Delhi High Court
Mukesh Kumar vs National Power Training Institute And … on 2 April, 2025
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 25.03.2025
% Judgment delivered on: 02.04.2025
+ LPA 980/2024, CM APPL. 57774/2024, CM APPL. 57775/2024, CM
APPL. 57776/2024, CM APPL. 57777/2024 & CM APPL.
12362/2025
MUKESH KUMAR .....Appellant
Through: Mr. Rahul Bajaj and Mr. Taha Bin
Tasneem, Advs.
versus
NATIONAL POWER TRAINING INSTITUTE AND ORS.
.....Respondents
Through: Mr. Prashant Shukla and Mr. Kartik
Kumar, Advs. for R-1.
Mr. Vivek Sharma, Senior Panel
Counsel with Ms. Prernaa Singh,
Advs. for R-2 and R-3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
DEVENDRA KUMAR UPADHYAYA, C.J.
1. Heard learned counsel appearing for the parties.
2. Proceedings of this intra-Court appeal under Clause 10 of the Letters
Patent have been instituted taking exception to the judgment and order dated
02.09.2024. passed by the learned Single Judge whereby, W.P.(C)
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11104/2024, filed by respondent no.1/National Power Training Institute has
been allowed and the order dated 02.08.2024, passed by the Chief
Commissioner for persons with disabilities (hereinafter referred to as the
‘CCPD’) to the extent, it directed respondent no.1 to keep the transfer order
of the appellant in abeyance, has been set aside.
FACTS
3. The appellant, who is working as a Deputy Director (T/F) with
respondent no.1, is a person suffering from Locomotor Disability and is
diagnosed as a case of Post Polio Residual Paralysis. He has been certified
by the appropriate authority of the Department of Empowerment of Persons
with Disabilities, Ministry of Social Justice and Empowerment, Government
of India to have 70% Permanent Disability in relation to his left leg as per
the guidelines issued for the purposes of assessing the extent of disability
under the Rights of Persons with Disabilities Act, 2016 (hereinafter referred
to as the ‘2016 Act’).
4. By means of an order dated 19.06.2024, the appellant was transferred
from Corporate Office of respondent no.1 at Faridabad to its Eastern Zone
Office at Durgapur in public interest. Pursuant to the said order of transfer
dated 19.06.2024, a relieving letter was also issued to the appellant on
02.07.2024, directing him to submit his joining at Durgapur.
5. The appellant filed a complaint on 21.07.2024/22.07.2024, with the
CCPD under Section 75 of the 2016 Act, alleging therein that he has been
subjected to frequent transfers which reflected mala fide and which
amounted to harassment to a person with disability (hereinafter referred to
as the ‘PwD’) at the hands of his employer. Notices were issued on the
complaint instituted by the appellant to respondent no.1 and on hearing,
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orders were reserved on 30.07.2024 to be pronounced at a later date.
However, on 02.08.2024, CCPD passed an order directing respondent no.1
to keep the transfer order in abeyance till the matter was pending before the
CCPD. By the order dated 02.08.2024, the CCPD also directed respondent
no.1 to furnish certain information/documents.
6. Feeling aggrieved by the order dated 02.08.2024, respondent no.1
instituted W.P.(C) 11104/2024, which has been decided by the learned
Single Judge by means of the order under challenge herein dated
02.09.2024. As observed above by the order dated 02.09.2024, the learned
Single Judge has set aside the operative portion of the order dated
02.08.2024, passed by CCPD whereby, it was directed that the transfer order
of the appellant shall be kept in abeyance. It is this judgment and order dated
02.09.2024, which is under challenge in these proceedings of the letters
patent appeal.
ISSUES
7. On the basis of pleadings of the respective parties available on record
and also having considered the respective submissions made by learned
counsel representing the parties, the issues which emerge for consideration
of this Court are: –
(a) What is the extent of powers and jurisdiction of CCPD under
Section 75 read with Section 76 of the 2016 Act and as to whether,
such powers vested in the CCPD permits it to interfere in the service-
related matters such as a transfer order concerning an employee with
disability.
(b) As to whether, the order passed by CCPD in exercise of its
powers and functions under Section 75 read with Section 76 of 2016
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Act is binding on the authority to whom the order is made or it is only
recommendatory in nature.
(c) As to whether, while considering/adjudicating any complaint
made by it under Section 75 of 2016 Act, CCPD can issue and interim
directions.
ARGUMENTS ON BEHALF OF THE APPELLANT
8. Taking strong exception to the judgment under challenge herein
passed by the learned Single Judge, learned counsel representing the
appellant Mr.Rahul Bajaj, has vehemently argued that having regard to the
provisions contained in Section 76 of 2016 Act, the findings recorded by the
learned Single Judge in the order under appeal herein to the effect that the
CCPD does not possess the authority to pass interim order that halts actions
such as transfers etc. pending further enquiry, is erroneous.
9. He has also argued that the judgments relied upon by learned Single
Judge to arrive at his conclusion in the impugned order were rendered taking
into consideration the earlier statutory regime relating to rights of PwDs as
provided for by The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (hereinafter referred
to as the ‘1995 Act’) which stands repealed by virtue of operation of Section
102 of 2016 Act and accordingly, the findings of learned Single Judge run
contrary to the provisions of 2016 Act, provision akin to which did not exist
in the earlier enactment.
10. Referring to Section 75 of 2016 Act which outlines the functions of
CCPD, it has been argued by Mr.Rahul Bajaj, that CCPD not only suo motu
but even otherwise, which would mean entertaining an application or
complaint, is empowered to identify the provisions of any law or policy or
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programs which are inconsistent with the 2016 Act and accordingly, can
take corrective steps. He has also argued that under the said provision,
specifically under Section 75(1)(b) of 2016 Act, on an application or
complaint, CCPD is empowered and well within his jurisdiction to enquire
deprivation of rights of PwDs. He has further stated that CCPD can also
enquire about infringement of safeguards available to PwDs and since in the
instant case transfer of the appellant was in complete disregard to the rights
of equality and other rights available to the appellant, who is a PwD, CCPD
was well within his powers to have passed the order dated 02.08.2024
whereby, transfer of the appellant was stayed.
11. Specific reference by Mr.Rahul Bajaj has been made to Section 76(1)
of 2016 Act which provides for the action by the appropriate authority in
respect of the orders passed by CCPD. He has stated that whenever, CCPD
makes a recommendation to an authority under Section 75(1)(b) of the 2016
Act, such an authority is under statutory mandate to take necessary action on
such recommendation/orders passed by CCPD. Such an authority, according
to Mr.Rahul Bajaj, is also mandated to inform the CCPD of the action taken
within three months from the date of receipt of such recommendation/orders
made/passed by CCPD.
12. He has extensively referred to a Hand Book published by Hon’ble
Supreme Court concerning PwDs and has submitted that it is incumbent on
all authorities to ensure justice for PwDs and also to create inclusive work
places for such persons.
13. Mr.Rahul Bajaj, has placed reliance on a Division Bench judgment of
this Court in Ircon International Ltd. v. Bhavneet Singh, 2024 SCC
OnLine Del 4952 and has also referred to Sections 3, 20 and 21 of the 2016
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Act along with Rule 8(3)(c) of the Rights of the Persons with Disabilities
Rules, 2017 made there under (hereinafter referred to as the ‘2017 Rules’)
and has argued that any mechanism regulating transfer of employee by any
establishment has to be subservient to the provisions contained in 2016 Act
and the 2017 Rules.
14. Reference has also been made by Mr.Rahul Bajaj to the judgment of
this Court in Dilbagh Singh v. Delhi Transport Corpn., 2005 SCC OnLine
Del 821 to submit that the statutory provisions contained in 2016 Act gives
sufficient indication that functions of CCPD are not purely recommendatory
rather it decides the issue of entitlement of individuals and in such a
situation, it must necessarily be inferred that in absence of any provision to
the contrary, full and effective adjudicatory powers are granted to the
CCPD.
15. Learned counsel representing the appellant has also referred to the
judgment of Hon’ble Supreme Court in Rajive Raturi v. Union of India,
2024 SCC OnLine SC 3217 wherein, directions have been issued to Union
of India, State and Union Territories to ensure that the consequences
prescribed in Section 44, 45, 46 and 89 of the 2016 Act are implemented. He
has also drawn our attention where Hon’ble Supreme Court in the said
judgment has issued certain directions for carrying out the exercise by the
Union of India and State Governments for effective implementation of the
provisions of the 2016 Act.
16. Judgment of the Apex Court in Savitri v. Govind Singh Rawat,
(1985) 4 SCC 337 has also been referred on behalf of the appellant to
emphasize that CCPD is deemed to possess all such powers as are necessary
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to make its order effective, including the power to pass any interim order
pending enquiry/consideration of a complaint before it.
17. Mr.Rahul Bajaj has also referred to yet another Division Bench
Judgment of this Court dated 28.01.2025 passed in W.P.(CRL) 2475/2015,
titled as Kiran Singh v. National Human Rights Commission & Ors.
wherein, it has been held that the recommendations made by National
Human Rights Commission (hereinafter referred to as the ‘NHRC’) created
under the Protection of Human Rights Act, 1993, are binding in nature and
accordingly, drawing parallel between the functions of NHRC and CCPD, it
has been argued that any recommendation made by the CCPD in exercise of
its powers under Section 75 read with Section 76 shall be binding on the
authority concerned. On the aforesaid counts it has, thus, been argued on
behalf of the appellant that the judgment under appeal herein whereby the
direction issued by CCPD staying the operation of the order of transfer has
been set aside, is erroneous being contrary to the provisions of 2016 Act and
accordingly in his submission, the instant appeal deserves to be allowed.
ARGUMENTS ON BEHALF OF RESPONDENT NO.1
18. Opposing the prayers made by learned counsel for the appellant, it has
been contended by learned counsel representing respondent no.1 that under
the scheme of 2016 Act, any adjudication done and orders passed by CCPD
are recommendatory in nature and further that though the authority
concerned is to take necessary action on such recommendation as provided
for under Section 76(1) of the 2016 Act, however, the proviso appended to
Section 76 of the 2016 Act further provides that where an authority does not
accept the recommendation, it will convey reasons for such non-acceptance
to the CCPD and shall also inform such reasons to the aggrieved person. He
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has argued that the provisions contained in the proviso appended to Section
76 of the 2016 Act appears to have clearly been lost sight of by the appellant
in his submissions and as such the appeal is highly misconceived.
19. It has also been argued on behalf of respondent no.1 that 2016 Act
and the Rules framed there under do not empower or vest any jurisdiction in
the CCPD to interfere in the internal management of the affairs of
employees of an organization especially into the matters related to the
service disputes concerning the employees. He has further argued that
CCPD lacks jurisdiction to keep an order of transfer in abeyance for the
reason that the mandate given to the CCPD under 2016 Act is only to
safeguard the interests of disabled persons which will not extend to the
extent of interfering in the internal administrative matters, such as transfer of
an employee. It is his submission further that such an action on the part of
the CCPD exceeds its legal authority and, in fact, disrupts the administrative
function of an organization and, accordingly, the mandate available to the
CCPD under 2016 Act does not extend to intervening in the administrative
decisions, especially in the matters related to transfer of an employee.
20. Further submission on behalf of respondent no.1 is that the transfer of
an employee is one of the essential functions which an organization is
expected to exercise and so far as the facts in the present case are concerned,
the appellant’s transfer was a need based transfer in the sense that transfer
was made in consideration of operational requirements of the organization
and suitability of the employee for the specific role to be performed by him
at the particular location. In other words, his submission is that appellant
was transferred based on assessment of his qualifications, skills, and the
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strategic needs of the respondent no.1/Institute and, therefore, by intervening
in his transfer, CCPD has not only over stepped its jurisdiction but has
disrupted Institute’s ability to manage its human resources.
21. Learned counsel representing the respondent no.1 has also argued that
in discharge of its functions under Section 75/76 of the 2016 Act, CCPD is
not vested with any power to stay the order of transfer of an employee and
such an authority clearly lies beyond the scope of powers conferred on it. In
essence, the submission on behalf of respondent no.1 is that the order under
challenge herein passed by the learned Single Judge does not warrant any
interference by this Court in this appeal which is liable to be dismissed.
DISCUSSION AND ANALYIS
Old Statutory Regime concerning Rights of Persons with Disabilities
Under the 1995 Act
22. India is a signatory to the Proclamation adopted by the Economic and
Social Commission for Asia and Pacific held on 1st-5th December, 1992 at
Beijing on Full Participation and Equality of People to Disabilities. The
Parliament considered it necessary to implement the said Proclamation and,
accordingly, enacted the Act 1995. The Act 1995, provided for various
measures and steps to be taken for ensuring equal rights to PwDs. Section
67 of 1995 Act, provided that Central Government may, by notification
appoint a Chief Commissioner for PwDs for implementing the said Act.
Section 58 provided that the Chief commissioner shall coordinate the work
of the Commissioners, monitor the utilization of funds disbursed by the
Central Government, take steps to safeguard the rights and facilities to
PwDs and shall also submit reports to the Central Government on the
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implementation of the Act. Section 58 of the said 1995 Act is extracted
hereinbelow: –
“58. Functions of the Chief Commissioner – The Chief commissioner
shall –
a. coordinate the work of the Commissioners;
b. monitor the utilization of funds disbursed by the Central
Government;
c. take steps to safeguard the rights and facilities made available to
persons with disabilities;
d. Submit reports to the Central Government on the implementation of
the Act at such intervals as the Government may prescribe.”
23. Section 59 of 1995 Act provided that the Chief Commissioner on its
own motion or on the application of an aggrieved person or even otherwise,
may look into complaints in respect of the matters relating to deprivation of
rights of PwDs and further into non-implementation of laws / rules / bye-
laws / regulations / executive orders / guidelines / instructions made by
appropriate Governments and the local authorities for the welfare and
protection of rights of PwDs and to take up the matters with the appropriate
authorities. Section 59 of the 1995 Act runs as under: –
“59. Chief Commissioner to look into complaints with respect to
deprivation of rights of persons with disabilities – Without prejudice to
the provisions of section 58 the Chief 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 –
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 local authorities for the welfare and protection
of rights or persons with disabilities, and take up the matter with the
appropriate authorities”
24. Section 63 of the 1995 Act provided that the Chief Commissioner and
the Commissioners shall have the same powers as are vested in a court under
the Code of Civil Procedure, 1908 in respect of summoning and enforcing
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the attendance of witnesses, requiring the discovery and production of any
document, requisitioning any public record, receiving evidence on affidavits
and issuing commissions for the examination of witnesses or documents. It
further provided that proceedings before the Chief Commissioner and
Commissioners shall be judicial proceedings within the meaning of Sections
193 and 228 of the Indian Penal Code and that they shall be deemed to be a
Civil Court for the purposes of Section 195 and Chapter XXVI of the
Cr.P.C. Section 63 of the 1995 Act reads as under: –
“63. (1) Authorities and officers to have certain powers of civil court –
The Chief Commissioner and the Commissioners shall, for the
purpose of discharging their functions under this Act, have the same
powers as are vested in a court under the Code of Civil Procedure,
1908 while trying a suit, in respect of the following matters, namely:-
a. summoning and enforcing the attendance of witnesses;
b. requiring the discovery and production of any document;
c. requisitioning any public record or copy thereof from any court or
office;
d. receiving evidence on affidavits; and e. issuing commissions for the
examination of witnesses or documents.
(2) Every proceeding before the Chief Commissioner and
Commissioners shall be a judicial proceeding within the meaning of
sections 193 and 228 of the Indian Penal Code and the Chief
Commissioner, the Commissioner, the competent authority, shall be
deemed to be a civil court for the purposes of section 195 and Chapter
XXVI of the Code of Criminal Procedure, 1973.”
25. The afore-quoted provisions of the 1995 Act came to be considered
by the Hon’ble Supreme Court in the case of State Bank of Patiala v.
Vinesh Kumar Bhasin, (2010) 4 SCC 368 and the Apex Court while
noticing the provisions of Section 58, 59 and 63 of the said Act came to the
conclusion that neither the Chief Commissioner nor any Commissioner has
power to issue any mandatory or prohibitory injunction or other interim
directions. The Hon’ble Supreme Court further concluded that merely
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because the Act empowers them with certain powers of a Civil Court, will
not enable them to assume the other powers of a Civil Court which are not
vested in them by the provisions of the 1995 Act. The said conclusion was
drawn by Hon’ble Supreme Court in paragraph 18 of the judgment in
Vinesh Kumar Bhasin (supra) which is extracted herein below:
“18. It is evident from the said provisions, that neither the Chief
Commissioner nor any Commissioner functioning under the
Disabilities Act has power to issue any mandatory or prohibitory
injunction or other interim directions. The fact that the Disabilities
Act clothes them with certain powers of a civil court for discharge of
their functions (which include the power to look into complaints), does
not enable them to assume the other powers of a civil court which are
not vested in them by the provisions of the Disabilities Act. In All
India Indian Overseas Bank SC and ST Employees’ Welfare
Assn. v. Union of India [(1996) 6 SCC 606] , this Court, dealing with
Article 338(8) of the Constitution of India (similar to Section 63 of the
Disabilities Act), observed as follows: (SCC pp. 609 & 611, paras 5 &
10)
“5. It can be seen from a plain reading of clause (8) that the
Commission has the power of the civil court for the purpose of
conducting an investigation contemplated in sub-clause (a) and an
inquiry into a complaint referred to in sub-clause (b) of clause (5) of
Article 338 of the Constitution.
***
10. … All the procedural powers of a civil court are given to the
Commission for the purpose of investigating and inquiring into these
matters and that too for that limited purpose only. The powers of a
civil court of granting injunctions, temporary or permanent, do not
inhere in the Commission nor can such a power be inferred or derived
from a reading of clause (8) of Article 338 of the Constitution.”
26. Similar view has been expressed by a learned Single Judge of
Bombay High Court in The Shipping Corporation of India v. Shri.
Haripada Shaileshwar Chaterjee, 2016 SCC OnLine Bom 9562. In the
said case, analyzing the provisions of Section 47, 62 and 63 of the 2016 Act,
it has been concluded by the Hon’ble Bombay High Court that the order of
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the Commissioner under 1995 Act, setting aside the termination letter of an
employee and directing the organization/authority concerned to reinstate
him was contrary to the provisions of 1995 Act. Reliance by learned Single
Judge in this judgment was placed on another Division Bench Judgment of
Hon’ble Bombay High Court in the case of Vaishali Walmik
Bagul v. Secretary, Prerna Trust, Aurangabad, 2013 SCC OnLine Bom
68. Paragraph 18 and 19 of the judgment of the Bombay High Court in
Shri. Haripada Shaileshwar Chaterjee (supra) is relevant to be quoted at
this juncture which reads as under:
“18. It is to be noted that the issue involved in the present proceeding
is fully covered by the decision of the Division Bench of this Court in
the matter of Vaishali Walmik Bagul v. Secretary, Prerna Trust,
Aurangabad reported in 2013 (5) Mh. L.J. 221. Paragraph 24, reads
thus:
“24. Aforesaid provisions of the Disabilities Act refer to
taking up the matter/complaint with the appropriate
government by the Commissioner, Handicap Welfare. The
provisions of the Disabilities Act as are quoted do not
appear to confer power to issue directions on the
Commissioner i.e. competent authority. His role is to take
up the matter with appropriate authority. Thus, the
direction issued under order dated 10-8-2009 exceeds the
functions under the provisions of sections 61 and 62 of the
Disabilities Act.”
19. In the present proceeding, the Commissioner set aside the
termination letter issued by the Petitioner and also directed the
petitioner to reinstate the Respondent which is contrary to the
provision of the said Act. Hence, the same is required to be set aside.
As the order passed by the learned Commissioner is beyond his
jurisdiction and same is required to be set aside, it is necessary in the
interest of justice, an opportunity is required to be granted to the
Respondent to take appropriate steps according to law, if it is
available to protect his interest.”
27. Thus, the law under the old statutory regime in terms of 1995 Act as
settled by the Hon’ble Supreme Court in Vinesh Kumar Bhasin (supra) is
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clear, according to which the Chief Commissioner or Commissioners under
the said Act lacked necessary power, authority, and jurisdiction to issue any
mandatory of prohibitory injunction or other interim orders.
New Statutory Regime concerning Rights of Persons with Disabilities
Under the Act 2016
28. As observed above, 1995 Act was enacted to implement the
proclamation issued at the meeting held in the year 1992 of the Economic
and Social Commission for Asia and Pacific to which India was a signatory.
After the said proclamation and enactment of the Act 1995, the United
Nations General Assembly adopted its Convention on rights of PwDs on
13.12.2006, laying down certain principles for empowerment of PwDs. India
is a signatory to the said Convention and ratified the Convention on
01.10.2007 and accordingly, to implement the said Convention, the
Parliament enacted 2016 Act.
29. For the purposes of resolving the issues which have emerged for our
consideration in this appeal, certain provisions of 2016 Act need to be
noticed. Section 74 of 2016 Act, provides that the Central Government may
appoint a Chief Commissioner for PwDs and the State Governments may
appoint a State Commissioner for such persons for the purposes of the said
Act. Section 75 defines the functions of the Chief Commissioner according
to which the Chief Commissioner shall suo motu or otherwise identify the
provisions of any law or policy or programme or procedure which are
inconsistent with the 2016 Act and accordingly, make necessary
recommendations for taking corrective steps. It further provides that the
Chief Commissioner shall enquire deprivations of rights of PwDs and
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safeguards available to them in respect of matters for which Central
Government is the appropriate authority. It further provides that Chief
Commissioner shall take up the matter with appropriate authority for
corrective action. Section 75 of 2016 Act reads as under: –
“75. Functions of Chief Commissioner.–(1) The Chief Commissioner
shall–
(a) identify, suo motu or otherwise, the provisions of any law or
policy, programme and procedures, which are inconsistent with this
Act and recommend necessary corrective steps;
(b) inquire, suo motu or otherwise, deprivation of rights of persons
with disabilities and safeguards available to them in respect of
matters for which the Central Government is the appropriate
Government and take up the matter with appropriate authorities for
corrective action;
(c) review the safeguards provided by or under this Act or any other
law for the time being in force for the protection of rights of persons
with disabilities and recommend measures for their effective
implementation;
(d) review the factors that inhibit the enjoyment of rights of persons
with disabilities and recommend appropriate remedial measures;
(e) study treaties and other international instruments on the rights of
persons with disabilities and make recommendations for their effective
implementation;
(f) undertake and promote research in the field of the rights of persons
with disabilities;
(g) promote awareness of the rights of persons with disabilities and
the safeguards available for their protection;
(h) monitor implementation of the provisions of this Act and schemes,
programmes meant for persons with disabilities;
(i) monitor utilisation of funds disbursed by the Central Government
for the benefit of persons with disabilities; and
(j) perform such other functions as the Central Government may
assign.
(2) The Chief Commissioner shall consult the Commissioners on any
matter while discharging its functions under this Act.”
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30. Section 76 of the 2016 Act is important to be noticed which provides
that whenever the Chief Commissioner makes recommendation to an
authority in pursuance of Section 75(1)(b) of the 2016 Act, that authority is
bound to take necessary action on it and inform the Chief Commissioner of
the action taken. However, the proviso appended to Section 76 of the 2016
Act makes a provision according to which if an authority does not accept the
recommendation made by the Chief Commissioner, it shall convey the
reasons for such non-acceptance to the Chief Commissioner as also shall
inform the aggrieved person of such reasons.
31. Thus, we find that from a bare perusal of Sections 75 and 76 of the
2016 Act is that wherever deprivation of rights of PwDs and safeguards
available to them are noticed by the Chief Commissioner, it shall make
recommendation for taking corrective steps to the authority concerned and
the authority concerned is bound to take necessary action and in case, the
authority is unable to accept such a recommendation, the duty cast on it is to
convey reasons for such non-acceptance to the Chief Commissioner and also
to inform to the aggrieved person of such reasons.
32. The provisions of Section 75 and Section 76 of the 2016 Act came to
be considered by a learned Single Judge of this Court in the case of Central
Bank of India v. Shakuntala Devi, 2023 SCC OnLine Del 7107 wherein, it
has been concluded that the Chief Commissioner cannot pass orders
restraining transfer of an employee and that employer in case of
administrative exigencies can give reasons to the Chief Commissioner as to
why, recommendation cannot be accepted. Though, learned Single Judge of
this Court in Shakuntala Devi (supra) refers the judgment of the Apex Court
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in Vinesh Kumar Bhasin (supra) which is based on a discussion of the
provisions contained in 1995 Act, however, it also takes note of Section 75
of the 2016 Act. It is apposite to extract paragraph 19 of the judgment in
Shakuntala Devi (supra) which reads as under:-
“19. Even though it is stated that the Chief Commissioner for Persons
with Disabilities is recommending the Petitioner/Bank to cancel the
transfer order but it also states that a compliance report has to be
given in three months failing which the action of the Petitioner/Bank
would be reported to the Parliament. The Commission cannot pass
such orders and the Chief Commissioner for Persons with Disabilities
has exceeded its jurisdiction in passing orders restraining transfer,
and the Bank can, in case of administrative exigencies give reasons to
the Chief Commissioner as to why the recommendation cannot be
accepted. The impugned order, is, therefore, modified to the extent
that it is for the Petitioner/Bank to consider as to whether the transfer
of Respondent No. 2 herein is a routine transfer or the transfer is in
accordance with the other guidelines issued by the government or
whether there are any administrative exigencies because of which
Respondent No. 2 is being transferred.”
33. We may also note that akin to the provisions contained in 1995 Act,
Section 77 of the 2016 Act also empowers the CCPD to exercise same
powers of a Civil Court as are vested in a Court under the Code of Civil
Procedure in respect of matters such as summoning and enforcing
attendance of witnesses, requiring the discovery and production of any
documents, requisitioning any public record, receiving evidence on
affidavits and issuing commissions for examination of witnesses. Sub-
Section 2 of Section 77 of the 2016 Act states that the proceedings before
the CCPD shall be judicial proceedings within the meaning of Section of
193 and 228 of the Indian Penal Code and further that it shall be deemed to
be a Civil Court for the purposes of Section 195 and Chapter XXVI of the
Cr.P.C. Section 77 of the 2016 Act reads as under: –
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“77. Powers of Chief Commissioner.–(1) The Chief Commissioner
shall, for the purpose of discharging his functions under this Act, have
the same powers of a civil court as are vested in a court under the
Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in
respect of the following matters, namely–
(a) summoning and enforcing the attendance of witnesses;
(b) requiring the discovery and production of any documents;
(c) requisitioning any public record or copy thereof from any court or
office;
(d) receiving evidence on affidavits; and
(e) issuing commissions for the examination of witnesses or
documents.
(2) Every proceeding before the Chief Commissioner shall be a
judicial proceeding within the meaning of Sections 193 and 228 of the
Indian Penal Code (45 of 1860) and the Chief Commissioner shall be
deemed to be a civil court for the purposes of Section 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
Comparison between the Old and New Statutory Regimes
34. If the statutory provisions contained in 1995 Act and 2016 Act which
have been extracted and discussed herein above are compared, what we find
is that 2016 regime provides better armory to the CCPD in its fold to ensure
that recommendations made by him for taking corrective steps and measures
are implemented. Under the old regime, the recommendations on
consideration of any complaint or noticing any infringement or violation of
rights of PwDs by the Chief Commissioner would result in a
recommendation to be made to the authority concerned, however, it was not
binding. Implementation of such recommendation clearly depended on the
discretion of the authority concerned. The Chief Commissioner was also not
vested with any authority to issue any injunction, mandatory or prohibitory,
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as held by the Apex Court as well as by some High Courts in the judgments
discussed herein above. However, Section 76 of 2016 Act gives the Chief
Commissioner sting and sharper teeth to ensure that recommendations made
by it for taking corrective steps are implemented and necessary action
thereon is taken by the authority concerned, albeit, such power available to
the Chief Commissioner for implementation of its commendation is clearly
circumscribed by the proviso appended to Section 76 of 2016 Act which
permits the authority not to accept the recommendation made by the Chief
Commissioner provided it discloses/conveys reasons for such non-
acceptance to the Chief Commissioner.
35. Thus, the recommendation for taking corrective steps to be made by
the Chief Commissioner under the new regime is in all likelihood capable of
being acted upon, except in a situation where for certain valid reason the
authority concerned may not accept the recommendation. However, in such
a situation, the authority concerned is required to convey the reason for such
non-acceptance not only to the Chief Commissioner but also to the
aggrieved person concerned. Thus, there seems to be remarkable change so
far as enforceability of the recommendation made by the Chief
Commissioner under the new statutory regime is concerned. As already
observed above, earlier, recommendations were not binding at all under the
old regime, but by enacting Section 76 of the 2016 Act, the
recommendations are to be acted upon and necessary remedial measures are
to be taken by the authority concerned, save in a situation where the
authority concerned has valid reasons for non-acceptance for a
recommendation made by the Chief Commissioner. The noticeable
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departure from the old regime is that the new regime emphasizes on
substantive rather than formal equality concerning PwDs.
FINDINGS
36. For what we have discussed and analyzed above, we are of the
considered opinion that the recommendations made by the Chief
Commissioner in relation to the exercise undertaken by it under Section
75(1)(a)(b) of the 2016 Act will bind the authority concerned which shall
take necessary remedial measures and corrective steps, however, such
recommendation may not be acted upon or will not bind the authority
concerned only and only in a situation such an authority has valid reasons
for not accepting a recommendation which are required to be conveyed to
the Chief Commissioner as also to the person aggrieved. There cannot be an
exhaustive list of valid reasons for non-acceptance of recommendation by
the authority made to it by the Chief Commissioner, however, for illustration
we may observe that in a situation where an employee with disabilities is
transferred in administrative exigencies taking into account the need and
operational necessity of the organization and the skills and capability of the
employee concerned, such a situation may give rise to a valid reason for the
origination for not accepting the recommendation made to it by the Chief
Commissioner, though, in such a situation reasons are to be conveyed to the
Chief Commissioner as also to the person aggrieved.
37. As far as the issue relating to power to issue or pass interim order
available with the Chief Commissioner is concerned, our finding recorded
above in the light of what has been provided under Section 76 and the
proviso appended to will govern such issue as well. In a situation where the
Chief Commissioner is of the opinion that certain interim recommendation
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is to be made for valid reasons it shall make such a recommendation to the
authority concerned which shall take appropriate remedial measures for
implementing such interim order or interim recommendation, but if the
authority is unable to implement such interim measure, it can do so by
giving valid reasons for such non-acceptance of interim recommendation.
38. Our finding, thus, is that be it an interim order/recommendation or a
final order or recommendation made by the Chief Commissioner, the
authority concerned is under statutory obligation to take appropriate
remedial measures/corrective steps with the exception that such
recommendation may not be acceded to in a situation where the authority
concerned has some valid reasons for non-acceptance of an order or
recommendation made by the Chief Commissioner which will have to be
conveyed both to the CCPD and the person aggrieved.
39. As regards the reference made by learned counsel for the appellant to
the judgment in the case of Kiran Singh (supra), we may note that under
consideration in the said case were the provisions contained in the Protection
of Human Rights Act, 1993 and, accordingly, the said judgment does not
have any application to the issue in the instant appeal.
40. Similarly, the judgment by the Division Bench of this Court in
Bhavneet Singh (supra) is of no aid to the appellant for the reason that the
said judgment does not discuss Section 75 and Section 76 of 2016 Act,
especially the proviso appended to Section 76 of 2016 Act.
41. We may also observe that the observations made and directions issued
by the Hon’ble Supreme Court in Rajive Raturi (supra) though is binding on
all authorities, however, the same do not help the cause of the appellant
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canvassed in the instant appeal for the reason it does not have any relevance
to the facts and circumstances of the present case.
42. As regards the reliance placed by learned counsel for the appellant on
Savitri (supra), we may only observe that there cannot be any dispute to the
legal principle that every Court must be deemed to possess all such powers
as are necessary to make its orders effective and such principle is the basis
of our finding that the CCPD is empowered to make interim
recommendations as well, however, its implementation again would be
governed by Section 76 of the 2016 Act, which mandates the authority
concerned to take necessary action but simultaneously, allows the authority
concerned not to accept the recommendation in a situation where it has valid
reasons for such non-acceptance.
43. As far as the scope of the authority and power vested in the CCPD
under Section 75 and 76 of the 2016 Act in relation to service-related
disputes of an employee is concerned, we may again refer to Section
75(1)(a) and (b) of the 2016 Act. Section 75(1)(a) of the 2016 Act casts a
duty on the CCPD to identify the provisions of any law or policy or
programme or procedure which are inconsistent with the 2016 Act and
thereupon to recommend necessary corrective steps. In our opinion, this
power under Section 75(1)(a) is available to the Chief Commissioner to
examine the provisions of any law or policy or programme or procedure in
general and is confined to a particular employee. In case, any inconsistency
is found with such law/ policy/programme/procedures with the provisions of
the 2016 Act, the Chief Commissioner has to necessarily identify such
inconsistency and accordingly make recommendation for taking corrective
measures.
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44. Section 75(1)(b) of the 2016 Act empowers and casts a duty on the
Chief Commissioner to make an inquiry into deprivation of rights of PwDs
and safeguards available to them in respect of matters for which the Central
Government is the appropriate Government and thereupon take up such
matters with the appropriate authority for corrective action. What we find
on a perusal of Section 75(1)(b) of 2016 Act is that wherever deprivation of
rights of PwDs is reported to the Chief Commissioner or it comes to his
notice, an inquiry may be conducted and appropriate recommendations may
be made for taking corrective measures to the authorities concerned. So far
as service related issues are concerned, we may observe that service is
primarily a contract between the employee and the employer, terms of which
are governed by some statutory rules made under Article 309 of the
Constitution of India or some times by the terms spelt out in the appointment
orders and in absence of any statutory rules governing the relationship
between the employee and the employer, such relationship is governed by
certain administrative orders/circulars/office memorandums etc.
45. Therefore, generally and in normal circumstances, the service-related
matters such as transfer, promotion, grant of pay scale or time bound pay
scales, grant of accelerated promotion, determination of seniority,
reservation in employment and disciplinary matters etc. are the preserve of
the employer and, therefore, decisions in these respects of the employer are
to be respected for permitting the employer to have requisite administrative
and disciplinary control and supervision towards its employees.
46. Having observed as above, we may also note that in a situation where
rights available to persons with disabilities under the 2016 Act or the Rules
2017 or under any other measure involving the service-related issues are
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found to have been infringed or violated, the provisions of the 2016 Act will
have to be given effect to. For example, in a recruitment process, if
provision reserving posts/vacancies in accordance of the provisions of the
2016 Act is not made, the same may amount to infringement of rights of
persons with disabilities and accordingly, the interference in such a matter of
the CCPD will be permissible, justified and well within the power of the
CCPD. Even in the matter of transfer of an employee, if some measure has
been put in place by the employer to ensure non-discrimination of
employees with disability or certain preferential treatment has been provided
for such employees with disability and infringement of such a measure is
found, the action of the employer may be amenable to an action by the Chief
Commissioner under Section 75(1)(b) of the 2016 Act.
47. In a situation where no such infringement is found and transfer is
sought to be effected in the exigencies of administration, taking into account
the need and requirement of the administration, such transfer may not attract
infringement of any right otherwise available to an employee with disability
and, therefore, in such a situation, the provisions of the 2016 Act will not be
attracted.
48. Having recorded our finding on the issues culled out in an earlier
paragraph of this judgment, what we now need to examine is as to whether
the order dated 02.08.2024, passed by the CCPD is to be treated to be a
mandatory direction to the respondent no. 1 or it is to be treated as an
interim recommendation which needs to be considered by the respondent
no.1 in the light of interpretation rendered by us to Section 76 of the 2016
Act, specially the proviso appended to it in the earlier part of the judgment.
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49. We have already elaborated that the CCPD is vested not only to make
final order of recommendation but also to make interim order/
recommendation having regard to the facts and circumstances of a particular
case presented before it. In a situation where CCPD finds that it is necessary
to issue an interim recommendation, it is empowered to do so and,
accordingly, the order dated 02.08.2024 passed by the CCPD is to be viewed
in the said light.
50. We, accordingly, hold that the order dated 02.08.2024, is to be
treated as an interim recommendation under Section 75/76 of the 2016 Act
which needs to be considered by the respondent no.1 and, in case, it is
unable to accept said recommendation, it needs to convey the valid reasons
therefore to the CCPD.
51. For the reasons aforesaid, we modify the order passed by the learned
Single Judge which is under appeal herein and provide that the order dated
02.08.2024, passed by the CCPD shall be treated to be an interim
recommendation pending conclusion of the proceedings instituted by the
appellant by filing the complaint. We, thus, direct that treating the order
dated 02.08.2024, passed by the CCPD as an interim recommendation;
respondent no.1 shall take appropriate decision thereon in terms of the
provisions contained in Section 76 of the 2016 Act. The order dated
02.09.2024, is modified to the said extent.
52. The appeal along with the pending applications is, thus, disposed of in
the aforesaid terms.
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53. However, there shall be no order as to costs.
(DEVENDRA KUMAR UPADHYAYA)
CHIEF JUSTICE
(TUSHAR RAO GEDELA)
JUDGE
APRIL 02, 2025
MJ
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