GEETABEN RATILAL PATELversusDISTRICT PRIMARY EDUCATION OFFICER

                        [2013] 17 S.C.R. 900


A
                  GEETABEN RATILAL PATEL
                                v.
            DISTRICT PRIMARY EDUCATION OFFICER
                 (Ciyil Appeal No. 9324 of 2012)
B
                            JULY 2, 2013

                 [G.S. SINGHVI AND SUDHANSU
                  JYOTI MUKHOPADHAYA, JJ.]

c       Persons with Disabilities (Equal Opportunities, Protection
  of Rights and Full Pwticipation) Act, 1995 - s.47 rlw s.62 -
   Jurisdiction of the Commissioner to look into the legality of
  .[fle order of dismissal from service of a disabled person -
   Dismissal of appellant-teacher in 2004 .:._ Challenged before
D the Commissioner uls. 62 of the Act in 2007 - The _
   Commissioner held that as the appellant was suffering from
   40 to 70 % mental disability at the time of dismissal, the order
  of dismissal was void - Order set aside by High Court - On
   appeal, held: If it comes to the notice of the Commissioner
E that a person with disability has been deprived of his rights
  or that the authorities have flouted any law, rule, guideline,
  instruction, etc. issued by the appropriate Government or
   local authorities, the Commissioner is required to take up the
  matter with the appropriate authority t6 ensure restoration of
F rights of such disabled person and/or to implement the Jaw,
  rule, guideline, instruction if not followed - In the instant case,
   appellant-teacher was dismissed from service, but the order
   of dismissal was passed during her mental disability in
   violation of s.47(1) - In this background, the Commissioner
G having declared the order of dismissal as void, it was not open
   to the High Court to interfere with such order and to restore
   the illegal order of dismissal - The dismissal order also
   violated rules of natural justice - Direc&ion given to


H                                900
 GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 901
                    OFFICER

 respondent-authority to reinstate the appellant immediately - A   •
 However, in the peculiar fact-situation, appellant granted
 arrears of salary w.e.f. 1-2-2008- Respondent-authority may
 get opinion of Government Doctor to determine the duty to
 be assigned to the appellant - In case the appellant is not in
 a position to perform normal duty because of her mental B
 condition, competent authority to apply proviso to s.47(1) -
 Primary Education Act - s.24 - Gujarat Panchayat Services
 (Discipline and Appeal) Rules, 1997.

       The appellant was a primary school teacher. She was
  dismissed from service by the respondent under Section C
  24 of the Primary Education Act read with Gujarat
   Panchayat Services (Discipline and Appeal) Rules, 1997
   on the ground of carelessness towards duty, absence
  from duty, irregularity, breach of orders of the higher
. authorities and having badly affected the future of the D
  students. The appellant filed application before the
   Commissioner under Section 62 of the Persons with
  ·Disabilities (Equal Opportunities, Protection of Rights and
   Full Participation) Act, 1995 pleading that the order of
   dismis_sal was passed while she was suffering from E
   mental illness and thus there was violation of Section
   47(1) of the Act, and accordingly the appellant prayed for
   her reinstatement _with full back-wages.

      The Commissioner held that as the appellant was F
 suffering from 40 to 70 per cent mental disability at the .
 time of dismissal, the order of dismissal was void and
 further that if the appellant was not in a position to work
 in the large educatio_nal intel'est of the students, then an
 appropriate post should be created for her and her G
 appointment to that post be made as per Section 47 of
 the Act. The order passed by the Commissioner was set
 aside by a Single Judge of the High Court, which order
 was affirmed by Division Bench of High Court and
 therefore the instant appeal.
                                                              H
    902      SUPREME COURT REPORTS             [2013] 17 S.C.R.

A        The question which arose for consideration was
    whether the Commissioner under Section 62 of the
    Persons with Disabilities (Equal Opportunities,
    Protection of Rights and Full Participation) Act, 1995 can
    look into the legality of the order of dismissal from service
B   of a disabled person, if it comes to his notice that the said
    person with disat;>ilities has been deprived of his rights.
          Allowing the appeal, the Court
       HELD:1. The provisions of Sections 47 and 62 of the
c Persons with Disabilities (Equal Opportunities,
  Protection of Rights and Full Participation) Act, 1995,
  when read together, empower the Commissioner, to look
  into the complaint with respect to the matters relating to
  deprivation of rights of persons with disabilities and non-
D implementation of laws, rules, bye-laws, regulations,
  executive orders, guidelines or instructions issued by the
  appropriate Governments or local authorities and to take
  up the matter with the appropriate authorities for the
  welfare and protection of rights of persons with
E disabilities including matter relating to dispensation with ·
  service or reduction in rank. The power of the
  Commissioner "to look into the complaints with respect
  to the matters relating to deprivation of rights" as
  provided under Section 62 of the Act is not an empty
  formality and the Commissioner is required to apply his
F mind on the question raised by the complainant to find
  out the truth behind the complaint. If so necessary, the
  Commissioner may suo motu inquire into the matter and/
  or after giving notice, hearing the concerned parties and
  going through the records may decide the complaint. If
G it comes to the notice of the Commissioner that a person
  with disability has been deprived of his rights or that the
  authorities have flouted any law, rule, guideline,
   instruction, etc. issued by the appropriate Government or
   local authorities, the Commissioner is required to take up
H the matter with the appropriate authority to ensure
GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 903
                   OFFICER

restoration of rights of such disabled person and/or to        A
implement the law, rule, guideline, instruction if not
followed. A complaint may be made by any disabled
person himself or any person on behalf of disabled
persons or by any person in the interest of disabled
persons. [Para 16] [914-F-H; 915-A-D]                          B

     2.1. In the instant case, the appellant was appointed
as Primary Teacher on 30th July, 1990 and continued for
nine years without any complaint till she proceeded on
medical leave on 21st June, 1999. She theTeafter,
remained absent from time to time for about 1360 days          C
1from June, 1999 till the date of dismissal. The appellant
has taken a specific plea that she was divorced by her
husband in the year 1998 and since then she suffered
mental depression. The Government Medical Board also
held the appellant mentally disabled as she was suffering      D
from 40 to 70 per cent mental disability. The order of
dismissal was passed during her mental disability in
violation of Section 47(1) of the Act. In this background,
the.Commissioner having declared the order of dismissal
as void, it was not open to the High Court to interfere with   E
 such order and to restore the illegal order of dismissal.
 [Para 17] [915-E-G]

     2.2. From the documents on record, it is clear that
show cause notices were issued to the appellant and            F
charges were framed but there is nothing on the record
to suggest that any departmental proceeding was
initiated. Neither any inquiry officer was appointed, nor
any notice was issued by any inquiry officer to the
appellant to remain present in the departmental                G
proceeding. No evidence was relied upon by the
respondent to bring home the charges. Aforesaid facts
also show that the order of dismissal was passed in
violation of rules of natural justice. [Para 19] [916-B-C]

     2.3. The appellant remained absent from duty from         H
   904     SUPREME COURT REPORTS            [2013] 17 S.C.R.

A time to time for about 1360 days when she was in
  service. Therefore, she canriot claim .any wages for the
  said period. The order of dismissal was passed on
  15.4.2004, but she moved before the Commissioner after
  a span of three years i.e. hi the year 2007. There being
B delay on her part, in moving before the Commissioner,
  she cannot claim any salary for such intervening period.
  [Para 20] [916-D-E]

         2.4. The Single Judge of the High Court by interim
    order dated 11th January, 2008 directed the respondent
C . to reinstate. the appellant and to pay her regular salary
    w.e.f 1.2.2008. lnspite of the same, the respondent
    authority have neither reinstated the appellant nor paid
    salary w.e.f. 1.2.2008. So, they cannot take advantage of
    their own wrong and, thereby, cannot deny the benefit of
D wages to which the appellant was entitled pursuant to the
    order passed by the High Court on 11th January, 2008.
    [Paras 21, 22] [916-F; 917-B-C]

      2.5. There is nothing on the record to suggest that
E the respondent authority got the appellant examined by
  a Government Doctor to determine the duty to be
  assigned to her. In view of her reinstatement, now the
  respondent authority may get opinion of the doctor for
  assigning her duty. In case the appellant is not in a
F position to perform the normal duty because of her mental
  condition, the competent authority will apply Proviso to
  Section 47(1) of the said Act. [Para 23] [917-D]

      2.6. The authorities are directed to reinstate the
  appellant in service immediately and to pay her regular
G salary every month. The appellant shall be entitled to .
  arrears of salary w.e.f. 1.2.2008 which the respondent
  shall pay within three months, else the appellant shall
  become entitled to interest at the rate of 6% per annum
  with effect from 1.2.2008 till the actual payment. [Para 24]
H [917-E-F]
      GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 905
                         OFFICER

          CIVIL APPELLATE JURISDICTION : Civil Appeal No.               A
      9324 of 2012.
          From the Judgment & Order date 04.11.2009 of the High
      Court of Gujarat at Ahmedabad in LPA No. 1988 of 2009 irr
      Special Civil Application No. 27730 of 2007.
                                                                        B
          Vipin Gogia, Brijendra Singh for the Appellant.
           The Judgment of the Court was delivered by
            SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This appeal
     . is directed against the order dated 4th November, 2009
       passed by the Division Bench of Gujarat High Court in L.P.A.No. C
       1988 of 2009 whereby the Division Bench dismissed the said
       Letters Patent Appeal preferred by the appellant and affirmed
       the order dated 10th December, 2008 passed by learned
       Single Judge in Writ Petition-Special Civil Application No.
       27730/2007. In the said writ petition the order passed by the D
       Commissioner under Section 62 of the Persons with
       Disabilities (Equal Opportunities, Protection of Rights and Full
       Participation) Act, 1995 (hereinafter referred to as "the Act")
       in case No. 253/2007 was set aside.
           2. The main question that arises for our consideration is    E
      whether the Commissioner under Section 62 of the Act can look
      into the legality of the order of dismissal from service of a
      disabled person, if it comes to his notice that the said person
      with disabilities has been deprived of his rights.
                                                                        F
           3. The factual matrix of the case is as follows:
           The appellant who was appointed on 30th July, 1990 as
      Primary Teacher in Vagara Schoorwas transferred to Primary
      School, Tai.Manda, Bharuch from 18th June, 1999. Thereafter,
      she proce!;!ded on medical leave from 21st June, 1999 to 30th G
      July, 1999, and remained on leave upto 7th September, 1999c
      In that respect, she had not produced any type of leave report.
      Thereafter, from 15th September, 1999, she again remained
      absent unauthorisedly without producing any kind of leave
•I    report.                                                         H

I


I
    906      SUPREME COURT REPORTS                (2013] 17 S.C.R.


A       4. In the meantime, on 31st December, 1999, a notice
  was issued to the appellant regarding her time to time absence
  and she was thereby informed to explain in writing the grounds
  for her absence within seven days. But neither written nor oral
  explanation was received by the authorities. Thereafter, she
B directly resumed her duties in the school on 25th November,
  2000. The Principal of Primary School, Manad had informed
  the same to Taluka Development Officer, Bharuch, who in turn
  intimated the same to the District Panchayat Committee,
  Bharuch. After resumption of duty on 25th November, 2000, the
c appellant went on leave from time to time without pay. In this
  respect, by memorandum letter dated 28th July, 2002 she was
  served with a charge-sheet and informed to submit her
  explanation in writing within 7 days. Since no explanation was
  submitted by the appellant, she had been informed in writing
D vide letter dated 4th March, 2003 to submit the medical
  certificate of a Civil Surgeon with respect to her illness within
  7 days. But neither any medical certificate nor any explanation
  in writing or in·oral, was submitted. By letter dated 30th April,
  2003 of Taluka Development Officer, Bharuch, the matter was
  referred to the higher authority. Thereafter, the final notice was
  issued by letter dated 9th July, 2003 directing the appellant tb
  explain in writing within 7 days for her continuous absence,
  irregularity and carelessness towards her duty. The appellant
  failed to submit her reply or explanation to the said notice within
  the stipulated period. Therefore, by giving another opportunity
F of defence, a reminder letter was issued on 25th August, 2003
  followed by another letter of similar nature dated 28th August,
  2003. Having received no reply again, vide order dated 15th
  April, 2004 she was dismissed from service by the respondent
  under Section 24 of the Primary Education Act read with Gujarat
G Panchayat Services (Discipline and Appeal) Rules, 1997 on
  the ground of carelessness towards duty, absence from duty,
  irregularity, breach of orders of the higher authorities and having
  badly affected the future of the children.

H         5. For about three years, no action was taken by appellant.
GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 907
  OFFICER [SUDHANSU JYOTI MUKHOPADHAYA, J.]

In the year 2007 she filed an application before the A
Commissioner under Section 62 of the Act. The said
application was registered as Case No. 253/2007. In the said
application, the appellant took plea that the order of dismissal
passed by the authorities while she was suffering from mental
illness was in violation of Section 47(1) of the Act. The appellant B
requested for her reinstatement with full back-wages.

      6. The complaint on behalf of the appellant was filed and
                                                        .  ·~
 verified by her father. Therefore, the Commissioner while
.issuing notice to the respondent authority also issued notirie to· C
 the appellant on 30th June, 2007 calling upon both the parties
 to be present on 24th July, 2007 at the time of hearing.

       7. At the time of hearing the appellant herself remained
 present alongwith her father and on behalf of the respondent
 Shri Maganbhai B. Vasava, Head Clerk and Shri Dilavar.sf:linh D
 A. Raj, Junior Clerk had remained present. The appellant contend
 ed that though she was physically healthy at the ti.me
 f joining the services because of mental illness that deve!Qf)ed
 afterwards she was treated by doctors time to .tir:ne,nwho,
 advised her to take rest. She specifically pleaded ·that since:: E
 she was divorced by her husband in the year 1998, she started
 suffering from mental depression which resulted in 40 to 70 per
 cent mental disability. A certificate issued by the Medical .Board
 of Government Hospital was also produced before the
  Commissioner.                                                     F
     ' 8. On.behalf of respondent, it was contended that the
 - appellant unauthorisedly remained absent from service from
. time to time and in spite of giving opportunity to her, she never
   replied and because of her carelessness and negligence
   towards duty, the students suffered. It was further submitted that G
   a charge sheet was also issued to her in this regard but having
   received no reply from her, she was dismissed from. service.

     9. The Commissioner after hearing the parties and on
 perusal of the evidence held that as the appellant was suffering    H
·~

     908       SUPREME COURT REPORTS                [2013] 17 S.C.R.


A    from 40 to 70 per cent mental disability at the time of dismissal,
     the said order of dismissal was void. It was also held that if the
     appellant is not in a position to work in the large educational
     interest of the students then an appropriate post should be
     created for her and her appointment to that post be made as
B    per Section 4 7 of the Act. It was also directed to count the
     intervening period as continuous period in service without any
     break and also to select the place of service of the appellant
     in such a manner that she can live with her parents as she
     requires constant assistance to become mentally healthy.
c         10. The respondent challenged the said order before the
     learned Single Judge of the High Court in Special Civil
     Application No. 27730/2007. In the said case, the learned
     Single Judge passed an interim order on 11th January, 2008
     with following observation:-
D
        · "2. Upon hearing the learned Counsel for both the sides,
          it prima facie appears that the respondent was engaged
          as a teacher in the year 1990 and it is an admitted
          position that she continued in service up to 1999, for a
E         period of about 9 years. In the year 1999, on account of
          the divorce, she sustained mental disability and as a
          result thereof, she had undergone a prolonged treatment.
          Due to mental disability, it appears that she might not
          have appeared in the inquiry proceedings initiated by the
F         petitioner. As per the petitioner, she remained absent and
          not even defended the inquiry proceedings and the order
          of dismissal was passed. It is true that the order of
          dismissal is not challenged by the respondent before the
          higher forum, however, she has approached the
          Commissioner for physically Handicapped persons and
G
          ultimately, the Commissioner has passed the order,
          setting aside the dismissal and also interim directions.

           3. Whether the Commissioner has no power to set aside
           the order of the dismissal or not deserves consideration;
H
GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 909
  OFFICER [SUDHANSU JYOTI MUKHOPADHAYA, J.]

    but at the same time, it also appears that it is on account   A
    of the mental disability, the respondent could not defend
    in the proceedings and as a result thereof, the order of
    dismissal came to be passed. It is. an admitted position
    that the respondent is mentally disabled and, therefore,
    had the order of dismissal not been there, the respondent     B
    otherwise would have been entitled to the benefits of the
   ·Act, namely; The Persons with Disabilities (Equal
    Opportunities, etc.) Act, 1995 and more particularly,
    Section 47 of the Act."

    "4. Ms. Mandavia, learned Counsel appearing for the
                                                                  c
    petitioner, however, submitted that it is not a case of
    dismissal from the service on account of the mental
    disability or reduction in rank and , therefore, if the
    dismissal has already taken place, it cannot be set aside
   -J;iy the Commissioner, which may result into                  D
    consequential reinstatement in service with back wages
    and other directions. She also submitted that on account
    of the mental disability of the respondent, she is not at
    all in a position to discharge any other work also.
                                                                  E
     5. Whereas, Mr. Jani, learned Counsel appearing for the
     respondent submitted that as per the medical certificate
     produced on page 60 of the Chief District Medical Officer
     and Civil Surgeon, she has mental disability upto 40 to
     70% and, therefore, she may be in a position to do minor     F
   . manual work in the School, if assigned to her.

    6. It appears that if the person has sustained physical
    disability, including that of mental disability while in
    service, it would be required for the authority to extend
    benefit of Section 47 of the Act. Keeping in view the         G
    peculiar facts and circumstances that. when the
    departmental actions were initiated, she had already
    sustained mental disability, a pragmatic approach is
    required to be taken. Further, it will be for the concerned
                                                                  H
    910       SUPREME COURT REPORTS                   [2013] 17 S.C.R.


A         Doctor to certify regarding the nature of duty, which can
          safely and conveniently be performed by the respondent
          after due examination.

           7. Since, at this stage, the order of dismissal is yet not
B         finalized by this Court, there may not be any payment of
           backwages and ultimately whether the Commissioner has
          power or not is an aspect finally to be decided at the later
          stage. However, it appears that since the respondent is
          having mental disability of 40 to 70 per cent, it would be
          just and proper to allow the operation of the order passed
c         by the Commissioner so as to enable the respondent to
          get regular salary and after examination by the competent
          doctor appropriate duty may_ be assigned to her.

          8. In view of the aforesaid, I am inclined to pass the
D         following order:-
    RULE.

          (a)By interim order, there shall be stay against the
          impugned order of the Commissioner to the extent that the
E         petitioner shall not be required to pay any backwages to
          the respondent, but the petitioner shall reinstate the
          respondent in service by paying regular salary to her from
          1.2.2008.

F         (b)lt is further observed that directed that the petitioner shall
          get respondent examined through a Government Doctor
          of their choice and if it is so opined by the doctor, such
          duty may be assigned to the respondent at a place or a
          nearby place, where she can comfortably and conveniently,
G         in a safe atmosphere, discharge duty."

         11. The case was subsequently taken up by another
    learned Single Judge on 10th December, 2008 who finally
    disposed of the matter. This time the learned Single Judge
    neither perused the report of the government doctor nor noticed
H
 GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 911
   OFFICER [SUDHANSU JYOTI MUKHOPADHAYA, J.]
 the question whether the interim order passed by the High Court A
 on 11.1.2008 was complied by assigning duty to the appellant
 at the nearby place where she can comfortably and conveniently
 in safe atmosphere discharge her duties. Learned Single
 Judge also failed to decide the question whether the
 Commissioner had jurisdiction to interfere with the order of s
 dismissal. On 10th December, 2008, learned Single Judge
 dismissed the writ petition on the following grounds and
 observation:-

      "14. In the present case, the respondent has remained on         C
      long leave and she has not responded to any of the
      communications by the petitioner. Her services were
      terminated in the year 2004 on the ground of absenteeism.
      Though the respondent was asked to produce certificate
      she has failed to comply with the same.
                                                                       D
     .15. In short, after 2004 she was not in service and
 therefore, the respondent cannot rely upon the provisions of
 said section which clearly states that no establishment shall
 dispense with, or reduce in rank, an employee who acquires
 a disability during his service. I am therefore of the view that      E
 the said section would be of no help to the respondent. Even
 otherwise, she had served for only 2 months and she_ remained
  absent from 1990 prior to act came into force.

         16. As regards the contention that the respondent sick, it
  is required to be noted that tlle_fespondent was asked to            F
  produce medical certificate which was not produced. Forther
  it is required to be rioted that she has served only for 20 months
  in all.

       t7: Even otherwise the respondent was dismissed in the G
  year 2004. She has challenged the said decision after a period
  of more than three years, which is grossly time-barred. The
  competent authority ought to have applied their mind before
, passing the impugned order. The Commissioner has therefore
  committed an error in setting aside the order of termination.        H
    912       SUPREME COURT REPORTS                 (2013] 17 S.C.R.


A         18. In any case .the absenteeism is from the year 1990,
    prior to the Act came into force. The provisions of the Act will
    apply only during service. Therefore the contention of the
    petitioner cannot be accepted.                            -

B        19. It is also required to be noted that the respondent was
    teacher and she remained absent unreasonably .long period as
    a result of which the post was vacant and the petitioner was
    not able to appoint anybody. The Ultimate sufferers-were the
    students. In such situation, I am of the view that the competent
    authority was justified in dismissing the respondent after
C   following the proper procedure."

          12. On an appeal, the Division Bench by its impugned
          order dated 4th November, 2009 affirmed the order
          passed by the learned Single Judge and the same is under
D         challenge before this Court now. The Division Bench also
          committed the same error as the Single Judge, by not
          deciding the question of jurisdiction of the Commissioner
          and the question whether .the appellant was entitled for
          benefits under Section 47(1) of the Act.
E
          13. The Persons with Disabilities (Equal Opportunities,
          Protection of Rights and Full Participation) Act was
          enacted in 1995 pursuant to meet the following object and
          reasons:

F         (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
G
          disabilities;

          (iii) to remove any discrimination against persons with
          disabilities in the sharing of development benefits, vis-Evis
          non-disabled persons;
H
GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU.913
  OFFICER [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    (iv)to counteract any situation of the abuse and the              A
    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
                                                                      B
    (vi)to make special provision of the integration of persons
    with disabilities into the social mainstream.

     14. To decide the present issue, it is also relevant to notice
Section 47 of the Act which deals with non-discrimination in          c
Government employment and reads as follows:

    "47 - Non-discrimination in Government employments
    - (1) No establishment shall dispense with, or reduce in
    rank, an employee who acquires a disability during his
    service:                                                          0

     Provided that, if an employee, after acquiring disability is
not suitable for the post he was holding, could be shifted to
some other post with the same pay scale and service benefits:
                                                                      E
     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.

     (2) No promotion shall be denied to a person merely on           F
     the ground of his disability:

     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, as G
     may be specified in such notification, exempt any
     establishment from the provisions of this section."

    15. The appointment, function and duties of the Chief
Commissioner and Commissioners for Persons with
Disabilities have been laid down under Chapter XII of the Act.        H
    914      SUPREME COURT REPORTS                 [2013] 17 S.C.R.


A        Under Section 58(c) of the Act the Chief Commissioner
    shall take steps to safeguard the rights and facilities made
    available to persons with disabilities.

         The Commissioner is empowered under Section 62 of the.
    Act to look into the complaints in respect to matters relating to
8
    deprivation of rights of persons with disabilities, which reads
    as follows:-

          "62 - Commissioner to look into complaints with
          respect to matters relating to deprivation of rights of
c         persons with disabilities.- Without prejudice to the
          provisions of section 61 the Commissioner may of his own
          motion or on the application of any aggrieved person or
          otherwise look into complaints with respect to matters
          relating to-                                       ·
D
          (a) deprivation of rights of persons with disabilities;

          (b) non-implementation of laws, rules, bye-laws,
          regulations, executive orders, guidelines or instructions
          made or issued by the appropriate Governments and the
E         local authorities for the welfare and protection of rights of
          persons with disabilities,

          and take up the matter with the appropriate authorities."
        16. The provisions of Sections 47 and 62 of the Act, when
F read together, empower the Commissioner, to look into the
  complaint with respect to the matters relating to deprivation of
  rights of persons with disabilities and non-implementation of
  laws, rules, bye-laws, regulations, executive orders, guidelines
  or instructions issued by the appropriate Governments or local
G authorities and to take up file matter with the appropriate
  authorities for the welfare and protection of rights of persons
  with disabilities including matter relating to dispensation with
  service or reduction in rank. The power of the Commissioner
  "to look into the complaints with respect to the matters relating
H to deprivation of rights" as provided under Section 62 of the
 GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 915
   OFFICER [SUDHANSU JYOTI MUKHOPADHAYA, J.]

   Act is not an empty formality and the Commissioner is required · A
   to apply his mind on the question raised by the complainant to
· :find out the truth behind the complaint. If so necessary, the
   Commissioner may suo motu inquire into the matter and/or
   after giving notice, hearing the concerned parties and going
   through the records may decide the complaint. If it comes to B
   the notice of the Commissioner that a person with disability has
   been deprived of his rights or that the authorities have flouted ·
   any law, rule, guideline, instruction, etc. Issued by the
   appropriate Government or local authorities, the Commissioner
   is required to take up the matter with the appropriate authority c
   to ensure restoration of rights of such disabled person and/or
 . to implement the law, rule, guideline, instruction if not followed.
   A complaint may be made by any disabled person himself or
   any person on behalf of disabled persons or by any person in
   the interest of disabled persons. Thus the issue as involved is
                                                                       0
    decided affirmatively in favour of the appellant and against the
    respondent.
       17. The appellant was appointed as Primary Teacher on
  30th July, 1990 and continued for nine years without any
  complaint till she proceeded on medical leave on 21st June, E
  1999. She thereafter, remained absent from time to time for
  about 1360 days from June, 1999 till the date of dismissal. The
  appellant has taken a specific plea that she was divorced by
  her husband in the year 1998 and since then she suffered mental
  depression. The Government Medical Board also held the F
  appellant mentally disabled as she was suffering from 40 to 70
  per cent mental disability. The order of dismissal was passed
  during her mental disability in violation of Section 47(1) of the
  Act. In this background, the Commissioner having declared the
  order of dismissal as. void, it w~s not open to the High Court G
  to interfere witli soch order and. to restore the ttlegal order of
  dismissal.
      18. Whether under Section 62 of the Act, th.e
  Commissioner was competent to declare the order of
  dismissal as void, was one of the question framed by the H
    916       SUPREME COURT REPORTS               [2013] 17 S.C.R.


A   learned Single Judge by order dated 11.1.2008. But at the time
    of hearing, the learned Single Judge failed to notice and decide
    the question so raised. The Division Bench also failed to notice
    the aforesaid fact and remained silent on the issue.
          19. From the documents on record, we find that show
B   cause notices were issued to the appellant and charges were
    framed but there is nothing on the record to suggest that any
    departmental proceeding was initiated. Neither any inquiry
    officer was appointed, nor any notice was issued by any inquiry
    officer to the appellant to remain present in the departmental
C   proceeding. No evidence was relied upon by the respondent
    to bring home the cliarges. Aforesaid facts also show that the
    order of dismissal was passed in violation of rules of natural
    justice.
         20. Now the question remains about the back wages, if
D   any, to which the appellant is entitled. The appellant remained
    absent from duty from time to time for about 1360 days when
    she was in service. Therefore, she cannot claim any wages for
    the said period. The order of dismissal was passed on
    15.4.2004, but she moved before the Commissioner after a
E   span of three years i.e. in the year 2007. There being delay on
    her part, in moving before the Commissioner, she cannot claim
    any salary for such intervening period.
        21. Learned Single Judge by interim order dated 11th
F   January, 2008 directed the respondent to reinstate the appellant
    and to pay her regular salary w.e.f 1.2.2008 on the following
    terms:
          "8. RULE
          (a)By interim order, there shalt be stay against the
G         impugned order of the Commissioner to the extent that the
          petitioner shall not be required to pay any backwages to
          the respondent, but the petitioner shall reinstate the
          respondent in service by paying regular salary to her from
          1.2.2008.
H
GEETABEN RATILAL PATEL v. DISTRICT PRIMARY EDU. 917
  OFFICER [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    (b )It is further observed that directed that the petitioner shall A
    get respondent examined through a Government Doctor
    of their choice and if it is so opined by the doctor, such
    duty may be assigned to the respondent at a place or a
    nearby place, where she can comfortably and conveniently;'
    in a safe atmosphere, discharge duty."                             B
      22. lnspite of the same, the respondent authority have
neither reinstated the appellant nor paid salary w.e.f. 1.2.2008.
So, they cannot take advantage of their own wrong and, thereby,
cannot deny the benefit of wages to which the appellant was
entitled pursuant to the order passed by the High Court-on 11th        C
January, 2008.
     23. There is nothing on the record to suggest that the
respondent authority got the appellant examined by a
Government Doctor to determine the duty to be assigned to
her. In view of her reinstatement, now the respondent authority . D
may get opinion of the doctor for assigning her duty. In case
the appellant is not in a position to perform the normal duty
because of her mental condition, the competent authority will
apply Proviso to Section 47(1) of the said Act.
                                                                       E
       24. Having regard to the fact that we have upheld the order
passed by the Commissioner, we direct the authorities to
reinstate the appellant in service immediately and to pay her
regular salary every month. The appellant shall be entitled to
arrears of salary w.e.f. 1.2.2008 which the respondent shall pay F
within three months, else the appellant shall become entitled ·
to interest at the rate of 6% per annum with effect frbm 1.2.2008
till the actual payment.
     25. l:he appeal is allowed in the manner indicated above
and the orders passed by the learned Single Judge and the              G
Division Bench of the High Court are set aside. There shall be
no order as to costs.
Bibhuti Bhushan Bose                                 Appeal allowed.