties under supervision. In the result, this Writ Petition is allowed and it is declared that the punishment of compulsory retirement to be imposed under Rule 39(1)(h) of the Life Insurance Corporation of India and (Staff) 19 WPC 6443/23 Rules, 1960 as amended up to 19/10/2020, is illegal. The net result is that the petitioner shall be reinstated to the service of the 1[st] respondent and accommodated in any suitable post as mandate in Sub Section 4 of Section 20 of the RPwD Act and if any suitable post is not available she shall be reinstated in any supernumerary post till a suitable post is available or she attains the age of superannuation. Necessary orders shall be passed by the respondents within a period of one month from the date of receipt of a copy of this judgment. Sd/- **BASANT BALAJI, JUDGE** Sms/dl/ 20 WPC 6443/23 ``` APPENDIX OF WP(C) 6443/2023 ``` ## **`PETITIONER EXHIBITS`** ``` ExhibitP1TRUE COPY OF THE MEDICAL BOARD CERTIFICATE OF THE PETITIONER DATED 24.8.2022 ``` - **`Exhibit P2 TRUE COPY OF THE ORDER DATED 29.12.2021 ISSUED BY THE 3RD RESPONDENT`** - **`Exhibit P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 31.5.2022`** - **`Exhibit P4 TRUE COPY OF THE LETTER DATED 5.7.2022 ISSUED BY THE MANAGER (P& IR)`** - **`Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 08.07.2022 SUBMITTED BY THE PETITIONER`** - **`Exhibit P6 TRUE COPY OF THE ENQUIRY REPORT TO THE DISCIPLINARY AUTHORITY FURNISHED TO THE PETITIONER BY A COVERING LETTER DATED 26.07.2022,`** - **`Exhibit P7 TRUE COPY OF HE THE RELEVANT PAGES OF THE FILES OF ENQUIRY PROCEEDINGS`** - **`Exhibit P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 8.8.2022`** - **`Exhibit P9 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 31.01.2023 WAS ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER`** - **`Exhibit P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 7.2.2023`** - **`Exhibit P11 TRUE COPY OF THE MINUTES OF THE MEETING DATED 2.2.2019`** ``` Exhibit P12TRUE COPY OF THE LETTER DATED 20.4.2022 ``` 21 WPC 6443/23 ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT Copy of the charge sheet dated 12.08.2021 R3(a) EXHIBIT Copy of the charge sheet dated 8.02.2022 R3(b) EXHIBIT Copy of enquiry report dated 22.03.2022 R3(c) EXHIBIT copy of acknowledgment which was returned undelivered R3(e)with the remark Locked-returned to sender EXHIBIT Copy of show cause notice dated 20.05.2022 R3(f) EXHIBIT Copy of reply dated 31.05.2022 submitted by the R3(g)petitioner EXHIBIT Copy of letter dated 06.05.2023 R3(h) EXHIBIT Copy of Registered Acknowledgment which was returned R3(d)undelivered with the remark Refused ```