Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 17 (CAL)

Dilip Chakraborty v. State of West Bengal

2016-01-06

SANJIB BANERJEE

body2016
JUDGMENT : Much injustice has been occasioned to the parties in this matter remaining pending for more than twelve years. However, it must be said that the petitioner does not appear to have taken steps to diligently prosecute the matter between July 18, 2003 and when the matter was taken up on March 27, 2014. The matter appeared as an old matter in the warning list and was taken up in right earnest thereupon. The petitioner, then a conductor with the South Bengal State Transport Corporation, was found psychologically unfit to continue in service in the year 1998. His services from the permanent post occupied by him were terminated under Rule 14(3) of the service regulations of the Corporation. Apparently, the petitioner preferred an appeal by lodging it before an inappropriate official. Such official informed the petitioner that he was not the appellate authority, but the petitioner did not take further steps in the appeal. In February, 2003, the petitioner cited a medical report obtained by him to indicate that he was psychologically and otherwise fit to seek a revision of the order of termination. There is no doubt that there is a power of review and revision vested in the Managing Director of the Corporation under the relevant service regulations. The Corporation contends that when an appeal had been preferred against the order of termination but such appeal was not pursued, the petitioner was precluded from seeking a review of the order of termination. It is further submitted on behalf of the Corporation that since the relationship between the parties had been severed for good, and there is no scope for reinstatement in such circumstances, the citing of the subsequent medical certificate by the petitioner would not warrant the termination of 1998 to be reviewed. It must be recorded that the termination of the petitioner’s services in 1998 was consequent upon a report being furnished by a medical board constituted by the Corporation. In the petitioner not effectively challenging the termination, it is evident that the petitioner accepts that at the time that the petitioner’s services had been terminated, the petitioner was unfit to remain in service; but the petitioner asserts that he has recovered since and has a medical certificate testifying as such and his request ought to be considered by the Corporation or its appropriate official. There is a distinction between an appeal and a review. There is a distinction between an appeal and a review. Though a reference to the appeal and review provisions of the Code of Civil Procedure, 1908 may not be apposite in the context, the fundamental distinction between an appeal and a review as recognised in such Code is of universal application. An appeal questions the propriety of an order in the given set of facts and law. A review pertains to an obvious mistake in the order or is founded on the discovery of some relevant material or the occurrence of some event subsequent to the making of the impugned order that would materially alter the basis of the order. Since the discussion here is not for an academic purpose, all situations contemplated in a review are not enumerated, but only the grounds that would be relevant for the present purpose are recorded. The petitioner’s conduct amounts to an acceptance of the fact that he was unfit to continue in service at the time of his termination, but that he had subsequently recovered, as borne out from the medical certificate submitted by him, to be assigned the duties and responsibilities that the petitioner discharged prior to his termination. This was a matter that the Managing Director of the Corporation could have considered under the authority given to him by the service regulations. It is an entirely different matter, however, as to whether the petitioner’s review should succeed or not; for that would depend on the medical opinion that the Managing Director would obtain and other relevant factors. But the Managing Director ought to have entertained the application on merits and considered the same. Accordingly, WP 10456(W) of 2003 is disposed of by directing the Managing Director of the respondent Corporation to consider the petitioner’s review application of February 24, 2003 pertaining to the order of termination dated September 21, 1998. The Managing Director will complete the exercise by undertaking a fair process, including having the petitioner examined by any expert as the Managing Director may choose. The Managing Director’s decision on the review should be communicated to the petitioner within a period of six weeks from date. The Managing Director will complete the exercise by undertaking a fair process, including having the petitioner examined by any expert as the Managing Director may choose. The Managing Director’s decision on the review should be communicated to the petitioner within a period of six weeks from date. It is made clear that in the event the termination of the petitioner’s services is reviewed and the petitioner is, in effect, reinstated in service, the time that has elapsed between the petitioner’s termination and effective reinstatement will not count towards any benefits that may be due to the petitioner whether for promotion or for assessment of the pensionary benefits or the like. There will be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.