By Viswesh Sekhar
December 14, 2017
The Chief Commissioner of Disabilities and the Disability Commissioners play a pivotal role in securing the rights of a person with disabilities. The earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter the PWDA, 1995) and the new Rights of Persons with Disabilities Act, 2016 (hereafter the RPDA, 2016) give the Commissioners of Disabilities the power to either suo moto or on the basis of an application of a persons with disabilities (or his agent) to enquire into and correct any anomaly resulting from the deprivation of rights of a person or persons with disabilities. This power is a significant power especially when we consider that there is a clear trend towards a rights-based approach to disability issues, both under the old and new Acts. In this context, it is essential to understand to what extent the powers of the Commissioners extend and as to how much of a real Court the Commissioners are. This analysis becomes even more important in the light of divergent judicial opinions and confusion amongst the lay persons regarding these issues.
Chapter XII of the PWDA, 1995 dealt with the appointment of, functions and powers of the Chief Commissioner and the Commissioners of Persons with Disabilities. Provisions were made for the appointment of a Chief Commissioner and Commissioners at the Central and State levels respectively. The Chief Commissioner had certain functions and in addition to these functions, the Chief and the State Commissioners were to “look into complaints with respect to deprivations of rights of persons with disabilities” vide Sections 59 and 62 at the Central and State level respectively. Vide Section 63, both statutory authorities had the limited powers of a civil court for purposes such as summoning and enforcing the attendance of witnesses etc. There was no specific provision regarding the powers of Chief Commissioner as was provided with respect to the State Commissioners in Section 61, more notably Section 61(c).
Chapter XII has been retained in the RPDA, 2016 with certain modifications. Apart from the appointment of two additional assistant commissioners, the RPDA, 2016 also clearly makes a separation between functions of the Chief Commissioner and the State Commissioners (Section 75 and Section 80, being mutatis mutandis) and the powers of the Chief Commissioner and State Commissioners (Section 77 and 82, being mutatis mutandis). The RPDA, 2016 for the first time has used the expression “powers” and has expanded the functions of the disability commissioners. The RPDA, 2016 has retained Section 63 of PWDA, 1995 but has it recast, verbatim, in Sections 77 and 82.
Section 61(c) of the PWDA, 1995 which read “take steps to safeguard the rights and facilities made available to persons with disabilities” has been removed and the powers of the Commissioners are now all recommendatory powers. Section 62 of the PWDA, 1995 has also been omitted in the RPDA, 2016. Section 62 has been recast and the provisions therein find place in Sections 75 and 80. While Sections 75 and 80 of the new Act appear wider in scope, the statute now makes it unambiguous that the powers of the Commissioners are recommendatory and he can take up the matter with appropriate authorities “for corrective action”. Going by the words and the context, it would be fair to say that the steps to be taken for corrective action would also be in the form of recommendations alone and it is up to the appropriate authority to take action on the same. Section 76 mandates that the appropriate authority has to take “necessary action and inform the commissioner of the action taken within three months of receipt of the recommendation”. However, it is provided that if the authority does not intend to take the action recommended, it must give reasons in writing. This provides a measure of accountability on the part of the authority, as if facetious or untenable reasons are provided, these could be challenged in the High Courts.
With respect to the powers of the Commissioners under the PWDA, 1995 and the nature of orders he can pass was considered first in the case of State Bank of Patiala and others v. Vinesh Kumar Bhasin [(2010) 4 SCC 368]. In this case, the Apex Court speaking through Justice R. V, Raveendran and Justice K.S. Radhakrishnan ruled that a from conjoint reading of Section 58(c), 59 and 63 of the PWDA, 1995, “it is evident that neither the Chief Commissioner nor any Commissioner functioning under the Disabilities Act has power to issue any mandatory or prohibitory injunction or any other interim directions. The fact that the Disabilities Act clothes them with certain powers of a civil court for discharge of their functions (which includes the power to look into complaints) does not enable them to assume the powers of a civil court which are not vested in them by the provisions of the Disabilities Act.”. The Court was dealing with a case wherein the Chief Commissioner at Delhi had passed an interim, ex-parte order against the respondents not to retire the petitioner who was serving in Dehradun. The Court went on to rule that the grievances and complaints of persons with disabilities have to be considered by courts and authorities with compassion, understanding and expedition. They seek a life with dignity. The Disabilities Act seeks to provide them a level playing field, by certain affirmative actions so that they can have adequate opportunities in matters of education and employment. The Act also seeks to ensure non-discrimination of persons with disabilities, by reason of their disabilities. But the provisions of the Disabilities Act cannot be pressed into service to seek any relief or advantage where the complaint or grievance relates to an alleged discrimination, which has nothing to do with the disability of the person. Nor do all grievances of persons with disabilities relate to discrimination based on disability and that persons with disabilities are no less afflicted by human frailties like ego, pride, jealousy, hate or misunderstanding, when compared with persons without disabilities. Many of their grievances and disputes may have nothing to do with disability. The fact that the respondent claimed to be a person with disability appears to have swayed the Chief Commissioner and the High Court, to ignore the absence of any legal right and grant an interim remedy which in the normal course would not have been considered. Issuing interim orders when not warranted, merely because the petitioner is a person with disability, is as insidious as failing to issue interim orders when warranted.
The above ruling was followed by the Bombay High Court in The Shipping Corporation of India v. Haripada Shaileshwar Chaterjee [2016 SCC OnLine Bom 9562] wherein Justice K.K. Tated set aside a mandatory order of the Commissioner striking down the termination of the respondent by the petitioner. The Court relied upon Vineesh Kumar Bhasin’s case and a Division Bench ruling of the same Court in Vaishali Valmik Bagul v. Secretary, Prerna Trust [2013 (5) Mah LJ 221] which had reiterated that the Commissioner’s powers were confined to take up the matter with the appropriate authority and did not extend to passing or issuing directions.
In 2013, in the case of Geetaben Ratilal Patel v. District Education Officer [(2013) 7 SCC 182], the Supreme Court was dealing with final orders passed by the Chief Commissioner and held that the provisions of Sections 47 and 62 of the Act, 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-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 disabilities including matters 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 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 parties concerned and going through the records may decide the complaint. If 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 the matter with the appropriate authority 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 decided affirmatively in favour of the appellant and against the respondent.
In Union of India v. Mahipal Kumar [(2015) 225 DLT 361], Justice Kameshwar Rao followed the above ruling, held that Vinesh Kumar Bhasin’s ruling did not apply to the facts of the case at hand and ruled that the Commissioner’s orders giving appointment to the respondent had to be upheld and directed the respondent to appear before the medical authority in the place of the respondent’s residence in order not to inconvenience the respondent so that the further needful can be done with respect to his appointment.
In January 2017, in the case of Union of India v. Sh Rajender Singh (WP (C) 7689/2015), Justice Valmiki J. Mehta observed that “the Deputy Chief Commissioner had passed a judgement like a court of law and issued directions for the appointment of the respondent” and set aside the orders of the deputy chief commissioner. The judge after quoting extensively from Vinesh Kumar Bhasin’s case, failed to notice that the orders passed by the Deputy Chief Commissioner were final orders and ruled that “in view of the ratio of the judgement in Vinesh Kumar Bhasin and which holds that authorities acting under the Act do not have powers to issue directions or injunctions or pass judgment like a court of law for compliance”, the impugned order is set aside and the writ petition is allowed. This ruling is a set back and the judge has misread Vinesh Kumar Bhasin’s case which was clearly prohibiting only orders in the nature of interim injunctions passed by the disability commissioners.
In October 2017, in Railway Board v. Prashant Kumar (WP (C) 7548/2015), Justice V. Kameshwar Rao has rightly ruled that Union of India v. Rajender Singh is per incuriam as in that case the attention of the Court was not drawn to Geetaben Ratilal Patel’s case. Having said this, the Court ruled on facts and came to the conclusion that the Railway Board can neither can challenge or nullify the certificate issued by the competent authority and upheld the impugned order directing the appointment of the respondent.
From a discussion of the above cases, it is clear that while the disability commissioners have no powers to pass interim directions that are in the nature of ex parte injunctions as held by Vinesh Kumar Bhasin’s Case, there is no prohibition on the Commissioners’ exercising powers under Section 62 to pass final orders. As the Apex Court has rightly held, the provisions of Sections 47 and 62 of the Act, 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-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 disabilities including matters relating to dispensation with service or reduction in rank. From a reading of the relevant sections of the RPDA, 2016 it is clear that the powers of the Commissioners are purely recommendatory and Section 76 then shifts the burden on to the appropriate authorities who shall take necessary action on such recommendation and intimate the Chief Commissioner within three months of the receipt of the recommendation. A similar provision with respect to the recommendations of the State Commissioners is found in Section 81 of the RPDA, 2016. However, it is to be noted that the provisos to the respective Sections which are similarly worded, gives the appropriate authorities an option not to accept the recommendation. In such an event, reasons will have to be given and the Commissioners and the aggrieved parties have to informed of the decision. The refusal is thus open to judicial scrutiny, if need be, as the rejection will have to be a reasoned order.