Bankim Sardar College vs Swarupa Bandopadhyay

Jyotirmay Bhattacharya, J.—Two appeals were filed by two different groups of respondents challenging a common interim order passed by the Learned Trial Judge on 14th May, 2014 in W.P. No. 2835(W) of 2014. The appeal which was filed by the college authority was registered as M.A.T. No. 1007 of 2014. The application for stay which was filed in connection with the said appeal was registered as CAN 7987 of 2014. The other appeal was registered as MAT 1015 of 2014. The said application which was filed in connection therewith was registered as CAN 5863 of 2014. Though the subject matter of challenge in both the appeals is a common order but the grounds of challenge are different.

Since both the appeals arose out of a common order passed in one writ petition, we have heard both the appeals simultaneously and proposed to pass a common order disposing of both the appeals for avoiding conflict of decision.

As per the request made by the Learned Counsel appearing for the parties we have also decided to consider the writ petition on merit.

Let us now consider the merit of both the aforesaid appeals and the writ petition in the facts of the instant case.

The writ petitioner is an Assistant Professor in Bankim Sardar College. She along with her son met with an accident on 16th October, 2010; in which she lost her son and she became physically disabled and her disability is to the extent of 90%. Admittedly, she remained absent from 28th February, 2011 to 1st May, 2013; i.e. for a period of 708 days.

A question cropped up as to how such leave is to be adjusted. The college authority held that the writ petitioner/appellant is not entitled to get any salary during the said period as she was in unauthorised absence during the said period. In fact, her salary was received by the college authority but was returned, and she was not paid her salary as she did not discharge any duty during the said period. The said issue was sought to be resolved by a letter written by the Director of Public Instruction on 17th October, 2011 through which the college authority was directed to consider the tremendous crisis which the appellant/writ petitioner had to suffer on account of the loss of her son in the road accident and the fatal injury which she had suffered in the said accident and to take a decision in the matter of release of the salary of the writ petitioner in the affirmative on humanitarian ground at the earliest. However, by a subsequent letter dated 4th January, 2013; the Director of Public Instruction modified his stand and directed the college authority to grant leave to the appellant/writ petitioner in terms of G.O. No. 762-EDN(CS) dated 3rd December, 2009; if she is otherwise eligible for such leave.

Taking into consideration these two letters, as well as the right which is granted to the disabled persons under section 72 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; the Learned Trial Judge held that the writ petitioner is entitled to get full salary during the said period. The Learned Trial Judge also directed the Chairman of the College Service Commission to transfer the writ petitioner in the vacancy available in Ashutosh College which is nearer to the residence of the appellant/writ petitioner. The said order of the Learned Trial Judge is impugned in both these appeals.

Both Mr. Dutta, Learned Advocate, appearing for the college authority and Mr. Bhattacharya, Learned Advocate, appearing for the State respondents submit that since the writ petitioner was in unauthorised leave during the said period, she is not entitled to get any salary during the said period. They jointly maintain their stand by contending that the said period, at best, may be regularised by treating her absence as ''leave without pay''.

Mrs. Sampa Sarkar, Learned Advocate, appearing for the University has drawn our attention to Rule 24 of the Leave Rules dealing with special disability leave and contends that since her injury was not caused in course of due discharge of her official duty, she is not entitled to get benefit of the special disability leave as provided under Rule 24 of the Leave Rules. We are informed by the Learned Advocates for the appellant that the period of her absence which was adjustable against her leave on different counts, has already been allowed to her and further since the remaining part of her absence is not adjustable against leave as per the Leave Rules, she cannot claim any financial benefit for the remaining period of her absence.

In this context our attention was drawn to the provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 by Mr. Ghosh, Learned Advocate, appearing for the writ petitioner/respondent.

After considering the definition of "establishment" given in Section 2k of the said Act, we are of the view, that the said Act is applicable to the college authority as it is a body aided by the "State Government". The writ petitioner who is an Assistant Professor of the said college met with an accident during the tenure of her service and she became disabled and the extent of her disablement was assessed as 90%. This part of the contention of the writ petitioner remains uncontroverted.

Having regard to the fact that the disability suffered by the writ petitioner during the tenure of her service is covered by Section 2(i)(v) read with Section 2(o) of the said Act, the protection which was given to such disabled employee of an establishment under Section 47 of the said Act, cannot be denied to her. In this regard, we have also taken note of the provisions contained in Section 72 of the said Act which provides that the provisions of the said Act or the Rules made thereunder shall be in addition to and not in derogation of any other law for the time being in force or any Rules, order or any instruction issued thereunder, enacted or issued for the benefit of persons with disabilities. Thus, if we consider the provisions contained in Section 72 of the said Act, then it goes without saying that this is an Act which gives some relief''s to such disabled persons in addition to the relief''s which are available to such disabled persons under the Extant Service Rules. Thus, though as per the Extant Service Rules, the relief which was claimed by the writ petitioner is not available to the writ petitioner but the additional protection which is granted to such disabled persons under Section 47 of the said Act cannot be denied to the writ petitioner by the authorities concerned. The provision contained in Section 47 of the said Act not only gives protection of service to such disabled persons but also give pay protection without reduction in rank and keeping open all avenues of promotion for such disabled person intact even though they are unable to discharge their duties on account of their such disabilities which they had to suffer unintentionally and in a situation beyond their control during the tenure of their service. Even creating an opportunity for posting of such disabled persons nearer to their residence by the employer is also another protection which is granted to such disabled persons under Section 47 of the said Act.

Thus, by placing reliance upon the decisions of the Hon''ble Supreme Court in the case of (I) Kunal Singh Vs. Union of India (UOI) and Another, Bhagwan Dass and Another Vs. Punjab State Electricity Board, Dalco Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye and Others, , cited by Mr. Ghosh, Learned Advocate, appearing for the writ petitioner/respondent, we hold and declare that the relief''s which the writ petitioner has claimed in the writ petition are all admissible to her in the light of the provision contained in Section 47 read with Section 72 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

The concerned authority is, thus, directed to give all the benefits which are admissible to the writ petitioner and can be given to her presently in terms of the provision contained in Section 47 of the said Act, positively within a period of six weeks form the date of communication of this order. The Director of Public Instruction is, thus, directed to release necessary fund for payment of full salary to the writ petitioner during the period of her absence in terms of Section 47 of the said Act within four weeks from date and the college authority, on receipt of such fund from the Director of Public Instruction will pay the same to the writ petitioner within one week thereafter after adjusting the period of her absence against the protection granted to her as per Section 47 of the said Act.

We are informed by the Learned Advocate appearing for the writ petitioner that the writ petitioner has already been selected for transfer in the vacancy available in Ashutosh College. If it is really so, then the concerned authority is directed to expedite the process so that she can be posted in the said vacancy in Ashutosh College at an early date by giving her the benefit of continuation of her past service in the present place of her posting. The other claim of the writ petitioner including her post retiral benefits should also be granted to her by the concerned authority in the light of the provision of Section 47 of the said Act, as and when occasion will so arise for grant of those service benefits to the writ petitioner subsequently.

Both the appeals are thus, disposed of by affirming the order of the Learned Trial Judge. Since nothing more is left to be decided in the writ petition, we dispose of the writ petition also with the above direction.

In view of the disposal of the appeals and the writ petition, no further order needs be passed on the stay application which is thus deemed to be disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.

Tapash Mookherjee, J.

I agree