1. This writ petition is filed seeking a writ of mandamus declaring the letter 1No.ZO/HYD/HRM/04/523, dated 30.08.2022, passed by respondent No.4, confirming the dismissal order dated 21.11.2016 passed by respondent No.5 and in issuing the suspension order dated 19.08.2015 by respondent No.4 and in not paying sustenance allowance to the petitioner since November 2016, as illegal and arbitrary and consequently, to set aside the same and direct the respondents to reinstate the petitioner back into service with immediate effect with all consequential benefits including promotion, allowances, increments, etc., and to pass such other order or orders.
2. Brief facts leading to the filing of the present case as stated by the petitioner in this writ affidavit are that the petitioner was initially working with ICICI Bank and after qualifying in the bank’s competitive exam, he was selected for the post of Clerk-cum-Cashier in Dena Bank (now merged with Bank of Baroda) on 12.04.2008 and he reported to duty on 28.05.2008 and thereafter, after qualifying the CAIIB examination, he was promoted to Scale-1 Officer. It is submitted that while the petitioner was working as such, on 19.08.2015, respondent No.4 issued a suspension order suspending the petitioner from the services of the bank with immediate effect stating that the petitioner had misbehaved with the staff on 18.08.2015 and 19.08.2015. It is submitted that no show cause notice was issued calling for his explanation and initially, the respondent bank paid subsistence allowance to the petitioner during the period of suspension, but when it was stopped the petitioner approached the respondent bank and submitted a letter stating that he is not working anywhere else and requested the bank to release his subsistence allowance, but it was not paid to him thereafter. The petitioner submitted that he had also requested the bank authorities to revoke his suspension order and on such a request, the bank authorities asked the petitioner to submit a fitness certificate and when the petitioner approached the Medical Superintendent, Government Hospital for Mental Care, Hyderabad, the certificate dated 21.03.2016 was issued to the respondent No.4, wherein it is stated that “the petitioner is not having any signs or symptoms of Mental illness, under treatment. However, patient needs to continue medication and be under regular follow up and he is fit to join service.”
3. It is submitted that thereafter, respondent No.4 issued a charge sheet framed by the HR Manager and a preliminary enquiry was conducted on 02.05.2016 and it is stated that Mr.Shyam Kumar threatened the petitioner and tried to influence the enquiry on 04.05.2016 and when the petitioner complained about the same to the enquiry officer on 05.05.2016, the matter was carried to the Police Gopalpuram, L& O police station vide acknowledgment No.U2023090163900996, dated 07.05.2016 and on the basis of said complaint, Mr.Shyam Kumar was transferred to Mumbai head office and thereafter, regular enquiry continued on 08.06.2016 and 22.06.2016, but Mr.Shyam Kumar bore a grudge against the petitioner. It is submitted that in spite of the Superintendent of the Medical Department giving the certificate of fitness and also observing that the petitioner is suffering from “Bipolar affective disorder with psychotic features and at present he is under remission” the respondent bank was determined to dismiss the petitioner from service and therefore, issued a memorandum dated 21.11.2016, dismissing the petitioner from services of the bank with immediate effect and without any notice therefor. It is submitted that stating that all the allegations are false and not proved and are concocted, the petitioner approached respondent No.5 by filing an appeal on 03.01.2017, but respondent No.5 vide orders dated 14.02.2017 has made further allegations that on 07.10.2016, the petitioner visited the branch and misbehaved with staff and customers, broke the glass window etc., and the branch had to seek help of local police to get rid of the nuisance created by the petitioner. Thus observing, the order of dismissal was confirmed and the appeal was dismissed. The petitioner submits that since a new allegation was made on 07.10.2016, the petitioner was entitled for a denovo enquiry in respect of the said allegation and therefore, the petitioner also approached the reviewing authority by filing a review on 08.05.2017 with a request to conduct a fresh inquiry, but the authorities have passed the impugned order dated 11.09.2017, but the same was not issued to the petitioner. It is submitted that when the doctors have given a certificate that the petitioner is suffering from a Bipolar affective disorder with psychotic features and it was suggested to give a lesser responsibility job, the respondent No.7 has given the petitioner more responsibility work and the petitioner proved himself to be suitable even for that and the petitioner was also given GPA by the bank for issuing loan disbursements, demand drafts and fixed deposits, etc., but instead of continuing the petitioner in service false allegations were made against the petitioner and it is alleged that the respondent No.8 has instigated the petitioner to attempt suicide and to that extent, an FIR was registered against the petitioner vide FIR No.20/2017, dated 23.02.2017, which was lodged by respondent No.10 against the petitioner under Section 309 IPC and Section 23 of the Mental Health Act and pursuant to the same, the petitioner was retained in the mental hospital for two long years. It is submitted that thereafter the petitioner was assessed of having zero percentage of disability but the respondent No.9 has got registered a false case against the petitioner vide FIR No.9/2019, dated 05.02.2019 for the offences under section 23(1) of the Mental Health Act alleging that the petitioner started shouting at the customers and threatened to beat the staff and to shoot the customers on the said date.
4. The contention of the petitioner is that he went to the bank to withdraw an amount of Rs.50,000/- and a report dated 01.06.2022 certifies that at about 02.25 p.m., on 05.02.2019, the petitioner had withdrawn the said amount and therefore the allegations in the FIR are incorrect.
5. Petitioner submitted that doctors have given a certificate that the petitioner is not suffering from any disability and therefore, the orders of the bank official i.e., respondent No.4 in issuing the dismissal order and the dismissing of the review petition should be set aside and the petitioner should be directed to be reinstated into service. The petitioner further submitted that even if it were to be accepted that the petitioner was suffering from disability, such a disability has occurred during his service, and therefore the provisions of RPwD Act would get attracted and the petitioner ought to have been considered for any alternative job, instead of termination from service. He placed strong reliance on the decision of the Delhi High Court in the case of Bhavya Nain Vs. High Court of Delhi in W.P.(C) No.5948/2019, dated 08.05.2020, in support of this contention. He therefore prayed for a direction of reinstatement and providing any alternate suitable job in accordance with RPwD Act.
6. A Counter affidavit has been filed by the respondent bank stating that the petitioner has choosen to challenge the impugned orders dated 21.11.2016 and 14.02.2017 after more than four years by giving a representation on 16.06.2021 for reconsideration of his case and that there is no scope for reconsideration in view of the nature of the charges against the petitioner and that the issue has already attained finality. It is stated that the bank has followed the due procedure and also the principles of natural justice before issuing the order of dismissal. It is stated that the petitioner was initially suspended and an inquiry was conducted by following due process and during the course of suspension, he was provided with subsistence allowance. It is stated that with a view to giving the petitioner an opportunity to establish that he is not suffering from any mental disorder, the petitioner was asked to submit the medical certificate accordingly and even as per the certificate issued by the Government Hospital, Mental Care, Hyderabad, dated 21.03.2016, the petitioner was suffering from ‘Bipolar affective disorder with psychotic features’, for which he was treated from 21.08.2015 to 07.10.2015 and the petitioner was kept under observation from 24.02.2016 to 07.03.2016.
7. It is further submitted that the certificate of fitness also mentions that the petitioner should be given work with less responsibility and since the bank was dealing with the public, the bank has considered whether he is suitable to deal with responsibility and having regard to the disorder of the petitioner and the consequential risk to the employer, the petitioner has been dismissed from service.
8. As regards the allegations of additional charges made by the reviewing authority and that denovo enquiry has to be conducted thereon, it is stated that the petitioner had visited the bank on 23.02.2017 and at around 10.45 a.m., the petitioner cut his throat and was sitting silently and when the bank staff noticed the same, they called the police and took him into custody and later an FIR was registered against him and the petitioner was produced before the II ACMM Court and thereafter, the petitioner was retained in the mental hospital for two long years and it was not the bank authorities who had retained the petitioner in the mental hospital. In respect of the petitioner’s contentions that in the light of RPwD Act (Right of Persons with Disabilities Act), 2016, the petitioner should be considered for any alternative appointment under the Act, it is stated that the Assistant Professor, RIMS Hospital, Srikakulam, Government of Andhra Pradesh, in the assessment report dated 12.11.2021 produced by the petitioner himself has stated that ‘it is found that you do not come under the category of persons with disability’. It is stated that after the dismissal from service, the petitioner is not entitled for any subsistence allowance and that the disorder of ‘Bipolar affective disorder with psychotic features’, do not fall under the ambit of specified disability which attracts RPwD Act 2016 and therefore, the writ petition is not maintainable and it is accordingly liable to be dismissed.
9. The petitioner filed a reply affidavit and also an additional affidavit in support of his contentions.
10. Learned counsel for the respondents has also filed the copies of responses of the bank to the petitioner on 07.08.2021, 18.10.2021, 02.07.2022 and 30.08.2022 to the effect that the petitioner has availed all the remedies available under Dena Bank Officer Employees’ (Discipline and Appeal) Regulation, 1976 and hence no further representation can be considered and that the order passed by the disciplinary authority and which was confirmed by the appellate authority and reviewing authority has attained finality.
11. Petitioner has relied upon the judgment of the Delhi High Court in the case of Bhavya Nain (cited supra), wherein the disability of the petitioner therein was held to be not permanent and the petitioner therein was directed to be appointed to Delhi Judicial Services without any further delay. He also placed reliance upon the judgment of Hon’ble Supreme Court in Civil Appeal No.6924 of 2021, dated 17.12.2021 in the case of Ravinder Kumar Dhariwal and Another Vs. The Union of India and Others, on the issue of mental disability and the applicability of the provisions of RPwD Act, 2016 and that the mental disability of a person need not be the sole cause of misconduct that led to the initiation of the disciplinary proceedings and that such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings and therefore, disciplinary proceedings against the appellant therein were set aside and the appellant was held to be entitled to the protection of Section 20(4) of the RPwD Act in the event he is found unsuitable for his current employment duty and the appellant should be re-assigned to any other suitable job while protecting his pay, emoluments and conditions of service and the authorities were given 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 therein or others in or around the work place. The petitioner therefore, is seeking a direction to the respondent to consider his case for an alternative job under the RPwD Act.
12. Having regard to the rival contentions and the material on record, this Court finds that the petitioner was placed under suspension for the reasons of misbehavior with staff and arrogant and uncivilized behavior at branch premises. Subsequently, the following charges were leveled against him:
(a) failed to discharge his duties with utmost devotion and diligence;
(b) failed to maintain good conduct and discipline and show courtesy and attention to all persons in all transactions and negotiations;
(c) Doing acts unbecoming of an officer employee.
13. The suspension order was dated 19.08.2015 and the petitioner has submitted a certificate from the Government Hospital for Mental Care, Hyderabad, dated 21.03.2016 with the following endorsement:
“Sri.P.Ram Kumar, S/o.Yerraiah has been admitted and treated at our hospital between 21.08.2015 to 07.10.2015. He was again admitted on 24.02.2016 and was observed till 07.03.2016. Psychometric assessment was done by clinical phychologist. Patient was suffering with Bipolar affective disorder with psychotic features and at present he is under remission. He is not having any signs and symptoms of Mental Illness, under treatment. However patient needs to continue medication and be under regular follow up. He is fit to join services. He may be given involving lesser responsibility.”
14. It is thereafter that the enquiry officer was appointed on 31.03.2016, who conducted enquiry and has submitted enquiry report on the following charges:
Detaining the acts of the petitioner which constitute a misconduct.
4(A) General complaints i.e., staff and customers about Shri P.Ram Kumar’s behavior:
B. Further Shri P Ram Kumar
i. Was carrying blade with him and was chasing the members of public on 23.09.2012.
ii. Suddenly started shouting loudly in the Service Branch on 22-11-2012 and suddenly left Service Branch premises and by standing on middle of the Koti Road (in front of Service Branch) started shouting loudly and causing obstruction to the traffic.
iii. In a half-naked manner on 19-08-2015 behaved rudely with staff in Bank Street Branch premises at about 10.30 am.
iv. Misbehaved with lady staff member Smt.M.Krishna Veni in the Service Branch on 18.08.2015.
v. Misbehaved with all the staff members of Service Branch on 19.08.2015 where upon they complained about the misbehavior of Shri P Ram Kumar.
vi. Was moving on the road on 19.08.2015 at 11.00 am by removing his top clothing and obstructing traffic on the road thereby creating nuisance to the general public. The Police authorities made a complaint in this regard on 19.08.2015.
vii. Attacked the passersby by hurling stones at them and hit them with an Iron rod in an uncontrolled manner in the morning of 20.08.2015.
Various complaints have been received by the Bank from the affected persons due to his above acts.
15. The enquiry officer has held that one allegation out of 13 has not been proved and taking the same into consideration, the disciplinary authority has passed the order of dismissal from service of the bank with immediate effect and without any issuance of notice. It is observed that the copy of the inquiry report was furnished to the petitioner and the petitioner has submitted his objections to the same vide letter dated 16.07.2016 and after considering the same, the impugned order was passed. Even before the appellate authority, the petitioner had stated that the acts had happened due to ill-health and side effects of medicine that he was taking and it was brought to the notice of the appellate authority that the petitioner was suffering from a mental ailment. Therefore, this Court observes that the respondent bank was very much aware of the mental conditions of the petitioner and that he was under medical care for the same and therefore, they ought to have considered the said conditions before passing the order of dismissal from service. From the medical certificates submitted by the petitioner, it is evident that the petitioner was suffering from a mental ailment and was under the treatment of the hospital for a period of two years and it is thereafter that the petitioner has filed an application for reconsideration of his case.
16. The Hon’ble Supreme Court in the Case of Ravinder Kumar Dhariwal (cited supra), has considered the provisions of RPwD Act, 2016 and the word ‘person with disability’ as defined under Section 2(s) of the RPwD Act and after considering the judicial precedents on the issue, has held that in the case of persons with mental disabilities, the disciplinary proceedings may take the form of discrimination because a person with mental disability may have an impaired ability to comply with work place standards and often, the process of disciplinary proceedings is the punishment and that the provisions of RPwD Act would be applicable to such cases. It was further held that Section 47 of the RPwD Act is applicable when the mental disability is acquired during service irrespective of whether it was a factor or had a direct causal connection with the alleged misconduct that lead to dismissal from service. In Para 89 of its order, the SC has concluded as under:-
89. On the basis of our discussion of the above-mentioned jurisdictions, the following conclusions emerge:
(i) Mental health disorders are recognised as a disability as long as they fulfil the defining criteria;
(ii) 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 (supra) 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 (supra) which emphasizes that the duty to accommodate is individualized. The employer must be sensitive to how the individual’s capabilities can be 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 individualized duty to accommodate. It must show that it took the employee’s individual differences and capabilities into account;
(iii) 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 (supra) 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 self-reporting cannot be construed as 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”; and
(iv) 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 (supra), 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 (supra), 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, non-compliance 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 (supra), the court observes that a two-pronged enquiry is required. It must first be considered based on the evidence whether 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.
17. The Hon’ble Apex Court in Para-90 has considered whether mental disability is sufficient for the employee to show that his mental health disorder was one of the factors that led to the initiation of proceedings against him for misconduct or is required to be proved that the disability was the sole cause of disciplinary proceedings being instituted against him.
18. The Hon’ble Apex Court at Para 98 has held as under:
98. 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 factor. 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. 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. The concept of indirect discrimination has been recognized by this Court in Ltd. Col. Nitisha and Ors. v. Union of India 112, which is closely tied with the conception of substantive equality that pervades the international and Indian disability-rights regime. Thus, the disciplinary proceeding against the appellant is discriminatory and must be set aside.
19. Ultimately, at Para 106 the Hon’ble Supreme Court has observed thus:
106. In view of the discussion above, we summarise our findings below:
(i) The validity of the disciplinary proceedings shall be determined against the provisions of the RPwD Act 2016 instead of the PwD Act 1995 for the following reasons:
(a) The respondent holds a privilege under the 2002 notification to not comply with the principles of non-discrimination and reasonable accommodation provided under Section 47 of the PwD Act. However, for a privilege to accrue in terms of Section 6 of the GCA, mere expectation or hope is not sufficient. Rather, the privilege-holder must have done an act to avail of the right. The privilege provided by the 2002 notification would accrue only when one of the punishments provided under Section 47 has been imposed. However, in the instant case, the disciplinary proceedings were challenged even before the punishment stage could be reached. Therefore, the privilege available to the respondent under the 2002 notification was not accrued in terms of Section 6 of the GCA;
(b) 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 whose meaning and content find illumination in Article 5 of the CRPD. 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; and
(c) The 2002 notification is not saved by Section 102 of the RPwD Act since Section 20 of the RPwD Act is not corresponding to Section 47 of the PwD Act;
(ii) The disciplinary proceedings are discriminatory and violative of the provisions of the RPwD for the following reasons:
(a) 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; and
(b) 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.
20. Considering the facts and circumstances of the case of the petitioner in this writ petition in the light of the observations of the Hon’ble Supreme Court in the above cited cases, it is clear that the petitioner’s mental condition was not unknown to the respondent bank and in fact, the allegations in the charge sheet go to show that the behavior of the petitioner was not what a normal persons would do. Therefore, the initiation of the disciplinary proceedings against the petitioner for the said misconduct and particularly when the petitioner has filed a copy of the medical certificate given by the Government Hospital for Mental Care, Hyderabad, even before the enquiry was conducted, goes to show that the bank has not appreciated that the petitioner is suffering from mental disability. Therefore, the initiation of the disciplinary proceedings itself gets vitiated. The reviewing authority ought to have considered the same after the petitioner brought it to his notice that the petitioner has spent two years in the hospital and has been discharged with zero percent disability.
21. This Court is therefore of the opinion that the respondent bank was wrong in not applying its mind to the mental health conditions of the petitioner and instead has imposed strong punishment of dismissal from service. Therefore, the punishment of dismissal from service is set aside and the respondent bank is directed to consider the case of the petitioner for an alternate post under the provisions of the RPwD Act 2016 if it is of the opinion that the petitioner is not in a position to discharge his function as Scale-I Officer, the post he was holding at the time of his dismissal from service. The petitioner shall therefore be reinstated into service and his case shall be considered for an alternate post with protection of his pay under the RPwD Act. However, since the petitioner has not worked but was under the care of the hospital for a period of two years, the petitioner shall not be entitled to any backwages for the said period. He shall be entitled to be backwages only from the date of his representation for reinstatement after discharge from the hospital. The respondent bank shall pass appropriate orders in this regard within a period of three (3) months from the date of receipt of a copy of this order. It is also made clear that subsequent to reinstatement, if the petitioner behaves in the same manner as he has done earlier which has resulted in dismissal of his services, the respondent bank shall always be at liberty to take action in accordance with law.
22. Accordingly, the writ petition is partly allowed. There shall be no order as to costs.
23. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
