The Airport''s Authority of India and Others vs Swapn Kumar Dey

Deepak Gupta, C.J.—India made its tryst with destiny almost 67 years back. As the country awoke to freedom at midnight on 15th August, 1947, the people had high hopes that they would all be treated equally. More than 64 years back we gave unto ourselves a Constitution promising equality to all citizens. The framers of Constitution were well aware of the fact that certain persons suffered from social and economical inequalities and, therefore, in the process of providing true equality some benefits had to be given to them. Articles 14, 15 and 16 of the Constitution of India clearly recognized this concept. It is a well known fact that persons suffering with disabilities are unable to live a complete life not only due to their own limitations, but also due to barriers created by society. Such persons face discrimination right from the time of their birth. Disabilities, both mental and physical, can be of various types and of varying degrees. The persons who face such disabilities have difficulty in getting admission to good schools and colleges. They face problems in getting access to public places, transportation etc. They are treated with pity, but society does nothing to improve their lot. There has been little attempt to assimilate them in the mainstream of the nation''s life. Even proper research has not been done to identify the disabled, ascertain their problems and to take appropriate steps to relieve them of their difficulties.

In the last two decades some efforts have been made in this regard. The Asian and Pacific countries decided that the decade starting from 1993 and ending in 2002 would be treated as the decade of disabled persons. A meeting of various countries, including India, was held in Beijing in December, 1992. It was called the "Meeting to Launch the Asian and Pacific Decade of Disabled Persons". In this meeting, the participating countries, including India, adopted the Proclamation on the "Full Participation and Equality of People with Disabilities in the Asian and Pacific Region". India was a signatory to the said proclamation and, therefore, it was obligatory upon our country to enact a suitable legislation so that the rights of the disabled were protected.

The Parliament of the country with a view to fulfill the promise held out in the meeting at Beijing enacted The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The avowed objects and reasons of the Act are as follows:--

(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and

(vi) to make special provision of the integration of persons with disabilities into the social mainstream."

It would be pertinent to mention here that the Apex Court in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., even prior to the meeting held at Beijing and the enactment of the Act aforesaid had clearly held that under the provisions of Articles 15 & 16 of the Constitution of India, reservations could be made for persons suffering from disabilities.

However, the most well intentioned legislations, the finest judicial orders are all set at naught by the ingenuity and apathy of the bureaucratic system. Despite the Act in question being in force since 7th February, 1996 i.e. for about two decades, the mandate of the Act has been observed more in breach than in compliance to the provisions thereof. The Act has been violated with impunity on entirely frivolous grounds.

This appeal by the Airport Authority of India is directed against the judgment dated 24-01-2014 delivered by a learned single Judge of this Court in WP(C) 61 of 2013 whereby he directed the appellants to arrange payment of salary and other benefits to the original writ petitioner Shri Swapan Kumar Dey with effect from September, 2011 and to create a supernumerary post and keep the petitioner on such supernumerary post till he recovers from disability or retires from service.

The undisputed facts are that the original writ petitioner joined service with the Airport Authority in the year 1993. In the year 2005 he was working as Supervisor (E&M) and was posted at the airport at Agartala. He suffered a brain stroke on 28-12-2005 and consequent to the said brain stroke he suffered a lot of medical problems. On 27-01-2010, the petitioner was certified to be suffering from 80% disability and on 01-08-2012 this disability had increased to 95%. The original writ petitioner died after filing of the appeal. He by means of the petition prayed that a writ of mandamus be issued directing the Airport Authority of India to create a supernumerary post and permit him to work from home and in any event to pay his salary even if he does not work.

The stand of the Airport Authority of India is that it provided all facilities which were possible within its means including provision of special disabled friendly toilet, special wheelchair etc. and thereafter the original writ petitioner had sent a letter on 12-05-2010 appreciating the steps taken by the Airport Authority. It is contended by Sri S. Deb, learned Sr. Counsel for the appellants that thereafter the petitioner could have attended work and come to airport but he did not do so and, therefore, he has wilfully abstained from duty and as such, is not entitled to the salary for the period up to his death.

The whole dispute revolves around the interpretation of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act). It is trite law that provisions of a social welfare legislation must be interpreted in a manner which further the cause, intention of the Act and help the underprivileged. Section 47 of the Act reads as follows:--

"47. Non-discrimination in Government employments.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided 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:

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.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

Sub-section (1) of section 47 of the Act clearly lays down that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. Therefore, even if a person becomes totally disabled and is unable to perform any duty, the employer is statutorily prohibited from dispensing with the services of such employee. Not only that, the employer is also prohibited from reducing the rank of the employee. The intention of the legislature is very clear that a person who suffers disability during service should not be put at any disadvantage and he should continue in the same position. Under sub-section (2) of section 47 of the Act, such a disabled person cannot even be denied promotion, if otherwise due to him, just because he is disabled and unable to perform his duties.

The first proviso to sub-section (1) of section 47 only empowers the employer to transfer or shift the employee from one post to the other where he can work despite his disability. Therefore, if an employee due to the disability is unable to perform the duties which he was performing prior to the suffering of his disability, the employer can post him at a job where he can work despite his disability. The pay, allowances and emoluments of the employee cannot be adversely affected even if the job be of a different nature.

The second proviso makes the intention of the legislature even more clear. It in no uncertain terms provides that if it is not possible to adjust the employee against any post, then the employer must create a supernumerary post till a suitable post where the disabled employee can be adjusted is created or till the employee attains the age of superannuation. A plain reading of the second proviso makes it absolutely clear that the intention of the legislature was that a disabled employee shall continue to be an employee enjoying the same pay and facilities despite his disability and inability to perform any duties and the employer is bound to create a supernumerary post for the benefit of the employee if it is found that no suitable post is available. It is in the line of the aforesaid law that we have to decide the present case.

Learned counsel for the parties have made reference to various judgments of the Apex Court in Kunal Singh Vs. Union of India (UOI) and Another, ; Union of India v. Sanjoy Kr. Jain, decided by the Apex Court on 11.08.2004 in Union of India (UOI) Vs. Sanjay Kumar Jain, and the Union of India v. Debendra Kr. Pant & Ors. decided by the Apex Court on 09.07.2009 in Union of India (UOI) Vs. Devendra Kumar Pant and Others, . In our view though the learned single Judge has made reference to these judgments, we are clearly of the view that each case has to be decided on the facts and the position of law has been clarified by us above.

As far as the present case is concerned, it is not disputed that in the year 2010 the disability of the original writ petitioner was assessed at 80%. After the writ petition was filed in Court, the learned single Judge appointed Sri S.M. Chakraborty, a learned Senior Advocate of this Court, as a Commissioner to visit the place of work of the writ petitioner for ascertaining the facilities provided to the petitioner and also to find out why the salary has not been paid to the petitioner. The report of the Commissioner 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. B.N. Majumder and Mr. P.K. 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. D/- 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. B.N. Majumder and Mr. P.K. 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."

As far as the stand of the Airport Authority is concerned, it appears that it is relying upon a memo dated 11-03-2011 issued by the Director of the Airport Authority of India wherein it was stated that leave could not be granted to the petitioner since he himself had avoided to work. There can be no quarrel with the proposition that if a disabled person wilfully abstains from coining to the worksite to perform the alternative work which is provided to him, he would not be entitled to claim salary. At the same time, we must clarify that if the disabled person is unable to come to work due to the disability, then in terms of the section 47 of the Act he cannot be denied his salary even if he does not attend work. In the present case, as per the report of the learned Senior Counsel, the petitioner was found lying in bed and had bed sores. This by itself clearly indicates that the original writ petitioner could not even turn around in bed because bed sores develop only when a person is unable to move. The medical report also shows that his disability was 95%. The Court has to take a pragmatic view of the matter. A person who has suffered 95% disability as assessed by the Medical Board on 01-08-2012 can be presumed to be unable to come to work. The petitioner was virtually confined to bed. He kept praying that he may be permitted to work from home and the Airport Authority could have sent some files to his home to give him alternate work. He may have been provided a computer at home to do work which could be done through the computer and the internet. However, the Airport Authority took a highly insensitive stand and insisted that the petitioner should come to the airport and work there. No doubt, the Airport Authority did provide facilities of a toilet and wheel chair to the petitioner at the airport but this by itself in the facts of the present case could not be sufficient.

The appellants have relied upon a letter dated 12-05-2010 issued by the original writ petitioner to the Airport Controller which reads as follows:--

"To

The Airport Controller, Airports Authority of India, Agartala. Tripura.

Subject:-- Congratulation for arranging alternative work to see my disability to see the Section-47 of PWD''s Act-1995.

Reference: Your office letter No. AAI/AT/E-9(SKD)/Supervisor (E&M)/712. dated 10-5-2010

Sir,

Thank you for your decision regarding allocation of my alternative duties at the General Store Section at the Ground floor of Passenger lounge in General Section. Now I may try to perform my duties since special toilet facilities also available near about my (44 mtr) from the store room. I again express my gratitude for your positive action not as an employee of your establishment but also as a physically challenged. Date-12.5.2010.

Yours faithfully, Sd/- (SWAPAN KR. DEY) Supervisor (E & M) AAI, Agartala Airport."

In this letter the petitioner has thanked the Airport Authority for allotting alternative duties in the General Store Section and he has stated that he would try to perform his duties since special toilet facilities are also available near at a distance of 44 metres from the store room. The petitioner has thanked his employer but it appears that thereafter, he still could not work and he requested the employer to give him work at home. This letter is of the year 2010 but the disability of the petitioner increased thereafter and it appears that it became impossible for him to work in the airport thereafter. Therefore, the appellants cannot rely upon this letter alone to disprove the case of the petitioner. From the material which has been placed on record, we are of the considered view that the original writ petitioner did not wilfully absent himself from work since he was physically incapable of performing any duties or coming to the airport.

In this view of the matter, we find no error in the judgment of the learned single Judge and the appeal is accordingly dismissed. No order as to costs. However, since the petitioner has expired on 04-06-2014, we direct that he shall be treated to be on duty till his death and his widow/legal heirs, as entitled under law, shall be paid all the arrears, pay and allowances till the date of death and thereafter, all retiral benefits shall be calculated and paid to them by treating him to be on duty until the date of his death. The needful be done latest by 31st March, 2015 failing which the appellants shall be liable to pay interest @ 12% per annum from the date the amount fell due till payment thereof.