Calcutta High Court (Appellete Side)
The Medical Superintendent vs Pronoti Roy on 5 September, 2014
Author: Jayanta Kumar Biswas
Bench: Tapash Mookherjee, Jayanta Kumar Biswas
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Jayanta Kumar Biswas
and
The Hon'ble Mr Justice Tapash Mookherjee
WPCT No.145 of 2014
The Medical Superintendent, ESIC Hospital & ODC (EZ) Joka, Kolkata
-vs-
Pronoti Roy
Mr. T.K. Chatterjee ...for the petitioner
Mr. Chiradip Sinha
Mr. Arpa Chakraborty ...for the respondent
Heard on : September 5, 2014 Judgment on : September 5, 2014 Jayanta Kumar Biswas, J : The petitioner in the WPCT under Article 226 of the Constitution of India dated August 28, 2014 is questioning an order of the Central Administrative Tribunal Calcutta Bench dated August 20, 2014 disposing of the respondent's OA No.350/01023/2014.
The relevant part of the order of the Tribunal is quoted below:-
"12. In view of the above, I quash and set aside the impugned Memorandum dated 19.07.2014 and the respondents are directed to issue provisional NOC and work experience certificate to enable the applicant to participate in the counselling for filling up admission form and to consider granting of study leave of 2 years in view of the observations made in the preceding paragraphs and immediately to take further appropriate steps to issue final NOC and to grant study leave accordingly."
The respondent was appointed as a Staff Nurse in ESI Hospital & ODC (EZ) Joka on July 14, 2009. On June 2, 2014 she applied to the petitioner for permission to take the 2014 test for admission to Basic B.Sc. Nursing Course at West Bengal University of Health Sciences. On July 11, 2014 she applied to the petitioner for an NOC and a two-year study leave. She took the test and was successful.
By a memo dated July 19, 2014 the Hospital Deputy Director (Admn) informed the respondent that the competent authority did not accept her prayer for NOC, working experience certificate and study leave on the grounds that there was an "acute shortage of Nursing Staff."
Feeling aggrieved, the respondent filed the OA. The petitioner filed a Reply dated August 14, 2014. The Tribunal held that the decision rejecting the respondent's requests was not sustainable. It disposed of the OA and gave the above-quoted directions.
A plea of the petitioner taken in WPCT para.11 is as follows:-
"11. That the Petitioner states that the original application was heard by the Learned Single Bench and not the Division bench of the Learned Tribunal which is ex facie bad in Law and since the grant or rejection of Study Leave is a Legal issue, the Learned Single Bench cannot hear out the dispute."
In its order the Tribunal mentioned that in view of an order dated June 6, 2014 in OA No.541 of 2013 a single-Member of the Tribunal was competent to hear and dispose of the OA that gave rise to a study leave issue. The petitioner contesting the OA did not raise the question that the single-Member of the Tribunal was not empowered to dispose of the OA. However, he has taken the plea now in the WPCT. We find no merit in the plea.
In view of the provisions of s.5(6) of the Administrative Tribunals Act, 1985, a single Member of a Tribunal is empowered to function as a Bench for the classes of cases and matters specified by the Chairman issuing a general or special order. The Chairman issued an order dated December 18, 1991, which is Appendix I to the Central Administrative Tribunal Rules of Practice, 1993. The order shows that a case concerning leave can be heard by a single Member of a Tribunal as a Bench.
The only ground on which the respondent's three prayers were rejected was:-"acute shortage of Nursing Staff." To his Reply to the OA the petitioner annexed a letter dated June 24, 2014 he wrote to the Medical Commissioner (Med. VI) giving details of the Staff Nurse required, sanctioned and working in the hospital. It was stated that out of 129 sanctioned Staff Nurse 105 were working; and that the required number under SIU norms was 174. He requested the Commissioner to take an early action for sanctioning posts.
The Tribunal has said that, on the facts, the authority was not justified in rejecting the respondent's prayer for no objection certificate, working experience certificate and study leave. It, however, said that for the authority's failure to appoint sufficient Staff Nurse, the respondent seeking to take a course closely related to her job she was doing in the hospital could not be deprived of the opportunity of taking the course.
The real issue before the Tribunal was whether the authority was justified in rejecting the respondent's three prayers citing "acute shortage of Nursing Staff" in the hospital. Hence we are of the opinion that it was not necessary for the Tribunal to make any comment on the authority's action or inaction concerning recruitment and connected matters.
The documents produced by the petitioner with his Reply clearly revealed that against 129 sanctioned posts 105 Staff Nurse were actually working in the hospital. The working strength was around 81% of the sanctioned strength. Hence it is difficult to accept that it was actually a case of "acute shortage of Nursing Staff" working in the hospital.
We appreciate the contention of the petitioner that in view of the provisions of r.7 of the Central Civil Services (Leave) Rules, 1972 the respondent could not claim study leave as a matter of right, and that the authority rejecting her prayers possessed the requisite power to reject them. It is also true that the respondent was not entitled to study leave only for her career advancement.
The facts revealed by the materials on the basis whereof the Tribunal passed the order clearly lead to the conclusion that the authority rejected the respondent's three prayers mechanically citing a fanciful "acute shortage of Nursing Staff" in the hospital. The materials produced by the petitioner himself revealed that it was actually not a case of "acute shortage of Nursing Staff."
In view of the facts and circumstances stated hereinbefore, we are of the opinion that there is no reason to interfere with the order of the Tribunal. We do not think the order requires an interference, simply because it set aside the memo dated July 19, 2014, without specifying the extent. The implication of the order is that the Tribunal set aside the memo dated July 19, 2014 insofar as it related to the respondent's case.
For these reasons, we dismiss the WPCT. No costs. Certified xerox.
(Jayanta Kumar Biswas, J) (Tapash Mookherjee, J) sb