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IN THE HIGH COURT OF TRIPURA
S.C. Das, J.
Swapan Kumar Dey - Appellant
Versus
Airport’s Authority of India - Respondent
W.P. (C.) No. 61 of 2013
Decided On : 24-01-2014
P.W.D. Act - Disability Benefits - Section 47 - Summary of Acts and Sections: The court discussed the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, particularly focusing on Section 47, which mandates non-discrimination in government employments for persons with disabilities. The court emphasized the overriding effect of the P.W.D. Act on other laws and rules, highlighting the welfare nature of the legislation and the need for a liberal construction to provide complete remedy within the permissible phraseology.
Fact of the Case:
The petitioner, a Supervisor at Agartala Airport, suffered from a rare disease causing progressive disability. Despite his condition, the respondents did not provide the benefits prescribed under the P.W.D. Act, leading to the petitioner's unauthorized absence and the withholding of his salary. The court was presented with conflicting accounts of the petitioner's disability and his attendance at the office.
Finding of the Court:
The court found that the petitioner, suffering from 80% disability, was completely bedridden and unable to attend the office. It emphasized the mandatory nature of Section 47 of the P.W.D. Act, directing the respondents to provide the petitioner with all benefits as prescribed under the Act, including creating a supernumerary post for him until his recovery or retirement.
Issues: The key issues revolved around the petitioner's entitlement to disability benefits under the P.W.D. Act, the conflicting accounts of his disability, and the respondents' obligation to provide him with the prescribed benefits despite his inability to attend the office.
Ratio Decidendi: The court's decision was based on the mandatory nature of Section 47 of the P.W.D. Act, the welfare nature of the legislation, and the need for a liberal construction to ensure the complete remedy within the permissible phraseology. It emphasized the overriding effect of the P.W.D. Act on other laws and rules, directing the respondents to provide the petitioner with all benefits as prescribed under the Act.
Final Decision: The court set aside the order withholding the petitioner's salary, directing the respondents to arrange payment of salary and other benefits, create a supernumerary post for the petitioner, and provide him with all benefits of service until his recovery or retirement. It also mandated the review of the petitioner's health condition at regular intervals by the medical board.
JUDGMENT
S.C. Das, J.:-By filing this writ petition the petitioner inter alia sought for following relief(s):-
(ii) Issue a rule calling upon the respondents and each one of them to show cause as to why a Writ of Mandamus and/or in the nature thereof shall not be issued directing/commending/mandating the respondents to release salary of the petitioner and for keeping him in a supernumerary post with effect from September, 2011, forthwith.
(iii) Issue a Rule calling upon the respondents and each one of them to show cause as to why a Writ of Certiorari cancelling/setting aside/the order dated 04-10-2012 (Annexure P/5 infra)
(iv) Issue a Rule calling upon the respondents and each one of them to show cause as to why a Writ of Mandamus and/or in the nature thereof shall not be issued directing/commending/mandating the respondents to act in strict conformity with the provisions of the P.W.D. Act and the allied rules framed there under:
The case of the petitioner, in short, is that on 28.12.2005, while the petitioner was working as a Supervisor (E & M), posted at Agartala, under the Airport Authority of India, the respondents, at his work place, he suffered a brain stroke and was admitted in G.B. Hospital. He was discharged on 30.12.2005 with a diagnosis of developed paralysis. In 2006, he undergone treatment at Apollo Hospital and at that time it was diagnosed that he was suffering from a rare disease called 'Destructive Myopathy' which was also known as Progressive Muscular Dystrophy. Because of the disease his bone marrow was gradually drying up and as a result he was moving towards progressive disability. In the year 2007-08 he was treated by Dr. Asesh Roy Chowdhury, a physician of 'Physical medicine and rehabilitation' and in the year 2009 when his condition was again deteriorated he was admitted in G.B. Hospital and the Medical Board of the G.B. Hospital considered his condition and certified him as suffering from 80% disability on 27.1.2010. The certificate of disability is annexed as Annexure-P.2 to the writ petition. Thereafter, the petitioner submitted his disability certificate to his authority and prayed for extending him the facility as prescribed under "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995"(for short, P.W.D. Act, 1995), by writing a letter dated 11.02.2010. The respondents did not attach any importance to the said prayer of the petitioner. On 15.03.2010, he prayed for medical leave to attend AIMS for his treatment and medical leave was sanctioned on 25.05.2010. Since he was not in a position to move without attendant he also prayed for attendant but one attendant was allowed though he was not in a position to move without two attendants. He has undergone treatment at AIMS and returned on 30.06.2010. No fitness certificate was however given since he was having with 80% disability. He, thereafter prayed for 120 days special disability leave but his prayer was rejected. He reported his condition to the National Commission for Disablement and the Commission enquired with the matter. He attended office till 06.09.2011, and thereafter he was suffering 95% locomotive disability and was bed ridden and, therefore could not attend office. His salary was stopped though he made several representations for payment of his salary and other benefits for his continued treatment and survival. The respondents provided him some facilities for attending office but he was not in a position even to move and, therefore could not attend office. He was, therefore made unauthorized absent. On 04.10.2012, respondents issued a Memo.(Annexure-P.5 to the writ petition) stating that since the petitioner has been absenting from duties without any authority he shall not be allowed to any pay and allowance during the period of absence. On 16.10.2012 he made a prayer to immediately release his salary and to keep him in a supernumerary post. He approached the authority to give him all his ben
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