- (1.) 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 PWD Act and the allied rules framed there under: ''
(2.) 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, PWD 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 benefits as per Section 47 of the PWD Act of 1995 but the respondents have not yet provided the benefits though by that time he acquired disability of 95%. The disability was increasing gradually and because of the disability has/had been the petitioner was not in a position to attend the office and to perform his duties though certain facilities were provided and in the circumstance he prayed for the benefits, as prescribed under Section 47 of the PWD Act, and accordingly prayed for the relief(s) as stated hereinbefore. Respondents contested the case by filing written statement inter alia stating that the petitioner joined the post of Supervisor (E&M) at Agartala Airport in the year 1993. In the year 2005, he received a head injury due to road accident and subsequently the District Disability Board, West Tripura certified that he was suffering from 80% disability in the month of January, 2010, which was subsequently increased to 95% in the month of August, 2012. Considering his disability on 10.05.2010, he was entrusted with lighter work and was provided all facilities such as (i) standard barrier free disable toilet for handicapped persons, (ii) wheel chair for disable person, (iii) special wheel chair as demanded by him, (iv) shifting chair according to height and (iv) special wooden chair provided in disability toilet. All facilities were provided to him to attend the office to do a clerical job but still he failed to attend the office. He attended AIIMS hospital, New Delhi and all expenditure was borne by the respondents but ultimately as per advice he did not attend AIIMS for review of treatment. His pay and salary were released upto February, 2011 with utmost sympathy. It is contended that since he was suffering from 95% disability and was unable to work or to attend office at all, and since there was no provision in the Airport Authority of India Act and Rules to make payment of salaries, there was no scope of making payment of his salaries. It is also contended by filing an additional counter affidavit that the authority considered the case of the petitioner and it was found that as per the Rules of Airport Authority of India, an employee who remains absent from duty without any authority shall not be entitled to pay and allowance during the period of absence and no salary can be paid to the petitioner until he attends the office or if he leaves the office by putting his signature in the attendance register, it should be treated as absent from duty.
(3.) DURING pendency of this writ case by order dated 15.03.2013, an Advocate Commission was appointed by this Court requesting learned Sr. Counsel, Mr. S.M. Chakraborty to inspect the office of the respondents, for ascertaining the facilities provided to the petitioner and to audit the official records why the pay and allowance of the petitioner who is a physically challenged person has not been released by the respondents authority. The Advocate Commissioner, in the presence of learned counsel of both side visited the office of Respondents and examined necessary records and in compliance of the Court 's order submitted report dated 22.04.2013 which reads as follows: - ''COMMISSION REPORT Pursuant to the order of the Hon 'ble Court dated 15.3.2013, passed in the above numbered case, I went to the Agartala office of the Airport Authority of India, on 18.4.2013 at 12:30 hrs. along with Mr. BN Majumder and Mr. PK Paul, the learned counsel of both the parties and examined the papers pertaining to the pay and allowances and leave of the petitioner and also visited the room provided to the petitioner to see the nature of facilities extended to him by the respondents and noted the following points: - PAY AND ALLOWANCES: - The petitioner has been paid the salary up to the month of Sept.2011, thereafter no salary has been paid to him from Oct.2011 to Feb.2012 on the ground that he has stopped attending the office without giving any information. However, he was paid the salary only for the month of March,2012 as per the order of the DGM(HR),NER dated 4.4.2012 by obtaining an undertaking from the petitioner that in case the payment is found to be wrongly made, the same shall be recovered from him. Accordingly, the petitioner gave an undertaking on 24.4.2012 and the salary for the month of March,2012 was released and after that no further payment has been made to him. The Airport Authority has also shown me a letter of the Sr. Manager(HR) dated 9.8.2012 addressed to the Regional Executive Director, AAI, NER, Guwahati to the effect that as per their Notification dated 23.5.2003 (Point No.14) an employee who is absent from duty without any authority shall not be entitled to the pay and allowances during the period of such absence. Hence, the petitioner could not be paid his salary by them beyond the payments already made. DISABILITY LEAVE: - I have been shown a Memo. Dtd. 11.3.2011 issued for the Airport Director, A.A.I. Agartala Airport, to the petitioner with reference his applications dated 9.12.2010 and 28.12.2010 for Spl. Disability leave whereby the petitioner was informed that the said leave could not be acceded to as per AAI(Leave) Regulations. FACILITIES PROVIDED: - It has been found that the petitioner has been allotted a separate room measuring 8ft X 14ft(Approx) in the ground floor in the office of the AAI, Agartala wherein one Chair (Spl. Type), two wheel chairs, one table and one Intercom have been provided. I have been told by the Director, AAI, Agartala that out of the two wheel chairs one has been provided as per the specification given by the petitioner. Besides above, a special type of facility has been given to him in the toilet making its use convenient for the petitioner. The exclusive service of an attendant has also been provided to him. PRESENT PHYSICAL CONDITION OF THE PETITIONER: - Myself along with MR.BN Majumder and MR PK. Paul, the ld. Advocates of the parties visited the quarters of the petitioner to see his present condition and it appeared to me that he has lost the capacity of movement. He was found lying in a hard bed under the care and attendance of his old mother who(mother) told me that the petitioner constantly remains in the same position, resulting bed sores. Since, all these health matters are to be examined and decided by a medical expert, I refrain myself from making any comment or giving any opinion. (Saktimoy Chakraborty) Senior Advocate. '' ;