'All alternatives must be considered before dismissing employee claiming disability'

New Delhi: In a significant verdict, the Supreme Court on Friday said all possible alternatives must be considered before dismissing from service a person claiming disability in disciplinary proceedings as providing reasonable accommodation to such employees is "sacrosanct".

The top court said the "one-size fits all approach" can never be used to identify disability which is an "individualistic conception" and not a universal concept.

The important disabled-friendly observations have been made by a bench of justices D Y Chandrachud, Surya Kant and Vikran Nath while setting aside the 2018 judgment of a division bench of the Gauhati High Court.

The high court had restored inquiry proceedings against Assistant Commandant Ravinder Kumar Dhariwal of the CRPF who had taken the ground of mental disability by submitting the documents in disciplinary proceedings.

"The disciplinary proceedings against the appellant relating to the first enquiry are set aside. The appellant is also entitled to the protection... of the Rights of Persons with Disabilities (RPwD) Act, 2016 in the event he is found unsuitable for his current employment duty.

"While re-assigning the appellant to an alternate post, should it become necessary, his pay, emoluments and conditions of service must be protected. The authorities will be at 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 or others in or around the work-place," the apex court said in its 97-page verdict.

A complaint, which led to disciplinary inquiry, was lodged against Dhariwal, who had joined the Central Reserve Police Force in November 2001, in the Alwar Gate police station alleging that he had stated that he was obsessed with either killing or being killed and made a threat that he could shoot.

While setting aside the first inquiry, Justice Chandrachud, writing the judgment for the bench, extensively dealt with various aspects of disability, national and international laws.

"Since disability is a social construct dependent on the interplay between mental impairment with barriers such as social, economic and historical among other factors, the one - size fits all approach can never be used to identify the disability of a person. Disability is not universal but is an individualistic conception based on the impairment that a person has along with the barriers that they face. Since the barriers that every person faces are personal to their surroundings interpersonal and structural, general observations on how a person ought to have behaved' cannot be made," the verdict said.

It said that a person with a disability is entitled to protection under the new law as long as as the disability was one of the factors for his discriminatory act leading to such an inquiry.

"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," it said.

Referring to the new law on disabilities, the court termed the legislation as a "new dawn" and said the one of the provisions said the persons with disabilities must not be discriminated against on the ground of disability, and the appropriate government shall ensure that persons with disability enjoy the right to live with dignity.