Sri K. Chandru, J.:— This writ petition came up for final disposal today and co-incidentally today (10 October) is observed as the World Mental Health Day all over the World. The issues raised herein will have some impact on the administration and atleast in future they should be sensitive to the problems afflicting the persons who, are mentally ill.

2. The petitioner was an anganwadi worker. The petitioner is a post graduate and joined the service on 1 July, 1982. Initially, she was paid on consolidated basis. Subsequently, her salary was increased and she was posted at Sankaraperi as an anganwadi worker. She had put in 25 years' of service and she also won an award from the District Collector for her outstanding service in child care and related activities. She is also doing some social service, like teaching spoken English to the village children. She was solely helping her aged parents and remains unmarried. Unfortunately her father died on 16 November, 2002 and her brothers having left house after marriage, she is staying with her mother and supporting her.

3. By the impugned order, dated 24 February, 2006, her services were terminated by the order of the second respondent (District Project Officer, Tuticorin). The order, which is in Tamil, if translated reads as follows:

“‘Selvi. Tamilarasi, anganwadi worker of Sankaraperi Centre, Tuticorin (village) was kept under suspension with effect from 30 December, 2005 by the order.’ (reference Project Officer's Proceeding, dated 30 December, 2005). ‘In view of the reference No. 2, advise given and by the post facto ratification of the District Collector's proceedings, she has been permanently removed from service.’ (reference No. 2 District Collector's ratification, dated 11 January, 2006).”

4. It is this order which is under challenge in this writ petition. At the time of admission of the writ petition, in W.P.M.P No. 3175 of 2006, an interim stay was granted initially for a period of 2 weeks. Subsequently, it was extended upto 29 June, 2006. Thereafter, it was not listed and the interim order was not extended. However, the respondent filed a vacate stay petition in W.V.M.P No. 391 of 2006 with a supporting affidavit, dated 29 January, 2006, filed oy the third respondent along with a petition. A typed-set of document is also filed by the third respondent.

5. It contains some complaints received against the petitioner given by the villagers as well as some helpers in the centre. On the basis of the report, the third respondent sent a letter, dated 12 December, 2005, to the second respondent stating that the project officer must take appropriate steps. A certificate was also obtained against the petitioner from a psychiatrist that the petitioner was suffering from a paranoid condition. It is stated in the said certificate that the said doctor examined the petitioner on 23 December, 2005, and made the observation on the same day.

6. Armed with all these reports, the second respondent who made a spot inspection and who also got the medical certificate during her visit, suspended the petitioner by an order, dated 30 December, 2005. It was stated in the order that since the petitioner's mental health was not alright and as she was exhibiting indifference to work, she was placed under suspension.

7. On the strength of this report, a chargememo, dated 6 January, 2006, was given to the petitioner asking her explanation for the same. The petitioner applied for leave from 25 November, 2005 to 30 November, 2005 and 1 December, 2005 to 5 December, 2005 and from 2 January, 2006 to 31 January, 2006 for leave on personal work and medical leave respectively.

8. In the meanwhile the petitioner obtained a medical certificate from the Selection Grade Assistant Surgeon, Tuticorin that her absence of duty from 1 February, 2006 to 28 February, 2006 was absolutely necessary for the restoration of health and she also on the strength of the said certificate applied for medical leave. It is seen that the leave was neither sanctioned nor rejected by the respondent. Pursuant to the charge memo, since the petitioner had not given her reply, it was presumed that the charges have been proved. The following passages from the counter-affidavit may be usefully extracted:

“…the second respondent came to the conclusion that it will not be possible to run the ankanwadi with the service of the petitioner as she is in insane mental condition. So as a prudent lady and as a responsible officer who is in a position to look after the proper running of the ankanwadi made her recommendation to suspend the petitioner of the unit ankanwadi temporarily ??? ??? ???er from her insane mental condition by which she was placed under suspension on 30 December, 2005…

…one of the medical certificate, dated 23 December, 2005, above referred itself is evident that the writ-petitioner is not good mental state and she was suffering from ‘paranoid schizophreniac’ and taking treatment for the same and that certificate issued by the doctor who is one of the doctors in the Medical Board. And hence the averment regarding the writ-petitioner is not referred to medical board is not hold good water. Further the writ-petitioner was served a chargememo, dated 6 January, 2006, to be answered by her but on receipt of the same there was no reply or explanation submitted and thereby the punishment was awarded. Thus it is crystal clear the punishment awarded against the writ-petitioner that of terminated from service permanently is proper and justifiable for the reasons….”

9. It must be significant to know that the medical certificate was obtained by the third respondent on her spot visit that too from a private doctor. A reading of the certificate shows that the petitioner was taken to the said doctor and certificate was obtained on the same day and it does not show that any serious examination was undertaken.

10. The fact that the said doctor is also a Government doctor is not relevant. It is needed to state that excepting for the socalled certificate from a private doctor, dated 23 December, 2005, the respondents are not in possession of any other material to hold that the petitioner was a “mentally ill person” in terms of S. 2(1) of the Mental Health Act, 1987.

11. It was rather unfortunate that the third respondent, even though she is Child Development Officer should choose to have a liberal use of words and to state that the petitioner was having insane mental condition. Such words do not find a place in any relevant statutes. Nor she being a Welfare Officer made any attempts to find out the petitioner's condition including her family background. She also did not make any attempt to send her to medical board for an appropriate certificate as required under the Mental Health Act, 1987.

12. Today's New Indian Express carried an article titled a “World Mental Health Day and What if?” written by P.K Kuruvilla a Psychiatrist from Kerala. It would not be out of place to refer to some passages from that article:

“A hundred years ago, our forefathers, intelligentia no exception, contended that psychiatric illness is a burden of the west only. True, Ayurveda has mentioned some mental illnesses and a few possible remedies. Nevertheless, it was only with the advent of political and social changes in public life of the country in the first quarter of the 20th century that there came about a growing awareness among people about health care and human dignity. This change came to be gradually reflected in the society's concern for the humane management of persons afflicted with mental illness. The first department of psychiatry with an outpatient facility in an Indian general hospital was in Calcutta, May 1933. Later on in the decade, a Department of Neurology and Psychiatry was established in the Calcutta Medical College by an order of the Government of Bengal. Yet, the bias remained thsat India did not have the same load of mentally disabled as the western nations.

The serendiptous discovery of modern psychopharmacological medicines in 1950s and 1960s ushered in new hopes for effective care and better outcome of mental disorders. Egged on by all these, investigators in institutes in India undertook meticulous studies and proved that major psychiatric illness is as much prevalent at home as elsewhere although culture determines the manifestation. Previously held misconceptions were thus dispelled. Just to illustrate this point, the prevalence of schizophrenia is 3 per every thousand.”

13. The attempt by the respondents to drive out the petitioner from service without holding any enquiry whatsoever really spells out the mind of the respondents. No enquiry was held against the petitioner in respect of the chargememo issued to the petitioner vide memo, dated 6 January, 2006. Further, there is no question of the first respondent giving only post facto ratification for the action taken against the petitioner. Though the petitioner's employment may not belong to any constituted service under Art. 309 of the Constitution of India, she is undoubtedly holding a “civil post” having the protection under Art. 311(2) of the Constitution of India and her employment cannot be deprived except after due procedure being followed by the respondents. This ground taken in Para. 9 of the affidavit has not been replied by the respondent in the counter-affidavit.

14. The Supreme Court has held as to what constitutes a civil post to bring it within the cover of Art. 311(2) vide its judgment in State of Assam v. Kanak Chandra, [A.I.R 1967 S.C 884], wherein it has been observed as follows:

“There is no formal definition of ‘post’ and ‘civil post.’ The sense in which they are used in the services chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art. 310 from a post connected with defence it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the union or a State. See marginal note to Art. 311. In Art. 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding post under a State is a person serving or employed under the State. See the marginal notes to Arts. 309, 310 and 311. The heading and the subheading of Part XIV and Chap. I emphasise the element of service.

15. In the present case, no enquiry whatsoever was held against the petitioner, before her termination from service. Article 311(2) reads as under:

“No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.”

16. In the present case, neither any enquiry was held nor any reasonable opportunity was given to the petitioner to defend herself. The chargememo followed by dismissal order were all done during the month of January, February of 2006, when the petitioner was admittedly under medical leave supported by certificates and leave applications.

17. As to what constitute an elementary principles of natural justice came to be considered by the Supreme Court vide its judgment in Meenglas Tea Estate v. Workmen, [A.I.R 1963 S.C 1719]. The following passage may be usefully extracted:

“The Tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him.”

18. Thus the respondents miserably failed to discharge their constitutional obligation while dispensing with the services of the petitioner. On this short ground, the writ petition is able to be allowed. However, this Court did not want to rule out without giving a finding on the sweeping allegation against the petitioner regarding her mental state of health, especially she is expected to deal with young children.

19. In view of the fact there being, no credible material regarding the petitioner mental health, this Court by an order, dated 10 August, 2007, directed the Dean, Government Rajaji Hospital, Madurai to conduct a medical examination by the Head of the Department of Psychiatry attached to that Hospital. For this purpose, the petitioner was directed to attend the hospital for observation. The petitioner without hesitation agreed to undergo the said examination by a team of doctors.

20. She was admitted to the Institute of Psychiatry, Government Rajaji Hospital continuously for the period from 17 August, 2007 to 14 September, 2007. After the observation by the doctors, Dr. C. Ramasubramanian, Professor and Head of the Institute of Psychiatry forwarded his report to this Court through the Dean, Government Rajaji Hospital, Madurai.

21. The said report was placed before this Court and Paras. 2 to 5 of the said report, dated 14 September, 2007, reads as follows:

“She was diagnosed to be suffering from paranoid schizophrenia and was discharged on 9 December, 2006. She was given anti psychotic drugs and mood stabilizes. After that she was attending psychiatry OP regularly for past one and half years until 15 August, 2007.

She was observed from 17 August, 2007 to 14 September, 2007. At present patient is conscious, oriented to time, place and person. Her attention is groused easily and sustainable. Her talk is relevant and coherent. There was no abnormality in the speech. Her mood is adequate and appropriate to the environment. Patient is free from voices (hallucinatory experience) and thinking disturbance (delusions). Her sleep is adequate. Her ward behaviour is appropriate and adequate.

She was investigated physically and no major abnormality is deducted. She was subjected to psychological investigations, which does not reveal any active psychiatric disease at present. Because of repeated counselling she regained her insight about her illness and also she realized the importance of taking drugs. She was given antipsychotic drugs and mood stabilizes. Her symptoms are well controlled with these drugs.

Based on the above findings, I am of the opinion that she is suffering from paranoid schizophrenic illness and all her symptoms are well controlled with drugs and she is in lucid interval. Under the supervision of a mental health professional and effective antipsychotic drugs and mood stabilizes, she will be able to carry out her official responsibility.”

(emphasis supplied.)

22. This Court places on record its appreciation for the prompt service rendered by the Dean and his fellow doctors at the Government Rajaji Hospital.

23. A reading of the above report clearly falsify the stand taken by the respondents and the respondents should be ashamed of describing the petitioner with all kind of epithets not borne out by records.

24. Even assuming that a Government servant develops a mental ill-ness during the course of his/her employment, as to how the Government should treat such a servant has been delineated by the Parliament vide its enactment known as Persons with Disabilities (Equal Opportunities, Protection of Rights and Fall Participation) Act, 1995. Section 2(i) of the Act defines disability which includes “mental illness”. The term “mental illness” is also defined in S. 2(q) and it means “any mental disorder other than mental retardation.”

25. Section 47(1) of the Disabilities Act reads as follows:

Non-discrimination in Government employment:

(1) No establishment shall dispense with, or reduce in rank an employee, who acquire a disability during his service:

Provided that if any 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.

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.”

26. The Supreme Court vide its judgment in Kunal Singh v. Union of India, [2003 (2) L.L.N 324], dealt with the scope of S. 47 of Disabilities Act. The following passage may be usefully extracted, in Paras. 9 and 10, at page 327:

“9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chap. VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that S. 2 of the Act has given distinct and different definitions of ‘disability’ and ‘person with disability.’ It is well-settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under S. 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly, all those who depend on him would also suffer. The very frame and contents of S. 47 clearly indicate its mandatory nature. The very opening part of the section reads:

‘no establishments shall dispense with, or reduce in rank, an employee who acquires a disability during his service.’

The section further provides 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; if it is not possible to adjust the employee against any post, he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this, no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-sec. (2) of S. 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances, the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of S. 47 is plain and certain, casting statutory obligation on the employer to protect an employee acquiring disability during service.

10. The argument of the learned counsel for the respondent on the basis of the definition given in S. 2(t) of the Act that benefit of S. 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired ‘disability’ within the meaning of S. 2(i) of the Act and not a person with disability.”

27. When that is the case for a Government servant who develops disability during service, it is too late in the day for the respondents to label a person as insane on their own and declare her unfit for a Government employment without any factual material. It makes, a rather sad commentary. This only shows the utter ignorance of the respondents in understanding the special legislation occupying the field. This requires a gre ater sensitization of the administration.

28. Even if the petitioner was found suffering disability on account of mental illness, S. 47 of Disabilities Act makes it obligatory to provide suitable alternate employment on the same salary drawn before.

29. In view of the above, the writ petition will stand allowed and the impugned order will stand set aside. The respondents are directed to reinstate the petitioner with continuity of service forthwith on the production of certified copy of the order they are also directed to pay her back-wages within four weeks from the date of receipt of a copy of this ordery. The second and third respondents can decide the petitioner's place of posting and they are directed to send a report of compliance to this Court.

30. In view of the suffering faced by the petitioner by the careless action of the respondents, the respondents are directed to pay a sum of Rs. 5,000 (Rupees five thousand only) as costs to the petitioner. Consequently, connected W.P.M.P (MD) No. 3175 of 2006 and W.V.M.P (MD). No. 391 of 2006 are closed.

Writ petition allowed.