Case Note & Summary
The petitioner, Sudesh Kumar Waingade, a government employee with the Directorate of FDA, Goa, suffered from schizophrenia, a mental disability, as certified by the Institute of Psychiatry and Human Behaviour (IPHB) on 09/02/2001. He approached the State Commissioner for Persons with Disabilities under Section 80(b) of the Rights of Persons with Disabilities Act, 2016, seeking a disability certificate. The Commissioner rejected his representation on 09/05/2023, without adequately considering the distinction between physical and mental disability under Section 2(r) and Section 2(s) of the Act. The petitioner argued that Section 80(b) does not require a benchmark disability and that the employer is prohibited from discrimination under Section 20, which is pari materia to Section 47 of the old Act. The respondents conceded that the impugned order lacked discussion on whether the petitioner's case fell under Section 2(s) read with Section 80(b). The High Court found that the Commissioner failed to apply the correct legal framework and set aside the impugned order, remanding the matter for fresh consideration within three months, with notice to the petitioner and an opportunity of hearing.
Headnote
A) Disability Law - Mental Disability - Certificate under Section 80(b) - The petitioner, a government employee, suffered from schizophrenia and sought a disability certificate under Section 80(b) of the Rights of Persons with Disabilities Act, 2016. The State Commissioner rejected the representation without considering the distinction between physical and mental disability under Section 2(r) and Section 2(s) and the specific provisions of Section 80(b) which do not require benchmark disability. Held that the Commissioner failed to apply the correct legal framework and the matter requires reconsideration (Paras 3-12).
B) Employment Law - Non-Discrimination - Section 20 of the Rights of Persons with Disabilities Act, 2016 - The petitioner contended that the employer is restrained from discrimination under Section 20, which is pari materia to Section 47 of the old Act. The court noted that the Commissioner did not address this aspect. Held that the employer's obligations under Section 20 must be considered in the context of the disability certificate (Paras 7, 12).
Issue of Consideration
Whether the State Commissioner for persons with disabilities erred in rejecting the petitioner's representation for a disability certificate under Section 80(b) of the Rights of Persons with Disabilities Act, 2016, by failing to consider the distinction between physical and mental disability and the applicability of Section 2(s) and Section 80(b).
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 09/05/2023, and remanded the matter to the State Commissioner for Persons with Disabilities for fresh consideration within three months, with notice to the petitioner and an opportunity of hearing.
Law Points
- Mental disability
- Section 2(s) and Section 80(b) of Rights of Persons with Disabilities Act
- 2016
- No benchmark disability requirement for Section 80(b)
- Section 20 non-discrimination in employment
- Section 47 of old Act pari materia
Case Details
2024 LawText (BOM) (01) 243
WRIT PETITION NO.480 OF 2023
Mr. Shivraj Gaonkar and Mr. P. Sirvoicar for petitioner; Mr. Deep Shirodkar for respondent Nos.1 and 2; Ms. Maria Correia for respondent No.3
Mr. Sudesh Kumar Waingade
State of Goa, The Director of FDA, State Commissioner for Persons with Disabilities
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Nature of Litigation
Writ petition challenging order of State Commissioner for Persons with Disabilities rejecting representation for disability certificate.
Remedy Sought
Petitioner sought quashing of the impugned order dated 09/05/2023 and direction to issue disability certificate under Section 80(b) of the Rights of Persons with Disabilities Act, 2016.
Filing Reason
The State Commissioner rejected the petitioner's representation without considering the distinction between physical and mental disability and the applicability of Section 2(s) and Section 80(b).
Previous Decisions
The State Commissioner for Persons with Disabilities passed order dated 09/05/2023 rejecting the petitioner's representation.
Issues
Whether the State Commissioner erred in rejecting the petitioner's representation for a disability certificate under Section 80(b) of the Rights of Persons with Disabilities Act, 2016?
Whether the Commissioner failed to consider the distinction between physical and mental disability under Section 2(r) and Section 2(s) of the Act?
Submissions/Arguments
Petitioner's counsel argued that the Commissioner failed to consider the difference between physical and mental disability under Section 2(r) and Section 2(s), and that Section 80(b) does not require benchmark disability.
Petitioner's counsel submitted that the employer is restrained from discrimination under Section 20, which is pari materia to Section 47 of the old Act.
Respondents' counsel admitted that the impugned order lacks discussion on whether the petitioner's case falls under Section 2(s) read with Section 80(b).
Ratio Decidendi
The State Commissioner for Persons with Disabilities must consider the specific provisions for mental disability under Section 2(s) and Section 80(b) of the Rights of Persons with Disabilities Act, 2016, which do not require benchmark disability, and must provide a reasoned order after hearing the petitioner.
Judgment Excerpts
The present petition challenges the order passed by the State Commissioner for persons with disabilities dated 09/05/2023 thereby rejecting the representation filed by the petitioner to consider his case in connection with mental disability.
Mr. Gaonkar would submit that learned Commissioner has failed to consider the difference between physical and mental disability and more specifically the definition under Section 2(r) and Section 2(s).
Admittedly, the petitioner was in service with respondent No.2 and while in service, he suffered with some mental ailment.
Procedural History
The petitioner filed a representation before the State Commissioner for Persons with Disabilities under Section 80(b) of the Rights of Persons with Disabilities Act, 2016, which was rejected on 09/05/2023. The petitioner then filed the present writ petition before the High Court of Bombay at Goa on an unspecified date, which was heard and disposed of on 31/01/2024.
Acts & Sections
- Rights of Persons with Disabilities Act, 2016: 2(r), 2(s), 20, 80(b)
