Calcutta High Court (Appellete Side)
Swastika Mandal vs The State Of West Bengal & Ors on 8 December, 2011
Author: Tapen Sen
Bench: Tapen Sen
08/12/2011
ARDR
WP 16418 (W) of 2011
+
CAN 10409 of 2011
Swastika Mandal
Vs.
The State of West Bengal & Ors.
Mr. Anami Sikdar,
Mr. Rajat Dutta, ...for the Petitioner.
Mr. R.N. Majumder,
Mr. Sandip Ghosh,
Mr. Saikat Basu,
Mr. Sudarshan Roy,
Mrs. Baishali Roy,
Mr. Sourav Chakraborty,
Mr. Supratim Bhattacharjee,
...for the Applicant.
Mr. Gausul Alam, ....for the State.
On 23/11/2011, this Court, considering the submissions
of the learned Counsel for the State, passed an Order to the
effect that since there was a complaint against the Petitioner
that the Disability Certificate submitted by her was fake,
therefore, and in the interests of justice, the interim Order was
modified by directing the State Government to constitute a fresh
Medical Board under the West Bengal Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Rules, 1999. This Court also directed the Medical
Board to submit its Report in a sealed cover before this Court
and not to the Principal.
Mr. Gausul Alam, learned Counsel for the State produced
a sealed cover today. It was opened in Court and from the
contents, this Court notices that it is a letter written to the
Assistant Registrar (Court) by the Chairman, Medical Board and
Medical Superintendent-cum-Vice-Principal of the R.G.Kar
Medical College & Hospital, Kolkata. The said letter is dated
07/12/2011, issued under Memo. No. RGKH/6650.
Upon a perusal of the said letter, it appears that the
Petitioner, Swastika Mandal, was informed about the
constitution of the Medical Board on 03/12/2011. She gave a
declaration in writing that she would be present without fail on
05/12/2011 at 1 pm. before the Medical Board, but in spite
thereof, she did not appear before the Board. The said letter,
which was produced in a sealed cover along with other
attachments thereto, are directed to be retained with the records
of this case.
Mr. Anami Sikdar, learned Counsel appearing for the
Petitioner has submitted that under the Statutory Rules of
1999, the matter could have only gone to the Appellate Medical
Board as per the provisions of Rule 5 (2). He submits that since
the said Board was not constituted in terms of the said Rules,
the Petitioner did not appear before the Board.
Under the West Bengal Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Rules,
1999, the authorities, who are to give Disability Certificates, as
per sub-Rule (3), is the Superintendent of all Medical College
Hospitals, of all District Hospitals, of all Sub-Divisional
Hospitals and Block Medical Officers of Health or his equivalent
at the Block level. These Officers shall act as Chairpersons of
such Medical Boards, which shall include another member of
the Board as a specialised doctor, as may be required. In case of
non-availability of such a specialised doctor, the Chief Medical
Officer of the District concerned shall arrange to depute a
specialised doctor.
Let it be recorded that the Medical Board that was
constituted consisted of:
(i) Dr. Ajay Kumar Roy, Medical Superintendent-cum- Vice- Principal,
Chairman, Medical Board;
(ii) Dr. Chanchal Jana, Department of Medicine, R. G. Kar
Medical College & Hospital;
(iii) Dr. Himadri Biswas, Department of Physical Medicine, R. G.
Kar Medical College & Hospital, Kolkata;
(iv) Dr. Arindam Bandopadhyay, Department of Orthopedics, R. G.
Kar Medical College & Hospital, Kolkata;
(v) Dr. Rup Nayaran Bhattacharjee, Department of Plastic Surgery, R.
G. Kar Medical College & Hospital, Kolkata; and
(vi) Dr. Kalyanbrata Chatterjee, Department of Neuro Medicines,
R. G. Kar Medical College & Hospital, Kolkata.
This constitution of the Medical Board therefore, is
squarely within the provisions of Sub-rule (3) of the Rules of
1999, referred to above. Moreover, by reason of a judicial Order,
this Court had directed that a Medical Board be constituted
under the said Rules of 1999. This Court had never indicated
nor ordered that the Board should be an appellate Medical
Board, as has been vehemently submitted by Mr. Anami Sikdar.
The conduct of the Writ Petitioner in not appearing before
the Medical Board therefore amounts not only to disobeying the
Order of this Court but also compels it to draw an adverse
inference against her. It also amounts to a serious contempt.
Let it be recorded that on 25/7/2011 also, the
Superintendent of the S.D. Hospital, Ghatal had written to the
Chief Medical Officer informing him that another Medical Board
had already been constituted for verification of the Disability
Certificate of Swastika Mandal, but she did not appear before
that Board either.
In view of the aforementioned facts and circumstances,
this Court is not inclined to give any relief to the Petitioner for
her conduct because she has deliberately chosen not to appear
before the Medical Board. She has therefore lost her chance
because she did not take advantage of the Order passed on
23/11/2011 by which this Court had directed the constitution
of the Medical Board.
Let it be further recorded that from the Affidavit-in-
Opposition of the Respondent nos. 7 and 8 it is evident that the
Government of West Bengal had constituted a Medical Board on 14/9/2011 in which the members of the Board had unanimously opined that the Petitioner had no contracture in any of the lower limbs and did not have any permanent orthopaedic physical disability.
Under the circumstances, the Writ Petition stands dismissed.
The Petitioner is warned to be more careful in future in so far as Court Orders are concerned.
Re : CAN 10409 of 2011 Having heard the parties and having considered the submissions made and also considering the facts and circumstances, the application filed by Archisman Mondal is allowed and he is directed to be added as a party in this case.
If urgent certified copy of this Order, duly photocopied, is applied for by the parties, the same should be given expeditiously.
(Tapen Sen, J.)