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Top court stresses on need to record court proceedings
In the judgment under challenge, the top court had set aside disciplinary inquiry proceedings against an assistant commandant of the Central Reserve Police Force (CRPF) over charges of misconduct.
The Supreme Court (SC) on Monday underlined the need to have court proceedings recorded after it faced an unusual situation where the Centre sought modification of a judgment, passed almost three months ago, claiming that the statements recorded by the judges were not submitted by them in court.
Rejecting the request, a bench of justices Dhananjaya Y Chandrachud and Surya Kant said, “For this purpose, we should have transcription of court proceedings or else we will have similar applications filed by parties in future.”
In the judgment under challenge, the top court had set aside disciplinary inquiry proceedings against an assistant commandant of the Central Reserve Police Force (CRPF) over charges of misconduct. Since he was suffering from mental disability, the SC held that disciplinary action against such persons amounts to indirect discrimination.
Within a month after the judgment was delivered on December 17, the Centre through CRPF filed an application for modification claiming that the CRPF submissions recorded in the judgment were not argued or made by additional solicitor general (ASG) Madhavi Divan, representing the central paramilitary force.
Divan, who argued the application said, “My stand as recorded in the judgment was never made in the form of oral submissions. To this extent, the judgment needs to be modified.”
In defence, the SC referred to the counter affidavit filed by the Centre/CRPF and said, “After burning the midnight oil, we write the judgments. We take responsibility for every judgment we write. If officers come back to us and say that these submissions were not made in court, there is suppression of the fact that these submissions are part of your affidavit.”
The bench said, each submission recorded in the judgment was taken from the affidavit filed by Centre and as long as the affidavit was not withdrawn or modified, the same was referred to as the stand of the Centre.
“We were told that the counter affidavit represents the entire facts of the case. We were not informed at any stage not to look at the affidavit or that we (Centre) are withdrawing it. Each of the submissions referred in the judgment is specifically cross-referenced on basis of Union’s counter.”
ASG Divan said, “It is absolutely correct that the submissions recorded in the judgment were taken from affidavit. But we try to sensitise the department on these issues. It is recorded in one of the submissions that this man was faking his mental condition.” She was referring to that portion in the judgment where she was quoted as saying that during the first and second departmental inquiries during 2010-14, the petitioner never claimed he had any mental disorder. He later claimed mental illness to avoid penalty.
The SC noted in its judgment that assistant commandant Ravinder Kumar Dhariwal started facing obsessive compulsive disorder and secondary major depression in 2009. In 2015, he visited Gauhati Medical College for psychiatric treatment. He also visited the Composite Hospital, Gauhati in 2015 and was referred to the Composite Hospital in Delhi, where he was admitted for treatment in August 2015. He was subsequently referred to Delhi where he was categorized as permanently disabled, with 40 to 70% disability.
The Composite Hospital by a report dated July 18, 2016, declared Dhariwal unfit for duty and placed him under low medical category due to his partial and limited response to all modalities of treatment since 2009. His counsel Rajiv Raheja said after his condition was known to his employers, instead of referring him for treatment, his superior deputy inspector general (DIG) filed a criminal case against him alleging that Dhariwal was obsessed with either killing or being killed and made a threat that he could shoot from his weapon.
“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,” the SC observed.
The matter had travelled to apex court from the Gauhati high court where a single judge set aside the inquiry against the officer in view of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 which talks of non-discrimination in government employment. This order was set aside by a division bench of the same high court against which Dhariwal approached the top court last year.
CRPF defended its action arguing that he was involved in various acts of misconduct during 2010 and 2011, for which three different departmental inquiries were initiated. It said that exposure to insurgency does not result in the development of mental health issues as many officers are posted in such areas and are performing their duties.
But the bench set aside the HC order and the inquiry proceedings by saying, “He is only required to prove that disability was one of the factors that led to the institution of disciplinary proceedings against him on the charge of misconduct.”
